Protections for Miami Homeless Hang in Balance at 11th Circuit

MIAMI (CN) — A group of homeless litigants fought in the 11th Circuit on Tuesday to reinstate a long-running municipal settlement designed to protect Miami’s homeless population from harassment and systematic arrests.

At stake is the fate of the Pottinger v. City of Miami settlement, under which the city agreed to refrain from harassing homeless people and destroying their property.

The 1998 class action settlement came after a Miami judge found the city’s treatment of its homeless population was unconstitutional.

Among the key provisions of the settlement was a clause under which the city was required to offer a homeless person shelter as an alternative to arrest for certain misdemeanors that involved “life-sustaining” day-to-day activities, such as sleeping on the street.

On Tuesday, class representative David Peery and his counsel Benjamin Waxman urged an 11th Circuit panel to reinstate the protections, which were voided by a lower court’s 2019 decision in favor of the city.

Peery and Waxman concede that reform has taken place over the past two decades. But they claim that a 2018 mass campaign to remove homeless people from downtown public spaces showed that Miami disregarded the terms of the settlement — and is in no position to police itself with regard to management of the homeless population. 

“The [Pottinger] consent decree has effectively protected plaintiffs’ rights to be free from unconstitutional arrest, harassment, and property destruction based on their homeless status for 20 years,” Waxman’s brief states. “While the city’s approach to redressing homelessness has improved, the record establishes a continued and pervasive pattern of consent decree violations.”

During lower court proceedings, dozens of witnesses testified about the coordinated removal of homeless people from downtown Miami and surrounding areas beginning in mid-2018. People who dwelled in the targeted areas were ordered to leave. And if a homeless person was not around to claim his belongings, the city threw the items out, including ID cards and medications, according to the testimony.

Two individuals who were arrested as part of the evictions claim they were not given the pre-arrest warnings required under the settlement.

“People’s property was destroyed, and they were told to get out. That all went on before the city went to court in May 2018 and said, ‘Oh, by the way, we’d like to terminate the Pottinger agreement,” Waxman said in an interview Tuesday.

Waxman said that at a city commission meeting in April 2018, municipal politicians were openly discussing disillusionment with the settlement, and how it was interfering with the homeless eviction effort. One commissioner stated the settlement was being used as an excuse to commit crimes, while another commissioner said, “Let’s take action. If someone’s going to say ‘no,’ then let it be a federal judge.”

The federal judge’s 2019 decision noted city workers were dealing with significant squalor, and that the targeted eviction areas were contaminated with feces and infested with rodents. The judge cited an exception to the Pottinger protections, whereby the city is allowed to discard homeless people’s property if it is “contaminated or otherwise poses a health hazard.”

Waxman said in the interview that city workers were not permitted to throw every item away in a homeless camp simply because the camp is unclean.

“The judge in 2019 basically said that this would be too difficult to do — to sort through those items at a site. Our claim is that’s precisely the agreement the city entered into. That’s in the consent decree and that’s what is required of the city,” Waxman said.

In a reply brief, the city’s attorneys argued the judge fairly weighed evidence presented by the city, including testimony that it posted notice warning of the impending eviction.

“The court properly terminated the consent decree, based on the evidence of substantial compliance by the city,” the city said in its brief. “The order … emphasized that the areas in which these cleanup operations took place were highly unsanitary and posed a public health hazard.”

 The city’s lawyers argued the appeal takes a dispute over the evidence and incorrectly frames it as a dispute over the court’s interpretation of the Pottinger settlement.

Also at issue in the appeal is whether Miami’s 2018 campaign to boot homeless people from downtown constituted “harassment,” which would have been a violation of the settlement.  

The lower court found that “there is nothing in the consent decree” that “specifically preclud[es] a police officer from instructing someone to move.” The judge justified the termination of the homeless protections by finding the city had reformed its practices over a span of two decades, ceasing systematic arrests of the homeless, overhauling its police training and providing a better system of shelters.

Waxman and Peery’s appeal is being fielded in the Miami branch of the 11th Circuit, by a three-judge panel who will decide whether to reinstate the settlement.

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