LTC 657-2019 Amended Homelessness Legal Update- Recent Denial of Certiorari Review by U.S. Supreme Court in Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), cert. denied, Boise v. Martin, 2019 U.S. LEMIAIBEA CH
OFFICE OF THE CITY ATTORNEY
LTC No.
657-2019
LE T T E R TO C O M M IS S IO N
TO: Mayor Dan Gelber and Members of the City Commission
Ro u. Rau. A outa. c or Atom e»p a CH
DATE: December 18, 2019
SUBJECT: Amended Homelessness Legal Update: Recent Denial of Certiorari
Review by U.S. Supreme Court in Martin v. City of Boise, 920 F.3d 584
(9th Cir. 2019), cert. denied, Boise v. Martin, 2019 U.S. LEXIS 7571 (U.S.,
Dec. 16, 2019).
This memorandum is to advise the Mayor and City Commission of a recent decision by
the U.S. Supreme Court regarding the ability of local governments to regulate camping
and sleeping by homeless people in public. The Supreme Court on Monday declined to
hear an appeal in Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), cert. denied,
Boise v. Martin, 2019 U.S. LEXIS 7571 (U.S., Dec. 16, 2019), a Ninth Circuit case
originating from Boise, Idaho, that invalidated the City of Boise's ordinance that made it
a crime to camp and sleep in public spaces.
The case stems from a lawsuit filed nearly a decade ago. A handful of people sued the
City of Boise for repeatedly ticketing them for violating an ordinance against sleeping
outside. In a decision last year, the Ninth Circuit said it was cruel and unusual
punishment in violation of the Eighth Amendment to enforce rules that stop homeless
people from camping in public places when the City has no shelter beds available to
house them. That means states across the Ninth Circuit can no longer enforce similar
statutes if they don't have enough shelter beds for homeless people sleeping outside.
The U.S. Supreme Court decision to let the Ninth Circuit opinion stand is a setback for
states and local governments in much of the Western United States that are grappling
with widespread homelessness by designing laws to regulate makeshift encampments
on sidewalks and parks.
The impact of the decision on the City of Miami Beach is, however, negligible, because
a central underpinning to the Boise decision was the fact that the City of Boise did not
have enough shelter beds to house its homeless population. While the City of Miami
Beach currently prohibits unauthorized camping in public places by anyone (including
We are committed to providing excellent public service and salely to all who live, work, and play in our vibrant, tropical, historic community.
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the homeless), our camping ordinance does not authorize the arrest of any homeless
individual unless we have a shelter bed available to offer and the homeless individual
refuses the bed and refuses to vacate the area. See Code of the City of Miami Beach§
70-45(d).
The Eleventh Circuit, which governs Florida, has specifically upheld an anti-public
sleeping ordinance against an Eighth Amendment challenge in Joel v. City of Orlando,
232 F.3d 1353, 1362 (11th Cir. 2000). In Joel, the Eleventh Circuit affirmed the grant of
summary judgment in favor of the city on an Eighth Amendment claim challenging an
ordinance prohibiting "sleeping or otherwise being in a temporary shelter out-of-doors."
Id. at 1356. The Eleventh Circuit concluded that because there was space available at
a local homeless shelter that never reached maximum capacity and never turned away
an individual for lack of space or failure to pay the nightly fee, the ordinance did not
criminalize the status of being homeless. Id.
One judge in the Southern District of Florida, in a widely cited case, struck down an anti-
public sleeping ordinance as a violation of the Eighth Amendment. See Pottinger v. City
of Miami, 810 F. Supp. 1551, 1565 (S.O. Fla. 1992) (holding that city practice of
arresting homeless persons for performing such activities as sleeping, standing, and
congregating in public places violated the Eighth Amendment). In Pottinger, the court
observed that,
[R]esisting the need to eat, sleep, or engage in other life sustaining
activities is impossible. Avoiding public places when engaging in this
otherwise innocent conduct is also impossible .... As long as the homeless
plaintiffs do not have a single place where they can lawfully be, the
challenged ordinances, as applied to them, effectively punish them for
something for which they may not be convicted under the [E]ighth
[A]mendment - sleeping, eating and other innocent conduct.
Id. However, the parties' consent decree resulting from the Pottinger decision was
recently terminated by the court, finding that the primary purpose of the consent decree,
"to stop the arrests of the homeless for being homeless, has been achieved." Pottinger
v. City of Miami, 359 F. Supp. 3d 1177, 1201 (S.D. Fla. 2019). That order is currently
on appeal. The City Attorney's Office previously issued an L TC relevant to that decision,
which is again attached here as Exhibit A.
The City Attorney's Office will continue to monitor developments in this area of the law
and advise the Mayor and Commission on further developments as appropriate.
We are com mitted to providing excellent public service an d salely to all who live, work, and play in our vibrant, tropical, historic community.
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W e are committed to providing excellent public service and salely to all wh o live, work, and play in our vibrant, tropical, historic community
M IA M I BEACH
OFFICE OF THE CITY ATTORNEY
117-2019 LETTER TO COMMISSION
LTC No.
TO:
FROM:
DATE:
Mayor Dan Gelber
Members of the City Commission
City Manager Jimmy L. Morales
c Atome»y Rau+ AowgR}.'
March 5, 2019
SUBJECT: Analysis Regarding Recent U.S. District Court Memorandum Opinion
In Michael Pottinger, Peter Carter, and Berry Young v. City of Miami
The purpose of this Letter to Commission is to provide the Mayor and City Commission with an
analysis of the Memorandum Opinion issued in the United States District Court for the Southern
District of Florida on February 15, 2019 in Michael Pottinger, Peter Carter, and Berry Young v.
City of Miami. A copy of the entire Memorandum Opinion is attached as Exhibit "A"
BACKGROUND
In 1988, Michael A Pottinger, as representative of a class of homeless persons, filed a lawsuit
against the City of Miami pursuant to 42 U.S.C. 5 1983, alleging that the City of Miami police
department had "a custom, practice and policy of arresting, harassing and otherwise interfering
with homeless people for engaging in basic activities of daily life ... in the public places where they
are forced to live." Pottinger v. City of Miami, 810 F. Supp. 1551, 1554 (S.O. Fla. 1992). Mr.
Pottinger sought an injunction against the City of Miami to prohibit its police officers from arresting
homeless persons who were engaging in "life-sustaining conduct" in public, and from seizing and
destroying their personal property.
The original District Court presiding over the case, Judge C. Clyde Atkins, found the City of Miami
liable for unconstitutionally arresting homeless persons for engaging in life-sustaining activities
being conducted in public. Furthermore, Judge Atkins found that the City of Miami utilized the
arrest process for the ulterior purpose of driving homeless persons from public areas and, as
such, granted Mr. Pottinger's request for injunctive relief, which prohibited City of Miami police
officers from arresting homeless persons for life-sustaining activities in two (2) safe zones that he
established in downtown Miami. Subsequently, the City of Miami twice appealed the decisions of
Judge Atkins to the United States Court of Appeals for the Eleventh Circuit, which ultimately
instructed the parties to mediate in an attempt to resolve their dispute.
THE POTTINGER SETTLEMENT AGREEMENT
In 1998, after almost two (2) years of negotiations, the parties entered into a settlement agreement
(hereinafter identified as the "Settlement Agreement"), which was approved by the Honorable
Federico A Moreno, United States District Judge, but created a different remedy than that which
EXHIBIT "A"
Letter to Commission Re: Memorandum Opinion in Michael Pottinger et al. v. City of Miami
March 5, 2019
Page 2 of 5
Honorable Federico A. Moreno, United States District Judge, but created a different remedy
than that which Judge Atkins had originally fashioned and ordered. The Settlement Agreement
established· a protocol regarding Miami police interactions with homeless persons in order to
further protect the rights of the homeless, by limiting the circumstances under which arrests
could be made, and included provisions for the handling of their personal property. Further, the
Settlement Agreement incorporated and defined the term "life sustaining conduct" as those
misdemeanor offenses which a homeless individual commits by the mere fact that he or she is
without shelter, and must conduct those life sustaining activities, such as eating, sleeping,
sitting, congregating, or walking in public.
Moreover, the Settlement Agreement prohibited Miami police officers from arresting a homeless
person for a "life sustaining conduct" misdemeanor unless the police officer first offered an
"available shelter" to the hom eless person, and the hom eless person refused to accept the
shelter, or if the sole "available shelter" at the time was a shelter from which the homeless
person was barred because of his or her own purposeful misconduct, criminal or otherwise,
which occurred at that shelter.
Specifically, the Settlement Agreement identified the aforementioned "life sustaining conduct"
misdemeanors as:
a. Being in a park after hours;
b. Public nudity where necessary to carry on the daily necessities of life, such as
bathing or responding to a call of nature;
c. Fires in parks;
d. Obstructing passage on sidewalks;
e. Vehicles, living or sleeping in;
f. Loitering in restrooms;
g. Littering;
h. Camping in parks;
i. Use of facilities for other than intended purpose;
j. Temporary structures in parks; and
k. Trespass on public property other than a structure or conveyance (such as a motor
vehicle, vessel, railroad car, etc.).
However, it is important to note that nothing contained within the meaning of "life sustaining
conduct" prevented arrest for a lewd, lascivious or indecent assault or act upon or in the
presence of a person pursuant to Florida Statute 800.04, provided the law enforcement officer
had probable cause to make such an arrest. Likewise, if a law enforcement officer had probable
cause to believe that a homeless person was committing, or had committed, a felony offense,
the law enforcement officer could detain or arrest the homeless person irrespective of whether
there was an available shelter.
Additionally, the Settlement Agreement provided protection for the personal property of
homeless individuals. The Miami Police Department and all other City of Miami departments,
including Parks and Recreation and Solid Waste, had to follow their own internal procedures for
taking custody of homeless persons' personal property, and were prohibited from destroying
any personal property readily recognizable as belonging to a homeless person, except as
permitted by law and in accordance with their standard operating procedure, or unless the
property was contaminated or otherwise a health hazard.
Letter to Commission Re: Memorandum Opinion in Michael Pottinger et al. v. City of Miami
March 5, 2019
Page 3 of 5
ADDENDUM TO THE POTTINGER SETTLEMENT AGREEMENT
The Settlement Agreement was modified by an addendum, which was ratified and approved by
Judge Moreno in 2014. The most significant changes to the Settlement Agreement included the
following:
a. Registered sex offenders or sexual predators, pursuant to certain Florida statutes,
were no longer afforded some of the protections of the Settlement Agreement;
b. A facility was now considered a shelter if it could accommodate the homeless for a
minimum of twenty-four (24) hours, and had mats at least three (3) inches thick for
the homeless to sleep on;
c. Starting a fire in a park no lon ger constituted "life sustaining conduct";
d. Temporary structures in parks were no longer permitted;
e. If public nudity was done intentionally and in plain view of others, the law
enforcement officer could arrest the homeless person regardless of whether there
was available shelter, and in no circumstance was public nudity allowed for a call of
nature if there existed an open public restro om within one-quarter of a mile (1,320
feet) of the homeless person performing a call of nature;
f. After on e (1) warning, no person could lie on the sidewalk in a perpendicular fashion
blocking the sidewalk or obstructing the sidewalk in such a way as to endanger other
persons by requiring them to walk into a street where, but for the obstruction, such
persons would otherw ise have been able to safely walk on the sidewalk;
g. Littering within three-hundred (300) feet of a usable trash receptacle was a citable
offense if a law enforcement officer warn ed the homeless person to stop and he/she
refused, regardless of whether there was available shelter; and
h. Arrests could now be made for "life sustaining conduct" misdemeanors if such
conduct caused imminent threat of physical injury to the homeless person or another
person, and if the homeless person continued such conduct after being warned by a
law enforcement officer to stop, regardless of whether there was available shelter.
