ACLU Files Class Action Lawsuit to Stop Burlington Homeless Camp Evictions

With no alternative shelter available, City’s eviction of residents and confiscation of possessions without due process is unconstitutional

October 20, 2017

BURLINGTON—Today the ACLU of Vermont, along with cooperating attorneys Jared Carter and Gary Sarachan, filed a request for an emergency temporary restraining order in federal district court in Burlington to stop the City of Burlington from evicting homeless residents camping on public property and confiscating their possessions. The plaintiffs in the case, Brian Croteau, Larry Priest, and Richard Pursell, reside in a wooded area approximately 100 yards from North Avenue.

Plaintiffs’ encampment is one of two the City of Burlington has targeted for eviction in recent weeks. The other, located in the City’s South End, was evicted yesterday shortly after city officials had indicated they would delay taking action. The North Avenue encampment is scheduled for eviction on Monday, October 23.

The ACLU’s lawsuit is intended to prevent further evictions until the court can rule on their constitutionality. The plaintiffs in the case also seek to represent a class of all homeless individuals living in Burlington without fixed shelter who face a similar threat of eviction by the City.

ACLU staff attorney Jay Diaz: “It’s already October and nighttime temperatures are near or below freezing. Depriving these individuals of their possessions and the life-sustaining shelter they’ve arranged for themselves without providing alternate shelter is not just unconstitutional, it’s unconscionable. This is unfortunately part of a disturbing trend in Burlington to criminalize, punish, and further marginalize residents who are most in need of help.”

Plaintiff Brian Croteau, a native and 30-year resident of Burlington, has been homeless since August 2016. Mr. Croteau had been sleeping in his car, but in February 2017 the City towed the vehicle and Mr. Croteau could not afford to pay the towing fee to retrieve it. Since that time, he has slept outside—first at a bus stop, and then in a tent in the woods. Like Mr. Croteau, Plaintiffs Larry Priest and Richard Pursell have resided in the woods behind North Avenue for several months.

Since at least 2014, the City of Burlington has used Vermont’s no trespass statute, 13 V.S.A. § 3705, to repeatedly threaten to arrest homeless residents and seize and destroy their property when they are found sleeping on public property, despite City officials acknowledging that local shelters are full.

Attorney and Vermont law professor Jared Carter: “Courts have long held that punishing individuals for sleeping in public when they have nowhere else to go violates the Constitution’s prohibition on cruel and unusual punishment. Burlington’s shelters are full, and there’s at least a three-year wait for Section 8 housing subsidies. Where does the City expect homeless individuals to go?” 

On October 6, the ACLU sent a letter to City officials, objecting to the planned evictions and requesting a response. Two weeks later, the City has not responded and is proceeding with the threatened evictions, prompting the ACLU to file suit. The ACLU is asking the court to issue an immediate injunction to prevent the City from going forward with the North Avenue eviction and seizure of campers’ possessions.

Attorney Gary Sarachan: “Burlington’s practice of seizing and destroying personal property at encampments without due process is unconstitutional, full stop. It violates the constitutional protection from unreasonable search and seizure and the guarantee of due process. Homeless people who can least afford to have their property seized end up losing anything they can’t carry on their backs.”

This is the second lawsuit the ACLU has initiated against the City of Burlington in just over a year. In June, a federal judge denied the City’s request to dismiss the case of Joe Montagno, a formerly homeless man who was evicted from his Burlington apartment after City officials complained to his landlord that Mr. Montagno was calling for police assistance too frequently. Mr. Montagno was again left homeless before eventually finding housing.

ACLU of Vermont executive director James Lyall: “There are a lot of people in Burlington and in this state who are really struggling. If Burlington prides itself on being a compassionate city, it can’t continue to violate the rights and human dignity of marginalized community members. The City can’t have it both ways.”

A copy of the ACLU’s motion for emergency temporary restraining order is here.

A copy of the ACLU’s class action lawsuit, Croteau et al v. City of Burlington, is here.