May be of use to those homeless RSO's in Florida who are forced to live under bridges by the state.
Michael Pottinger, Peter Carter, Berry Young
City of Miami
That the city of Miami had a policy of harassing homeless people and routinely seized and destroyed their property in violation of their constitutional rights.
Chief Lawyer for Plaintiffs
Benjamin S. Waxman
Chief Defense Lawyer
Quinn Jones III
Justices for the Court
Joseph W. Hatchett (writing for the court), R. Lanier Anderson, Peter T. Fay
Date of Decision
2 February 1996
That a settlement agreement between the homeless of Miami and the City of Miami would provide for police training, law enforcement contracts with the homeless, record keeping, an advisory committee, and $600,000 compensation for the homeless.
Pottinger v. City of Miami is a landmark class action case brought onbehalf of the homeless. The case is a model of how these types of cases can be resolved.
The homeless of Miami, Florida, filed a class action lawsuit in the U.S. District Court for the Southern District of Florida against the city of Miami inDecember of 1988. The homeless charged that the Miami police had a policy ofharassing homeless people for sleeping, eating, and performing life sustaining activities in public places with the purpose of driving them out of the city or rendering them invisible. In addition, the class asserted that the cityroutinely seized and destroyed its members' property and failed to follow itsinventory procedures when confiscating personal property. The class assertedthat the city's activities constituted cruel and unusual punishment, malicious abuse of process, and unlawful searches and seizures, in violation of dueprocess, the right to privacy, and the Equal Protection Clause. The class asked for declaratory judgment, compensatory damages, and reasonable attorney'sfees. Additionally, the class sought to stop the city from arresting homelesspeople for conducting necessary life sustaining activities and from destroying their personal property.
City's Treatment of Homeless Violated Their Constitutional Rights
The district court ruled that the city's practice of arresting homeless individuals for harmless life sustaining activities that they are forced to perform in public is unconstitutional because the arrests constituted cruel and unusual punishment in violation of the Eighth Amendment, restricted innocent conduct in violation of the Due Process Clause of the Fourteenth Amendment, andburdened the fundamental right to travel in violation of the Equal ProtectionClause. The court also determined that the city's practice of seizing and destroying the property of homeless people without following its written procedures for found or seized property violated the class's Fourth Amendment rights.
On 16 November 1992, the district court entered its findings of fact and conclusions and order on the plaintiffs' request for declaratory and injunctive relief. The district court ordered the following: (1) the parties must meet and establish two safe zones where homeless people may remain without being arrested for harmless activities; (2) the city's police department may not arrest homeless people for performing harmless life sustaining acts in the two designated safe zones; (3) the city may not arrest homeless people for sleepingor eating in two primary locales until the parties agree upon the location ofthe new safe zones; (4) the city's police department may not destroy homeless persons' property; (5) the city must follow its written procedures governing the handling of personal property; and (6) the city must provide the publicwith five days notice before cleaning parks to enable homeless people to move their property to a nearby place the city may designate. The city appealed,challenging the basis and scope of the district court's injunction.
C. Clyde Atkins, judge for the U.S. Court of Appeals, Eleventh Circuit, heardthe city's appeal on 2 December 1994. He noted that since the district court's 1992 order, the city and private entities had constructed homeless shelters to address the problems on which the district court had ruled. Certain provisions of the injunction were unclear. For example, it was unclear whether the city may arrest homeless people for engaging in lawful conduct when they are outside the safe zones, or whether the city must transport homeless peopleto the safe zones. Finally, the parties did not comply with the district court's order directing them to establish safe zones through negotiation. Atkinsremanded (sent back) the case for the district court to address these concerns. He stated that the district court should issue appropriate clarifying language to guide the city in its determination of the scope of its duties underthe injunction, and the district court should consider whether its injunctionshould be modified in light of recent events. The district court should address these concerns within a reasonable time.
On 7 April 1995, following an evidentiary hearing, the district court enteredits findings on order of the Eleventh Circuit Court of Appeals. The districtcourt ultimately concluded that "though improvement in the overall situationis occurring via the Dade County Homeless Assistance Trust, the salient facts of this case have not changed substantially . . . " Thus, the district court determined that its original injunction should remain in effect with few modifications.
On 7 February 1996, following further briefing and oral argument, the Eleventh Circuit Court of Appeals entered an interim order referring this matter toa mediator for settlement discussions. The parties engaged in extensive settlement negotiations and agreed to resolve each and every remaining issue in this case.
