Miami Files Motion to End the Homeless-Protection Agreement Its Cops Are Accused of Violating

In 1988, the American Civil Liberties Union teamed up with more than 5,000 homeless people and sued the City of Miami to stop police from rampantly arresting them on loitering charges. The city wound up settling a decade later, and the result — the Pottinger Agreement, named for lead plaintiff Michael Pottinger — significantly curtailed the police department's ability to destroy homeless people's belongings. It also forced officers to give homeless people a shot at entering shelters in lieu of arrest, among other provisions.

Today the city commission, for the second time in five years, filed a motion in an attempt to radically change or vacate the 20-year-old agreement. The city has long argued that it's out-of-date and that Miami PD should be trusted not to indiscriminately arrest the homeless.

“The circumstances have changed, and today Pottinger restricts the City from acting in the best interest of homeless persons and residents in general,” City Manager Emilio Gonzalez said in a news release today. “Without the constraints of Pottinger we can better provide services for the homeless with dignity and compassion.” The Miami Herald reported in April that after some outcry from new residents in rapidly gentrifying downtown, the city instructed its legal team to file for some sort of Pottinger repeal or termination. The agreement was last modified — and only slightly — in 2014.

The ACLU, among other civil rights groups, still believes the Pottinger rules are necessary and has argued multiple times this year that the police department is still violating the agreement daily. In April, the ACLU provided video evidence that showed MPD officers destroying homeless people's property in an apparent Pottinger violation. And earlier this month, the ACLU supplied footage of Miami Police officers arresting a woman for obstructing a sidewalk, in a move activists again said was a breach of Pottinger rules. The woman, Tabitha Bass, spent three days in jail while suffering from serious health issues and died a few weeks later. The ACLU says MPD is likely responsible, in part, for her death.

In its latest filing, the city acknowledges breaking the rules from time to time, but claims those are "outlier incidents."

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Ben Waxman, an ACLU attorney who worked on the 1988 Pottinger lawsuit, tells New Times the city has been habitually breaking its legal requirements for the past three to six months. Waxman speculates the city has been trying to sweep the homeless from downtown since "recent aggressive gentrification" in that area has rapidly spiked nearby property values. In response, he says, his team plans to ask the state to force Miami to enforce Pottinger.

"We plan to point out all of the many violations we've seen over the last three to six months," Waxman says. "In fact, we argue the city’s conduct and behavior has not substantially changed at all. It's interesting — if you go back and look at allegations in the 1988 complaint, the destruction of property that we’re seeing today very closely resembles what they were doing at that time. So this is not the moment to be considering terminating the Pottinger consent decree."

In its news release today, the city cited numerous instances in which it claims police are "restricted" from taking action because of Pottinger, including "situations such as the observation of a homeless person obstructing a sidewalk, or a homeless person urinating or defecating in public."

But Pottinger was approved precisely to prevent the police department from arresting the homeless for "life-sustaining" conduct — such as sleeping on park benches, showering in public restrooms, or blocking sidewalks — unless officers first provide the option of moving to homeless shelters.

Earlier this month, the county's de facto homeless czar Ron Book urged the county to clean up an encampment of homeless former sex offenders near Hialeah. The offenders, who migrated there in 2013 from an infamous encampment under the Julia Tuttle Causeway, say harsh sex-offender-residency restrictions (that Book helped pass) effectively bar them from living in most of Miami-Dade County. The offenders are now shuffling around various spots in the county.

In today's legal filing, Miami argues Pottinger should be "terminated," claiming the city has created numerous homeless-outreach services since the settlement took effect in 1998, including additional shelter beds, new jail-diversion programs for the homeless and mentally ill, and the creation of a full-time Department of Veterans Affairs and Homeless Services. The city is also asking for modifications to the law that allow officials to send homeless residents to shelters anywhere in Miami-Dade County (instead of only within city limits), to give officers added power to remove/confiscate personal items stored on sidewalks and in homeless encampments, and to label people "chronically homeless" and therefore exempt them from Pottinger protections.

The legal filing becomes more cruel and bizarre from there. The city callously states that because "demographic changes" have occurred in downtown since 1998 — including the addition of fancy condos, hotels, and entertainment complexes such as the American Airlines Arena — police should have added arrest powers.

Perhaps more bizarre, the legal filing also claims that because the Pottinger Agreement was written before the September 11 attacks and Boston Marathon bombing, the city is somehow handicapped from searching homeless people's belongings for bombs or weapons despite the fact that data shows homeless people almost never commit terror attacks.

The city also claims that officers are significantly better trained today to deal with homeless residents and that it "has demonstrated substantial, good-faith compliance" with the Pottinger rules. Those claims, the ACLU says, are bogus. Though MPD's homeless-training programs (which the ACLU helped implement) have helped somewhat, Waxman says, the training "simply hasn't guarded against" cops clearing out people's properly or illegally sweeping up encampments on a weekly basis.

In its latest filing, the city acknowledges breaking the rules from time to time, but claims those are "outlier incidents."

"It's important to note that good-faith, substantial compliance does not require full compliance," the city's attorneys claim.

But homeless advocates argue that claim is hogwash. "I don’t have the answer to reduce or eliminate homelessness," Waxman says. "But other cities have looked at new approaches, and perhaps they have some better answers for what Miami can and should do. Clearly what we’ve done has not worked. It doesn’t work to force people into shelters or 24-hour beds and then, if that doesn't happen, basically disappear the homeless people from the city into oblivion."
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Jerry Iannelli is a former staff writer for Miami New Times from 2015 to March 2020. He graduated with honors from Temple University. He then earned a master's degree in journalism from Columbia University.