Ordinance No. 606, the trespass ordinance adopted by the Burien City Council on August 18, once again came under fire when the American Civil Liberties Union of Washington (ACLU-WA) sent a letter to the City urging the repeal of 606 calling it "counterproductive as a matter of policy and unconstitutional.” Burien City Manager Kamuron Gurol was quick to respond to the ACLU-WA in a written statement replying that City has an obligation to "protect the public’s safety and health, and to ensure that one person’s use doesn’t prevent another from using a public space."

The entirety of both letters are published below. More information about Ordinance No. 606 can be found by visiting the City of Burien’s website at www.burienwa.gov or by contacting the City of Burien directly by calling (206) 241-4647.

The following is a letter by the City of Burien in response to the ACLU-WA letter dated October 6, 2014

The City of Burien believes everyone should be able to access public facilities. As stewards of these spaces, we have an obligation to protect the public’s safety and health, and to ensure that one person’s use doesn’t prevent another from using a public space.

Burien recently adopted a Trespass Ordinance that provides police officers and local government staff with a tool for dealing with persons whose behavior is unreasonably disruptive to other users of publicly owned property. During its deliberations, the City Council discussed the importance of protecting all residents’ rights to access public spaces.
A recent letter from the American Civil Liberties Union (ACLU) raised some issues regarding our Trespass Ordinance. We are currently reviewing the letter and plan to meet with them to discuss ways we can achieve our legitimate interest in maintaining safe and accessible public parks, facilities and offices.

We believe Burien’s policies are consistent with constitutional rights and protections. The Ordinance explicitly recognizes that members of the public have legitimate interests and rights regarding the use and enjoyment of City and other publicly owned property. The guaranteed right of appeal is an essential feature of the Ordinance.
We recognize that many problematic behaviors in our public spaces have roots in issues such as addiction and mental health problems. Over the past five years, the City has, through a 1% set aside, provided nearly $1 million from its General Fund to help fund human services and referral options. Our police training also includes techniques to de-escalate situations involving people experiencing a mental health crisis.

The City is committed to striking the right balance that provides for safe and accessible public spaces that are enjoyed by all while protecting civil liberties.

The following is a letter from ACLU-WA to the City of Burien dated on October 6, 2014

Dear Mayor Krakowiak and Members of the Burien City Council,

The American Civil Liberties Union of Washington (ACLU-WA) writes to urge the city council to repeal Chapter 9.125 of the Burien Municipal Code, “Trespass Warnings on City and Other Publicly Owned Property.” The ACLU-WA and its more than 20,000 members are dedicated to preserving civil rights and civil liberties throughout Washington State. We believe this Chapter, recently adopted as Ordinance No. 606, is both counterproductive as a matter of policy and unconstitutional, and we urge you to repeal it.

The city has a legitimate interest in maintaining safe and accessible public parks, libraries, and offices. But current assault, harassment and disorderly conduct laws already empower police officers to cite or arrest those whose conduct poses a genuine risk of harm to others. This ordinance goes much further, designating a broad, vaguely-defined set of behaviors (“loud vocal expression” or “boisterous physical behavior,” “aggressive language or gestures”) and personal attributes (“insufficient clothing,” “bodily odor or scent”) as grounds for exclusion from all publicly owned property in the city. While we realize that some of the ordinance language comes from the King County Library Code, it is neither appropriate policy nor legal to apply rules for behavior in the particular environment of the library to all public property in the city.

Such banishment laws rarely solve the problem—instead, they move it elsewhere and fail to address the underlying issues of poverty, homelessness, and mental illness.

Homeless individuals who are slapped with criminal penalties under this ordinance will face additional barriers to finding employment and housing, while the city bears the costs of their arrest, prosecution, incarceration, and public defense. Instead of this heavy-handed and ineffective approach to the problem, the council should take steps to connect people with urgently needed services such as shelter, temporary housing, counseling for substance abuse and mental illness, and access to facilities for basic hygiene.

Chapter 9.125.015(4) is also unconstitutionally vague and overbroad. Courts in our state have repeatedly struck down laws that do not provide reasonable notice of what conduct is prohibited or that prescribe such nebulous standards as to invite arbitrary or discriminatory enforcement. Terms such as “unreasonably hostile or aggressive language or gestures,” “unreasonably boisterous physical behavior,” “unreasonably offensive bodily hygiene or scent,” and “unreasonably inconsistent with normal use of public property” are inherently subjective. Officers and city employees are given broad discretion to enforce the law, causing potentially arbitrary distinctions between park-goers playing a “boisterous” touch football game, a parent needing to wash up a small child, or a library patron with an unpleasant odor due to a medical condition.

Enforcement might well disproportionately target the homeless, groups of young people, or others deemed “disruptive” in public spaces. The ability to speak, associate, and travel freely are liberty interests protected by the Constitution and enjoy special protection in “traditional public forums” like public parks and sidewalks. But this ordinance blurs the line between poor manners (cursing, expressing strong emotions, talking loudly on a mobile phone) and truly dangerous or criminal behavior. Courts have taken a dim view of novel civility standards such as the ones in this ordinance, for which there is neither a known legal standard nor a specific definition.

The ordinance’s assertion that “constitutionally protected action or speech” falls outside its scope does not resolve its constitutional problems. Indeed, it exacerbates the vagueness of the law, as ordinary people will be unable to discern which conduct crosses the line and which does not. Under this ordinance, the subjective perceptions of individual police officers – rather than the conduct of alleged offenders – determine when people can be excluded from public places they otherwise have a right to be in.

The people of Burien would be better served if the city used existing civil and criminal laws, when necessary, to address dangerous, disruptive, or other criminal conduct. Rather than maintaining a vague, overbroad trespass statute that invites arbitrary enforcement, neglects the underlying problem, wastes scarce public safety dollars, and is vulnerable to constitutional challenge, the city should support proven strategies to help people find a way out of homelessness. We ask you to repeal the ordinance.

Sincerely,

Jennifer Shaw
Deputy Director