Home » About » Newsletters » May 1998
Homeless in Miami
By Benjamin Waxman
ACLU Cooperating Attorney, May 1998
By the time this article goes to print, one or more large ads will have been prepared for publication later this summer in The Miami Herald and other local newspapers notifying homeless and formerly homeless people of the settlement of the Pottinger lawsuit. If the settlement is approved, homeless Miami residents will begin receiving cash or vouchers of up to $1,500 by early next year to compensate them for arrests and harassment by the City of Miami based on their homeless status. This compensation culminates a decade of litigation.
Nearly 10 years ago, a handful of volunteer ACLU attorneys gathered at Miami's Camillus House to discuss with local homeless folks their accusations that City of Miami police were arresting and harassing them, and destroying their belongings, because of their homeless status. Although we wanted to force the City to provide our clients the shelter they so desperately needed, there did not seem to be a legal theory to support such a remedy. Following several brainstorming sessions, we filed a class action civil rights lawsuit alleging violations of constitutional rights to substantive due process (personal autonomy), equal protection, and the right to be free from statusbased punishment, unreasonable searches and seizures, and taking of property without compensation. We demanded compensation for injuries sustained by Miami's homeless population, an injunction to halt the arrests and harassment, and a declaration that the City's apparent policy was illegal.
Our lawsuit was met with resistance from some of our ranks ("this is an economic rights, not a civil rights, lawsuit"). A noted constitutional professor opined that the suit was novel but farfetched. Our efforts to transfer the case to now deceased Judge Eugene Spellman, a judge who had ordered a white collar convict to fund a homeless study in South Florida and who we believed might be sympathetic to our thinly supported case, failed. Judge C. Clyde Atkins turned down our request for emergency injunctive relief from the sweeps of homeless we anticipated would precede (as in years past) upcoming Orange Bowl festivities. The City rebuffed our efforts to quickly settle this potentially long lasting and costly lawsuit. Our cadre of attorneys, led by veteran ACLU attorney, Maurice Rosen, hunkered down for the long haul.
In retrospect, our legal theories, though virtually unprecedented, were supported by facts with irresistible equities. Our clients were involuntarily homeless, had no choice but to live in the streets and conduct basic lifesustaining activities (eating, sleeping and, yes, urinating and defecating) in public. The case began to take a favorable turn in 1989, when Judge Atkins certified the case a class action on behalf of 5,000 aggrieved homeless persons. Then, in 1990, the judge condemned Miami police for twice rounding up homeless residents of Lummus park and burning their personal belongings. The City was again chastised in 1991 when, despite the court's previous order to follow procedures to safeguard personal property located in public places, it was found to have destroyed the property of homeless people in Bicentennial Park, some of whom were present and objected.
In June, 1992, after the court severed the plaintiffs' claims for compensatory damages (which would have been tried to a jury), the claims for injunctive and declaratory relief were heard by the court. In November, Judge Atkins handed down his landmark decision finding that the City of Miami had a policy of violating the plaintiffs' constitutional rights. In the most controversial part of its order, the court directed the City to establish two "safe zones" where homeless people could sleep without fear of statusbased arrests or harassment.
The City appealed. After briefing and oral arguments, the 11th Circuit Court of Appeals in Atlanta, widely recognized as extremely conservative and particularly unsympathetic to civil rights plaintiffs, sent the case back to Judge Atkins to consider new programs the City had recently instituted to assist the homeless. Following another week long hearing, and recognizing the City's advances in joining Dade County's homeless assistance efforts, Judge Atkins concluded that there were still involuntary homeless people living in Miami streets and that some were still being arrested based on their homeless status. The court refused to relent from its original order.
Immediately following another appeal and oral argument, the court of appeals entered a strange and unexpected order. The court would not rule on the novel constitutional claims and decision below. Instead the parties were ordered to participate in court supervised mediation to resolve the case.
To say that we were disappointed would be a gross understatement. After all, against all odds, we had won in the trial court. Although we recognized the risks of adjudication in the 11th Circuit, we believed that Judge Atkins' factual findings were unassailable and that adequate legal theories supported the court's order granting relief. Besides, our early attempts to settle had been rejected out of hand.
When we first began mediation in 1995, we could barely sit in the same room with our adversaries. Voices were raised, tempers flared, and distrust filled the air. The task before the appellate mediator, though classic in some respects, seemed uniquely impossible to accomplish. The City brought in several wellregarded outsiders to represent it in these proceedings: first former district court judge and current U.S. Attorney Thomas Scott, and when he assumed his new position, former U.S. Attorney Kendall Coffey. Following 18 months of intensive negotiations, a compromise was reached with which probably neither side is entirely pleased, but which obtains far more for homeless people than the best conceivable appellate decision ever could have accomplished.
First and foremost, the compromise preserves Judge Atkins' opinions which permanently memorialize the atrocities which the City of Miami inflicted upon its homeless. They serve as valuable precedents for other homeless civil rights litigation across the country. Second, the agreement requires police and other city workers who routinely contact homeless people to undergo sensitivity training to educate them about the facts and circumstances that lead to the difficult predicament of homelessness and to foster a more compassionate and humane approach. Next, the settlement prescribes a protocol that police must follow anytime they contact homeless people who might otherwise be arrested for misdemeanors due to their homeless status. It prevents such arrests unless the homeless person has been offered shelter and a way to get there and has refused this assistance. The agreement establishes an "Advisory Committee" to informally monitor its terms, field complaints about noncompliance, and advise the parties and the court of any problems and possible resolutions. The settlement also recognizes the dignity of the homeless persons who were injured by the City's unconstitutional policy (including being arrested, harassed, and having property confiscated and destroyed) by awarding each up to $1,500 for their injuries. Finally, the settlement provides for the payment of $900,000 for attorneys' fees and costs that will be distributed between the nearly dozen attorneys who helped litigate this lawsuit over ten years, and the Miami and Florida Affiliate chapters. Although this is hardly the most important aspect of the resolution, it is significant in that it will help fund other important local ACLU cases and hopefully encourage qualified attorneys to assist us in taking on these difficult matters.
There is still much to be done to effectuate the settlement, but we have taken the turn down the home stretch. The district court has set a date in September for a settlement approval hearing. Shortly afterwards the 90 day claims period should commence. It is our hope that hundreds, if not thousands, of homeless or formerly homeless persons will come forward and claim their share of the monies set aside to compensate them. We also hope that the settlement's training and protocol will help ensure that people who find themselves on the streets today will not be mistreated like their predecessors.
This litigation was never intended to cure homelessness. Instead, it was meant to redress civil rights violations. Perhaps the lesson to be learned is the virtue of compromise. Unfortunately, effective compromise often only follows aggressive litigation. I hope the ACLU will continue taking on the difficult cases, even those not yet fully supported in the law. As Howard says, if you don't enter the battle, you can't win the war.
Benjamin Waxman is a cooperating attorney with the ACLU. Citing his work with the ACLU and on the Pottinger case, the New Times recently named Waxman Miami's Best Lawyer (New Times Best of Miami, May 1420, 1998).
