Majority of Burien Council rejects idea that ‘trespass’ law aimed at homeless

Story by Jack Mayne Photos by Scott Schaefer After four hours of haggling over the wording, the Burien City Council on Monday night (Jan. 5) approved updating a city ordinance that permits police to ban persons for short periods from a city facility for behavior that interferes with others using the public space. The law – first called Ordinance 606 – has been under fire since its August passage, even drawing multiple objections from the state American Civil Liberties Union and charges that it was aimed at homeless people and those in poverty. So far the Burien Police have issued trespasses to 19 people, but these are not charges of a crime, merely that they cannot use that public space for a period of several days. If the person returns before expiration of the “trespass” they can be charged with a violation of city ordinance and taken to city court. [caption id="attachment_81168" align="aligncenter" width="490"] Page 1 of a draft of Ordinance 621, a revision of Burien’s controversial “Body Odor” trespass ordinance.[/caption] Why the ordinance? Interim City Attorney Chris Bacha said Ordinance 606, the so-called “trespass ordinance,” was approved last Aug. 18 because some people were engaging in “behavior that interfered with the use of public property by other persons. In many instances, these individuals were repeatedly returning to the same location and engaging in the same or similar behavior.” Bacha said police “lacked authority to order these individuals to leave the property and not return, even if an arrest was made” so they wanted a way besides arresting them to “remove persons engaged in disruptive behavior.” In a Power Point presentation, Bacha said “the (already passed 606) ordinance defines the behavior that may lead to issuance of a trespass warning,” and “empowers law enforcement officers to issue a trespass warning when there is probable cause to believe such behavior has occurred … Due process protections are included such as the trespass warning notice itself and provisions for an administrative appeal to a hearing examiner.” There is no criminal case at this point and would not be unless a charge was made that alleged the person violated municipal ordinances or state laws. But some changes to the ordinance were made in a proposed additional ordinance, Ordinance 621, Bacha said. “Concerns have been raised” that the term “unreasonably disruptive” will not understand what behavior could subject them to being banned and “vague and over broad” because it could be “applied in a way that infringes on expressive activity.” Some things, such as smelling bad or having unapproved food items, were eliminated. No unlimited discretion Bacha said police would not have “unlimited discretion to issue a trespass notice just because they don’t like what a person is doing or because they are homeless or because they are sleeping in a doorway.” There must be a statute or ordinance in place that restricts the behavior, he said. A change in the original ordinance was proposed so that unreasonable activity must be put into context, he said. For example, playing loud music in a public park is “very different” from playing loud music in a library. [caption id="attachment_81166" align="alignright" width="250"] Councilmember Lauren Berkowitz[/caption] ‘Massive liability’ Councilmember Lauren Berkowitz reminded the Council and city staff that the city had received three letters of criticism of the ordinance from the Washington chapter of the American Civil Liberties Union. “We don’t really want to be opening the city to massive liability issues,” she said. The proposed changes to the ordinance “make it look a little better … but it does not actually change the content of the ordinance,” Berkowitz said, nothing that some of the problems are still contained in the King County Library system rules. The Library and the city jointly operate portions of the City Hall building and it enforces its own rules in its spaces and the city has its rules for its spaces, in and outside the City Hall. Berkowitz defended her earlier comments that the law criminalized homelessness, noting several people said that was never the intent of the ordinance. “Intentions are not what’s relevant here,” she said. “We have evidence from the city manager as to what is actually happening. We have common sense telling us that now people can be trespassed for smelling bad, for consuming food or beverages that are prohibited in the food and beverage guideline of the library. “The Council’s intentions were not bad, I appreciate that the staff’s intentions are not bad, but I submit that neither if relevant to the facts at hand. This is being used as a tool to criminalize homelessness and we need to repeal the ordinance in its entirety today.” Councilmember Gerald Robison said he was unhappy at the fact the ordinance was not being considered as a new tool for police to deal with bad behavior, but that the matter “became characterized as a war on the homeless. I deplore that.” Robison said it was a “much gentler process” to trespass people away from a venue for a week or a month than to arrest people, prosecuting them and putting them into jail. Councilmember Steve Armstrong said the measure is “not about homelessness, it is about all of us respecting our property, and treating in and each other fairly.” He added that there had been no arrests, but 19 trespass notices issued – “this is a very useful tool for our police.” Berkowitz responded, saying it was “disingenuous to say it is not about the homeless” because four of the 19 trespass notices were for sleeping in the park or being in the park after closure. The city manager said he was not sure whether the people trespassed in the park were homeless, maybe or maybe not. About homelessness – or not? She later said the Council accepted a request that city staff and police keep facts and figures on the people issued trespass notices, so it can be determined whether homeless people are or are not being trespassed more than others, or that homelessness is being criminalized under