TERMINATION OF THE POTTINGER SETTLEMENT AGREEMENT
On February 15, 2019, pursuant to a motion by the City of Miami, and despite opposition from
the Plaintiffs, Judge Moreno determined that Federal Court oversight should come to an end,
and thus terminated the Settlement Agreement. Judge Moreno found that, over the past twenty
(20) years, the City of Miami had substantially complied with the Pottinger Settlement
Agreement, and much had changed in how the City of Miami treats its homeless population.
Additionally, Judge Moreno noted that the termination of the Settlement Agreement
notw ithstanding, any future abuse of the homeless by City authorities would be subject to
individual civil rights lawsuits, and any arrest not based upon probable cause by the Miami
Police Department would subject the police to the same liability, whether the aggrieved party is
homeless or not.
THE POTTINGER SETTLEMENT AGREEMENT AND THE CITY OF MIAMI BEACH
Indisputably, the City of Miami is the only municipality, out of the thirty-four (34) in Miami-Dade
County and the County's unincorporated area, that is subject to the Pottinger Settlement
Agreement. Nonetheless, the City of Miami Beach has utilized the Settlement Agreement as a
Le tt e r to C o m m is s io n R e : M e m o ra n d u m O p in io n in Michael Pottinger et al. v. City of Miami
March 5, 2019
Page 4 of 5
fundamental template and has not only tried to adhere to its provisions for many years, but
oftentimes has exceeded such provisions in its approach toward homeless individuals.
The City has essentially taken a dual approach to homelessness with coordinated efforts
between the City's Police Department and its Housing and Community Services Department.
The City, through its Housing and Community Services Department, created its first Homeless
Outreach Team in 2001 (consisting of a program coordinator and 2 contract employees) and
has since increased its staff three-fold to a program coordinator and nine (9) employees, and
established a walk-in center (located at 555 17" Street) for homeless persons seeking
assistance. Presently, the City allocates $1.8 million dollars to its homeless services budget for
the Housing and Community Services Department, and estimates that it expends $750,000 on
police resources for homeless engagement by the City of Miami Beach Police Department.
In an effort to support the Homeless Outreach Team, and to increase engagements and get to
know the City's homeless population, the Police Department established a dedicated homeless
resource unit which now consists of four ( 4) police officers, one ( 1) police sergeant, and one (1)
civilian homeless liaison specialist who are all supervised by a police captain. The primary
mission of the homeless resource unit is to provide assistance to homeless individuals and,
when appropriate, enforce ordinances and statutes. In an effort to provide assistance, the City
is one of the few municipalities to purchase beds for the homeless at three (3) shelters in Miami-
Dade County. Prior to effectuating the arrest of a homeless person for a "life sustaining
conduct" misdemeanor during the hours of 7:30a.m. - 3:30p.m., Monday- Friday, Miami Beach
police officers are able to refer the homeless person to the City's Homeless Outreach Team,
who can then offer the homeless individual an available bed at one of the three (3) shelters.
After-hours, the City has five (5) beds at the Salvation Army shelter which the City's police
officers are able to offer to homeless persons.
Moreover, those homeless persons who suffer from an issue concerning addiction, substance
abuse, or mental health can get help from the City. Such persons may be referred by the City,
either through the Police Department's highly successful Marchman Act Program (for those
long-term homeless individuals who suffer from substance abuse), or through the Housing and
Community Services Department, for appropriate services to help address those critical issues
of addiction, substance abuse and mental health that often plague those individuals living on the
streets.
Through its Homeless Outreach Team, the City also offers several types of invaluable
assistance to homeless persons. For example, the City will provide services to help homeless
persons replace various identification documents, including birth certificates, state-issued
identification cards, and immigration papers. In addition, if a homeless person has a friend or
family member that he/she wants to be reunited with and who is willing to assist that homeless
person, upon verification, the City will provide a once-per-lifetime bus voucher to reunite the
homeless individual with that friend or family member. Furthermore, since 2015, the Homeless
Outreach Team has implemented and administered a homeless employment program which
provides short-term work experience, important job skills, and interview/work clothes to
homeless, or recently homeless, individuals to help them transition off the streets.
Le tter to C om m is si on R e : M e m or an d u m O pi n ion in Michael Pottinger et al. v. City of Miami
March 5, 2019
Page 5 of 5
CONCLUSION
The Pottinger case sparked a re-evaluation throughout the community as to the treatment and
care of homeless persons and, as Judge Moreno aptly noted, the testimonial evidence was
unequivocal that the Pottinger Settlement Agreement was a catalyst for all stakeholders in
Miami-Dade County to devise appropriate programs to combat homelessness. It should be
without dispute that the City of Miami Beach has not only followed, but expanded upon, the
tenets set forth in Pottinger, and has continuously treated its homeless persons in a sensible
and compassionate manner. Irrespective of the fact that the Settlement Agreement has been
terminated by the Federal Court, this legal result must not alter the City's approach towards its
homeless population.
As such, I strongly recommend continuing this process into the foreseeable future without
regard to the termination of the Settlement Agreement. Therefore, and considering all aspects
surrounding this matter, it would not be prudent for the City to initiate any administrative
measures that would minimize those protections that are presently being offered to the City's
homeless population.
Should you have any questions or concerns about any of the foregoing, please don't hesitate to
contact me.
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UN IT E D ST A T E S DI S T R IC T C O U R T FO R T H E
SO U T H E RN DI S T R IC T O F FLO R ID A
M iam i D ivision
Case Number: 88-2406-CIV-MORENO
M IC H A E L PO T T IN G E R , PE T E R C A R T E R ,
and B E R R Y Y O UN G ,
P laintiffs,
vs.
C IT Y O F M IA M I,
D efe ndant.
I ------------------
M E M O RA N D U M O P IN IO N
"[O ]ne of the thin gs P ott inger has done so w ell is create this am az ing collabora tion
w here it fo rced the different stakeholders to w ork together." (T r. vol. 4, 29). 1 The veraci ty of
Judge Steve L eifm an's st atem en t w as evident in this pro ceedin g as this C ourt heard tim e an d
again about the m yriad of pro gra m s and aid available to th e hom eless in this com m unity. There
can be no dou bt that in the tw enty years this C on sent D ecree has been in place, the C ity of
M iam i has endeavored to eradicate hom elessness. A lthough M iam i has m ade signifi cant inr oads,
hom elessness unfo rt unately persists, as it does in all cit ies in A m erica. Y et, the City continues
daily to m itigate the effects in a m anner consistent w ith the Poll inger A greem ent. The issues in
these pro ceedings are whether the City has substantially com plied with the P oll inger Consent
D ecree such that fe deral court oversight should com e to an end aft er 20 years or w hether the
C ity 's treatm ent of the hom eless requires this C ourt to continue its oversight and even to hold the
C ity in contem pt.
1 References to the transcripts of the six-day evidentiary hearing are as follows:
Tr. vol. 1 refers to September 24, 2018 transcript
Tr. vol. 2 refers to September 25, 2018 transcript
EXHIBIT
I
Case 1:88-cv-02406-FAM Document 682 Entered on FLSD Docket 02/15/2019 Page 2 of 40
I. BACKGROUND
The world has changed dramatically since the original filing of this complaint 30 years
ago and the City of Miami is no exception. In 1988, Judge C. Clyde Atkins entered an injunction
to prevent the arrest of the homeless for being homeless and the seizure of their property. After
I O years of litigation, a settlement was reached between the homeless Plaintiffs led by Mr.
Pottinger and the City of Miami, and the undersigned entered the Consent Decree commonly
referred to as the Pollinger Agreement. 2
The 1998 Pottinger Agreement was later modified with the agreement of both parties in
2014 to exclude sexual offenders from the protected class of the homeless. ln the twenty years of
the Pottinger Agreement, the City of Miami police depart ment instituted departmental policies
that prohibited the police officers' past practices of arresting the homeless without cause. As a
direct consequence of the excellent work done by the attorneys for the American Civil Liberties
Union representing the homeless, the Pottinger Agreement led to, not only a change in the City's
police department, but also contributed to a total cultural change in the way the homeless were
treated by all City employees. That cultural change also contributed to the creation of a Miami-
Dade County Homeless Trust supported by taxes and grants that yield an annual budget of
approximately $61-65 million to assist the homeless in various activities, including medical
assistance, shelters, etc. (Tr. vol. 2, 24).
Because of these changed circumstances, the City of Miami seeks termination of the
twenty-year old Pottinger Agreement. On the other hand, the Plaintiffs not only oppose the
Tr. vol. 3 refers to September 26, 2018 transcript
Tr. vol. 4 refers to October 24, 2018 transcript
Tr. vol. 5 refers to October 25, 201 8 transcript
Tr. vol. 6 refers to November I, 2018 transcript
The original Plaintiffs, Michael Pottinger, Peter Carter, and Berry Young, are deceased or their whereabouts are
unknown. On December 23, 2013, the Court granted Plaintiffs' Motion to Add Class Representatives and named
Carole Patman and David Peery as class representatives.
2
Case 1:88-cv-02406-FAM Documen t 682 Entered on FLSD Docket 02/15/2019 Page 3 of 40
termination of the agreement, but they have also moved to hold the City of Miami in contempt
for violating the agreement by seizing the property of the homeless in the City's clean-up
operations. The City's 2018 clean-up operations were essential because of the health an d safety
concerns stemming from various homeless encampments.
The Court conducted an evidentiary hearing on the parties' motions over numerous days.
The Court will make findings of fact and separate conclusions of law based on the testimony of
the City's witnesses, over thirty homeless witnesses, and several expert witnesses in the field of
homelessness. The Court is not charged with "resolving" the homeless problem in the City of
Miami. However, the Court was impressed with all the services provided to the homeless by
many individuals and organizations as a direct consequence of the cultural change engendered by
the Pottinger Agreement. As such, there is little dispute that the number of homeless has been
reduced countywide from I 0,000 to around 1,000, although those numbers are imprecise because
of the difficulty of counting the homeless. Of those, the overw helming majority ( over 600) are in
the City of Miami. According to the U.S. Census, the 2017 population estimate for the City of
Miami is 463,347 and the estimate for the County is 2,751,796.3 Meaning, even though the
City's population is only about 17% of the County's overall population, it is home to over 60%
of its homeless. Indeed, Mr. Ronald L. Book, Chair of the Homeless Trust, testified that 66% of
all homeless individuals placed in shelters come from the City of Miami. (Tr. vol. 2 at 1 O).
Thus, there is little dispute that Miami has changed, its homeless population has declined
by 90%, and the City is the only municipality out of 34 in Miam i-Dade County and the County's
unincorporated area,4 subject to the Pottinger Agreement. Also, both sides agree that arresting
'See https:/ /www .census.gov/ quickfacts/fact/tab leim iamicity florida,miam idadecountyfl ori da/PS T04 5217.
