Miami-Dade County

Federal judge dissolves homeless protections from police harassment in Miami

Rob Rhoads carries everything he owns at all times.

It usually isn’t a lot — personal papers, two T-shirts, three pairs of jeans, five pairs of underwear, two pairs of flip-flops and some bracelets his daughter gave him. Some cans of sardines, bags of crackers and bottles of water. Being homeless, he also carries a constant anxiety that he might lose it all if it’s stolen — or swept up by sanitation officials cleaning the sidewalk in Miami.

In late September, Rhoads testified in a federal courtroom that earlier in 2018, he’d lost it all in a city-sanctioned “cleanup” of the sidewalk where he’d sleep at night.

“I’m terrified of losing everything again,” he said to one of Miami’s municipal attorneys who was cross-examining him. “I don’t know if you know that feeling, but it’s terrible.”

Rhoads’ account was one of a few dozen shared by homeless people in U.S. District Judge Federico Moreno’s courtroom when the city moved to dissolve the Pottinger Agreement, a landmark legal decree that established protections for Miami’s homeless population from undue police harassment.

Now, those protections are gone. Moreno has decided court oversight and specific protections are no longer needed because of the shelters and social services that form a safety net for Miami’s homeless.

On Friday, Moreno issued an opinion dissolving the agreement, abolishing a consent decree that for 20 years has prevented Miami police from arresting homeless people for loitering and other “life-sustaining” activities, including sleeping on the sidewalk and urinating in public.

Pottinger has been held up as a national model, born out of a 10-year class action lawsuit brought by 5,000 homeless people against the city of Miami in the early 1990s, when cops would sweep the homeless off the street with no regard for their personal belongings — a practice attorneys with the American Civil Liberties Union argued was unconstitutional.

Moreno’s opinion removes key safeguards for people living on the street within Miami city limits. The reason, the judge wrote, is because two decades under Pottinger has forced the city to readjust its attitude toward an increasingly smaller population with access to better services.

Judge Federico Moreno Miami Herald file photo

“Although the Plaintiffs have opposed the termination of this agreement, in a very real sense, they are the victors,” Moreno wrote. “Their lawsuit, and the work of their excellent and capable counsel, under the guidance of the Americans Civil Liberties Union and the Florida Justice lnstitute, engendered a revolution in this community as to the treatment and care of persons experiencing homelessness. “

The city had moved to dissolve the agreement last year, arguing that the expansion of homeless services and enhanced training for police no longer made the agreement necessary. The city’s attorneys cited the growth of the residential population and increased commercial activity in downtown as reasons to end Pottinger.

In a curious argument, the lawyers also brought up the Sept. 11, 2001, attacks and the Boston Marathon bombing of 2013, saying that homeless protections could threaten public safety.

ACLU lawyers disagreed and had moved to hold the city in contempt. Dozens of homeless people testified in court during multiple days of hearings that the city had discarded or destroyed their personal belongings during street cleanups. Many said they lost identification, clothing and other personal items.

In one instance, a woman arrested for obstructing the sidewalk died while in police custody — a death activists say occurred because she did not receive proper medical attention in custody. The death was first reported in Miami New Times.

After all the arguments, Moreno sided with the city and the view that Miami’s relationship with the homeless has been repaired, saying the consent decree was no longer needed because Pottinger altered the city’s behavior toward the homeless for the better — changes that can be credited to the ACLU’s efforts.

“There can be no doubt that the primary purpose of the agreement, to stop the arrests of the homeless for being homeless, has been achieved,” Moreno wrote.

Stephen Schnably, a University of Miami law professor and member of the ACLU, said the legal team was still reviewing Moreno’s 40-page opinion Friday evening.

“We’re greatly disappointed in it,” he said. “We are, at this point, reviewing his opinion closely.”

Workers wore hazmat suits as they swept bedding, clothes and trash off the sidewalk to be picked up by a garbage truck. Pedro Portal

Regarding the cleanups, Moreno wrote, “The city was compelled by the gravity of the unsanitary and unhygienic conditions to literally clean the streets for the betterment of common welfare, including the homeless, the city’s residents and its businesses.”

“The Consent Decree allows the City workers to take property in a manner consistent with their procedures. The evidence showed that, at least for the most part, that was done, and to discard contaminated property,” Moreno wrote. “Deciphering what is and is not contaminated inside a bag is difficult and going through a bag that possesses contaminated materials to fish out identifications and medications is not a requirement of the Consent Decree.”

Miami Mayor Francis Suarez, who sponsored the motion to throw out Pottinger, said he considers the opinion an endorsement of the city’s efforts to be compassionate toward the homeless.

“I don’t look at it as what more can we do in terms of arresting and policing,” he told the Miami Herald. “It’s more about what we can do to get to the functional zero.”

Miami City Manager Emilio Gonzalez viewed Moreno’s decision as a compliment to his homeless outreach workers, police officers and other municipal employees.

“Through this process, the city of Miami has created a model for effective homeless services countywide, and — in concert with our many community partners — we will continue working to assist the homeless in a humane manner,” he said.

Moreno states that the Pottinger Agreement was never meant to solve the problem of homelessness, just to prevent police abuse. He pointed to the wealth of resources available for the homeless in the city and praised people providing those services, including shelters at Camillus House and Lotus House, medical services at the IDEA Needle Exchange, the work of Miami-Dade Circuit Judge Steve Leifman, who has established a mental health component to the courts, and the work of the Miami-Dade County Homeless Trust.

Others who testified in the fall spoke less of the fear of losing what they had as much as the daunting cost of what they wished to have, illuminating the challenges of living on the street in an expensive city.

Stephen Allen, who at that time spent his nights in Bayfront Park, testified he’d lost housing after Hurricane Irma ripped off part of the roof of the apartment he was renting in 2017. Since then, the cost of renting a new place has been way too high for him.

“I didn’t have enough,” he said. “I had saved, but I didn’t have enough for first and last.”

Ron Book, head of Miami-Dade Homeless Trust, joined city of Miami officials and a cleaning brigade as they swept the streets under the 836/Dolphin Expressway early Friday, Oct. 19, 2018. About 20 homeless people had been living at Northwest 14th Street and First Avenue in Miami. Pedro Portal

Ron Book, the Homeless Trust’s chairman, said in a statement that “today is neither a victory nor a defeat” just realization that more housing resources are needed to end homelessness.

“Today’s decision does not change the mandate of the Homeless Trust to house as many homeless people as are willing to come in off the streets,” Book said. “Our homeless system has evolved tremendously since the ‘90s, and officers all across our community understand and respect the fact that we cannot arrest our way out of homelessness.”

Joey Flechas covers government and public affairs in the city of Miami for the Herald, from votes at City Hall to neighborhood news. He won a Sunshine State award for revealing a Miami Beach political candidate’s ties to an illegal campaign donation. He graduated from the University of Florida.