In 1988, the ACLU filed a suit against the City of Miami on behalf of all homeless persons living in the City. In 1992, after hearing extensive evidence, the federal district court found that “the City had a policy and practice of arresting homeless individuals for the purpose of driving them from public areas,” and that this policy and practice violated the rights of homeless people under the Constitution.

You can find the opinion here.  

The 1998 Consent Decree

The City appealed the ruling. After further proceedings, and while the case was on appeal, the City and the ACLU agreed to settle the case in 1998. The 1998 Settlement Agreement brought an end to the case by placing limits on the power of its police officers to arrest homeless individuals for committing certain “life-sustaining conduct” misdemeanors, and requiring police and other City officials to respect homeless people’s property rights. (It also provided for $1500 in compensation to each homeless person who had been wrongly arrested between 1984 and 1998. Compensation was awarded to individuals through a streamlined process supervised by a magistrate. This part of the Settlement Agreement has been completed.)

The Consent Decree was approved by the Federal District Court on October 1, 1998. It has the same binding legal effect as a judgment of the court. Esentially, it protects people who are homeless from being arrested for certain minor offenses that are very difficult if not impossible to avoid committing if you're homeless. It also prevents the City from seizing or destroying homeless people’s possessions unless they are clearly abandoned or present a clear-cut safety hazard.  

The City’s Attempt in 2013 to Modify the Consent Decree

In September 2013, the City submitted a motion to the federal district court requesting what it called a limited modification of the Consent Decree. In fact, the modifications sought were extensive and would have eliminated the Consent Decree’s protections for the vast bulk of homeless people in Miami. The ACLU therefore opposed the City’s motion. After court-ordered mediation, the ACLU and the City reached agreement in December 2014 on a limited set of changes that left the essential protections of the Consent Decree intact. The court approved these changes in March 2014. The Consent Decree as modified by these changes remains in place.  

The City’s Attempt in 2018 to Terminate the Consent Decree

On May 30, 2018, the City of Miami filed a motion in federal district court seeking to terminate the Consent Decree. That same day, plaintiffs’ attorneys filed a motion seeking to enforce the current Consent Decree in the light of extensive, systematic violations by City police and other City employees in recent months, and to hold the City in contempt for its violations. The matter will be heard before the federal district court for the Southern District of Florida. Termination of the Consent Decree would entirely remove the constraints of the Consent Decree on resuming the same policy of arbitrarily arresting homeless people and destroying their property that led to the adoption of the Consent Decree in the first place.

The Current Terms of the Pottinger Consent Decree

In brief:

• All homeless individuals residing within the City of Miami, other than registered sexual offenders or predators, are protected by the Consent Decree.
• City of Miami police must offer a homeless person the chance to go to a shelter in the City of Miami instead of arresting him or her for certain minor offenses -- “life sustaining conduct misdemeanors.” Only if there is space at an available shelter and the homeless person refuses the offer may the police arrest that person.
• All City officials, including the police and City of Miami Homeless Outreach Workers (colloquially known as the “Green Shirts”) must respect homeless individuals’ property rights.

In greater detail:

• Shelter must be offered in lieu of arrest for certain minor violations: Police officers who see a homeless person committing one of the following violations may not arrest that individual or threaten to arrest him or her unless they offer the individual shelter space for the night, and the individual refuses that offer. If there’s no shelter space or if there is and the individual takes it, the police cannot arrest the individual for these offenses:
  • Being in a public park after closing hours
  • Camping in a public park (so long as no tent is used)
  • Trespassing on public property (owned by the government, not by a private individual or business)
  • Loitering in restrooms
  • Living in a vehicle
  • Partially blocking the sidewalk (leaving enough room so others needn’t step out onto the street)

  The shelter space offered must be in the City of Miami. It may have a mat rather than a bed. Anyone so placed in a shelter doesn’t have to stay at the shelter beyond one night and doesn't have to take part in any of its programs or services, though of course they may if they wish.