4 lt is estimated that the population of the County's unincorporated area exceeds one million residents,
approximately 36% of the total population. See https://www8.miamidade.gov/global/disclaimer/about-miami-dade-
county.page.
3
Case 1:88-cv-02406-FAM Document 682 Entered on FLSD Docket 02/15/2019 Page 4 of 40
the homeless is never a solution because, apart from the constitutional impediments, it is
expensive, not rehabilitating, inhumane, and not the way to deal with the "chronic" homeless,
who suffer from mental illnesses and substance abuse addiction. The solution to those problems
is beyond the scope of any power given to the judiciary. Yet, the Court does have the power to
enforce the parties' agreement and of course, courts always have the power to enforce the United
States Constitution to protect individuals from unlawful arrests and seizures of their property.
The dispute in this case is simply the impact that tenn inating the Pottinger Agreement
will have on the constitutional rights of the homeless to be free from harassment, arrests, and the
unlawful taking of their property. During the last twenty years, so much has changed in how the
City of Miami treats its homeless population that the Court finds the Pottinger Agreement should
indeed be terminated. The changes in the treatment of the homeless are the direct result of the
vigorous challenge by the American Civil Liberties Union attorneys on behalf of the homeless in
this case.
The Court is under no illusions that the City of Miami has resolved homelessness. But, as
homeless expert Judge Steve Leifm an, a witness for the Plaintiffs, testified, M iami has become
the best city in the country in dealing with the homeless. The health crisis, about which there is
no dispute involving drug use, public sex, and rodents in homeless "cam ps," must be dealt with
for the protection of the homeless themselves and the citizens, including children, who live and
walk near these gatherings. Any abuse by the authorities is subject to individual civil rights suits.
Unattended personal property left on public sidewalks and fences, which pose public health and
safety concerns, are allowed to be seized and dispensed by the City. Any arrest not based upon
probable cause by the City of Miami police department will subject the police to the same
liability whether the aggrieved party is homeless or has a home.
4
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T herefo re, the City of M iam i's M otion fo r Term ination is G RA N T ED , and the Plaintiffs '
M otion to H old the C ity in Contem pt is D EN IE D .
II . FIN D IN G S O F FA C T
T w enty year s ago, this Court appro ved a sett lem ent betw een a cl ass of Plaintiffs,
consisting of hom eless individuals, and th e C ity of M iam i, w here the Plaintiffs lived. U nited
States D istrict Judge C. C lyde A tkins fo und the City of M iam i had unconstitutionally arr ested
hom eless persons fo r engaging in life -sustaining acts they w ere fo rced to conduct in public, such
as sleepin g, cooking, eating, sitt ing, congregating, and reli eving them selves. Judge A tkins fo und
the C ity "used the arr est pro cess fo r the ulterior purp ose of driving hom eless from public ar eas."
Pottinger v. City of Mia m i, 810 F. Supp. 1551, 1566 (S.O . Fla. 1992).
R ecognizing the lim ited ro le of the Court in fa shioning a rem edy, Judge A tkins issued a
negativ e injunction that pro hibited the C ity from arr esting hom eless people fo r sleeping, eating,
ly ing dow n, or sitt in g in tw o safe zones he established in dow ntow n M iam i. The injunction
fu rt her pro hibited C ity police from destro ying personal property belonging to the hom eless. The
inju nction did not pro hibit police fr om arresting hom eless persons for crim inal acts.
T he Settlem ent A greem ent ultim ately reached in this case w as the product of ten years of
li tigation , appeals, and extensive m ediation. A fter a hearing, this Court , assigned to the case aft er
Judge A tkins, approved the Pottinger A greem ent, w hich has been in place ever since.
A s m odifi ed in 2014, th e C onsent D ecree details a pro tocol that govern s City of M iam i
police interaction s w ith those experiencing hom elessness. City police m ay not approach a
hom eless indiv idual, w ho is not com m itting a crim e, unless the approach is to offer services.
(C onsent D ecree, D ef. E xh. 1 at 6-8). With certain exceptions, the police m ay not arr est or
threaten to arr est any hom eless person fo r com m itting "life sustaining conduct m isdem eanors,"
5 T he C onsent D ecree is at D.E. 382. Th e 20 14 A ddendum is at D.E. 525-1.
5
Case 1:88-cv-02406-FAM Document 682 Entered on FLSD Docket 02/15/2019 Page 6 of 40 f
i
t ¡
unless they first offer the individual an available space in a shelter within city limits or within a
mile of those limits, and the individual refuses that offer. Id. at 6, 8. Upon refusal of available
shelter, the homeless individual is subject to arrest if there is probable cause that a crime has
been committed. Id. The Consent Decree lists the life-sustaining conduct misdemeanors and does
not prohibit police from arr esting individuals for misdemeanors not on the list. Id. at 9-11. Miami
police need not offer shelter prior to arresting a homeless individual committing a felony. Id. at
12.
The Consent Decree also offers protection for the property of homeless individuals. The
Decree requires all City employees to follow procedures for taking custody of personal property
and not to destroy personal property reasonably recognizable as belonging to the homeless. Id. at
12-13. Th e Decree does not prevent the City from destroying contaminated property, or property
that otherwise poses a health hazard. Id. The evidence showed that although the City has routine
protocol in place, the City outreach team did not have written procedures in place for the
handling of property when the Plaintiffs filed their motion for contempt. 6
In its motion, the City of Miami seeks to terminate the Consent Decree, or at the very
least, modify it in four different ways. One proposed modification is to exclude what the City
calls the chronically homeless from the purview of the decree. The other proposed modification
would permit a shelter space anywhere in Miami-Dade Coun ty to be offered in lieu of arrest for a
life sustaining conduct misdemeanor, rather than only a shelter within the city limits or within
one mile, as is currently the case. The City also proposes two additional modifications, which are
to include language prohibiting the storage of a homeless person's belongings on public property
and exempting from the Decree actions taken by the City in cleaning public areas.
6 A fier Closing Arguments, the City filed a written Administrative Policy Addressing Treatment of Homeless
Property . Because this policy was not introduced at the evidentiary hearing, the Court docs not rely on it in ruling
on the motions.
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In its discretion, the C ourt held an evi denti ary hearing to resolve the disputed issues of
fa ct and to detenn ine w hether the City carries its burden to show signifi can t chan ged
circum stan ces and substantial com pliance w ith the C onsent D ecree. The inquiry is fa ct-intensive.
T he tri al court is "vested w ith bro ad discretion in granting or denying discovery." See King v.
Greenblatt, 149 F.3d 9 , 13 ( l st C ir. 1998). Th is C ourt allow ed the part ies lim ited discovery prior
to conducting the evidentiary hearing.
A. Summary of Changed Circumstances in the City of Miami since 1998
T he testim ony w as unequivocal that the Polfinger A greem ent w as a catalyst fo r all the
stak eholders in M iam i-D ade C ounty to devise appro priate pro gram s to com bat hom elessness. It
w as an "incentive to pro vide the services fo r the population." (T r. vol. 4, 8). Judge Steve
L eifm an , A ssoci ate A dm inistra tive Judge of M iam i-D ade C ounty's Crim inal D ivision, and the
C h air of the Fl orida Suprem e C ourt Steering Com m ittee on M ental H ealth an d Substance A buse
C ourt s, testifi ed th at "[i ]t has been a signifi cant m otivator fo r all the stakeholders lo com e up
w ith appropriate pro gra m s on how to deal w ith this population, an d it has w orked." ld. at 7. The
evidence show ed th at the num bers of hom eless persons in M iam i has plum m eted. ld. The
evidence also show ed that the "population that w e have left on the street is different than w hat
w e had w hen w e fir st started." ld. Pottinger w as not developed to address the m ental and
substan ce abuse issues that rem ain present in our com m unity. It w as prim arily devised to prevent
the po li ce fr om arr estin g the hom eless in cert ain circum stances and fr om unlaw fu lly taking their
pro pert y. T he eviden ce show ed "it has achieved that end." Id. at 15. The evidence also show ed
that the C ity of M iam i is unli kely to revert to those policies given the m yriad of pro gram s
available to it as a m eans to aid the hom eless. Those pro gram s did not exist w hen Pottinger w as
fil ed in 19 88. It is tru e that by the tim e the C onsent D ecree w as entered, ten years after the
litigation began, the w heels w ere in m otion and hom eless aid initiatives w ere beginning to take
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shape. In the twenty years since, the proliferation of services and funding available in this
community has been transformative causing a 90% reduction in the number of homeless. There
is also a general consensus of what work remains and how to chip away at those remaining
statistics.
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J. Changes in Police Work
The City began its presentation by calling its Police Chief Jorge Colina, a 28-year veteran
of the force and the chief since January 2018 and James Bernat, an executive officer for the
Police Department, and an Il-year veteran with the force. Chief Colina discussed the City's
interdepartmental efforts to aid the homeless, including the City's newly formed Department of
Human Services. (Tr. vol. 1, 60-61, 94). Both testified regarding the changes in policing since
Pottinger' s inception. Now, every City officer wears a body camera to record engagements with
the public and every officer has access to an interactive simulator to teach them how to react in
different scenarios. Id. at 65-67. Every police vehicle has a computer, where officers can watch
training videos and access Departmental Orders, including those orders explaining how to treat
the homeless. Id. at 68-69. All officers receive training on Pottinger' s requirements and scenario-
based training so they are well-versed in the appropriate treatment of the homeless. Id. at 54-55;
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(Def. Exh. 40).
Chief Colina testified that the department has implemented disciplinary procedures since
the Pottinger agreement was entered. Id. at 61. Any police officer found to have violated the
order is subject to discipline, up to and including termination or arrest. Id. at 47-48. One incident
involving a homeless individual named Java Brooks, is under investigation by the Department's
Internal Affairs. Id. at 87-88.7
7 The Court notes that Java Bro oks testified that she had recently changed her nam e and her prior nam e was Java
Houston. In the pleadings, the parties use both names interchangeably. (Tr. vol. 3, 151).
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Section VIII of the Pottinger Agreement requires the City to keep records of police
interaction with the homeless. Pursuant to the agreement, officers document every interaction
with a homeless individual in the form of a Field Infonnation Card. (Def. Exh. l at 9).
Departmental Order 11, Chapter 1 O requires that these cards be kept on file with the police
records unit like the old library card cataloguing system. (Def. Exh. 95, 100). Beyond dispute is
that changes in technology, including body cameras and cellular phones, render this requirement
of a "card catalogue" archaic and obsolete. The Court observed videotape evidence documenting
police interactions with the homeless in this case. (Pl. Exh. 578-37, 39). Although there are many
contributing factors, the transparency in police work, caused by technology, surely helped
precipitate the sharp decline in arrest statistics relating to homeless individuals. (Tr. vol. 4, 30).
