Judge Terminates Miami's Landmark Agreement On How To Police The Homeless

Feb 15, 2019

A federal judge on Friday terminated a consent decree that has been in effect for over 20 years, which prevented police in the City of Miami from arresting "homeless people for being homeless" and from taking their personal belongings. The landmark "Pottinger agreement" was part of a class action lawsuit brought on behalf of the city's homeless population by the American Civil Liberties Union in 1988, but it only went into effect in 1998.

The city celebrated the termination of the agreement, saying it marks a victory in the fight against homelessness.

"All City employees, and our Police, Fire and Human Services departments in particular, are to be commended for their considerable work in this endeavor," Miami City Manager Emilio Gonzalez wrote in a statement. "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.”

The 40-page opinion, written by Federal District Judge Federico Moreno, breaks down why he moved to terminate the agreement over objections.

“The evidence showed that the continuum of care available to homeless individuals in Miami-Dade County is unparalleled in the United States,” wrote Moreno. “The numbers prove it. The amount of homeless individuals in Miami has plummeted 90% since Pottinger was entered.”

The judge directly attributed these changes to the impact of the agreement over the last two decades. He ended the opinion by congratulating the many groups involved in efforts to reduce homelessness in the city. The ACLU and the Florida Justice Institute, which originally pushed for Pottinger, “engendered a revolution in this community as to the treatment and care of persons experiencing homelessness,” Moreno wrote. Even though they opposed terminating the agreement, “in a very real sense, they are the victors,” he wrote.

The groups fought to prevent the city from terminating the agreement, arguing Miami wants to loosen the reins on policing to push homeless residents from a rapidly gentrifying downtown area. Last year, the City started clearing homeless encampments in the city, and the ACLU asked the court to find Miami in contempt of court.

A footnote in the decision listed five sites across the city where these “clean-ups” happened: under an overpass in Overtown; in downtown Miami near the new Brightline station; in Peacock Park in Coconut Grove; the area near the old Macy’s in downtown Miami; and an area under I-95 next to the Miami River.

Video of some of those sites were shown in the courtroom, along with video of the controversial arrests of homeless residents Chetwyn Archer and Tabitha Bass for the misdemeanor of obstructing the sidewalk. Bass was sick and spent three days in jail with limited access to medical care, which advocates alleged contributed to her death a few weeks later.

The ACLU alleged the arrests were an unambiguous violation of the agreement. The ACLU did not immediately respond to a request for comment about the ruling.

Writing for the court, Moreno said video of the arrests didn’t show a violation of the agreement. Rather, he wrote that the video showed “that the City was compelled by the gravity of the unsanitary and unhygienic conditions to literally clean the streets for the betterment of the common welfare, including the homeless, the City's residents, and its businesses.”

The Florida Department of Health conducted an investigation into the spread of HIV and Hepatitis in the Overtown area last September. Ten-year-old Alton Banks was walking to school through the area in 2017 when he was mysteriously exposed to fentanyl. He later died.

“It was like a horror movie. There were a lot of women using right in front of us. There were needles hanging out of different parts of their body,” testified Steve Leifman, an associate administrative judge for the Eleventh Judicial Circuit Court of Florida who heads multiple mental health and homelessness initiatives. “There were rats running around, there were needles everywhere. lt was an opioid den.”

Opinions vary about whether the Pottinger agreement is good or bad for the homeless population. Ron Book, chairman of the Homeless Trust, testified that he thinks the agreement did more harm than good for what he called “shelter resistant” homeless residents.

“If you make it easier for them to be on the streets, they're not coming in. lt's why we don't support street feedings. lt's why we don't support panhandling,” he said. “Continuation [of the agreement] doesn't make it easier for us, it makes it harder for us to finish what's out there because it's chronic.”

The Miami Police Department has issued internal orders modeled after key segments of the settlement agreement, wrote Moreno, saying the tactics will not change too drastically.

“Both sides agree that arresting the homeless is never a solution,” wrote Moreno.