Advocates hope Miami police will not harass homeless after end of consent decree
The homeless population in the city of Miami lived under a landmark federal consent decree that provided protections against undue police harassment for 20 years until a federal judge dissolved the agreement in February 2019.
After another loss in an appeals court, some homeless advocates hope the city’s police and outreach staff treat people living on the street with respect.
Weeks after U.S. District Judge Federico Moreno’s decision to undo the decree, known as a the Pottinger agreement, attorneys from the American Civil Liberties Union representing the city’s unhoused population appealed the decision. On Thursday, a three-judge federal appellate panel affirmed Moreno’s opinion, rejecting the ACLU’s arguments against ending the agreement.
The appellate panel agreed with Moreno’s conclusion that the work of the Homeless Trust and the city’s municipal outreach team, along with a range of other services for the unhoused and mentally ill, have created a sufficient social service network that should deter the city from harassing and arresting the people living on the street. The court also acknowledged improved police training.
“Because the City has a strong system in place to address homelessness, it is unlikely to revert to arresting or mistreating the homeless,” reads the opinion issued by the U.S. Court of Appeals for the 11th Circuit.
David Peery, an advocate and named plaintiff in the Pottinger agreement, said the change eliminates a standing opportunity to mediate legal disputes over treatment of the homeless. ACLU attorneys and the city could meet in federal court to resolve issues or amend the decree.
“It’s made it a little bit harder to hold the city accountable,” Peery told the Miami Herald. “It will force us to initiate new lawsuits. There were lines of communication that were there under the consent decree.”
Peery said the legal team representing the homeless are considering further appeals but have not made any decisions.
Advocates have argued the decree put up guardrails that steered the city’s police department away from using handcuffs and more toward offering shelter and other services to homeless people, a practice city officials insist will continue. Attorneys for City Hall successfully convinced the appellate court the city intends to avoid reverting to old attitudes toward people without housing.
“The City proved to the court that, notwithstanding the fact that the City of Miami disproportionately shoulders the burden of addressing homelessness in Miami-Dade County, it substantially complied with all of the provisions of the Pottinger settlement agreement,” said Miami City Attorney Victoria Méndez in a statement. “The court recognized that the City enacted internal reforms and programs to support the homeless. “
The Pottinger agreement was the result of a class action lawsuit filed by 5,000 homeless people against the city to stop the police practice of arresting homeless people for loitering. The litigation stretched for over a decade until both sides agreed on the decree in 1998. Under the agreement, the city could not arrest the homeless for certain “life-sustaining activities,” including sleeping on the sidewalk and urinating in public, with a few limitations.
In April 2018, Miami commissioner unanimously agreed to pursue dissolution of the decree, arguing the city had changed its ways. Part of the argument referenced the Sept. 11 terrorist attacks while saying the Pottinger protections prevented Miami police from conducting security investigations of what may or may not be the property of people experiencing homelessness.
Homeless advocates and ACLU attorneys argued the city had actually violated the decree by discarding the property of people living on the street, including identification and other personal documents, through regular “cleanups” conducted by municipal crews. Such cleanups have continued and remain controversial among homeless advocates, particularly during the COVID-19 pandemic, which has prompted the U.S. Centers for Disease Control and Prevention to urge against clearing out homeless encampments.
Peery said while the city has a duty to keep streets clean and sanitary, it must do so without abusing the rights of victims of a housing crisis that is only going to worsen as the economy suffers during the pandemic.
“What’s important is that the city agrees, we agree, the courts agree that we cannot arrest our way out of the problem of homelessness,” he said. “We can never go back to the criminalization of homelessness.”
