Agreement in case brought by ACLU has protected homeless people in Miami against police harassment for 15 years; Continued protection requires agreement be kept intact; ACLU releases FAQs re: Agreement

CONTACT: ACLU of Florida Media Office, (786) 363 - 2737
MIAMI - On Friday, October 4, the American Civil Liberties Union (ACLU) of Florida filed its response opposing and seeking to dismiss the City of Miami’s motion to modify the historic Pottinger Settlement 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 a federal court 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.

In September of this year, the City of Miami filed a motion in federal court to modify the agreement to enable the city to resurrect policies which were found to violate the rights of the city’s homeless in Pottinger. In its response filed Friday evening, the ACLU told the court that the City has failed to point to any “changed circumstances” warranting modification, has not proposed changes to the agreement that are tailored to the circumstances, and has not acted in good faith, and that therefore the agreement should not be modified.

“The Pottinger Agreement serves as a national model for protecting the homeless,” said 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. “The City is asking Chief Judge Federico Moreno to approve sweeping changes to Pottinger. Taken together, they would effectively allow City of Miami police to arrest homeless persons just for living in public. That would turn the clock back a quarter century to the shameful days when the city criminalized homelessness. ”

“Today, as 15 years ago when the Pottinger Settlement was adopted, there continues to be inadequate shelter and services to help Miami’s homeless,” Benjamin Waxman, an attorney with the law firm Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., and lead counsel in the Pottinger case. “Until each homeless person has shelter and a reasonable opportunity for a job or other means for permanent housing, the Pottinger Settlement remains vital to protect their most basic ability to exist – sleep, eat, sit, and stand – in public. The solution today is the same as it was when the City accepted the settlement agreement: provide adequate services, including available housing, for homeless people; and above all, respect their constitutional rights.”

“The City’s true goal is to eviscerate this historic Agreement, not just modify it,” said Maria Kayanan, Associate Legal Director of the ACLU of Florida, co-counsel with Schnably and Waxman. “In fact, the City’s proposed changes would authorize the City to involuntarily commit homeless individuals for mental health or substance abuse treatment for up to 48 hours, on mats, in any ‘shelter,’ anywhere in the County, in blatant violation of the Constitution. We call on the court to reject this effort by the City to return to the failed policy of trying to address homelessness in Miami through the criminal justice system.”

From the ACLU’s response:

For 15 years, as downtown Miami has come to realize its long-envisioned residential, commercial, and cultural renaissance, the Pottinger Settlement Agreement …has protected the basic constitutional right of homeless people not to be arrested or have their property destroyed simply because they are homeless. In his landmark ruling, Judge C. Clyde Atkins found the City to have systematically and deliberately violated that right… After a decade of litigation, including two years of hard bargaining, the City agreed to a decree governing the power of police officers to arrest homeless individuals who have no place to go, and protecting their property.

A hearing on the motion is scheduled for October 23, 2013, at 2 p.m. in the Wilke Ferguson Courthouse, Courtroom 13-3.

A copy of the City of Miami’s motion to modify the Agreement is available here:

The full text of 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: