[T]he ACLU of Vermont has settled a lawsuit with the City of Burlington over a “no trespass” ordinance that temporarily banned people from City Hall Park who had committed prior offenses there.
The agreement ensures that the city will work with the ACLU to draft a new ordinance governing no-trespass orders, and includes policy changes that will guarantee the right to exercise “constitutionally protected activities” on city properties. The settlement also includes a $13,500 payment.
The case was sparked by Jason Ploof, who was barred from City Hall Park for 90 days in July of 2015 for allegedly possessing an open container in the park on two previous occasions. Ploof did not have an opportunity to challenge the no-trespass order, the ACLU noted. He was subsequently arrested for being “near the fountain” in the park before his 90 days had expired.
“I grew up using the city’s park as a central gathering place to engage with my community,” Ploof said in a statement. “Being banned for an entire summer meant the loss of a core part of my identity, and made me feel like an outcast in my hometown.”
Jay Diaz, a lawyer with the ACLU, said Ploof is far from one of a kind. He said they see this kind of case regularly in Burlington, particularly in City Hall Park and on Church Street.
“For the most part, the people affected are people who are down on their luck,” Diaz said. “They have nowhere else to go.”
Diaz said that although every person has a right to public spaces, like most rights, that freedom can be curtailed — when someone breaks the law, for example. What went wrong in Ploof’s case, Diaz explained, is that he didn’t have the opportunity to challenge the order. His only choice would have been to wage a battle in court, which Diaz said is “not a good option.”
“During the ban, he was not able to go to the A-Dog celebration he goes to annually, to take part in the farmers market, in music events. These are all expressive acts protected under the First Amendment,” Diaz said. “There wasn’t any opportunity to carve out an exception to go to a protest, not even an ability to ask permission for any kind of variance on the order.”
A motion from the city to dismiss the case on procedural grounds was denied by the Chittenden Superior Court in March. The parties settled the case late last month.
City Attorney Eileen Blackwood said the city “feels good” about the settlement.
“This was a case in which the city has been looking at its no-trespassing authority and ordinances as the law around the country has been evolving,” Blackwood. “We had to put some of that on hold while this lawsuit was going on, but we’re glad to get to a place where we can resolve the lawsuit and start making changes to our ordinances.”
The Burlington City Council has an ordinances committee which will hold public hearings and discussions about the ordinance before drafting the new law.
But thanks to the settlement, Diaz said, the city agreed to stop arresting people for violating no-trespass orders in “almost all circumstances.” Ploof and his attorney also got $13,500 compensation in the settlement.
“He spent the night in jail for this,” Diaz said. “This was not a small thing for him.”
The case is the third ACLU lawsuit filed against the city in just over three years relating to its treatment of low-income residents, Diaz said. The first, Montagno v. City of Burlington challenged the city’s role in evicting tenants who called for police assistance “too frequently.” The case was settled in early 2018, resulting in policy changes and compensation paid.
And a third case, Croteau v. City of Burlington, is challenging Burlington’s policy of confiscating and destroying the property of homeless residents, which the ACLU says is happening without due process and in violation of their right to be free from unreasonable search and seizure.
“We’re very grateful to the city for their willingness to collaborate to prevent constitutional rights violations in the future and prevent liability for those violations,” Diaz said.