Miami-Dade County

A decree bars police from harassing homeless people. Miami has moved to terminate it.

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.

Miami has asked a federal judge to terminate a 20-year-old legal agreement that protects the city's homeless from undue police harassment — a change that would allow the police to arrest the homeless for loitering.

The city on Wednesday filed a motion in U.S. District Court to terminate the Pottinger agreement, a 1998 consent decree that prevents police from arresting homeless people for "life-sustaining" activities such as sleeping on the sidewalk, starting a cooking fire or urinating in public. The agreement stems from a landmark lawsuit brought against the city in the early 1990s by 5,000 homeless people and the American Civil Liberties Union to stop the police practice of arresting the homeless for loitering, saying it was unconstitutional.

For two decades, the Pottinger agreement — named for one of the plaintiffs, Michael Pottinger — has governed how police can interact with the homeless. In April, city commissioners unanimously passed a resolution instructing the city attorney to takes steps toward ending or amending the agreement. That resolution was sponsored by Mayor Francis Suarez and commissioners Joe Carollo and Manolo Reyes.

Wednesday's motion solidifies the city's stance that the agreement's additional protections for the homeless are no longer needed in Miami because the city can humanely steer people on the street toward an expanded range of services that were not available in 1998.

“The circumstances have changed, and today Pottinger restricts the city from acting in the best interest of homeless persons and residents in general,” said City Manager Emilio González, in a statement. “Without the constraints of Pottinger we can better provide services for the homeless with dignity and compassion.”

The ACLU and advocates for the homeless disagree, pointing to a recent rash of incidents when they say the police violated the agreement and harassed the homeless.

"It's simply not true that the city's treatment of the homeless bears no resemblance to the way the police treated the homeless in the years leading up to the lawsuit," said Benjamin Waxman, the volunteer ACLU attorney handling the case.

Waxman cited the city's biweekly "cleanups" conducted by its Homeless Assistance Program, the team of city employees who are supposed to work with people living on the streets. Homeless people have claimed harassment, telling the Miami New Times that city workers have tried to kick them out of certain areas and destroy their property — violations of the Pottinger agreement.

In one case, a woman arrested for obstructing the sidewalk later died in custody, which activists say was because she did not receive proper medical attention while under arrest.

"They’re simply making a crime of the fact that people do not have houses,” said David Peery, an advocate who is another plaintiff in the federal settlement.

Peery recently told the Miami Herald he believes that if the woman, Tabitha Bass, had been taken to a shelter and offered services, she would have received the medical attention she needed. Footage from the body camera worn by the officer who made the arrest, Carla Gonzalez, shows the officer did not give Bass a warning or offer her shelter before arresting her. This was a violation of the Pottinger agreement, Peery said, that he feels contributed to her ill health.

"I think everyone can agree this does not help someone who is fragile from a medical condition," he said.

On the other side of the debate, downtown residents have urged the city to ask the court to end Pottinger. Some have complained that the public defecation presents a public health issue and say police should not be hampered by additional rules when interacting with the homeless. Several told commissioners they believe the homeless who remain on the street are largely there because they want to be there.

In a prepared statement, the city argued that the decree hurts the city's ability to assist people living on the street.

"The Pottinger consent decree restricts the city from taking actions in situations such as the observation of a homeless person obstructing a sidewalk, or a homeless person urinating or defecating in public," reads the statement. "It also restricts the city from offering shelter beds that are available outside of the city of Miami. No other South Florida municipality faces such restrictions."

In the motion, Miami's city attorneys emphasize the demographic changes in downtown, suggesting that the arrival of new businesses, increase in tourist traffic and growth in residential and hotel developments are reasons the consent decree should be terminated.

The city attorneys also bring up the Sept. 11 attacks and the Boston Marathon bombing, arguing that the homeless protections could threaten public safety.

"Because of the Pottinger consent decree, however, the city police department's ability to carry out security-related investigations of what may or may not be homeless property is extremely limited, endangering the public at large," reads the motion.

If the judge doesn't agree to strike down the consent decree, the city is asking for some key changes. The proposed amendments would allow the city to take homeless who accept shelter to any available bed in Miami-Dade County — currently, Miami police are restricted to taking people only to shelters within city limits. Another proposed change would allow the city to classify some homeless people as "chronically homeless" and exempt them from Pottinger's protections.

"By remaining on the streets, there is a greater likelihood that chronically homeless individuals (particularly those who suffer from serious mental illness, substance abuse, or both) may engage in aggressive panhandling, theft or violent crimes," Miami attorneys wrote.

Peery said the issues of mental illness and drug addiction are concerns that are best addressed under the decree's rules, because the decree should force police to steer homeless individuals to health programs where they can get the help they need.

After the city filed its motion Wednesday, Waxman said he would file a motion to enforce the decree. The competing motions will force a federal judge to hear both sides before ruling on the matter, likely within a few weeks.