With Homeless Rights Agreement Terminated, Miami Attorney Says He Will 'Keep A Watchful Eye'

Feb 21, 2019

An agreement between Miami’s homeless residents and the City of Miami that had been in effect for more than two decades came to a close last week, as part of a class action federal lawsuit that has been active since 1988. The understanding outlined basic rights for the city’s homeless population, offering protection from being arrested for sleeping on the pavement, being in a park after hours, and going to the bathroom in public – which were common in the 1980s.

But Attorney Benjamin Waxman, who has argued the case for the American Civil Liberties Union since it was filed in 1988, told WLRN this week he is open to filing another lawsuit if the rights of homeless individuals are not protected going forward. 

The federal consent decree that stipulated these homeless rights came to be known as the ‘Pottinger Agreement,’ after the name of the main plaintiff in the case.

The City of Miami had been asking the federal court to terminate the agreement for years. In response to the decision to end the agreement last week, City of Miami Manager Emilio Gonzalez said it was an acknowledgement that the city’s efforts to end homelessness have been successful.

“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,” Gonzalez wrote in a statement.

WLRN spoke to Waxman about the impact of the agreement, and where the city goes from here. The conversation has been lightly edited for clarity and brevity:

WLRN: Can you paint me a picture of how things were before the terms of the Pottinger agreement went into effect in 1998?

WAXMAN: People were being arrested for being homeless for living on the streets when they had no place else to live. They were having their property seized and destroyed by police and their rights were being trampled on daily.

How did the agreement change the way the homeless population is treated in the city of Miami?

It required police ... to at the very least have shelter available before they could make any overture of arrest. And it also required them to respect the property rights of homeless people who are forced to have their property on their persons sitting in public and to treat their property no differently than yours or mine.

This case was originally filed in 1988. Flash forward 31 years later, and Federal Judge Federico Moreno just terminated the agreement and in his decision he wrote that the City of Miami has made progress 'unparalleled in the United States,' -- to use his words -- when it comes to getting people off the streets and into housing. And he said because of that the agreement is no longer needed. How do you respond to that?

Well at the same time that the city presented evidence of the changed circumstances and all of the good things that it had done we also presented a lot of evidence about violations of the Pottinger agreement. Thirty homeless people testified at this hearing; mostly their complaints were the summary seizure and destruction of their property.

I think that things are significantly better for homeless people today in the city of Miami, certainly than they were in 1988 in 1998.

Our concern is looking forward, people change. Administrations change. Police department chiefs change. And with those changes people can revert back to old strategies and tactics. But we will continue to keep a watchful eye on how homeless people are treated both in Miami and other surrounding communities, and if we see a slide back to the days where people were arrested and to people having their property seized and destroyed, then we will consider filing another lawsuit if that's what we think will help ensure this protection.

The case you brought that led to the Pottinger agreement has been called things like 'landmark' and 'historic,' and younger attorneys I've talked to have told me that they've even studied this in law school when they were studying. What does that mean for that legacy now that the agreement has been terminated?

I think that the consent decree has served as a model for protocols in municipalities throughout the country. And I hope that they continue notwithstanding the dissolution of this consent decree.