The Burien City Council has revised a controversial law that allows police to ban people from public property for criminal activities and non-criminal behavior that is “unreasonably disruptive to other users.” But the revision wasn’t enough for the American Civil Liberties of Washington (ACLU), which has opposed the law as “unnecessary and unconstitutional.”
The law was initially adopted in August 2014 and was a response to a slate of complaints from residents and business owners who said they were fearful to enter the town’s parks and a building that houses Burien City Hall and a branch of the King County Library System.
Proponents say the law gives police officers a tool that is not as harsh as arrest to deal with behavior on public property. Previously, police officers did not have authority to remove someone from public property.
Opponents of the law said it criminalizes homelessness and would harm the city’s unsheltered population. Critics also said it was ironic that people could be barred from property that is owned by the public.
“The homeless are part of the public,” said one Burien resident who goes by the name Goodspaceguy. “In my view, public property is owned by everyone, including the homeless. … I don’t see how they can be trespassed on that which they own.”
After three hours of debate at a Dec. 5 meeting, the seven-member council approved a number of changes to the ordinance, including removing a controversial section that allowed police officers to ban people from public property for wearing insufficient clothing or having poor hygiene that is “unreasonably offensive to others.” Opponents were not satisfied, and they said the law still leaves room for police officers to trespass people simply for not having a roof over their heads. Police have already trespassed two people for sleeping in a park at night.
Most councilmembers said the law was about behavior alone and has nothing to do with homelessness.
“This is not about homelessness,” Councilmember Steve Armstrong said. “This is about all of us respecting our property.”
Yet as city councilmembers and Burien residents left the meeting around 1
1 p.m., it was clear that any law governing public property in Burien would affect those without a home. Four young men smoked cigarettes and sat in the urban park surrounding City Hall and the library. One drew sketches on his arm with a blue ball-point pen. Some identified themselves as homeless.
They had heard about the law, but were unsure how it would be implemented. Standing in the park, David D’Andre pointed around and asked what the rules were, and how would he know if he was violating any of them. There was one sign that prohibited skateboarding and another regulating the water-spray park, but nothing indicated hours or listed legal behavior.
“There’s no rules inside, no rules saying ‘do not loiter outside of the library,’ ” D’Andre said, adding that the city does not have anywhere else for people to go at night.
The Burien City Council passed the first version of the law last summer in a 6-to-1 vote. It allows police to trespass people for a variety of behaviors, including selling or using alcohol or drugs, threatening or harassing behavior, hostile or aggressive language or gestures, boisterous behavior or using public facilities to bathe, shave or wash clothing.
For the first offense, police can bar someone from a public place such as a park or city hall for up to seven days. For the second offense, police can trespass someone for seven to 90 days. For the third, police can trespass someone for seven days to one year. The citations can be appealed.
If anyone returns to an area from which he or she’s been trespassed, that person could be arrested and charged with a misdemeanor with a maximum penalty of $1,000 and 90 days in jail or a gross misdemeanor with a maximum penalty of $5,000 and 12 months in jail. City Manager Kamuron Gurol said criminal charges would be limited to severe cases.
The revised version of the ordinance removes language that allowed police to bar people for poor hygiene or wearing insufficient clothing. The council also removed language that permitted police to trespass people for “unsafe” behavior, noting that one person’s interpretation of unsafe could be wildly different from another’s.
The law lists some behaviors that could result in a trespass — such as aggressive language or gestures, loud vocal expression or unreasonably boisterous physical behavior — but it also directs the city manager to create rules and regulations for conduct on city-owned property that is dangerous or unreasonably disruptive. The rules have not been set yet.
At the Jan. 5 meeting, residents and councilmembers said that without knowing those rules, it’s difficult to know what the impact will be on homeless people. Even though the city removed the language about odor and hygiene, they could appear again elsewhere.
“I think it’s ultimately lipstick on a pig,” said Su Docekal, a Burien resident.
Gurol said the council’s intent was clear in removing the language about hygiene and that he does not see any need to include rules about hygiene or odor.
“I’ll be thoughtful about the kind of rules that are going to apply, and they’ll be tailored to the context of the setting,” Gurol said.
Deputy Mayor Nancy Tosta and councilmembers Gerald Robison and Lauren Berkowitz made several attempts at the meeting to restrict the law, such as proposing amendments that would have limited officers to only writing trespass citations for criminal behavior. The group also attempted to repeal the ordinance in its entirety. The efforts failed.
From August till December, Burien Police Department officers had issued 19 trespass citations to people on public property.
Police trespassed people for assault, having open containers of alcohol, being inside a closed parking garage and blocking a staircase. Two people were also trespassed for sleeping in a park and another two were trespassed for being in a park after hours.
Several councilmembers were disappointed that the ordinance has received such negative attention. Gurol noted that the law is rarely used. In a given year, the Burien Police Department responds to approximately 17,000 calls, compared to some 20 trespass citations the police have issued so far.
Most of the time, police will not even trespass people, and the law allows a lesser enforcement that avoids arrest. Gurol and several councilmembers viewed the ordinance as a more compassionate response to arrest.
“Nine times out of 10 — it may be 99 times out of 100 for all I know — these rules get enforced by simply asking somebody,” Gurol said. “We don’t go out and arrest people and trespass people as a first step. It’s only when we can’t get that kind of compliance through lesser means.”
The ACLU says the ordinance remains vague and unconstitutional. In several instances, the law does not define clearly what is unreasonable behavior.
The language is too fuzzy for people to understand.
“The City currently has the ability to curb disruptive behavior under existing laws,” ACLU Deputy Director Jennifer Shaw wrote in a letter to the Burien City Council. “It does not need this unconstitutional ordinance that will significantly limit rights of Buren’s residents to use and enjoy their public spaces.”
PHOTO GALLERY: Click on item for photo. Photos by Joshua Kelety
Burien’s trespass ordinance was created to address behavior at town parks, as well as Burien’s City Hall and nearby Town Square Park, where Denise Alden stopped to sit and have a snack on a recent Wednesday morning.
City Manager Kamuron Gurol, said the law is in response to real safety concerns on city-owned property.
Shane Whitney said he felt particularly unsafe in Dottie Harper Park.
Jose Martinez-Arciniega said he’s been homeless for 10 years and occasionally spends time at Town Square Park. At night he goes “anywhere I can stay and be covered.” He said he has no concerns about how police have treated him and has seen no difference since the Burien City Council passed its trespass ordinance. “They’re doing their best,” he said of the police.
Map showing Burien. Illustration by Jon Williams, Real Change