Miami-Dade County

Promising police will be humane, Miami seeks to undo homeless-protection settlement

Ivan Romero, a City of Miami outreach program staff member, tries to persuade a couple of homeless people at Bayside to go to a shelter as Hurricane Irma bears down on South Florida in 2017.
Ivan Romero, a City of Miami outreach program staff member, tries to persuade a couple of homeless people at Bayside to go to a shelter as Hurricane Irma bears down on South Florida in 2017. pportal@miamiherald.com

Miami commissioners want to dissolve a landmark legal agreement that gave the city's homeless protection from undue police harassment.

For the second time in five years, the city wants to revisit the 1998 Pottinger vs. Miami settlement, which for two decades has defined the way city police can interact with the homeless. The settlement was the outcome after 5,000 homeless people and the American Civil Liberties Union sued the city contending the police practice of arresting the homeless for loitering was unconstitutional.

Under the agreement, which took a decade to reach, police cannot sweep the homeless off the street for minor offenses such as sleeping on sidewalks or littering. The idea is the homeless should not be arrested for offenses associated with unavoidable, life-sustaining activities, such as creating an open fire for cooking and blocking sidewalks to sleep. The agreement was tweaked in 2014 to remove some of the exceptions to account for added services.

Now downtown residents and commissioners want to completely undo the agreement, arguing the city has the capacity and wherewithal to humanely address the homelessness issue without limiting police action.

The ACLU and others disagree. But Miami commissioners voted unanimously Thursday to instruct the city's legal department to seek to dissolve the agreement, and if not, to modify it.

"We’re in a different world now," said Commissioner Ken Russell, whose district covers downtown. "At least it’s fair to have the discussion of whether it’s still necessary."

Russell and fellow commissioners argued the police no longer want to aggressively incarcerate Miami's homeless, maintaining that if police are allowed to remove people from the street, they can help those people obtain social services.

The city's assessment of its homeless outreach is not universally held. Miami has recently faced criticism for bi-weekly cleanups conducted by its Homeless Assistance Program, the team of city employees tasked with working with people living on the streets. An ACLU attorney and homeless advocate recently told the Miami New Times the city's actions have already violated Pottinger by trying to chase away the homeless and damaging their property.

At Thursday's commission meeting, downtown residents such as Cristina Palomo spoke in favor of doing away with or limiting the Pottinger agreement on the grounds that the public defecation problem associated with the homeless threatens to become a public health issue. They cited a recent outbreak of hepatitis A among San Diego's homeless population that officials blamed on poor sanitation.

"I believe that it's time to stop equating its modification with a disregard for or criminalization of individuals experiencing homelessness," Palomo said.

Stephen Dutton, a downtown resident whose husband was killed in an attack by a homeless man in 2016, told commissioners he believes most of the homeless who want help are receiving it. He said there are ways to convince people who insist on living on the street to seek help without harassing them.

"I think the majority of the persons we understand suffer from homelessness are being served," said Dutton. "Those that have agreed to go into shelters and agreed to go in and receive services are being helped."

Benjamin Waxman, the attorney volunteering for the ACLU, told the Miami Herald a conversation has begun with the city about concerns over the agreement. But Waxman reiterated recent complaints from the homeless in downtown and Overtown that city workers are going beyond what's permitted by Pottinger. He said the city seems to disregard the rights of the homeless.

"We’ve become aware of their campaign to harass homeless people, and to seize and destroy their property," he said.

If the mediation goes nowhere, the next step is to go back to federal district court.

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