BRATTLEBORO — Town officials took umbrage at the American Civil Liberties Union's characterization of the local response to panhandling.
"It is beyond disappointing that the ACLU's news release today stated that 'some [municipalities], like Brattleboro, have recently increased enforcement, creating additional hardship for impoverished Vermonters' and that your letter describes [the Brattleboro Police Department's] conduct in a manner that is not only untrue, but actually is exactly the opposite of the approach that BPD and the entire town government have taken to addressing this unfortunate situation," Town Manager Peter Elwell wrote Tuesday to Jay Diaz, staff attorney at ACLU.
In a letter sent out earlier this week, the ACLU of Vermont and the National Law Center on Homelessness and Poverty asked Brattleboro, Barre City, Bennington, Montpelier, Rutland Town and Winooski to repeal ordinances against panhandling.
Since the Supreme Court's decision in Reed versus Town of Gilbert in 2015, every case brought against municipalities had found panhandling ordinances to be unconstitutional, according to the news release. There have been more than 25 such cases that resulted in striking down the bans and an additional 31 municipalities or more have repealed their ordinances, the news release says.
Diaz told Elwell that more than 240 cities and towns around the country were being asked to repeal "outdated, unnecessary and unconstitutional anti-panhandling ordinances."
"We hope Brattleboro will agree to repeal its ordinance and seek more proactive and positive measures to address the needs of those in poverty and without homes," wrote Diaz.
Under "Offenses and Miscellaneous Provisions" in the town's code of ordinances, begging is prohibited in Brattleboro.
"No person shall beg in or upon a street or other public place within the town," the ordinance says. "A person who violates this section shall be removed immediately by an officer, sheriff, deputy sheriff, or state police."
Elwell told Diaz the town would review his letter and consider repealing the ordinance.
"We agree that the language is archaic and unenforceable," Elwell wrote. "Brattleboro's Selectboard and town staff have made that clear to the community we serve. Some in our community have been encouraging more 'enforcement' to discourage panhandling, notwithstanding our unenforceable ordinance. Instead, Brattleboro's town government has engaged in the more compassionate approach of developing ways to provide help to the individuals in need through a variety of collaborative efforts with individuals and groups who provide human services and work for social justice in and around Brattleboro. Brattleboro's Police Department has been at the forefront of these efforts and BPD's leadership has repeatedly stated publicly that 'asking for money is not a crime.'"
Elwell asked Diaz to "please correct the record in your future public statements."
Select Board Chairwoman Kate O'Connor also called the ordinance "archaic" and said it will be addressed. But, she said she was very irritated by the letter.
Local officials have said during public meetings that panhandling is not illegal. In October, the Select Board was approached by residents about displaying a flyer in public locations saying it was "legal for people to carry signs or ask for money in public places" but "aggressive behavior can cause these activities to become illegal."
"No one is allowed to follow, touch, or threaten another person," a proposed draft of the flyer read. "If you feel threatened, you can call the police at 802-257-7950 or dial 9-1-1 in an emergency. If you need food, shelter or other assistance, you can call 2-1-1 for referral to local service agencies."
The board ultimately joined the Brattleboro Area Chamber of Commerce and Groundworks Collaborative in not supporting the flyer. And a local task force has been assembled with police officers and social workers to help those dealing with addiction issues. Officers are said to be directing panhandlers to services such as local food shelves.
In response to Elwell's email, Diaz said the ACLU letter and press release were not intended "to impugn the positive work that Brattleboro has been doing over the past year. And, I will certainly make that clear in any other press statements. We applaud those efforts."
"However, with all due respect," he wrote to Elwell, "public records we received from BPD in April tell a different story than you suggest."
Brattleboro provided more than 450 pages of documents when the ACLU of Vermont sought public records from 10 law enforcement agencies, said Diaz. His group asked to see any documents related to polices and practices regarding panhandling, solicitation, begging and loitering, including any police reports from January 2017 to April 2018.
"The records show BPD officers, albeit in 2015, 2016, and 2017, directing subordinates or discussing when to arrest someone for panhandling under the disorderly conduct statute, with some examples that certainly do not constitute disorderly conduct or any other crime," he wrote. "The analysis and examples show a discriminatory content-based approach against panhandling speech and speakers. In addition, the police reports show officers regularly, throughout 2017 and into 2018, investigating panhandling without any reference to actual illegal conduct, and telling individuals to stop panhandling and leave the area (known as 'move alongs'), unlawfully chilling protected speech. And, before the Select Board decided not to support a flyer regarding panhandling, BPD appeared ready to sign on to statements regarding the criminalization of panhandling in certain places. As discussed in our letter, such restrictions are unconstitutional."
Diaz said the number of officer reports from Brattleboro related to panhandling "dwarfed the number" received from other agencies.
"With the statements, directives, and practices evidenced in these records and in other public statements, it seems clear that the town's stated intentions are not fully trickling down to officers on the street, or perhaps the legal analysis is not being relayed accurately," he wrote. "This has led to more evidenced enforcement than we saw in any other municipality we reviewed."
Diaz said a repeal of the ordinance would send a clear message regarding the town's priorities to those involved in enforcing the town's laws.
Brattleboro Police Chief Mike Fitzgerald and Capt. Mark Carignan did not immediately respond to a request for comments.
Reach staff writer Chris Mays at email@example.com, at @CMaysBR on Twitter and 802-254-2311, ext. 273.