Homeless Rights in Miami, FL: Pottinger Agreement FAQ

1. Why did the Miami Chapter of the ACLU of Florida bring the Pottinger lawsuit in 1988?

As homelessness surged in the 1980s, the City of Miami responded with efforts to drive homeless people out of the City or out of sight. It routinely arrested homeless people for minor misdemeanors – for example, sitting on public sidewalks or sleeping in parks at night after they closed – that homeless people could not avoid committing. It also routinely undertook sweeps in which it deliberately destroyed homeless people’s property. At the time, there were as many as 6,000 homeless people and well under 1,000 shelter beds available, meaning people living on the streets had no place else to live and were involuntarily homeless.

2. What did the Court hold in Pottinger?

After hearing evidence of the City’s conduct, federal district court Judge C. Clyde Atkins ruled in 1992 that “the City has used the arrest process for the ulterior purpose of driving the homeless from public areas.” Earlier, in 1990, he had enjoined the City from deliberately destroying homeless people’s property; in 1991 had held the City in contempt for violating that order. He further found that homeless people were not choosing to be homeless, but had no choice.

Judge Atkins found that criminalizing homelessness violates these constitutional rights:

• The City’s arrests of Plaintiffs for harmless acts in public that fell within misdemeanor ordinances violated the Eighth Amendment’s ban against punishment based on status;
• The City’s overbroad enforcement of misdemeanor ordinances that homeless persons necessarily violate while living in public violated the Plaintiffs’ right to procedural due process;
• The City’s arrests of homeless persons denied Plaintiffs equal protection because those arrests unjustifiably impinged on their fundamental right to travel; and
• The City’s unjustifiable seizure and destruction of the Plaintiffs’ property violated the Fourth and Fifth Amendments.

As a temporary matter, Judge Atkins ordered the establishment of two downtown “safe zones” where homeless people could be without fear of arrest for their harmless, life-sustaining conduct. He further enjoined the City from destroying their property and ordered it to abide by its own written procedure for handling personal property found in public.

3. Is the Pottinger decision still valid today?

Yes.  The City appealed Judge Atkins’ ruling to the Eleventh Circuit Court of Appeals. The Eleventh Circuit sent the case back to Judge Atkins in 1994 for further findings of fact; in the interim between Judge Atkins’ order and the Eleventh Circuit’s consideration of the case, more shelter beds had been provided though the Miami-Dade Homeless Trust. After hearing further evidence Judge Atkins reaffirmed his earlier ruling, finding that while services had expanded there was still a large number of homeless people who had no place to go – and that the City was continuing to arrest them for harmless activity. Upon the City’s second appeal to the Eleventh Circuit, the Court ordered the parties to mediate in 1996. After 20 months of intensive negotiations, the plaintiffs and the City reached a settlement that left the Pottinger decision in place, but created a different remedy from what Judge Atkins had ordered. The settlement also provided for monetary compensation for those who had been wrongly arrested or had property destroyed before or during the litigation. The settlement was approved by Judge (now Chief Judge) Federico Moreno in 1998.

4.   What does the Pottinger settlement provide?

The Pottinger settlement put in a place a protocol to prevent these violations from happening again.

• Limitation on Arrests. It defines a limited set of misdemeanors, known as life-sustaining conduct misdemeanors, that are nearly impossible to avoid committing if you are homeless. These include such things as being in a park after hours, or sitting or sleeping on public sidewalks. The police can arrest a homeless person for these misdemeanors only after first warning the individual and offering available shelter. If there is no available shelter, then the individual truly has no place to go, and cannot be arrested for those misdemeanors. Nothing in Pottinger precludes an arrest for any felony or any misdemeanor that is not life-sustaining conduct, regardless of whether there is shelter.
• Protection of Property. It establishes protections of homeless people’s property. If a homeless person is arrested, police must secure their property as they would anyone else’s. It also prohibits the kind of routine destruction of homeless people’s property that triggered the lawsuit.
• Training. The settlement requires the City to implement training to ensure that police officers and other city officials who deal with homeless individuals are sensitive to the “unique struggle and circumstances of homeless persons,” and that homeless people’s legal rights are fully respected.
• Monitoring.  The Pottinger settlement requires police to keep records of their arrests of and interactions with homeless people, so that compliance can be monitored.

5. What impact did the Pottinger case have on homeless people in Miami?

For those who had been wrongly arrested or had property destroyed between 1984 and 1998, it provided up to $1,500 in compensation. For everyone today, the Pottinger settlement protects the right of individuals who are involuntarily homeless to be free from arrest just for being homeless, and to have their property protected from arbitrary destruction. Nothing in the Court’s order or the Pottinger settlement mandates the expansion of shelters or other services for homeless people. But the Pottinger litigation did play a major role in triggering the establishment of the Miami-Dade Homeless Trust and the adoption of a 1% meals tax to fund it.

6. Isn’t the City right that some modification to Pottinger is needed in light of the revitalization of downtown in the last fifteen years?

No. Pottinger works just as well in a vibrant and thriving downtown as it did when the transformation was still in the planning stages back in 1998. When the City agreed to the settlement it rightly decided that protecting homeless people’s constitutional rights would be consistent with promoting downtown development. The City was right then — and wrong now.

7. Isn’t the City just asking for very limited changes to the Pottinger settlement?

No. The City’s proposals are sweeping and would gut the Pottinger decree. The City is asking the Courtto change the definition of who is homeless in a way that would likely exclude most homeless people. What the City calls the chronically homeless would no longer be defined as “homeless” under Pottinger, stripping them of its protections, even though they would still  have no place to live but the streets. And for anyone who remained covered, the protections would now be entirely at the police officer’s discretion. On threat of arrest, homeless people could be carted off anywhere in Miami-Dade County, or even forced into mental health or substance abuse treatment, all entirely at the discretion of a police officer.

8.  Residency restrictions for sex offenders weren’t on the books when Pottinger was settled. And homeless shelters don’t accept individuals registered as sex offenders. Doesn’t the agreement need to be revisited to deal with these facts?

No. The City is correct that the law changed after the Pottinger settlement. But the change in law makes the protections of Pottinger all the more relevant.

• In 2005, well after Pottinger was settled, Miami-Dade County imposed drastic restrictions county-wide on where individuals who have served their sentence for a sex offense can live. These restrictions have made it virtually impossible for most of the ex-offenders living in the City to find housing. Many of these ex-offenders have lived crime-free lives since their release. Among them are the elderly, as well as people suffering from mental and physical diseases, cognitive and educational deficits, poverty and malnutrition, language barriers, and loss of hearing and mobility.  Some are women; some have families they can no longer live with because of residency restrictions.
• Pottinger does not distinguish between the so-called deserving and undeserving – a distinction Judge Atkins specifically rejected in his ruling.  Individuals who have been rendered homeless by virtue of the residency restrictions are without doubt involuntarily homeless: They are homeless because they are observing the residency laws.
• Nothing in Pottinger precludes arrest of homeless registered sex offenders for violating the terms of their parole or committing a felony or a misdemeanor that is not one of the life-sustaining conduct misdemeanors, even if no shelter is available. State probation officers and County police officers who specialize in managing sexual offenders and predators provide close supervision of all outdoor encampments, many of whose members wear GPS devices.
• It is up to local governments to solve the problems created by the residency restrictions. Removing the Pottinger protection from people who need it because those restrictions have made them homeless is neither sound policy nor consistent with the protection of the constitutional rights Pottinger guarantees.

9. Doesn’t Pottinger tie the City’s hands in getting help to homeless people who really need it and may be reluctant to accept it?

No. Arresting homeless people just for living in public when they have no place to go, and seizing their property and destroying it, does nothing to alleviate homelessness. In fact, as the principal federal agency on homelessness has warned, criminalization makes it harder for people to overcome homelessness. Ending homelessness means having adequate shelter beds so no one has to sleep on the streets, combined with services aimed at helping homeless people find affordable housing, jobs, and medical care.

Forcing medical treatment – whether mental health or substance abuse treatment – doesn’t work. And it’s a flagrant violation of the constitution. Under the constitution, people can be involuntarily confined only if they pose an imminent danger of serious harm to themselves or others – e.g., if they are suicidal. Even then, a judge must approve it. Allowing the government to force people into “treatment” at the discretion of a police officer, on the threat of arrest, would put everyone’s freedom at risk.

10. With all the services and shelters available today for homeless people, isn’t anyone living on the streets of Miami there by choice?

 No. While there have been great improvements in the provision of shelter and services for homeless people since the lawsuit was first brought, even the City admits that there are still not enough shelter beds in Miami for everyone. Rather than work constructively with the County to address this need, the City seeks the power once again to arrest homeless people just for the fact of  being homeless.

11. What’s wrong with placing homeless people living in the City of Miami in shelters elsewhere in Miami-Dade County?

 Nothing—if the individual voluntarily chooses that option. But being given the choice of arrest for living in public or being sent to a shelter in Homestead or elsewhere outside the City is not a voluntary choice. No municipality should have the power to require any individual, homeless or not, to move outside the city in which they live, on pain of arrest for refusing to go.

12. Why shouldn’t homeless people be subject to arrest for offenses like littering, staying in parks after they close, or even going to the bathroom in public – just like everyone else?

 Under Pottinger, they are subject to arrest for those offenses, just like anyone else – if there is available shelter.  But if there’s not – if they’re homeless with no place to go — then arresting them for essentially eating, sleeping, and living in public amounts to arresting them for being homeless. That is wrong and unconstitutional, and prohibited under Pottinger. The only real solution is for the City to work with the County to continue increasing the number of shelter beds and services. Other cities have had notable successes with intensive efforts to reach the chronically homeless and help them off the streets. As for bathrooms, most homeless people would prefer to use them and are as discrete as possible when unable to. The City flaunts some isolated instances otherwise, but conveniently passes over its long-standing refusal (in 1998 as today) to commit to making enough public bathrooms available downtown and elsewhere in the city for everyone, including homeless persons,  to use.

13. In light of 9/11 concerns and the Boston Marathon backpack bombing, doesn’t Pottinger tie the police’s hands in dealing with unattended items left in public?

 No. If any package, backpack or other item is reasonably suspected to contain a bomb, nothing in Pottinger stops the police from inspecting it or even destroying it if need be. The City needs a protocol that applies to all property, whether a traveler’s backpack accidentally left on a sidewalk or a homeless person’s goods stored away in a park while they seek work. Nothing in Pottinger precludes protecting public safety. What the City wants instead is to be able to assume that any item left unattended for 12 hours on public property may be destroyed, even if it’s obviously a homeless person’s, and even if there’s no reason to regard that item as dangerous. In practice, anyone who was arrested (or taken to the far reaches of Miami-Dade County) would likely suffer the loss of everything they owned that they didn’t have on them at the time of the arrest.