[B]URLINGTON — Months before the City Council passed a resolution to explore criminal penalties for repeated civil violations, with the aim of curtailing unruly behavior downtown, police had already identified the new policy as a priority.
For many Queen City residents it may appear recent efforts to change how Burlington responds to so-called “quality of life” violations — open container, public intoxication or urination — coalesced over concerns raised by business owners and well-publicized violent incidents downtown.
However, records and interviews reveal that Burlington Police Chief Brandon del Pozo identified civil quality of life infractions as a major issue more than a year ago, and began formulating a policy response that mirrors what was adopted by the City Council.
At the time, a downtown nexus for homeless people, transients and those with ties to life in the streets was the sidewalk in front of Rite Aid on Cherry Street. Public drunkenness and catcalling were common, and addiction, poverty, trauma and mental instability were never far from the surface.
For del Pozo, who had been on the job for less than a year, bringing order to that area, a block from the Church Street Marketplace, became an issue of great import.
As he did to more fanfare on North Street, in response to drug activity there, the chief sought to address the situation on Cherry Street by increasing foot patrols.
The constant presence of an officer, over time, made the half-block a less popular place to congregate (though critics would point out the locus has shifted to Buell Street and adjacent church properties — close enough to unsettle some shoppers but far enough not to raise the same concerns for downtown businesses).
Del Pozo said it was during that time, in the summer of 2016, that his officers began reporting their frustrations that civil tickets written for open container and similar violations were being ignored. In some cases, del Pozo said, recipients would throw the tickets away or light them on fire in front of officers.
That’s when the chief reached out to the Vermont Judicial Bureau asking for more information about the individuals to whom his officers were writing the most tickets.
“When I saw it, I said, ‘This is a problem,’” del Pozo recalled. “You can’t stick a cop in every location, so we needed something that would work even in our absence.”
Del Pozo took the ticket data and had his team do some additional research. The result was a PowerPoint presentation with slides for 15 individuals who had amassed a combined more than $120,000 in unpaid civil tickets. VTDigger obtained the PowerPoint as part of a public records request. The slides include the individuals mugshots and their criminal histories — some of which are extensive, while others are not.
The chief said he felt he had created a document that powerfully illustrated the problem he hoped to address, but he chose not to release it publicly, or even circulate it widely, because he didn’t want it to appear he was creating a Burlington “rogues’ gallery” that might elicit backlash.
“For a year we just ruminated over it,” he said.
The chief began working quietly within his department to formulate a policy response. What they came up with was adding a new criminal penalty to Burlington’s system of civil ticketing for people who amass a certain number of unpaid violations.
Then in June, Mark MacKillop, owner of Muddy Waters Cafe, spoke out during a City Council meeting airing his frustration with aggressive panhandling and lewd behavior near his Main Street business.
A month later, on Aug. 8, a homeless man who police say was part of a group drinking alcohol in City Hall Park, pulled a knife during an argument and allegedly slashed another man’s throat.
In interviews following that incident, del Pozo raised his plans for a criminal penalty for repeated civil violations, alluding to the chronic offenders in his PowerPoint, and touting it as a way to curb the drunken and unruly behavior downtown that’s impacting businesses, and in some cases, leading to violence.
Less than two weeks later, Michael Reynolds — one of the people featured in the PowerPoint, whose history of civil violations del Pozo had already detailed to reporters — walked into the East West Cafe on North Winooski Avenue and allegedly punched the owner after asserting that he owned the restaurant.
Three days after the incident occurred, on Aug. 23, police issued a news release with a subject line that blared: “DRUNKEN MAN ASSAULTS BUSINESS OWNER.” The release detailed Reynolds’ history with police, including 894 interactions with police since 2011, 117 arrests and 31 convictions — not to mention 50 civil tickets with more than $10,000 in unpaid fines.
Coverage of the news release painted a picture of an unrepentant scofflaw who wasn’t being held to account. Reynolds quickly became a talking point for officials who supported the chief’s proposal.
City Councilor Kurt Wright, R-Ward 4, introduced a resolution directing the Ordinance Committee to “draft an ordinance that creates a criminal penalty for repeat offenders of these types of violations in our downtown,” at the council’s Aug. 28 meeting. “These types of violations” is loosely defined in the ordinance as “public drunkenness, fighting, and public urination” — though fighting is already a crime that can be charged as disorderly conduct or even assault.
Wright said the chief didn’t come to him asking that he introduce a resolution, but he became aware of the idea for a new criminal penalty from interviews del Pozo gave following the Aug. 8 stabbing. Wright did seek the chief’s feedback on its language, he said.
“I do believe there needs to be consequences for just thumbing your nose at the police on these quality of life offenses,” Wright said in a recent interview.
It wasn’t until Seven Days reported that Reynolds had a history of serious mental illness, and that family members had unsuccessfully sought to have him committed to a mental hospital, that a counter- narrative emerged.
Critics of the chief’s policy started questioning whether creating a new crime targeted at people exhibiting similar behavior to Reynolds’ would help when dozens of arrests and convictions had already proven an unsuccessful deterrent.
900 police contacts with a vulnerable citizen and yet officers are unable to get him the help he needs? Sounds like a system problem!
— Tom Dalton (@_tomdalton) August 25, 2017
Councilors Max Tracy, P-Ward 2, and Ali Dieng, D/P-Ward 7, the only two councilors to oppose Wright’s resolution, said they viewed it as an attempt to criminalize homelessness and mental illness.
