[B]URLINGTON — A federal judge has ordered the city of Burlington to halt the evacuation of a homeless camp in Burlington.
The Vermont ACLU requested a temporary restraining order to prevent the city from evicting residents of the camp on North Avenue this Monday.
Judge Geoffrey Crawford granted the temporary restraining order Friday. A hearing on the matter will be held on Oct. 25.
The civil liberties group has filed a tandem class action lawsuit Friday, asking the court to consider whether the city’s decision to displace homeless people who live in the camp violates the Constitution. The ACLU also questions the constitutionality of the Burlington Police Department’s seizure of property in the evacuation of a second camp in the South End.
Both motions were filed in federal district court in Burlington on Friday.
Three men who live in a wood area near North Avenue behind the former Burlington College are plaintiffs in the suit. Any homeless resident could join the suit, said Jay Diaz, an ACLU staff attorney, told reporters at an impromptu news conference outside U.S. District Court in Burlington.
“The fact remains that it’s getting colder. They’re sleeping outside, and they have nowhere to go in this city. That is wrong, and the Constitution prevents it, and we hope the judge will agree,” Diaz said.
Homeless shelters told the plaintiffs Thursday that no space was available.
The city will open a seasonal warming shelter in November, but Diaz said that shelter is typically oversubscribed as well and would not help his clients if evicted next week.
On Thursday police and city workers cleared a homeless encampment in the Burlington’s South End just off Sears Lane.
The Sears Lane camp was cleared ostensibly because of safety concerns, including one incident where police said someone reportedly pulled a gun.
Jared Carter, an attorney working with the ACLU on the North Avenue case, said their clients received a notice from the city saying the camp would be cleared on Monday, and anyone still present would be prosecuted for trespassing and any remaining property would be removed.
City Attorney Eileen Blackwood said she planned to file a response in opposition to the request for a temporary restraining order, and the city would fight the suit because it does not believe its policy around encampments on its property is unconstitutional.
The three plaintiffs are Brian Croteau, Larry Priest and Richard Pursell. Croteau is a native Vermonter and 30-year Burlington resident who has been homeless since August, 2016. Croteau was living in his car until February, when it was towed by the city. Unable to afford the fee to retrieve it, he began living in the woods.
All three plaintiffs have lived in the camp for several months, according to their attorneys.
The lawsuit follows an Oct. 6 letter Diaz and the ACLU sent to the mayor and the police chief saying their current policy for evicting homeless residents from camps on public land violates constitutional protections against cruel and unusual punishment and illegal seizures. Diaz said he’d received no response from the city to that letter.
People may not have a right to live on public land, but when they have nowhere else to go, courts have long held that prosecuting them for doing so is unconstitutional, Diaz said.
“One of the things they base their argument on is that homeless folks have nowhere to go, and we don’t think that’s true,” Blackwood said.
Blackwood said the city is not telling anyone they can’t camp on public property. When officials become aware of people camping on city land, they evaluate whether their presence raises any health or safety concerns.
“We’re not in a position where we’re saying no one can camp or shelter themselves anywhere in the city,” Blackwood said.
The problem in this instance is that the North Avenue camp is located in an environmentally sensitive area. The camp is within a designated urban wilderness area of “pine, oak, heath sandplain forest,” and is being rehabilitated, Blackwood said. The area serves as a corridor for grey and red fox, and there are also “highly sensitive sand bluffs” nearby that human activity might damage, she added.
Blackwood did not explain how those environmental concerns amount to health or safety issues from the city’s perspective.
“We haven’t received any information regarding the impact of our clients trying to survive on public land,” Diaz said.
Diaz said he didn’t believe the environmental concerns should block his request for a restraining order, saying that those concerns should be presented as evidence in the case.
In the Sears Lane case, Del Pozo said the city was prepared to rent a storage locker to hold people’s belongings while they made arrangement to claim them. That proved unnecessary as residents of the camp told police they could dispose of most of the property at the site.
Diaz said that’s a departure from the city’s past practice where, after determining that a camp poses a risk to public health or safety, they are cleared and any property left behind was confiscated and destroyed. That practice is unconstitutional, he said.
“The city’s policy and practice, as of the last couple days, seems to be shifting and confusing,” Diaz said.
“If (city officials) changed their practice so that they won’t seize property and discard it without any due process whatsoever, or without a warrant, that’s good, and they should have no problem with this restraining order, because it won’t have any harmful effect on them,” he added.
Blackwood said she did not believe the city’s policy toward items left behind at homeless camps following an eviction had changed — the city would continue to hold for a period of time so people can retrieve them, she said.