2. Funding Changes and the Development of the Continuum of Care
The evidence described the changes in funding efforts in Miami-Dade County since the
inception of the Pottinger Agreement. Ronald L. Book, the Chairman of the Homeless Trust for
the last decade, testified as to the funding efforts to assist the homeless in this community. Prior
to serving as the Chair of the Homeless Trust, Mr. Book chaired the finance committee since the
Homeless Trust's creation over 24 years ago. Mr. Book began his work 25 years ago on a
legislative effort to pass the food and beverage tax in Miami-Dade County. (Tr. vol. 2, 5-6). The
tax was an outgrowth of the Governor's Commission on Homelessness and part of a I O-year plan
to end homelessness in Miami-Dade County. Id. The Homeless Trust is the funding source and
overseer of the panoply of services for the homeless, known as the continuum of care in Miami-
Dade County. Id. Twenty-seven members participate on the public board that administers the
food and beverage tax dollars, federal and state grants, and other revenue streams. Id. The
continuum of care was created to provide all the programs and services needed to end
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homelessness. Id. at 7. It starts with the City of Miam i's outreach teams, known as the Green
Shirts, many of whom are form erly homeless individuals themselves. The Green Shirts work on
bringing the homeless into the continuum of care, which includes medical care, mental health
counseling, substance and alcohol abuse treatment, shelter, and housing. Id. at I O.
The City's outreach efforts are "completely intertwined" with the Homeless Trust. Id. at
9. The Trust owns two Homeless Assistance Centers, in its partnership with the Chapman
Partnership. Id. at 1 O. The City's outreach workers bring the homeless individuals (from the City
of Miami and other geographic areas) to these centers; the homeless cannot simply walk into a
center for assistance. Id. The placements in the Chapman Homeless Assistance Centers are 66%
derived from the City of Miami. Id. In the 24 years since the creation of the Homeless Trust, the
County started with over 8,000 street unsheltered homeless individuals, and that number has
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plummeted to 1,104. Id. at 11. Of the roughly 1,000 homeless in the County, approximately 664
are in the City of Miami. Id at 11, 17. Mr. Book testified there has been a 90% reduction in the
City of Miami and countyw ide since the start of the Homeless Trust. Id. at 11.
The Department of Housing and Urban Development also provides funding and dictates
certain standards and protocols for homeless individuals to access the system. (Tr. vol. 2, 79).
The Homeless Trust developed a Coordinated Entry System, which provides a hotline for
homeless individuals to call for aid. Id. The evidence showed that homeless individuals
sometimes have to call the hotline for 30 days or more to get into a shelter. Id. at 79-80; (Tr. vol.
3, 50-51). Th e Camillus House Day Center provides phones for them to call the hotline. (Tr. vol.
2, 80).
The monies generated by the Homeless Trust from the food and beverage tax are used as
an elastic ban d. Id. at I 3. W hen the Trust provides funding to the different community-based
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Case 1:88-cv-02406-FAM Document 682 Entered on FLSD Docket 02/15/2019 Page 11 of 40
organizations, such as Camillus House and the Salvation Anny, the Trust expects these
organizations to use those funds as leverage to obtain additional grants and funds to buy more
beds and units of housing. Id. Of the funds collected by the Trust, approximately 33 to 34% are
generated in the City of Miami, which is the dominant source of food and beverage tax revenues
in the County.8 Id. The Pollinger Agreement has no impact on the collection of the food and
beverage tax. Id. at 15.
Camillus House is a key component of the continuum of care. Hilda M. Fernandez, the
CEO of Camillus House, a Ministry of St. John of God, testified regarding the organization's
work with the homeless in Miami-Dade County. Id. at 50. Camillus House operates programs
throughout the county serving about 1, I 00 people daily. Id. at 51. Some of the programs include
the Lazarus project, which is a program that is a combination of employees from Camillus House
and Camillus Health. Id. at 52. The medical assistants, a psychiatric nurse practitioner, and the
Green Shirts engage the hardest to serve, severely mentally ill chronically homeless, medicate
them on the street, and get them sufficiently stable to enter the continuum of care. Id. Dr. Edward
Suarez, the former director of the Lazarus Project, testified that the idea is to get homeless
individuals started on necessary medication and therapy while they await housing. Id. at 94-95.
Camillus also provides a day center to serve the street homeless, allowing individuals to
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come in and access showers, clothing, a hot breakfast, and mail service. Id. at 52. Camillus
operates with a sister agency, Camillus Health Concern, which provides a clinic on the Camillus
campus, which provides healthcare services to those that come into the day program. Id. at 55.
Camillus provides temporary storage while people are accessing services on the Camillus
8 The fo od and beverage tax is not charged in the cities of Miam i Beach, Bal Harbour, and Surfs ide, w hich charge
tourism -related taxes. The C ity of M iam i Beach pro vides fu nds to buy beds in the continuum of care and coordinates
w ith the Hom eless Tru st in that regard. W hen the City of M iam i Beach purchases beds, oftentim es the beds are in
the C ity of M iam i. (Tr. vol. 2, 13-15).
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cam pus. Id. at 52. The organization also pro vides em ergency housing, treatm ent pro gram s, an d
perm anent supported housing. Id at 52-53. In pro viding all these services, Cam ill us serves
various populations, including unaccom pan ied hom eless youth, victim s of hum an traffi cking,
and veterans. Id.
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For the last fifteen year s, Cam illus has been pro viding perm anent housing, which is
kn own as the Housing First m odel in the continuum of care. Id. This is housing fo r individuals
moving out of hom elessness, who do not need intensive support serv ices, and can pay reduced
rents to live in fa cilities owned by Cam illus. Id There are on-site clinicians that pro vide services
to individuals in perm anent supported housing. Id. at 56.
In addition to Cam ill us House's partnership with the City of M iam i on the Lazaru s
Project, the City has an agreem ent with Cam ill us to fund shelter beds and pro vide support fo r the
Cam illus Day Center pro gra m . Id. at 56-57. The City funds 75 beds, 65 are extended-stay beds,
and I O are 24-hour beds. Id. at 59. Fo rmer City Com missioner M arc Sarn off testified that the
City pro vided funding, $10 million dollars, to aid Cam illus House's relocation to its new
cam pus. (Tr. vol. 2, 30).
3. The C hron ically Hom eless and O utreach Efforts
The City's outreach efforts have also changed since the inception of the Pottinger
Agreem ent. The record dem onstrates agreem ent am ong City police an d adm inistration that
arresting hom eless individuals is not an effective rem edy since the hom eless individuals return to
the streets within a short tim e. The City created outreach opera tions to m ove hom eless
individuals off the streets and into the continuum of car e. As of the fa ll of 2018, the City created
a new departm ent called the Departm ent of Hum an Serv ices. (Tr. vol. 1, 276). The Depart m ent
includes hom eless outreach, a child care center, job tra ining, an d em ploym ent. Id. at 277.
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Prior to this past fall, the City of Miami's Department of Veterans Affairs and Homeless
Services provided outreach to the homeless community.
T he C ity 's G reen Shirt s, the homeless outreach employees, work in the streets of Miam i
to move the homeless into the continuum of care or to get them social services as needed. Sergio
Torres, the Director of the new Department of Human Services, testified that he conducts
training sessions for his department, and other City employees, who interact with the homeless,
including Parks and R ecreation staff and the police department's Neighborhood Enhancement
T eam s. (T r. vo l. 1, 233-234). David Rosemond, the Assistant Director of Neighborhood
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E nhancem ent T eam s, oversees the G reen Shirt s to ensure they are w orkin g as a cohesiv e unit.
(T r. vol. 6, 30). D ue to the team s' activ e engagem ent w ith the hom eless, the City of Miam i has a
contra ct w ith M iam i-D ade County to perform the work countywide. Id. at 31. The role of the
G reen Sh irt s is to usher the hom eless fr om the streets and to the agencies that can best provide
them serv ices. Id. at 32 . M an y know the hom eless in dividuals by fir st and last nam es and know
their circu m stances. Id. at 33 . T he C ity pro vides the G reen Sh irts w ith tr ain in g on how to engage
the hom ele ss, how to pro v ide them services, and how to talk to people w ho fi n d them selves
hom eless. Id. T he m ajo rity of the G reen Shirt s are fo rm erly hom eless indiv id uals, or in div iduals
in recovery. Id. at 34. So m e of the G reen Sh irt s have been w orkin g in that capacity sin ce the
inception of the project in 1992. Id. at 35.
T he outreach effort s ar e not alw ays successfu l as m any hom eless in divid u als refu se
available shelt er. O ffi cer Jam es B ern at testifi ed that m an y prefe r to stay hom eless even if they
can obtain available shelter due to m ental ill ness, substance abuse issues, and oth er reasons.
Judge L eifm an, a w itness fo r the P laintiffs, also confir m ed the ch an ge in the type of hom eless
in divid uals now versus tw enty years ago. Sh elters are contro lled enviro nm ents w ith rules, w hic h
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many homeless individuals do not want to follow. A majority of the unsheltered homeless
population are "chronic homeless," meaning they have been living on the streets for 365 days or
more, or they experience four instances of homelessness in a three-year period. (Tr. vol. 2, 17).
About 67-69% of the homeless population is chronically homeless. Id. This is a population that
is shelter-resistant and would benefit from a Housing First program, which is not a shelter
facility, but rather an individualized home. Id. This population needs to be incentivized to seek
housing. Mr. Book testified that allowing street feedings and panhandling, as well as the
Pottinger agreement, itself, all make it harder to get the chronically homeless into the continuum
of care. Id at 17. The County and Jackson Memorial Hospital gave $42 million for the
construction of a new facility on 7 Avenue and 22 Street in the City of Miami to help this
population. In addition, there is a city-owned property around that facility, and a desire to build
thousands of new units of low-income affordable housing for the chronically homeless. (Tr. vol.
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There is agreement that many chronically homeless suffer from mental illness. In 2000,
Judge Lcifman convened a summit to address how to better handle mental health issues in the
criminal court. (Tr. vol. 4, 2). The summit devised a pre- and post-arrest diversion system. As a
result, Miami-Dade County has the largest squad of officers trained in Crisis Intervention Team
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policing. Id. The program provides training for law enforcement that teaches them to identify
people in crisis, how to deescalate a situation, how to Baker Act" individuals, and where to take
them. The programs provide an alternative to arrest. Id.
The summit also set up post-arrest diversion programs for people with serious mental
illness who get arrested, one for misdemeanants, one for non-violent felonies, and one for
9 The Florida Mental Health Act, commonly known as the Baker Act, allows for the involuntary institutionalization
and examination of an individual. Judges, law enforcement, physicians, and mental health professionals can initiate
the process. $ 394.463, Fla. Stat.
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competency restoration. Id. at 3. The success of those programs is evidenced in the statistics.
"[B]etween 20 I O and 2017, the City of Miam i and Miami-Dade Police Dep artm ent[s] combined,
handled 83,427 mental illness calls and only made 149 arr ests." Id. The recidivism rate has
dropped from 72 to 20 percent in the misdemeanor program and the felony program has saved
the County "about 68 years of jail bed days with a low recidivism rate." Id. The Competency
Restoration Alternative Program helps individuals get services as opposed to being sent back to
the street without assistance. Id. Before these programs started, there were two shootings per
month of people with mental illnesses. Id. at 19. Now, there have been five or six in eight years.
Police injuries of mentally ill people has almost completely vanished and "out of 5,200 calls in
the City of Miami last year there were six arrests." Id. When a mentally ill homeless person
winds up in court, the state court calls the Green Shirts to aid the homeless individual. Id. at 33.