the ordinance. Councilmember Bob Edgar said he supported the changes in the trespass ordinance as submitted by the city staff, noting also that the measure was not intended to be about homelessness. Robison moved and the Council voted 4 to 5 to remove behavior that is “unsafe” since it is in the eyes of the beholder as to what type of behavior is safe and what is unsafe. The Council voted 4 to 3 to not accept attempts to remove “unreasonably disruptive” behavior from the ordinance. The Council also defeated 5 to 2 a motion that all trespass violations had to be personally delivered to the offender because often that person had already left the area and the city often would not have a valid mailing address. [caption id="attachment_81162" align="alignleft" width="250"] Business owner Darla Green[/caption] ‘100 percent in favor’ Just one amongst the citizens speaking on the trespass ordinance was in favor of it. Business owner Darla Green said she was “100 percent in favor of Ordinance 606 (the “trespass” ordinance). “You guys, by supporting this ordinance are supporting your tax paying residents and business owners by keeping our city clean and crime-free,” Green said. “We did not build our Burien Town Center, maintain our public parks at our tax dollars expense to house the needs of able-bodied people that continue to use these beautiful places as their places to do drugs, prostitution, to sleep in alleyways at night. “We need to retain this ordinance so we can keep our streets free of crime as much as possible,” Green said, noting the ordinance provides for giving warnings to people, “not one strike and you are out … there comes a time when they have to help themselves.” Many citizens opposed Several persons said the ordinance should be repealed or modified as the Washington branch of the American Civil Liberties Union has told the city. Burien resident Don Franks urged repeal of the so-called “trespass” ordinance and proposed amendments. He said he has volunteered for organizations that deal with the homeless and “they are just like you and me.” The ordinance is “piling on people at the lowest point in their lives,” he said. Ann Slater said she only recently moved to Burien “and was utterly appalled by the passage of this ordinance.” She called it unconstitutional and “mean” and the ordinance “criminalizes people for being poor.” [caption id="attachment_81164" align="alignright" width="250"] Former Councilmember and Mayor Sally Nelson[/caption] Former Burien Mayor and Councilmember Sally Nelson, who retired from the Council in 2009 after serving the first 16 years of Burien’s existence as a city, said the “trespass” ordinance was not “the way to get to ‘safe.’” She said rules should be posted in City Hall and other public places informing people of the rules for “behavior that is appropriate or not appropriate.” Nelson also criticized the use of the word “unreasonable” in the ordinance as an “arbitrary word,” suggesting what is unreasonable to one person may not be for another. Goodspaceguy told the Council that Burien public property is owned by all citizens “including the homeless and it would be nice if Burien were a place where the homeless are treated better than other cities and communities throughout Washington state.” He advocated the city “establish showers for all…” Resident Mark Manning said the ordinance is “offensive to me” and is being used to “punish people who are disadvantaged.” He urged its repeal and that no replacement for it be considered. [caption id="attachment_81161" align="alignleft" width="250"] Dave Hutchinson, former Mayor of Lake Forest Park[/caption] Dave Hutchinson, the now-retired elected mayor of Lake Forest Park who now lives in the Town Square condominiums, told the Burien Council that the problems the “trespass” ordinance is designed to handle is “not defined clearly.” He said the cost of the “quasi-judicial process” are not clear and may need to be spelled out in a fiscal note. The homeless issue is a separate one, Hutchinson said, and is not to be considered as part of the ordinance. Holly Koelling, director of operations for the King County Library System, said the ordinance is not about the homeless, but about “the civil society and behavior.” She said the idea was to work with the city to define expectations for behavior and consequences for “behavior that makes it difficult for all to enjoy and participate …” Chestine Edgar said the ordinance is not about criminalization of homelessness, adding the city needs “some kind of trespass ordinance just as the surrounding cities and unincorporated parts of the county have.” She said there needs to be a count of the homeless in the city and to work with other local government so that homeless people are not driven into Burien from surrounding areas. Linda Plein said “we have a City Council member that renamed a city ordinance which is actually a trespass ordinance” as “criminalization of the homeless” but Mayor Krakowiak told her that she could not single out Councilmembers. Councilmember Lauren Berkowitz has made such a charge in a Facebook posting over the past weekend, and has also referred to the trespass ordinance in that manner many times at Council sessions. “There is no need for any of them to publically embarrass and humiliate … and be disrespectful of there people.” [caption id="attachment_81163" align="aligncenter" width="490"] Burien Councilmember Nancy Tosta, after she was elected Deputy Mayor.[/caption] New Deputy Mayor The Council elected a new Deputy Mayor – Councilmember Nancy Tosta – for a one-year term to replace Councilmember Bob Edgar. Mayor Lucy Krakowiak is serving the second year of a two-year term. The body also used its first meeting of the year to change its rules for public comment. Now people will be allowed 2 minutes to speak in either of the two times each meeting a citizen is allowed to address the Council and all desiring to address the group will be allowed to, regardless of the number of people involved. Mayor Krakowiak said a person may speak only once at the two comment periods, but may address the body at each of the two times.]]>