• Shelter does not have to be offered in lieu of arrest for certain other minor violations, but there must be a warning: Police officers who see a homeless person committing one of the following violations may arrest or cite him or her even if there is no available shelter space for that person, but only if they first warn the individual and give him or her a chance to stop committing the violation:
  • Littering within 300 feet of a usable trash can
  • Fully blocking the sidewalk so that others have to walk out onto the street
  • Committing any minor offense (including those listed in a, above) in a way that poses an imminent threat of physical injury to the homeless person or others.

  If there is no usable trash can within 300 feet, the individual can’t be cited for littering unless the police offer him or her shelter space in Miami for the night, and the individual refuses that offer of shelter. If the individual moves in response to a warning about blocking a sidewalk -- for example, if he or she is lying on the sidewalk perpendicular to the street and moves so as to be lying parallel to it, so that people can walk by without going out into the street -- then the individual is not obstructing the sidewalk.

• Shelter does not have to be offered in lieu of arrest for these violations, and no warning is required: Police officers who see a homeless person committing one of the following violations may arrest him or her even if there is no available shelter space for that individual, without any warning:
  • building a fire in a public park or putting up a tent or temporary structure in a park
  • committing lewd conduct (violating public nudity laws intentionally in plain view of other people)
  • not using an open public restroom within a quarter mile. A “public” restroom means a restroom in a government-owned building. If there is no such restroom within 1/4 mile, or if it’s closed, then the individual cannot be arrested for failing to use it unless he or she is offered shelter and refuse the offer.

• Property rights are protected:
  • All City officials must respect homeless persons’ property rights. No City official, including the police or Green Shirts, may destroy or seize property that is identifiably the property of a homeless person, unless it poses an obvious safety hazard (for example, an unattended backpack left in front of a government building) or they reasonably believe it is abandoned.
  • If a homeless individual is arrested, police must secure that person’s property so they don’t lose it. Large or bulky items that aren’t contaminated or unsafe or unhealthy must be secured by an outreach worker. Mattresses do not have to be secured.

The Consent Decree itself:

The Consent Decree consists of two documents:

• The 1998 Settlement Agreement
• The 2014 Addendum to the 1998 Settlement Agreement

The two class representatives, approved by the court, are Carole Patman and David Peery.

The original class representatives were Michael Pottinger, Peter Carter, and Berry Young.

• Benjamin S. Waxman, Partner, Black Srebnick Kornspan Stumpff
• Stephen J. Schnably, Professor of Law, University of Miami
• Dante Trevisani, Florida Justice Institute
• Ray Taseff, Florida Justice Institute
• Valerie Jonas, Weitzner & Jonas
• Arthur Rosenberg, Florida Legal Services (retired)

Miami Law students have also played an important role.

• Between 1998 and 2000, many UM law students volunteered to help homeless people who had been wrongly arrested between 1984 and 1998 submit claims to the federal magistrate for compensation.
• More recently, law students have served as externs or as HOPE Public Interest Resource Center interns with Miami Homes for All), working on policy and legal matters related to homelessness in Miami, including implementation and monitoring of the revised Consent Decree. Other students have provided legal research on litigation matters related to the Consent Decree.
• The Miami Law Chapter of the ACLU has worked closely with the HOPE Public Interest Resource Center in arranging for current volunteer opportunities.

• Benjamin S. Waxman, Fighting the Criminalization of Homelessness: Anatomy of an Institutional Anti-Homeless Lawsuit, 23 Stet. L. Rev. 467 (1994)
• United States Inter-Agency Council on Homelessness, Opening Doors: Federal Strategic Plan to Prevent and End Homelessness
• United States Inter-Agency Council on Homelessness, Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness (2012)
• USICH, Human Rights and Alternatives to Criminalization
• James D. Wright and Amy M. Donley, Poor and Homeless in the Sunshine State: Down and Out in Theme Park Nation (2011)
  • Richter Library
  • Amazon
  Professor Wright served as an expert witness on homelessness in the original Pottinger lawsuit.