Is the Church Street trespassing ordinance unconstitutional? - WCAX.COM Local Vermont News, Weather and Sports-

Is the Church Street trespassing ordinance unconstitutional?

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BURLINGTON, Vt. - A controversial Church Street Marketplace ordinance will soon have its day in court.

At least 60 trespassing notices have been issued since last May on the Church Street Marketplace and now a Burlington resident is suing the city, saying it’s unconstitutional to ban a person from a public space and just this week a judge even fought back against what some call an unlawful ordinance.

Eric Thomas was arrested for violating a no trespassing notice on the Church Street Marketplace. Dozens of citations have been issued since the ordinance went into effect last year, but the law is controversial and in this case the judge dismissed the charge.

The constitutionality of the ordinance will be debated in another courtroom next month. A Burlington resident is suing the city.

The ordinance allows police to ban people from the marketplace for a period of time if they are found drinking, using drugs or being disorderly. The lawsuit argues that violates free speech rights and the right of due process under the law. The plaintiffs also say the city does not have the authority to ban the public from a public street.

"If you're talking about a public forum and you have a scale of 1 to 10 for a public forum, the marketplace is about a 15 or a 20. It’s off the scale. I can't imagine another place in America that has more First Amendment per square foot," said lawyer John Franco.

The Burlington City Council unanimously gave the ordinance the go-ahead back in January 2013, but since then some members have also begun questioning its legality.

"There's an alternative memo that was drafted at the request of the Progressive city councilors, of which I am one, and the alternative view is that it does not meet the constitutionality test," said Jane Knodell.

Burlington City Attorney Eileen Blackwood argues the ordinance is only used when a person has violated some other part of the law and therefore is constitutional.

"It's not going to be just somebody who's sitting around being an annoyance, for example. That's constitutional. You get to be an annoyance as long as you're not violating some other part of the law," said Blackwood.

And while both sides disagree over whether the ordinance is constitutional, they do agree that the majority people who have been issued the trespassing notices are those who struggle with drug and alcohol addiction and mental health problems. The HowardCenter actually has a street outreach team out on the marketplace daily to try to help those in need before measures like the trespassing notice have to be taken.

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