The Green Shirts are also involved in the University of Miam i's Needle Exchange
Program. Dr. Edward Suarez testified that it is Florida's fir st and only syringe exchange
program. (Tr. vol. 2, 92, 96). As part of his work and due to his training in crisis intervention,
Dr. Suarez can Baker Act when he sees an "individual who's floridly psychotic, responding to
internal stimulation ... hasn't eaten, hasn't drank, not taking care of himself, is being a danger to
themselves by way of self-neglect ... to the point of self-harm ." Id. at 98. At that point, Dr.
Suarez can call a City of Miami Neighborhood Resource Officer to transport the individual to
Jackson Crisis, and that individual gets housed. Id. at 99. He says that he has a symbiotic
relationship with the City of Miam i police and to that end, he testified that "whenever [the police
or outreach personnel] get into a jam, before they commit anything whatever, before they put
any hands on anybody or anything of that sort, I get a phone call" seeking advice an d assistance
since he is familiar with man y homeless individuals. Id.
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The objective of the Needle Exchange Program is to test the homeless individuals for
HIV and Hepatitis C. When homeless individuals test positively for HIV, Dr. Suarez starts HIV
medication that same day. Id. at 106. He then goes out to find that person in the street, days later,
to remind them to refill their medications. Id. The City of Miami aids in the process by helping
Dr. Suarez locate individuals and place them into shelters. " Id. at 107, 120. Once the individual
is in a shelter, Dr. Suarez can get that person into HIV care, and that person will have a dedicated
space to store the HIV medication. Id. at l 07.
B . O utrea ch Efforts and P rocedures R eg arding P roperty
The Consent Decree contains a section titled: "Disposition of Property Belonging to
Homeless Person who is arrested." It states:
The City shall respect the personal property of all homeless people.
The Miami Police Department (and all other Departments
including but not limited to Parks and Recreation and Solid Waste)
shall follow their own internal procedures for taking custody of
personal property. In no event, shall any city official or worker
destroy any personal property known to belong to a homeless
person, or readily recognizable as property of a homeless person
(i.e. bedding or clothing and other belongings organized or
packaged together in a way indicating it has not been abandoned),
except as is permissible by law and in accordance with the
department's operating procedure, or if the property is
contaminated or otherwise poses a health hazard to City workers or
to members of the public.
(Def. Exh. 1 at 12). This section places two requirements on the City departments with regard to
property of homeless individuals: (1) all departments must "follow their own internal procedures
for taking custody of personal property," and (2) no City employee may destroy property
belonging to homeless individuals except where permitted by law, or if the property is
contaminated. The evidence showed that the City outreach workers follow internal procedures,
albeit unwritten ones, for the handling of property. The P otting er Agreement did not require the
" pr. Suarez testified that Green Shirt Willie Rachel helps him locate these individuals. (Tr. vol. 2 at 102, 107).
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City to have written procedures for the handling of property. Although a wr itten protocol is
preferable and has finally been prepared, it is important to note that in the twenty years that
Pottinger has been in place there has not been a complaint regarding the handling of property or
a lack of written procedures until now.
When an outreach worker assists a homeless individual into a shelter, the worker follows
a procedure to deal with the property. (Tr. vol. 1, 248-49, 254). Wh en a homeless individual
accepts an offer of shelter from an outreach worker, the outreach team assists him in storing
bulkier property that the individual cannot take into a shelter. (Tr. vol. 6, 44). The homeless
person entering a shelter takes the belongings he may want to keep, and the outreach worker will
itemize the rest of the items on a receipt, which the outreach worker then gives to the homeless
individual. Id. The outreach worker then takes that property to the City's storage unit. Id. This
same protocol would be used when encountering abandoned property in the streets. Id. at 46-47.
In that situation, the outreach worker will go through the property and separate items of value,
including documentation, medication, phones, or pictures. Id. The outreach worker itemizes
those things and puts them in a bag to take to storage. Id. The outreach worker also leaves a note
on the site where the things were located so that the individual knows that his belongings were
gathered by the outreach team . Id.; (Def. Exh. 28) (photographs of notes on fences). The notice
contains an address and phone number where the homeless can retrieve their property. Id. The
department stores the property as long as there is space, and in reality, has not thrown anything
away. (Tr. vol. 6, 48-49). The outreach team patrols those areas for days where the property
would be taken in the event someone is looking for his belongings. Id. at 46-47. Only one
homeless person, Robert Rh odes, testified that he attempted to retrieve his property from the
facility, and was unable to do so. (Tr. vol. 3, 17-18).
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l. 2018 Clean-Ups
The City outreach workers unquestionably began clean-up efforts in the downtown
Miam i area in 2018 due to health and sanitation concerns from the homeless encampments. The
City Manager Emilio Gonzalez coordinated various city departments to target and clean up
hotspots. His direction to clean these areas indicates that the work should be done in accordance
with the Pollinger Agreement. (Pl. Ex. 601-65). Plaintiffs claim Mr. Gonzalez's directive was
the beginning of a coordinated attempt to disperse the homeless from the downtown Miami area
and resulted in a violation of constitutional rights. Evidence showed that the City's efforts were,
at least in some part, due to complaints it had received from residents. The Plaintiffs rely on an
email from Milton Vickers, Special Assistant to the City Manager, to make this point. The text of
the email from Milton Vickers to Police Chief Colina reads:
Chief Colina, the Homeless Outreach staff have developed a plan
to address homeless encampments and unattended contam inated
items. It is imperative that this be coordinated with police in these
locations and be patrolled in the future to ensure that homeless
individuals do not return to these locations. The Homeless
Outreach staff will be in full compliance with the Pottinger
Agreement. Please see thread below.
(Pl. Exh. 601-65 at 1 ); (Tr. vol. 1, 82). Th e Deputy City Attorney Barnaby Min also wrote an
email to other Assistant City Attorneys requesting that they follow-up with Milton Vickers to
make sure the clean-ups were Pollinger compliant. (PI. Eh. 601-4). The evidence showed that
the C ity tried to relocate the individuals that were living in the clean-up areas to available
shelters and that indiv iduals return ed to the spots aft er the clean -up s. (T r. vo l. 3, 13) (Testimony
of R obert Rh odes) (stating he w alked dow n the street w ith his belon g in gs w hile the C ity pow er
w ashed the street an d he return ed later that aft ern oon and slep t in the sam e lo cation that night.).
T hat the C ity w anted to prevent the squ alo r and unsanitary cond itio ns fr om re-m anife sting aft er
com pletin g a clean-up is not a P ottinger violation . R ather, the clean-up effo rts inure to the
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benefit of the homeless sleeping on the sidewalks. Overall, the evidence showed the City was
working to clean the streets for the public welfare, while also meeting its Pottinger obligations.
On September 19, 2018, the Florida Department of Health notified the City of a specific
area of concern located between 13"" and 14" Streets an d between NW I" and 2' Avenues in
Overtown , a neighborhood in Miami north of the down town area. The Department indicated that
these areas were a significant public health concern and were being investigated. (D.E. 658-1).11
The clean-up had to be handled with the assistance of a specialized biohazard waste clean-up
crew. Video evidence showed human feces, rats, and contaminated items in the area. Judge
Leifman testified that he observed this site under the expressway overpass, in the Overtown
section of Miami, which he described as a public health crisis. (Tr. vol. 4, 12). "It was like a
horror movie. There were a lot of women using right in front of us. There were needles hanging
out of different parts of their body. Many were collapsed lying on the street half naked. There
were rats runn ing around, there were needles everywhere. It was an opioid den ... There was a
big concern that if we disturbed the site too quickly those illnesses would spread." Id. Judge
Leifman testified that a young boy was walking through the area on his way to school and got his
hands on fentanyl and died. !d. at 21. Despite the gravity of the situation, there was not one
arr est. Id at 15, 20. With regards to this site, Judge Leifman testified that 30 people were moved
into treatment within a week and property was appropriately taken. He did not witness City
officials seizing and destroying personal property. Id. at 20. He noted that from what he
observed, however, that mattresses and whatever else was being used for sleep were not fit for
human use. Id. Dr. Suarez was also involved in this clean-up of this Overtown site. (Tr. vol. 2,
110). Once it was clear that there was an HIV network, Dr. Suarez stated that City workers
The City fi led a m otion for judicial notice of the Florid a D ep artm ent of Health letter. Th e Pla intiff did not op p ose
the request as to this part icular docum ent and the m otion is granted as to this docum ent.
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understood that the homeless individuals in this area could not be dispersed and that when the
appropriate time came, they would work to get the people into shelters. Id. at 111.
The City protocol for executing the clean-ups includes posting notices at least seven days
prior to the clean-up. (Tr. vol. l, 235-36; 216-17); (Tr. vol. 2, 65). In the two weeks leading up to
a clean-up, the City outreach workers would provide increased efforts to place the individuals
living in certain areas of downtown in available shelters. Id.; (Tr. vol. 6, 43). Camillus House
ensures there are beds available when the outreach teams identify areas for clean-ups. (Tr. vol. 2,
64). The evidence showed there is daily engagement, which means that the outreach teams go
out daily at different times to offer individuals placement opportunities as often as possible
before the clean-up." (Tr. vol. 2, 65-66); (Tr. vol. 6, 43-45). Much like the City's general
protocol for handling property, the outreach workers followed the same procedure during clean-
ups. If the outreach workers identify anything important- such as identification cards or
medications they inventory and store the property. They discard contaminated property. (Tr.
vol. 1, 248-49). The outreach workers leave a notice for property they take to storage or discard.
(Tr. vol. 2, 65); (Def. Exh. 28). The Plaintiffs dispute that these notes were left and argue there
was no guarantee that the owner of the property would receive these notes. The evidence showed
a few examples where the handwritten notes were placed on a fence, such that they would not
easily blow away. The handwritten notes provided an address where the City took the unattended
personal property. Id.
Dr. Edward Suarez testified about the clean-ups stating that the team comes with
"engagement tools: bottles of water, food, blankets. We do not go in there with the idea of. ..
dispersing or kicking people out because that doesn't help. That just spreads the problem across
the city, and we use engagement tools to build rapport. So the clean-up is really rapport
Clean-ups are also referred to as encampment closures on the record. (Tr. vol. 2, 64).
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building." (Tr. vol. 2, 103 ). Dr. Suarez explained that he shows up with the City employees to
perform the clean-up and they ask the individuals to move. They offer them clean clothes. While
the clean-up is going on, the individuals are offered detox at Banyan Behavioral or shelter beds.
They work with Camillus and the Homeless Trust to ensure there are shelter beds available
during a clean-up. Id . at 104-105. He also testified that they ask individuals to "move for a little
bit until we clean everything, and they're more than welcome to come back to that spot." Id.
