The Criminalization of Homelessness in a Post-Pottinger World

AMELIA DAYNES—In February of this year, Judge Moreno of the Federal District Court for the Southern District of Florida dissolved the Pottinger Agreement, a landmark consent decree that led the nation in establishing protection for people experiencing homelessness. The original Pottinger Agreement was reached in 1998, after ten years of litigation and negotiation between the City of Miami (“the City”) and a class of homeless Miamians, represented by a team of attorneys from the ACLU, including Prof. Schnably of the University of Miami. The Agreement grew out of a 1992 federal court ruling that the Miami Police Department had engaged in practices that violated the Fourth and Eighth Amendment rights of homeless Miamians, as well as the equal protection and due process clauses of the Fourteenth Amendment.

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The Pottinger Agreement aimed to prevent criminalization of people experiencing homelessness in Miami, and to protect against continued constitutional violations. In its original form, it required police to offer a homeless person shelter before arresting her for engaging in life-sustaining activities in public. If no shelter was available, police could not arrest a homeless person for a number of misdemeanors which involved life-sustaining conduct. It further prohibited police from destroying the belongings of homeless people. In 2013, after the City of Miami first moved to modify the Agreement, the parties agreed to some modifications on the types of activities homeless people could conduct free from risk of arrest or police harassment. Overall, though, the core protections of the Pottinger Agreement remained intact.

Then, last year, the City of Miami moved to dissolve the Agreement. The ACLU moved to enforce the consent decree and to hold the City of Miami in contempt for violating it. After considering how resources for homeless Miamians have increased over the past 20 years, and after finding that the City of Miami’s past violations of the agreement were exceptions to otherwise compliant behavior, Judge Moreno held that the Pottinger Agreement had served its purpose of preventing police abuses of people experiencing homelessness in Miami, and was no longer necessary. Judge Moreno further denied the ACLU’s motion to hold the City in contempt.

At the heart of the original Pottinger Agreement, and the litigation over whether it ought to be dissolved, is an argument about how cities ought to address homelessness. The policies at issue in the original Pottinger litigation are often referred to as the “criminalization of homelessness.” Laws and police practices that criminalize homelessness not only pose serious constitutional issues, they are also wasteful and they fail to address the underlying issues of homelessness. Criminalization creates a “revolving door” that circulates people experiencing homelessness through the criminal justice system, and then back into homelessness. Research shows that policies which provide homeless people 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. One study of chronic homelessness in three Central Florida counties found that the region, which currently employs policies that criminalize homelessness, could save $21,000 annually per person experiencing homelessness by employing a Housing First strategy.

Further, criminalization strategies disrupt the ability of homeless people to gain employment, find stable housing, and access public benefits. They also subject people experiencing homelessness to the criminal justice system without the resources they need to navigate it effectively.

While the Pottinger Agreement achieved substantial change in the way the City of Miami addresses homelessness, it did not eradicate all practices that criminalize homelessness. Even before Judge Moreno dissolved the Pottinger agreement this February, encounters between homeless people and Miami’s police and city officials sometimes resulted in the destruction of personal property, arrests for engaging in life-sustaining activities, and, in at least one tragic instance, death. In March of 2018, police arrested Tabitha Bass for sleeping on a sidewalk in way that obstructed passage. Ms. Bass, who suffered from serious health issues, died in jail three days later. Then, in April, just before the City of Miami filed a motion to dissolve the consent decree, video evidence surfaced showing Miami PD officers destroying the property of homeless Miamians during systematic “clean ups” of areas where homeless Miamians often live in the Downtown and Overtown areas. In its briefs, the ACLU argued that these “clean ups” were really an attempt to clear homeless Miamians out of gentrifying areas of our city. Now that the Pottinger Agreement has been dissolved, homeless Miamians are left without the additional protections and enforcement mechanisms the Agreement provided to secure their constitutional rights.

The City prevailed by arguing in part that the Miami PD can be trusted not to indiscriminately harass or arrest homeless Miamians. After Judge Moreno issued his decision, City Manager Emilio Gonzalez further promised that the City would “continue working to assist the homeless in a humane manner.” InYet, if the practices of the Miami PD and city officials prior to the dissolution of Pottinger are any indication, the City cannot be entirely trusted to respect the rights of homeless Miamians. The Pottinger Agreement provided a mechanism for homeless Miamian’s to enforce these promises against the City of Miami. In the absence of Pottinger, new legal protection is necessary.

One solution is to enact a Homeless Bill of Rights at the state level. Legislation like this has been enacted in Rhode Island, Connecticut, Illinois, and Puerto Rico in varying forms. Activists in Florida have proposed similar legislation in the past. A Florida Homeless Bill of Rights should draw from legislation in other jurisdictions and incorporate some of the protections that were part of the Pottinger Agreement and which are directly responsive to police tactics that have historically been employed in the Miami area. The National Law Center for Homeless and Poverty notes that the Homeless Bill of Rights which have already been enacted include a right to move freely and to rest in public spaces, to access public facilities, an expectation of privacy in personal property, protection from mistreatment by law enforcement, protection from disclosure of records, freedom from employment discrimination, a right to receive documentation required to register to vote and a right to emergency medical care. The existing Homeless Bills of Rights also include enforcement mechanisms, some administrative and some judicial, to provide people experiencing homelessness with legal relief if their rights are violated.

In order to continue the trend begun by the Pottinger Agreement, and to spread the gains of Pottinger throughout Florida, a Florida Homeless Bill of Rights should also include rights which were protected by the Pottinger Agreement. Any Homeless Bill of Rights should include the right not to be arrested engaging in life-sustaining activities. It should also include the right not to have property seized or destroyed by police or City officials and, in the event of arrest, the right to have property stored securely by police and returned at a later time.

A state level Homeless Bill of Rights will help prevent a return to criminalization of homelessness in the wake of Pottinger in two key ways. First, the Pottinger Agreement was a federal injunction constraining the powers of a municipal government. As Judge Moreno’s order noted, federal judicial oversight of local governments raises federalism concerns, and consent decrees like Pottinger are transient. On this point, Judge Moreno quoted the Supreme Court in Board of Education of Oklahoma City Public Schools v. Dowell, writing that consent decrees “are not intended to operate in perpetuity.” A state law, on the other hand, could approach permanence. Though a state law would be subject to the changing policy preferences of Florida voters, and thus vulnerable to future modification, it would not be constrained by the same concerns about judicial supervision of local government agencies that caution against keeping consent decrees in place permanently.

Second, a Florida Homeless Bill of Rights would extend the progress Pottinger made in Miami to the rest of Florida. Under the Pottinger Agreement, the City of Miami increased resources to aid people experiencing homelessness and was bound to respect the rights of homeless Miamians. However, cities like Orlando and Tampa continue to ban people from engaging in essential activities, like food sharing and sleeping, in public places. Florida has a total homeless population of around 32,190, only approximately 1,000 of those people live in the City of Miami. A statewide Homeless Bill of Rights would bring the rest of Florida up to speed while preventing a backslide in Miami in the absence of the Pottinger Agreement.