Miami Seeks to Alter Homeless Protection Act

Concerned that loitering homeless people are stunting downtown growth, the city will go to federal court in an attempt to undo major provisions of a 15 year-old legal agreement has protected the homeless from undue arrest and harassment by police.
by | April 12, 2013 AT 12:15 PM

By Charles Rabin and Andres Viglucci

The City of Miami, concerned that loitering homeless people are stunting downtown growth, will go to federal court in an attempt to undo major provisions of a historic legal agreement that for 15 years has protected the homeless from undue arrest and harassment by police.

Miami commissioners voted unanimously on Tuesday to petition the courts to alter a landmark settlement in the 1988 Pottinger v. Miami case, in which 5,000 homeless people and the American Civil Liberties Union sued the city, contending that the police practice of sweeping them off the streets and dumping their belongings for loitering, sleeping on sidewalks or other minor offenses was unconstitutional.

The case, settled by consent decree in 1998, led to a significant expansion of public services to the homeless that has been held up as a national model. The settlement also bars Miami police from arresting homeless people for such "involuntary, harmless acts'' without first offering them an available bed in a shelter.

Under the resolution adopted Thursday, which drew little to no public attention before the commission meeting, the city will hire an outside attorney to ask a federal judge to grant police greater latitude to detain homeless people and seize and dispose of their belongings. The city will also ask the judge to exclude sexual predators from the Pottinger settlement's protections.

The effort has been spearheaded by the city's semi-autonomous Downtown Development Authority, which is tasked with helping the city's downtown businesses grow. Attorney Jay Solowsky, working with the DDA on a pro bono basis, told commissioners that homelessness is "the single most significant issue we are facing downtown." Marc Sarnoff, chairman of the city commission and the DDA, works in Solowsky's office.The city move comes as new downtown condos have attracted tens of thousands of residents, with dozens more residential towers now in development.

Police told commissioners that homeless people are scaring downtown workers and families going to Miami Heat games by aggressively panhandling, blocking sidewalks and defecating in public. As officers spoke, pictures of naked homeless people and garbage they left behind were displayed on video screens in the commission chamber.

Since the Pottinger settlement, police and city officials say, circumstances have improved significantly for the homeless, with thousands of new beds in shelters and permanent homes around the county. That has reduced the downtown homeless population from around 6,000 to 351, according to the latest official count.

Most of those remaining on the streets are considered chronically homeless, meaning they refuse help. Those are the people that police and city officials say are making life difficult for downtown residents, workers and visitors.

But the Pottinger rules make it difficult for police to arrest them for offenses such as loitering, littering, starting cooking fires in parks and blocking sidewalks. The Pottinger settlement defines those as "life sustaining activities'' that homeless people without recourse to shelter need to carry out in public, without fear of arrest, to survive.

Only if they refuse an available shelter bed can they be arrested for those minor offenses under the agreement.

One prominent advocate said those guidelines already give police plenty of latitude to arrest homeless people.

Ron Book, chairman of Miami-Dade County's Homeless Trust, which funds $52 million a year in housing and services for the homeless, said the city is moving ahead on the petition with no support from advocates for the homeless. He said arresting chronically homeless people does nothing to get them permanently off the streets.

"I don't know what good it does putting those people in jail," Book said. "I don't think it's wise, and I've told them that clearly and repeatedly."

Benjamin Waxman, an attorney who litigated the Pottinger case for the ACLU, said the city appears to be re-starting the sweeps and harassment of the homeless that gave rise to the lawsuit in the first place.

"They're trying to reinstate the campaign against the homeless that inspired Pottinger," he said in an interview.

But Commissioner Francis Suarez said the city doesn't want to simply round up the homeless.

"What this does is gives us a greater ability to take care of them," he said.

The city petition would ask a federal judge to alter the guidelines in the settlement.

Among the changes sought:

  • Allowing police to detain those chronically homeless if they refuse help three times in 180 days.
  • Changing the definition of "life sustaining'' activities to exclude fires in parks, obstructing sidewalks, littering, temporary obstructions in parks, and lewd misconduct, which can include urinating in public.
  • Allowing police to seize and destroy property left in public spaces.

Police said a terrorist could plant an explosive device in a homeless person's backpack.

"Under Pottinger now, if it looks like it belongs to the homeless, we can't touch it. It could be a bomb," said Miami police officer James Burnett.

To win modification of the Pottinger agreement, Assistant City Attorney Warren Bittner said, the city "must show a substantial change in circumstances." Solowsky, the DDA's pro bono counsel, said the plan is to file a petition in federal court, then meet with the ACLU and other parties to the settlement to hammer a new agreement.

Waxman said that will prove a hard sell.

"It was a hard-fought and carefully fashioned settlement," he said.

(c)2013 The Miami Herald