Plaintiffs presented the testimony of over thirty homeless individuals, including the class
representative David Peery. Cumulatively, the homeless witnesses testified about what occurred
during the clean-ups.' The Plaintiffs presented testimony that the clean-ups in the Lot l6 area
would start very early in the morning. That appears reasonable so as not to impede both
vehicular and pedestrian tra ffic , which increases tremendously as thousands of employees come
to work before 8:00 a.m. The homeless witnesses testified that officers and Green Shirts would
sound loud noises, shine bright lights, and request the homeless, who are sleeping on the
sidewalks, move so that they could pressure clean the sidewalks. (Tr. vol. 3, 12, 42, 76). Officer
Jose Galvez, who works with the City's Neighborhood Enhancement Team, testified regarding
the clean-ups. As a neighborhood resource officer, he goes to community meetings to address
issues in the downtown Miami area. (Tr. vol. 1, 203). Officer Galvez testified that the City starts
the clean-ups early in the morning before 8 a.m. Id. at 204. The Neighborhood Solid waste teams
drive trucks to collect bulky items in the streets or on the curb. Id. at 207.
The manner that the City handled personal property during the clean-ups is vehemently
contested in this proceeding. When property is found, the Neighborhood Solid Waste team will
There are a few areas w here the clean -ups occurred: I) the downtown area known as Lot I6, a mun icipal parking
lot east of th e M iam i Ri ver under the I-95 underpass, bounded by the M iam i River on th e cast, S.W, I" Street on the
north , and S.W. 3 Street on the south ; 2) Overtown area under the 1-395 overpass on N.W, II" and 13" streets
between N.W . I an d 2 Avenues; 3) the downto wn area by the old M acy's on Flagl er street; 4) N.W . 6" street by
the new Brightline station and one block from this courthouse; 4) the downtown area by Government Center across
the street from this courthouse; and 5) Peacock Park in Coconut Grove.
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take contaminated unattended property, such as cans, food, or soiled sheets. Id. at 21 O. Officer
Galvez said the team does not discard abandoned bookbags, which he says are left in the middle
of everything. Id. In video footage, the Court observed the officers placing sheets and mattresses,
and trash bags in a pile to be discarded. Again, such actions appear reasonable due to the
evidence of contamination and the spread of diseases. However, unattended bicycles, which pose
no such health risk, were left by the clean-up crews on the street. Offi cer Galvez testified about
the need to pressure wash the street on 1st Street and Southwest 2nd A venue, because of the
amount of human feces, urine, and contaminated sheets in the area. Id. at 213. During the
pressure washing, the homeless were asked to move, even if they were sleeping, and many went
across the street to an empty parking lot. Id. at 214. They were again offered available shelter,
which is corroborated by the testimony of Hilda Fernandez, who testified that Camillus House
sets aside beds during clean-ups so that the affected individuals would have a place to go. Dr.
Suarez also testified that affected individuals were offered an opportunity to go to a detox
facility. (Tr. vol. 2, 64, 105). The Neighborhood Solid Waste team discarded whatever property
the homeless no longer wanted to keep and would provide bags so they could carry their personal
belongings. (Tr. vol. 1, 215-216). Officer Galvez corroborated that notice would be posted for a
clean-up, although he did not do it himself. Id. at 216-17, 219; (Tr. vol. 3, 89) (home less
individual testifying that "there were signs up saying that they were going to be cleaning.").
Almost all the homeless witnesses testified that they saw City workers take property. A
few testified that they personally witnessed either their own or other people's property being
seized. Several witnesses testified generally that they had witnessed City of Miam i employees
throwing unattended property into trucks. (Tr. vol. 5, 18). Fo r the most part , the testimony was
that property was kicked around, thrown into piles, and then loaded into trucks when the
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homeless were not present, even if they had left their belongings neatly by the side of the fence
or in a manner that did not obstruct the sidewalks. Id.; (Tr. vol. 3, 90). Some said they asked the
City for their property back, but that their requests were denied. Id at 263-64. Plaintiffs testified
to losing small items, such as identifications, medicine, eye glasses, cellular phones, personal
notes from family members, and photographs. Id. at 52-57, 83, 90-91, 113, 263. Various
homeless persons, who lost their property, testified that they had left items in either a backpack,
bag, or suitcase and positioned them out of the way. Id. at 44, 193, 222. Some claim that police
and City workers did not allow homeless people to retrieve and save the property of another from
disposal during a clean-up operation. Id at 76. For example, Eli Halter, a Marine veteran,
testified, if you were not there, your property went into a pickup truck. Id. at 76; (Tr. vol. 4, 18).
Robert Rhodes, however, testified that he was able to grab the belongings of his neighbor, who
slept next to him on the street and left shortly before the clean-up. (Tr. vol. 3, 15). Obviously,
there is no excuse for the taking of identification cards, medicine, eye glasses, cellular phones, or
photos, as they, by themselves, do not present a health hazard. The dilemma is what to do with
those items if they are commingled with backpacks, mattresses, sheets, food, etc. that clearly
pose health and security concerns. The solution to this dilemma is that these individuals should
never abandon their identifications, prescriptions, eye glasses, or phones that are so important.
Rather, they should keep those items with them when they are on the move.
Class representative, David Peery, testified as to an incident involving another witness,
Wilbur Cauley, which was partially recorded on a video. (Tr. vol. 5, 35-36); (Pl. Exh. 578-40-A).
This incident occurred during a clean-up in the area of concern flagged by the Florida
Department of Health in Overtown. Mr. Cauley's property was up against a fence, neatly
bundled. Plaintiffs introduced a photograph of the property, which showed its position and
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contents, including a personal bag. (Pl. Ex. 578-41-A). While Mr. Cauley went to a nearby store
and left his property, a City worker kicked his property and then moved it from its position
against the fence into a pile with other property. (Tr. vol. 3, 88-89); (PI. Ex. 578-40A). When Mr.
Cauley returned to the scene and saw his property in the pile, the City worker did not allow Mr.
Cauley to retrieve his property. Id. The Court agrees with the City's position that given the
"horror movie" conditions of squalor as described by Judge Leifman at this location, it would
have been eminently difficult to discern contaminated property from sanitary property in this
area.
C. Orders to Move
Plaintiffs focus on orders to homeless individuals to "move on" by members of the City
of Miami Police Department. The Court agrees with the City that orders to move during clean-up
operations are essential to the public welfare and do not violate Pottinger. The evidence that the
City roused the homeless from slumber in the early mornings did not indicate the City workers
intended to harass the homeless. Rather than harassment, the intent was to clear the areas where
the homeless spent the night before the arrival of vehicle and pedestrian traffic that is typical of
most cities. The Court finds the testimony of Dr. Suarez, who is not a City employee, credible as
to how he observed the City workers treat homeless individuals to achieve the goals of the large-
scale cleaning of public areas. (Tr. vol. 2, 109) ("I've never seen them do any of these types of
things they're being accused of. I've only seen them do it with dignity and respect. ... ").
Putting aside the clean-up operations, Plaintiffs also provided evidence of instances
where police ordered homeless individuals to move. The Court viewed a video taken by Java
Brooks, whom police asked to move from the area by the old Macy's in downtown Miami. (Pl.
Exh. 578-39). This incident is admittedly under investigation by the City of Miami Police
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Intern al A ffairs to determ ine if discipli ne is w arr anted . (T r. vol . 1, 88). R afael V illal on ga's
in cident w as another, w here he w as asked to m ove fr om his area on L ot 16 . V ill alonga testified
that he com plied w ith the request. T here is no evidence that he w as thr eatened w ith arr est. (T r.
vol . 5, 8-9). G uthri e C h ib anguza testifi ed that he w as ordered by the police to leave a bus stop,
and he w ent acro ss the street by a FedE x offi ce. (T r. vol. 3, 96). W ill ie R ichardson testified that
poli ce m ade him get up and m ove. (T r. vol. 3, 10 1-102). Th e C onsent D ecree, how ever,
specifi call y pro hib ited ar rests, and did not specifi call y prevent offi cers from asking the hom eless
to tem porarily relocate. P laintiffs conceded at closing argum ent that the Consent D ecree does not
explicitly pro hib it offi cers fr om ordering hom eless ind iv iduals to m ove under certain
circum stan ces. P lain tiffs, how ever, argue the orders to m ove vio lated their constitutional rights
because the order w as m eant to disperse them fr om part icu lar locations. There w as no evidence
that upon return ing to a part icu lar locatio n aft er m oving, or after a clean-up, that arrests w ere
m ade.
D. A rrests of Ch etwyn A rcher and Tabitha B ass
A t the heart of the P ott ing er agreem ent is the crim inalization of hom elessness. To that
end , the C o nsent D ecree does not perm it C ity police to arrest hom eless individuals engaged in
life -su stainin g m isdem eanors w ithout offering them avail able shelter. Plaintiffs presented
evidence of tw o arr ests m ade sim ultaneously of C hetwy n A rcher an d T abitha B ass, neither of
w hom testifi ed in this evidentiary hearing. Police arr ested the tw o individuals fo r the
m isdem eanor of obstru cting the sidew alk . (P l. E xh . 57 8-37, 57 8-38) (polic e identifi ed a crack
pip e at the scene, but the arrests did not appear to be drug-re lated). Un d er the 2014 m odification
to the C onsent D ecree, "obstructin g passage on sidew alk s" is excepted fr om the list of "life
sustain in g m isdem eanor conduct" if the entire sidew alk is obstructed and the police has given the
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individual a prior warning about the situation. The body camera of Offi cer C. Gonza lez captured
the arrests, however, the video did not show what transpired beforehand. The video begins as the
arrest of Chetwyn Archer is being initiated. The video shows a mattress obstructing the sidewalk
and no passageway for pedestrians. The individuals' belongings, including garbage bags, a
shopping cart filled with clothing and blank ets, and a bicycle obstruct the passageway.
The issues for the Court in these proceedings are whether the City of Miami has
substantially complied with the purpose of the Consent Decree, such that foderai oversight
should end, or whether the Plaintiffs have met their burden to show the City should be found in
civil contempt.
III. CONCLUSIONS OF LAW
District courts are empowered to modify or vacate consent decrees. Horne v. Flores, 557
U.S. 433, 447 (2009). The City argues that absent systemic violations of 42 U.S.C. § 1983 and in
light of policy and practice changes concerning the homeless, continued enforcement of the
Pollinger Consent Decree is inequitable. Plaintiffs argue the City continues to violate the terms
of the Decree.
A. Termination of the Consent Decree
A party seeking term ination of a consent decree bears the burden to show "a significant
change in either factual conditions or the law." Rufo v. Inmates of Suffolk County Jail, 502 U .S.
367,384 (1992 ) (relying on Fed. R. Civ. P. 60(b)(5)). The Supreme Court has acknowledged that
consent decrees "are not intended to operate in perpetuity" and cannot condemn an agency to
"judicial tutelage for the indefinite future." Bd of Educ. of Oklahoma City Pub. Sch. v. Dowell,
498 U.S. 237,249 (1991) (school desegregation).
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To determine whether to terminate a consent decree, the Court must first look to the basic
purpose of the decree. United States v. City of Miami, 2 F.3d 1497, 1504 (11th Cir. 1993) ( citing
Dowell). Then, the Court must determine whether there is "substantial compliance." That means
the Court must determine whether the City of Miami has complied in good faith with the core
purpose of the decree, whether the purposes of the litigation have, to the extent practical, been
achieved, and whether it is necessary or sensible, under current circumstances, for the Court to
continue to exercise judicial oversight. Id., 2 F.3d at 1508 ( consent decree addressed under-
representation of women and minorities in City's workforce).