Negotiations Lead To Settlement Agreement
As a result of the lawsuit, Miami participated in a countywide effort to provide services and assistance to homeless people. In keeping with its past andongoing efforts, Miami committed itself to ensuring that the legal and constitutional rights of all homeless people be fully respected by all city policies, rules, regulations, practices, officials, and personnel. On 18 December 1997, Miami Mayor Xavier Suarez signed a resolution approving a settlement withthe American Civil Liberties Union of Florida to end the nine-year lawsuit filed on behalf of the homeless people of Miami. The settlement agreement resulted from the collective efforts of American Civil Liberties Union (ACLU) attorneys on behalf of the homeless, the city attorney's office, and many othercommunity leaders, homeless activists, and homeless people over the last twoyears. The agreement provided for police training regarding the circumstancesand rights of homeless people. Miami agreed to implement various forms of training for its law enforcement officers to sensitize them to the unique struggle and circumstances of homeless persons and to ensure that their legal rights shall be fully respected.
The agreement set up a protocol for law enforcement contacts with homeless persons to prevent arrests, harassment, and the destruction of their property.The Miami Police Department adopted a departmental order regarding the treatment of the homeless within the city which reflected the city's commitment torespect the constitutional rights of homeless people and implemented the protocol which law enforcement officers must follow when they encounter homelesspersons. Records regarding police contacts were mandated. An advisory committee was set up to monitor compliance with the agreement. The committee has monitored all police contacts with homeless people by interviewing them on the streets, by patrolling with police officers, by accompanying city outreach workers in areas with high concentrations of the homeless, by overseeing policetraining, by reviewing the training curriculum, and by reviewing informationon file with the appropriate unit within the Miami Police Department. The advisory committee has also received and has investigated complaints by homelesspeople. A $600,000 compensation fund was set up for the homeless who have been injured by the unconstitutional conduct that was condemned by the federalcourts. Each successful claimant was awarded a debit card in the amount of $1,500.00. Attorney fees for the plaintiffs' lawyers were also included in thesettlement.
Cooperating ACLU attorney Benjamin S. Waxman noted that this was a landmark settlement recognizing that the homeless cannot be denied fundamental constitutional rights simply because they are homeless. Waxman felt that the settlement showed the best of what can be achieved when two sides of a dispute work together to find common ground to accomplish a mutual goal. The settlement mayserve as a model for how other cities treat the homeless.
On 1 April 1998, the ACLU expanded Torres v. Metropolitan Dade County andCity of Miami, a case involving Hispanic men arrested for "loitering forpurposes of temporary employment." The ACLU was concerned that police enforcement was directed exclusively at one ethnic group. Andy Kayton, Legal Director of the ACLU of Florida, stated that the Pottinger case is a good model for how these types of cases can be resolved. He hoped that the county andcity could discuss the problems involving the Hispanic day laborers in the same way that the problem with the homeless of Miami was discussed and resolved.
- Newell v. Prudential Ins. Co. of America, 904 F. 2d 644 (1990).
- Alabama-Tombigbee Rivers Coalition v. Dept. of Interior, 26 F. 3d1103 (1994).
Homelessness in America significantly escalated through the 1980s with estimates of possibly as many as three million people living on the streets or in temporary facilities by the late 1990s. As the numbers increased, the occurrence of homeless families with children became more prevalent. Also, with increased visibility came reactions from society to suppress the visibility and intrusion of homelessness on communities. Nationally, Congress lacked a clear response to the increasing problem. Consequently, states and local governmentsbegan taking action citing health problems and increasing crime in locationswhere street people congregate. New laws restricted panhandling on streets,loitering, camping in public spaces, and sleeping in the public. Advocates for homeless rights claimed the laws constituted homeless harassment. Police tearing down shacks and tents and destroying personal property constituted illegal search and seizure, anti-panhandling ordinances unconstitutionally restricted free speech, and loitering ordinances violated peoples' right to travel.
Advocates pressed for recognition of right to shelter and emergency assistance, child welfare, mental health care, voting rights, and right to education.The New York Coalition for the Homeless successfully gained state and city support for housing for the homeless mentally ill. However, communities generally only provided minimal assistance in response to court orders or to avoid expensive lawsuits.
Stoner, Madeleine R. The Civil Rights of Homeless People: Law, Social Policy, and Social Work Practice. New York: Aldine de Gruyler, 1995.
- ACLU of Florida. http://www.aclufl.org.
- Ellickson, Robert C. "Controlling Chronic Misconduct in City Spaces." Yale Law Journal, March 1996, p. 1165.