Among the other critics of the chief’s proposal is Tom Dalton, executive director of Vermonters for Criminal Justice Reform, who previously spent more than a decade managing Vermont’s largest needle exchange program.
Dalton said agrees with Tracy and Dieng, and he’s been disappointed by what he calls the “sloppy language” other public officials have used to characterize the people targeted by Wright’s proposal. Councilor Dave Hartnett, R/D-North District, described them as “a small group of bullies we’ve allowed to fester over a number of years,” during debate on the resolution.
After reviewing the chief’s PowerPoint presentation, Dalton said he would guess most of the 15 individuals it highlights have mental illness, addiction, a history of trauma or some combination thereof.
“We don’t usually create crimes that directly target a small number of people, especially when they’re some of the most visibly struggling and vulnerable people in our community,” he said.
For that group, being arrested and incarcerated often means losing their meager possessions, and it disrupts any connections they have with the social service providers, Dalton said, leaving them in much worse shape upon release — and no less likely to return downtown.
Both Wright and del Pozo say that Dalton and other critics of the proposed ordinance assign too little agency and rational decision making ability to the small cadre of people who are regularly intoxicated and causing problems downtown.
“We’ve got to start from a position that people can make decisions, and then if that proves not to be the case, we’ll adjust our response,” del Pozo said, “Right now it’s a perfectly rational thing to do to throw these tickets in the garbage.”
They point to individuals who have said in media reports in the Burlington Free Press and elsewhere that they know treatment and other services are available, but they aren’t interested. In addition, there are other people who have housing, but choose to drink on the streets downtown for the social aspect.
Del Pozo and Wright said they believe that the ordinance won’t lead to arrest or prison terms for people whose behavior is driven primarily by mental illness or addiction, because police will use discretion in deciding whom to arrest pursuant to the new crime.
“I think we have an excellent police department that will use this judiciously,” Wright said.
Burlington police are familiar with this group, and their decisions about whom to arrest will be further informed by their ongoing close collaboration with the Howard Center Street Outreach, a team of social workers that assists police when officers respond to mental health crises, del Pozo said.
The primary purpose of the new criminal penalty would be to give police officers a mechanism to remove intoxicated or unruly downtown regulars who are causing an unacceptable disruption, according to del Pozo and Wright. A secondary purpose would be putting them in front of a judge, they said, as a way to ensure people take civil tickets seriously.
In an exchange on Vermont Public Radio with Jay Diaz, a staff attorney with the American Civil Liberties Union of Vermont, del Pozo said police shouldn’t have wait for disruptive behavior to turn violent before they’re able to make an arrest.
Diaz equated that view to “broken windows” policing, the controversial theory of criminology that strictly enforcing low-level offenses, such as fare-hopping on public transit or vandalism, helps deter more serious crime.
In a later interview, del Pozo bristled at the comparison. “I’m making a much more modest claim (than the broken windows theory) that getting drunk leads to drunken behavior,” the chief said.
Diaz is among del Pozo’s critics who are adamant that the criminal justice system isn’t equipped to change people’s behavior, and such an ordinance is unlikely to be an effective. “The mindset that the criminal justice system is going to fix all our social problems has led to this country’s addiction to incarceration,” Diaz said on VPR.
Del Pozo said, however, that he doesn’t think this ordinance will lead to more incarceration. “There’s no appetite among Vermont judges for incarcerating people for low level offenses,” he said. Instead, judges are more likely to find ways through existing diversion programs to guide them toward help, according to the chief.
Dalton, with Vermonters for Criminal Justice Reform, said that even being jailed for a short time pending arraignment can exacerbate the problems the targeted population faces. Relying on the discernment of police and judges as to who will respond to arrest and incarceration, and who needs treatment and better connection to social services, makes him uneasy, he added.
In contrast to the chief’s latest initiative, Dalton said he’s been deeply impressed with del Pozo’s leadership in addressing the opioid crisis.
He would prefer to see the chief apply the same rigor that has defined his approach to that crisis in addressing quality of life issues downtown. The chief leads a group known as SubStat that convenes stakeholders in biweekly meetings to address cases involving the most pressing instances of addiction in the region.
Dalton suggested the same collaborative triage approach be taken to address the legitimate public safety and decency concerns that arise from the behavior by the people in Del Pozo’s PowerPoint and others.
There was a second resolution passed at the Aug. 28 City Council meeting when Wright’s was adopted. Offered by Councilor Adam Roof, I-Ward 8, it directs the Public Safety Committee to convene a group to look for new ways to reduce public safety issues by better supporting the city’s homeless people.
Dalton suggested that group could adopt the SubStat model to help address the unmet needs of the top-ticketed individuals the chief has identified.
Wright voted for Roof’s resolution, and both he and the chief said they believe the two initiatives are complementary and should proceed in tandem. “I’m under no illusion that (the new criminal ordinance) is the be-all end-all solution to these problems, but I do think it can help in some instances,” Wright said.
If the city does choose to move forward with a new criminal ordinance, Dalton said he hopes it will include a review period and sunset provision, so it can be repealed if study shows it’s not had the intended effect.
“I predict that many of the people they’re hoping to get off the street will be still wind up right back downtown,” Dalton said.
