Criminalization of Homelessness: Eleventh Circuit Affirms Dissolution of Pottinger Agreement

ALYSSA SAMBERG—The homeless population in the City of Miami (the “City”) lived under the protection of the Pottinger Agreement (“Agreement”), a landmark federal consent decree hailed as “a gold standard” in civil litigation establishing protection for rights of the homeless, for 20 years until a federal judge dissolved the agreement in February 2019. On October 1, the Eleventh Circuit upheld the district court’s ruling in Peery v. City of Miami, leaving the future of people experiencing homelessness in Miami uncertain. Advocates of the Agreement fear this uncertainty will lead to a rise in criminalization of homelessness.

The Pottinger Agreement arose out of a 1992 federal court ruling, which held that the Miami-Dade Police Department (“MDPD”) engaged in practices in violation of the Fourth and Eighth Amendment rights of homeless residents of the City, in addition to the equal protection and due process clauses of the Fourteenth Amendment. The Pottinger Court’s aimed to protect against continued constitutional violations. The Agreement required that people experiencing homelessness who engage in life-sustaining activities in public be offered shelter by police before being arrested. Additionally, it prevented police from arresting someone experiencing homelessness for a number of misdemeanors involving life-sustaining conduct. Finally, the Agreement prohibited police from destroying belongings “readily recognizable as property of a homeless person.”

In 2018, the City of Miami moved to dissolve the Pottinger Agreement. The ACLU responded with a motion to enforce the Agreement and to hold the City in contempt for violations. The District Court found that “overwhelming evidence supports the finding that City police will not revert to arresting [homeless] individuals.” Judge Moreno held the Agreement had served its purpose of preventing police abuses of people experiencing homelessness in Miami. The District Court found that resources for homeless Miamians have increased significantly in the past 20 years and the City of Miami’s past violations of the Agreement were exceptions to otherwise compliant behavior, and as such, was no longer necessary. The ACLU’s motion to hold the City in contempt was denied.

On appeal, the Eleventh Circuit was required to decide whether the district court abused its discretion when it terminated the Pottinger Agreement.  Chief Judge Pryor, joined by Circuit Judges Tjoflat and Hull, held that the district court did not err in its interpretation or application of the Agreement and correctly granted the City’s motion for termination.

People experiencing homelessness argued the district court misinterpreted several provisions of the Agreement, which prohibits City workers from “destroy[ing] any personal property known to belong to a homeless person, or readily recognizable as property of a homeless person … except as permissible by law and in accordance with the department’s operating procedure, or if the property is contaminated or otherwise poses a health hazard of obvious safety issue to [City] workers or to members of the public.” Petitioners made a number interpretation arguments, yet the Eleventh Circuit relied heavily on the actual text of the agreement and was unwilling to stray from the text of the decree or to disrespect omissions the drafters chose to make. For example, people experiencing homelessness asserted that the district court was wrong in concluding that if a bag contains contaminated property, deciphering what is and what is not contaminated inside of the bag is not required by the Agreement. After applying definitions from Webster’s dictionary to the Agreement, Chief Judge Pryor wrote, “[I]f a bag has been contaminated or contains contaminated items, City workers need not search through it for still-clean items. The entire bag is hazardous because of the health and safety risks involved.”

Moreover, people experiencing homelessness urged the Eleventh Circuit to adopt the view of the Sixth Circuit from Bennet v. City of Eastpointe ruling that the Fourth Amendment encompasses the right to remain in any public place. The Eleventh Circuit declined to do so, reasoning that Florida v. Bostick makes clear that there is not necessarily a seizure under the Fourth Amendment when a person is not free to leave and instead the question of seizure turns on whether a reasonable person can “terminate the encounter” with police. Judge Pryor went on to write that there is a constitutionally protected liberty interest to be in parks or other city lands open to the general public, but that this interest is neither fundamental nor limitless. Because police often ask individuals to temporarily leave public spaces and because the Eleventh Circuit found no evidence that the move-on orders issued by the City were either systematic or intended to annoy, the panel concluded that no constitutional rights were violated.

The essence of the litigation over the original Pottinger Agreement and its dissolution reflects the larger debate over how cities ought to treat homeless residents. Though experts assign a lack of affordable housing as the primary cause of homelessness, many local governments have passed local ordinances prohibiting life sustaining functions facing pressure from tourism boards and businesses. Those in support of an aggressive approach favor removing people experiencing homelessness from public places for other residents welfare and enjoyment of such spaces. As of 2016, a report analyzing laws in 187 cities throughout the country found that 47% of cities prohibited sitting and lying down in public, 32% of cities outlawed loitering citywide, and 6% of cities restricted food sharing. This amounts to nearly twice as many citywide camping and loitering bans as a decade earlier.

Critics of the dissolution of the Pottinger Agreement argue that the “criminalization of homelessness” not only poses serious constitutional issues, but is also inefficient and fails to address the underlying issues of homelessness. Criminalization can create a “revolving door” where people experiencing homelessness are subjected to the criminal justice system, and then thrust back into homelessness. Moreover, research shows that policies which provide homeless people with an apartment and access to a social worker cost less than the annual cost of emergency room visits and jail stays for an average person experiencing homelessness. Dante Trevisani, executive director of the nonprofit civil-rights firm Florida Justice Institute and attorney for Peery, is concerned this ruling will make it “easier for the city go to back to its old ways of criminalizing homelessness,” pointing to a 2018 mass removal of homeless people from downtown Miami as evidence that the City should not be trusted to regulate itself in the handling of its homeless population.

Though it is too early to tell the legacy of the Peery case, it is clear that new legal protection is necessary in the absence of the Pottinger Agreement. One available protection is approving proposed legislation for a Homeless Bill of Rights in Florida to incorporate rights protected by the Pottinger Agreement.  Legal protections, however, are not enough to truly address the issue of homelessness—the key is ensuring people experiencing homeless have access to sustainable, affordable housing.