City of Miami filed motion to modify Pottinger agreement, a 1998 settlement in case brought by ACLU; Continued protection requires agreement be kept intact

CONTACT:  ACLU of Florida Media Office, (786) 363 - 2737

MIAMI – Today, in a hearing at the Wilkie Ferguson Federal Courthouse, attorneys from the American Civil Liberties Union (ACLU) of Florida went before a federal judge to oppose a motion by the City of Miami to modify the historic Pottinger Settlement Agreement. The ACLU argued that the Agreement’s protections of the fundamental rights of homeless persons must be kept in place and that the City of Miami failed to demonstrate that circumstances have changed in Miami in a way that warrants modification of the agreement. However, Chief Judge Moreno did not rule from the bench today and made it clear that he would hold the City of Miami to meet its burden of showing a significant change in circumstances that would justify modification to the agreement.

The Agreement, which was the result of a lawsuit (Pottinger v. City of Miami) filed by the ACLU of Florida on behalf of all homeless persons living in the city, was approved by Judge Moreno in 1998 based on a finding of intentional and systematic violations of the constitutional rights of homeless persons by the City of Miami. The landmark settlement – won after a decade of litigation involving two trials, two appeals, and nearly two years of mediation – protects homeless individuals from being harassed or arrested by law enforcement for the purpose of driving them from public areas.

The following statement on today’s hearing may be attributed to ACLU of Florida Associate Legal Director Maria Kayanan:

The conditions that led to the Pottinger agreement were the result of the City of Miami’s failed strategy of using the criminal justice system to deal with the issue of homelessness. With its motion before the Court, the City seems determined to return to those wrong-headed policies: criminalizing homelessness and subjecting people who are homeless to police harassment. In the fifteen years that the Pottinger agreement has protected the dignity, property, and constitutional rights of Miami’s homeless persons, downtown Miami has thrived and is undergoing a renaissance. We are pleased to have had the opportunity to go before the Court and explain why the agreement is still the best solution for protecting everyone in our thriving city.

The following statement may be attributed to Benjamin Waxman, an attorney with the law firm Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., and lead counsel in the Pottinger case:

The Pottinger settlement represents the product of nearly two years of vigorous negotiations between the City and the plaintiffs.  For 15 years, it has accommodated the sometimes competing interests of City officials attempting to transform Miami to a world-class city and homeless persons struggling for survival.  We continue to believe it strikes the best balance between allowing the City’s plans to proceed and protecting fundamental rights of the City’s most powerless residents. This agreement must continue fulfilling its basic purpose – ensuring the homeless people with no place to go cannot be arrested for being homeless or have their property destroyed.

The following statement may be attributed to Stephen Schnably, a law professor at the University of Miami and one of the Pottinger lawyers since 1994, as a Cooperating Attorney for the Miami Chapter of the ACLU of Florida:

Transforming downtown into a constitution-free zone for homeless people is a Faustian bargain with no payoff. Eviscerating the Pottinger protections—what the City is effectively seeking—would do nothing to make downtown more vibrant. All it would do isstrip homeless people of the basic human and constitutional right not to be arrested or have their property destroyed just for being homeless. The plaintiffs and the ACLU strongly believe that Pottinger, a national landmark in constitutional protection, remains as important today as it was in 1998 and must be kept intact.

More information on the City’s motion and the ACLU’s response is available here:

A series of FAQs about the Pottinger Agreement, the rights it protects, and common misconceptions is available here:


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