UPDATE 11:15 a.m. Oct. 31: In the latest development of the City of Miami's request to revisit the Pottinger case, Federal Judge Federico Moreno has officially called for an evidentiary hearing. This means both sides will present data and witnesses who will attest to whether the landscape for the homeless in Miami has, in fact, changed. The judge has the ability to reopen the original settlement if the change is significant enough. The hearing will be held in December.
UPDATE 5:20 p.m. Oct. 23: Federal Judge Federico Moreno made no decision from the bench regarding the City of Miami's request to revisit Pottinger.
However, Moreno intimated that he might consider hearing more evidence from both sides at another time.
The judge was candid with the presenting attorneys, pressing them on how sex offenders, beds and bathrooms fit into the problem of homelessness. The city hoped to show that changes to the 1998 settlement are needed because over the years, the situation for the homeless has changed.
The ACLU, who brought the original case to trial in 1988, rejected the idea that any such change had actually taken place.
The City of Miami will ask a federal judge today to make changes to a landmark legal case involving the rights of the homeless, claiming it ties the city's hands in dealing with homelessness.
At last count, some 350 homeless people continue to live on the streets of downtown Miami.
The so-called Pottinger Case protects homeless from being arrested for misdemeanors that are hard to avoid when homeless. These include being in parks after hours, sleeping on the streets, urinating and defecating outdoors, and other ‘life sustaining’ activities.
The case went to trial in 1988 after complaints from homeless people that police were arresting and harassing them while trying to rid them from public areas. In addition to protecting ‘life-sustaining’ activities, the settlement also prohibited Miami police from destroying a homeless person’s property without due process.
Benjamin Waxman was one of the lawyers who worked with the ACLU on this case.
“One of the constitutional concerns was that the city’s practice was effectively criminalizing homelessness,” he said, “they were essentially making a crime out of these people’s involuntary status.”
The city is asking the judge to recognize that significant changes have been made in the amount and variety of services available to homeless people. It claims that these changes have not been able to benefit the chronically homeless or address the problem of homeless sexual predators because of restraints imposed by Pottinger.
“Everybody turns their eyes away on 11th Street, on 8th Street in downtown Miami because they don't want to see what’s there,” said City Commissioner Marc Sarnoff, who has been a leader in the efforts to seek changes to the settlement. “If we want to change things, if we want to try and create a better downtown and help these people who are homeless and chronically homeless, lets try something new.”
And this something new is asking that Pottinger not apply to the chronically homeless. Sarnoff said this will help to place those individuals in shelters. There, a homeless person could have access to substance abuse, mental health, and job training programs.
“I think we have to be humanistic in our approach but it think the (phrase) 'tough love' is fair because I don't think we can just govern ourselves without trying to stop this cycle and I think the only way you’re going to end this cycle is with a little bit of tough love. And tough love is not always easy to distribute here in Miami,” Sarnoff said.
In order to make any changes, the city has to show that the situation since 1998 has indeed changed and therefore the Pottinger settlement is no longer appropriate.
But Stephen Schnably, another one of the Pottinger lawyers said, “It’s hard to say what has changed, because we don't think anything relevant or surprising has changed… What hasn’t changed is the Constitution and constitutional rights.”
Schnabley said what the city is asking for “would essentially eviscerate the settlement and allow them to go back to the days in the late 80s, early 90s (where) the strategy was to criminalize the status of being homeless.”
A hearing is scheduled for 2:00 p.m. at the Wilkie Ferguson Courthouse in Miami.