The Eleventh Circuit provided additional guidance when it stated that district courts
should terminate consent decrees when the system had "undergone radical changes and was on
secure footing to continue its progress in the years to come, without court supervision,"
notwithstanding the fact that the system is "not yet perfect and may never be." R.C. v. Walley,
270 F. App'x 989, 992 (11th Cir. 2008). In so doing, this Court may rely on the state's "history
of good faith and its present commitment to remedying remaining problems." Id. "Federal courts
should not be in the business of running important functions of state government for decades at a
time." Id. (quoting Reynolds v. Mcinnes, 338 F.3d 1201, 1219 (11th Cir. 2003)). If this Court
determines that the City has implemented a durable remedy, continued enforcement is improper.
Horne, 557 U.S. at 450 (stating that federal court decrees exceed appropriate limits if they are
aimed at eliminating a condition that does not violate federal law).
Federalism concerns also exist in institutional reform litigation, such as this, where core
areas of state responsibility are involved. Horne, 557 U.S. at 448. The Supreme Court has
acknowledged that "injunctions issued in such cases often remain in force for many years, and
the passage of time frequently brings about changed circumstances . . . that warrant
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reexamination of the original judgment." Id. at 447-48. The Supreme Court has also noted that
"the dynamics of institutional reform litigation differ from those of other cases," where, "public
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officials sometimes consent to, or refrain from vigorously opposing, decrees that go well beyond
what is required by federal law." Id. "Injunctions of this sort bind state and local officials to the
policy preferences of their predecessors and may thereby improperly deprive future officials of
their designated legislative and executive powers." Id. at 449.
It is well beyond dispute that there have been changed circumstances since the start of
Pottinger. As detailed, supra, changes in police work, technology, and most importantly the
implementation of a dedicated source of funding to the tune of $60 million dollars a year to aid
the homeless in this community sufficiently establish that the conditions in place when Pottinger
was filed 30 years ago, and even when the Consent Decree was entered in 1998, are no longer
the case. The evidence showed that the continuum of care available to homeless individuals in
Miami-Dade County is unparalleled in the United States. And, the numbers prove it. The amount
of homeless individuals in Miami has plummeted 90% since Pollinger was entered. The number
of arrests has also decreased as explained by Judge Leif man.
The dispute in this case centers on whether the City has substantially complied with the
core purpose of the Pottinger Agreement, and the Plaintiffs claim that the City has not due to its
actions in cleaning up homeless encampments starting in 2018. There is no question after
hearing the testimony and viewing the video evidence that the City was compelled by the gravity
of the unsanitary and unhygienic conditions to literally clean the streets for the betterment of the
common welfare, including the homeless, the City's residents, and its businesses.
l. Substantial Compliance by the Police Department
' Plaintiffs have not previously filed a motion to enforce the agreement or to hold the City in con tempt. Plaintiffs'
counsel likened the situation to a probation violation that occurs after sometime, but is still punishable.
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There can be no doubt that the core purpose of Pottinger was to stop the criminalization
of homelessness. The primary goal of this litigation and the Consent Decree was to prohibit the
City of Miami Police Department from arresting homeless individuals for engaging in life-
sustaining conduct misdemeanors.15 Because Pottinger prohibited arrest as a solution to get the
homeless off the streets, the City and the community, at large, developed a myriad of programs
that City Police could tap into when interacting with the homeless. The County's Homeless
Trust, the recipient of $60 million in tax revenue a year, provides funding and Camillus House,
the Chapman Partnership, and Lotus House provide shelter, medical care, and other services to
the homeless in our community. The state court system, through Judge Leifman, developed
diversion programs to avoid putting the mentally ill in jails. The whole system, described supra,
and known as the continuum of care has provided an outstanding support network for the City
police and other outreach workers. There can be no doubt that the primary purpose of the
agreement, to stop the arrests of the homeless for being homeless, has been achieved. The Court
finds that the continuum of care is exactly the type of durable remedy that requires this Court to
cease its oversight of these primarily state functions. This is not to say that more cannot be done
to achieve the goal of eradicating homelessness. The goal of the Consent Decree, however, was
not to solve homelessness. Rather, the goal of the Consent Decree was to reform the manner that
City Police treated the homeless. That goal has been achieved to the credit of all the individuals,
particularly in this litigation.
' In fact, the class certified by Judge Atkins includes "homeless persons ... who have been, expect to be, or will be
arrested, harassed, or otherwise interfered with by members of the City of Miami Police Department for engaging in
the ordinary and essential activities of daily living in public due to the lack of other adequate alternatives." Pottinger
v. City of Miami, 720 F. Supp. 955, 959 (S.O. Fla. 1989). The Consent Decree focuses almost entirely on the
implementation of training, policies and procedures to ensure that the police department engaged with the homeless
population in a humane manner and within the bounds of the constitution. (Def. Exh. I).
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Plaintiffs' evidence, in this case, of two arrests that purportedly violated Pottinger is
insufficient to convince this Court that a durable remedy is not in place. The overwhelming
evidence supports the finding that City police will not revert to arresting individuals, because
they have an ample support network to tum to in handling difficult situations. (Testimony of
Ronald L. Book) (Tr. vol. 2, 18) ("TJhe City clearly understands the need to treat the homeless
population with respect and with dignity and with a desire to put a permanent end to it and that is
our goal and I think that's our joint goal. J don't see that changing should P ott ing er be
discontinued.").
The evidence also showed that for those chronically homeless individuals, P ott inger,
serves as a crutch enabling them to avoid entering the continuum of care. The video of Java
Brooks was emblematic of this where she basically flaunted the City police, who ordered her to
move, when she said she was aware of her rights. She showed little incentive to try to get off the
streets. The testimony of Ronald Book, Chairman of the Homeless Trust, exemplified this point,
when he was discussing the chronically homeless population. He said the chronically homeless
are "shelter resistant ... if you make it easier for them to be on the streets, they're not coming in.
It's why we don't support street feedings. It's why we don't support panhandling. I believe
Pottinger at this point, my opinion, is that continuation doesn't make it easier for us, it makes it
harder for us to finish what's out there because it's chronic." Id at 17. Likewise, Pottinger has a
chilling effect on an officer's ability to provide aid to the homeless. Dr. Suarez said it best, when
he said "it's just sad to see that we're still stuck in the past and I see the officers are handcuffed
by this. And I think that might be why subconsciously I brought up that young officer saying
'I'm going to be on YouTube by the end of the day.' I think that's P ott ing er ... getting in her
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way of doing the right thing because she is afraid fo r herself, an d I can't blame her for that." (Tr.
vol. 2, 116).
Not only has the City substantially com plied with the m ain purp ose of Pottinger
regarding arr ests, the City Police Departm ent has im plem ented the required training as set forth
in section IV of the Consent Decree, which nowadays includes scenario based tra ining. (Def.
Exh. 95, 95A). The City also com plies with its departm ental orders and police offi cers, who fa il
to com ply, are subject to investigation by Intern al Affairs an d discipline. The Depart m ental
Order is m odeled after the pro tocol in Section VII of the settlem ent agreem ent.
The Departm ental Order also contains specific directives as to how the police should
handle pro perty. W hile the Plaintiffs' evidence regar ding the loss of pro perty during clean-ups
often reflected a police presence, there was no evidence that an y City of M iam i police destroyed
or seized pro perty and there are no intern al affairs investigations on the record in this regar d.
Finally, the police im plem ented a system to docum ent interactions with the hom eless
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known as Field Inform ation Cards, which are used in cases where there is no arrest. Those form s
are maintained by the police as required by Section VIII of the Settlem ent Agreem ent.
Techn ology has certainly rendered this requirem ent obsolete.
The question that rem ains is whether the evidence of police ordering hom eless
individuals to move negates a finding a substantial com pliance. Java Brooks and Rafa el
Villalonga testified that the City Police told them to move from where they were staying at nigh t,
without cause an d without offering shelter. Likewise, Guthrie Chibanguza testified that he was
asked to leave a bus stop, even though he had a bus pass, and he walked across the street. W ill ie
Ri chardson testified that police also ordered him to move. Plaintiffs cite City of Chicago v.
Morales, 527 U.S. 41 (1 999) to argue that the directive to m ove violates the hom eless person's
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fundam ental right to travel. In City of Chicago, the Supreme Court held that an ordinan ce
violates the due process clause of the Fourteenth Amendment where it prohibited street gang
members from loitering in a public place. To enforce the ordinance, the officers could order the
gang members to disperse, and a failure to comply would be grounds for arrest. Id., 527 U.S. at
50. The Supreme Court found the ordinance unconstitutionally vague as to what conduct was
proscribed. Id. at 53. In so holding, the Supreme Court stated that "freedom to loiter for inn ocent
purposes is part of the 'liberty' protected by the Due Process Clause of the Fourt eenth
Amendment." Id.
Plaintiffs, however, do not lose their constitutional rights by termination of the Consent
Decree. It bears noting that no other municipality in Miami-Dade County's 34 is subject to the
Pollinger Agreement except for the City of Miami. And, individuals in Miami-Dade County are
not gaining greater constitutional protections when they cross from Miami Beach into Miam i.
The issue here is whether there has been substantial compliance with the tenets of the Consent
Decree. The basic tenets of the Consent Decree prohibit "arrest or detention" of homeless
individuals not engaged in any criminal activity. Neither took place here. The Court does not
find the evidence of these four instances where individuals were ordered to move negates a
finding of substantial compliance. Substantial compliance "impl[ies] something less than a strict
and literal compliance with the contract provisions but fundamentally it means that the deviation
is unintentional and so minor or trivial as not 'substantially to defeat the object which the part ies
intend to accomplish."' Wells Benz, Inc. v. U.S. for (he of Mercury Elec. Co., 333 F.2d 89, 92
(9th Cir. I 964) (citations omitted). The alleged actions of a few police offi cers do not constitute
the type of deviation necessary to find a lack of substantial compliance, especially where there is
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no evidence of arr est and the circum stances under which the police issued the directives to m ove
are unclear.16
2. Substantial Compliance by other City Departments
This institutional refo rm litigation sought to revam p police interactions with the City's
hom eless population. Its effects, however, are seen throughout the City of M iami's governm ent
departm ents. There are three sentences in the Settlem ent Agreem ent that address property of
hom eless individuals and are written so as to encom pass other City departments, in addition to
the police. That pro vision, supra, requires City depart m ents to respect the property of the
hom eless and to fo llow their own intern al procedures for taking custody of property, It also
pro hibits city departm ents from destro ying property except as allowed by law, or where the
property is contam inated or poses a health risk. (Def. Exh. 1 at 12-13). Plaintiffs argue that the
City's failure to have wr itten pro cedures equates with noncom plian ce. The agreement, however,
fu nctioned for twenty years without incident an d at no tim e did the Plaintiffs complain about a
lack of wr itten pro cedures. The testim ony from the City outreach m an agers, Sergio Torres and
David Rosem ond, was consistent on the procedures the City workers em ploy to determine when
and how to take pro perty. The testimony also showed that the Departm ent of Veterans Affairs
and Hom eless Services, now the Depart m ent of Hum an Services, trains the other relevant City
departments, such as the Parks and Recreation Department, on the procedures. (Def. Ex. 39).
