February 2, 2009

John F. Timoney
Chief of Police
Miami, FL

Dear Chief Timoney:

It has come to the attention of the Greater Miami Chapter of the American Civil Liberties Union of Florida that within the past week or so City of Miami police officers have repeatedly threatened to arrest homeless persons around the western bridge area of the Julia Tuttle Causeway for trespass upon public property. Specifically, homeless persons who are sleeping in the grassy areas on either side of the overpass have been warned by City of Miami police officers that, unless they move their bedding, tents and other personal belongings off the grass and underneath the overpass, they will be arrested for trespass to public property and their possessions will be destroyed.

This harassment of homeless individuals residing around the causeway overpass contravenes the letter, as well as the spirit, of the Settlement Agreement, to which the City of Miami was a signatory, in Pottinger, et. al, v. City of Miami, Case No. 88-2406-CIV-Atkins, a copy of which is attached for your convenience.

That Agreement concluded litigation against the City of Miami for violating the rights of homeless individuals by arresting them under various city ordinances and state statutes for engaging in "life sustaining conduct" on public property where there was no available shelter in which they could live. The Agreement defines "life sustaining conduct" as, inter alia, "eating, sleeping, sitting, congregating, or walking in public."

Para. VII (14)(C)(1). The Agreement defines "Homeless Person"as one who "lacks a fixed, regular, and adequate night time residence and has a primary night-time residency that is: . . .(c) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings." Para. VII(10). "Public Property" is defined to include "all property owned by any governmental entity (federal, state, or local)," Para. VII (12), unless exempt pursuant to Para VII(12a).

Under the Agreement, City of Miami police officers may not warn, let alone arrest, a homeless person for sleeping on public property unless there is "available shelter," the officer has advised the person of and offered the "available shelter," and the homeless person has refused to accept it. Para. VII (14)(C)(2). Specifically, the homeless person to whom available shelter has not been offered may not be arrested, or threatened with arrest, for trespass by sleeping on public property, or for other misdemeanors conceivably associated with life sustaining conduct, such as sleeping in vehicles, littering, camping, erecting temporary structures in parks, etc. Para. VII(14)(C)(3)(a)-(k). Furthermore, the City is enjoined to "respect the personal property of all homeless people," even where arrest is permitted. VII(14)(F)(1). "In no event shall any city official or worker destroy any personal property known to belong to a homeless person, or readily recognizable" as such. Id.

As you are no doubt aware, the people residing under and around the western bridge area of the Julia Tuttle Causeway are homeless sex offenders. They are homeless because municipal and county residency restrictions have created vast exclusionary zones which have rendered virtually all affordable housing off-limits to them. They are engaging in life-sustaining conduct on public property that is not exempt under Para. VII(12a). Furthermore, because they are sex offenders, the homeless shelters in the City of Miami will not take them in. There is therefore no available shelter for this group of people. The Settlement Agreement is clear and unambiguous on this point: where a person is homeless, is engaging in life-sustaining conduct on non-exempt public property, and there is no available shelter for him, City of Miami police officers are prohibited from arresting or threatening to arrest him for trespass, and are prohibited from destroying, or threatening to destroy, his personal belongings.

Nor is there any basis under the Agreement for forcing the homeless persons residing around the causeway overpass, under threat of arrest or confiscation of personal property, to move their belongings under the overpass. The City of Miami has no right to require that its homeless population make itself invisible. The City of Miami is precluded by the Agreement from resorting to arrest and threats of arrest to achieve such a goal. The homeless population around the causeway will continue, inevitably, to grow -- as the exclusionary zones spread, with each additional bus stop, school and day care center, and as the number of sex offenders who have completed their sentences and are therefore released from prison increases as well. Just as the Pottinger Settlement established that the City of Miami may not "solve" its general homeless problem by sweeping it into jail, the City may not "solve" this particular homeless problem by sweeping it under a bridge.

We ask, therefore, that City of Miami police officers immediately be directed to cease and desist from arresting or threatening to arrest homeless sex offenders residing around the causeway overpass for trespass, and from destroying, or threatening to destroy, their personal belongings. We ask further that you notify us in writing forthwith (addressed to Ms. Sawyer at the address below) that this direction has been given so that we may inform the homeless offenders residing around the causeway overpass that they need no longer live in fear that they will lose their liberty or their property in contravention of the Pottinger Settlement Agreement.

Absent the receipt of such notification, we will invoke the "Enforcement/Mediation" provision in Paragraph 25a of the Agreement. Pursuant to that provision, we propose a meeting to either resolve this matter or to agree upon a mediator. If we do not receive requested notification within 48 hours, we will be in touch with your office to plan a time and place for the meeting.


Carlene Sawyer
President, Miami Chapter of the ACLU of Florida
915 Palermo Avenue #105
Coral Gables, Florida 33134
Phone: (305) 299-4202
Fax: (305) 572-9922
Email: sawyerandfriends@aol.com

Jeanne Baker, Esq.
Cooperating Attorney, Miami Chapter of the ACLU of Florida

Julie Bru
City of Miami Attorney
City Attorney’s Office
444 S.W. 2nd Ave., Suite 945
Miami, FL 33130

Pedro G. Hernandez
City Manager
City of Miami City Hall
3500 Pan American Drive
Miami, FL 33133

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