11th Circuit Upholds Termination of Protections for Miami Homeless

A homeless man moves his belongings in Los Angeles in 2019. (AP Photo/Richard Vogel, File)

(CN) — An 11th Circuit panel on Thursday upheld the termination of long-standing judicial protections for Miami’s homeless population, finding that the city had overhauled its homeless policing to the point where court oversight is no longer warranted.

The homeless protections were in place for two decades as part of the landmark settlement in Pottinger v. City of Miami, a class action that accused the city of unconstitutional mistreatment of its homeless population in the 1980s.

After the city secured a termination of the settlement in Miami district court in 2019, David Peery — on behalf of homeless Miamians — turned to a three-judge appeals panel in the 11th Circuit. Among other protections, Peery fought to reinstate a requirement that police officers offer homeless people a bed in a shelter as an alternative to arrest for certain misdemeanors, such as sleeping on a park bench.

The three-judge panel on Thursday rejected Peery’s appeal.

According to the panel’s opinion, the city showed “substantial compliance” with the Pottinger settlement by retraining its police on how to deal with the homeless people.

“All police officers receive training on Pottinger’s requirements, and the City has put in place body-camera-usage, records-keeping, and disciplinary procedures to monitor and regulate interactions between the police and the homeless, ” Chief U.S. Circuit Judge William Pryor, a George W. Bush appointee, wrote in a 26-page ruling

Dante Trevisani, attorney for Peery, said in an interview that he is concerned the termination of the settlement will make it “easier for the city to go back to its old ways of criminalizing homelessness.”

“What the Pottinger consent decree did is force the city to choose solutions to homelessness other than criminalization. The Miami-Dade Homeless Trust and the network of services in the city were developed partly because of the Pottinger case,” said Trevisani, executive director of the nonprofit civil-rights firm Florida Justice Institute.

During the appeal proceedings, Peery and his counsel had pointed to a 2018 mass removal of homeless people from the downtown Miami area as key evidence that the city was violating the settlement and couldn’t be trusted to regulate itself regarding its handling of the homeless population.

They cited testimony from witnesses who asserted that their belongings were rounded up from encampments and needlessly destroyed by city workers during the coordinated ejectment. The property destruction was in direct violation of the Pottinger settlement, which required the city to respect the belongings of the homeless, the appellants argued.

Evidence included video recordings of a man trying to recover his bag, which had been purportedly discarded in a gutter by city workers. The recordings also portrayed a woman “crying and screaming as her belongings were put into the pile for disposal,” according to an appellate brief.  

The panel was unswayed, however, and noted that some of the homeless camps were soiled by excrement and used needles. Judge Pryor wrote that the settlement contained an exception whereby homeless people’s property would not be protected from seizure and destruction if it is “contaminated or otherwise a health hazard.”

The panel rejected Peery’s underlying arguments that the lower court misinterpreted several of the Pottinger settlement’s provisions, including the one governing how Miami could dispose of contaminated belongings.

The ruling also refutes Peery’s claims that the city’s ordering homeless people out of targeted clean-up areas in 2018 violated their constitutional rights and went against the Pottinger agreement’s stated aim to prevent homeless harassment.

“The homeless urge us to adopt the view of our sister circuit that the Fourth Amendment encompasses a right to remain in any public place. We decline to do so,” Pryor wrote.

The judge added that the 2018 ejectment of homeless from their encampment does not “inherently” amount to “harassment.” Moreover, he wrote that the harassment clause in the settlement was a general preamble that did not provide specific prohibitions on ejecting homeless from a public place.  

Senior U.S. Circuit Judge Gerald Bard Tjoflat, a Gerald Ford appointee, and Senior U.S. Circuit Judge Frank Hull, a Bill Clinton appointee, joined Pryor on the panel.

The opinion was handed down less than two weeks after the Sept. 22 oral arguments in the appeal.

Trevisani said in the interview that the ban on the city’s destruction of homeless people’s property was one of the most crucial protections lost in the 2019 district court decision.

“That was really the focus of this last round of litigation. You saw the systematic effort in 2018 to break up homeless camps, which involved throwing out people’s property that was left unattended,” he said.  

“Homeless people own so little. It’s the few clothes they have, eyeglasses, legal paperwork, medication,” Trevisani added. “What they do own is cherished by them.”

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