W ith respect to section VII(F) of the Consent Decree, the Court finds the City in substantial
com pliance.
Plaintiffs presented testimony of many homeless individuals regarding the taking of
pro perty during the 2018 clean-up operations that took place in Down town M iam i and
Indeed, Chief Colina testified that the City was investigating the instance with Java Brooks to determine whether
the City would discipline the police officer for his actions.
33
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O vert ow n. T here is no question that the City exercised a valid governm ental pow er in addressing
the sanitation an d pub lic healt h concern s created by the lar ge encam pm ents of hom eless
congregatin g an d livin g in cert ain areas of the City. Plaintiffs argue the City's actions during
those clean-u ps negate a fi nding of substantial com pliance.
T he C ity presented am ple evidence that notice w as given in advance of the clean-ups and
that shel ter beds w ere secur ed to m ove people fr om those areas into the continuum of car e. The
C ity 's evidence w as corr oborated by D r. Suarez and H ilda Fern andez, w ho both testifi ed
regardin g their joint effo rts an d w ork w ith the City in perfo rm ing the clean-ups. The testim ony of
the hom eless wi tn esses w as that if they left their belongings unattended, they w ere gone w hen
they return ed. Som e w itnesses testified that they asked the C ity w orkers to recover their
belon gin gs, but w ere denied those requests. O ther w itnesses, such as R obert Rh odes, testified
that he w as able to gra b his neighbor's belongings during a cl ean-up. O ne w itness, Eli H alter,
testifi ed that if you w ere at the clean -up, you had the abil ity to m ove your stuff. (T r. vol. 3, 76).
T his testim ony is consistent w ith the info rm ation pro vided by D r. Suarez, Sergio Torr es, an d
D avid R osem ond regarding clean-up operations.
Plaintiffs em p hasize that the incident involving W ilbur Caul ey's pr opert y show s the
C ity's noncom p liance w ith the C onsent D ecree. The incident described by W ilbur C auley and
D avid Peery, and show n in a vid eo (D .E. 578-40-A ), took place in the area in O vertown
undern eath the 1-39 5 overp ass. Ju dge Leifm an described that area sayi ng "[i]t w as dangerous to
put anyt hing on the gro und. Y ou had to step aro und the needles an d the rats th at w ere all over the
place." (T r. vol. 4, 34 ). The evidence show ed the unsan itary conditions in that location, and it is
not diffi cult to extrapolate the potential consequences to the public health, w hich w ould lead a
C ity w orker to discard m ore pro pert y than not, because he believed it to be contam inated. The '
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squalor present prevented the clean-ups from being easy operations where the City workers
could examine items one by one. Unfortunately, some medications, identifications, and personal
notes were necessarily discarded in the process and the Court sympathizes with that loss, but the
Court cannot ignore that those items were commingled with food, soiled materials, and garbage
creating a public health crisis. The Court noted that the bicycles present were not discarded,
presumably because a bicycle does not pose a health or safety risk. The testimony of Ronald L.
Book exemplifies the contents of the evidence. He said: "Nobody is ever going to accuse me of
being anything other than compassionate and understanding as it relates to the plight of those
who live on our streets, but oftentimes you end up in situations where there's been hoarding and
it's more garbage than it is property of value." (Tr. vol. 2, 21). Therefore, the Court concludes
the City has substantially complied with the Consent Decree's property provisions, even though
there were instances during the clean-ups where City workers mistakenly discarded valuable
items due to the gravity of the unsanitary conditions.
B. Motion for Contempt
Injunctions, such as Consent Decrees, are enforced through the civil contempt power of
the trial court. Reynolds v. G.M. Roberts, 207 F.3d 1288, 1298 (I1th Cir. 2000). Plaintiffs bear
the burden of proving by clear and convincing evidence that the City violated the Pottinger
Consent Decree. See Riccard v. Prudential Ins. C o., 307 F.3d 1277, 1296 (11th Cir. 2002) ("A
finding of civil contempt willful disregard of the authority of the court must be supported by
clear and convincing evidence."). To establish that a party acted in contempt, the party seeking
the contempt ruling must show by clear and convincing evidence that: (l) the allegedly violated
order was valid and lawful, (2) the order was clear and unambiguous, and (3) the alleged violator
had the ability to comply with the order. Id.; Wyatt v. Rogers, 92 F.3d 1074, 1 078 n.8 (11th Cir.
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C a se 1:8 8 -cv-0 24 0 6-FAM D o cum en t 682 E ntered on FLS D D ock et 02/15/2019 Page 36 of 40
1996). If the Plaintiffs do so, the burden shifts to the Defendant to show that it has complied with
the injunction, or why it should not be adjudged in contempt. Reynolds, 207 F.3d at 1298.
Plaintiffs presented evidence of three <liftèrent types of alleged violations to validate a
finding of contempt. The first group is the directives from police to homeless individuals to
move. The second group is evidence relating to the taking of personal property by City workers
during clean-up operations in 2018. The last is the arrests of the two individuals for obstructing
the sidewalk.
Although the Consent Decree contains a general requirement that City police not harass
the homeless, the Consent Decree and Police Departmental Order 11 do not explicitly prohibit
the police from ordering homeless persons to move from their locations or from sounding loud
noises to wake people before a clean-up operation. It goes without saying that directives to
move during a clean-up operation are essential to facilitate the pressure washing of the
sidewalks. Pressure cleaning, while individuals are sleeping on the sidewalks, is obviously
hazardous to their safety. And, not cleaning poses health hazards to them and others. During the
clean-up operations, the evidence showed that homeless individuals often moved close by or
' were offered shelter. Dr. Suarez testified that the team engages any homeless individual at the
clean-up location, helps them to discard any garbage that has accumulated around them, offers
them clean clothes and blankets. (Tr. vol. 2, 104). The team then offers shelter placement and, if
the offer for shelter is rejected, the team members ask the homeless person to relocate
temporarily. Id. The City has an interest in preserving the public welfare, hygiene and sanitation.
It makes sense and the evidence confirmed that the City's intent was to move these homeless
individuals, living in squalor and in encampments, into the continuum of care. The Court does
not view the City's actions, in this regard, to be a concerted plan to violate the homeless civil
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Case 1.88-cv-02406-FA M D ocum en t 682 Entered on FLS D D ocket 02/15/20 19 P a ge 37 of 40
rights. And, there is no clear and convincing evidence that requiring the homeless to move
during clean-up operations was a violation of the Decree, especially because the evidence
showed that people returned to the locations after the clean-ups and no one was arrested.
As noted, supra, the Plaintiffs argue there arc four instances, outside of a clean-up
operation, where the police were harassing homeless individuals and ordering them to move,
Java Brooks, Rafael Villalonga, Guthrie Chibanguza, and Willie Richardson. Other than the
general prohibition on harassment contained in Consent Decree, there is nothing in the Consent
Decree or in the Police Departmental Order 11 specifically precluding a police offi cer from
instructing someone to move. Moreover, the testimony from the witnesses an d the video
evidence did not show the underlying circumstances under which the officers issued the
directives. To find civil contempt, the Court must find by clear and convincing evidence that the
Pottinger Agreement clearly and unambiguously said that officers could not ask homeless
individuals to move or the evidence must show that. the police offi cers were harassing these
individuals. The evidence does not establish a violation of the Decree's general statement that
the police not harass the homeless. Therefore, the standard for civil contempt is not met.
The Plaintiffs also seek to hold the City in contempt due to their handling of homeless
individuals' personal property. Again, the Pollinger Agreement allows offi cers and City workers
to take unattended property in accordance with their internal procedures and discard property
that is contaminated. The Consent Decree also contains a general requirement that City police
and outreach workers treat the property of the homeless with respect.
The majority of Plaintiffs' witnesses complained about the handling of property during
clean-up operations. Witnesses testified that workers moved in quickly and that they had little
time to collect their belongings. Homeless individuals testified that they left items in backpacks,
37
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bags, and positioned out of the way and that their property was kicked around, thrown into piles,
and then loaded into trucks to be disposed. Plaintiffs' witnesses also testified that City workers
routinely did not allow homeless persons to retrieve and save the property of another homeless
person from disposal. But, it would be unreasonable for City workers to decide their course of
action based on a non-owner's statement regarding abandoned property. The evidence also
showed that City workers complied with their procedures, gave notice ahead of time, provided
outreach to affected individuals, gave homeless persons bags to put away their belongings, and
left notes at the scene on the fences to let people know the location of property. Some of
Plaintiffs' own witnesses testified that they were able to keep the property on them, and retrieve
property belonging to others. The evidence also showed the gravity of the circumstances at these
clean-up spots, which has already been detailed in this order. Even assuming that, at times, the
City workers could have handled the homeless person's belongings more delicately, the Court
does not find that a violation of the Consent Decree occurred by clear and convincing evidence.
The Consent Decree allows the City workers to take property in a manner consistent with their
procedures. The evidence showed that, at least for the most part, that was done, and to discard
contaminated property. Deciphering what is and is not contaminated inside a bag is difficult and
going through a bag that possesses contaminated materials to fish out identifications and
medications is not a requirement of the Consent Decree. The evidence did not show an officer or
a worker taking away identifications and medications, rather it showed that those items were
unfortunately lost as part of a process of cleaning areas in desperate need of sanitation. The
Court does not hold the City in contempt for its handling of the personal belongings.
Finally, the Court, for reasons already detailed in this Order, does not find the two arrests
are sufficient to meet the standard that the City violated the decree and should be held in
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contempt. There is no evidence as to what preceded the arrests, and as such, the standard for
contempt is not met.
Heroes for the Homeless
Although the Plaintiffs have opposed the termination of this agreement, in a very real
sense, they are the victors. Their lawsuit, and the work of their excellent and capable counsel,
under the guidance of the Americans Civil Liberties Union and the Florida Justice Institute,
engendered a revolution in this community as to the treatment and care of persons experiencing
homelessness. Twenty years ago, the undersigned could not have predicted the myriad of
services made possible by the efforts of the Homeless Trust and Mr. Ronald L. Book. The Court
could not have envisioned the dedication of people, like Dr. Pedro Joe Greer and Dr. Edward
Suarez, who have taken medicine to the streets of Miami to help people and gain their trust to
improve their care. The lifetime of work by Camillus CEO Hilda Fernandez is commendable as
she has worked in a variety of roles to assist the homeless and better their lives in a truly
compassionate way. The work of Constance Collins at the Lotus House has also contributed to
aiding homeless women and children and helped them find solutions to homelessness. It goes
without saying that this community owes a debt of gratitude to Judge Steve Leifman, who has
implemented sustainable programs to help the mentally ill, which will continue to improve their
circumstances. Simply put, Judge Atkins would be proud of the results. Accordingly, it is
ADJUDGED that the Court terminates the Consent Decree and denies the motion to hold
the City of Miami in contempt.
DONE AND ORD ERED in Chambers at Miami, Florida, this
7,
/5 „rreorar;y 2019.
• A
FEDERÍCO A. MORENO P
UN ITED STA TES DISTRICT JUDGE
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Case 1:88-cv-02406-FAM Documen t 682 Entered on FLSD Docket 02/15/2019 Page 40 of 40
Copies furnished to:
Counsel of Record
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