Law
11:27 am
Fri October 25, 2013

How Miami Is Grappling With The Rights Of Homeless People

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James Lature spends much of his time between North West 16th and 17th Streets behind the ACE Hardware store. It’s as close to home as it gets.

The City of Miami is hoping to find its solution to homelessness by opening up a landmark court settlement.
Credit Wilson Sayre

Born in South Carolina and raised in Miami, he has spent the last 20 years getting to know the streets of the city by sleeping on them most nights.

To combat homelessness—at least downtown—the city of Miami is seeking changes to a landmark case from 1998: Pottinger v. Miami, which has helped define the legal rights of the homeless, not only in Miami, but American society as a whole. What the city has proposed would prevent people like Lature from taking up residence on the concrete.

“Everybody turns their eyes away on 11th Street, on 8th Street and downtown Miami because they don’t want to see what’s there,” said City Commissioner Mark Sarnoff about the homeless people who call that area home.

Of the 4,000 homeless living in shelters, temporary homes and on the streets of Miami-Dade County, about 800 live within Miami city limits. Nearly 350 live on sidewalks, in parks and under bridges in the downtown corridor of Miami.

And that is mostly thanks to the Pottinger settlement. It protects the homeless from being arrested for things like sleeping on the pavement, being in parks after hours and going to the bathroom in public. The final settlement deemed these ‘life sustaining’ activities.

Streets like this one between NW 16th and 17th St. are home to Miami's homeless population.
Credit Wilson Sayre

It is part of the increasingly-challenged body of law that protects the rights of the homeless. Any changes to the Pottinger case would have national ramifications, said Michael Stoops, director of community organizing for the National Coalition for the Homeless.

“It set a precedent for all of South Florida,” he said. “Even in communities outside of South Florida and nationwide, it has served as a way to deter communities from further criminalizing homelessness.”  

Cities cannot criminalize the homeless, the argument goes, because they live on the streets involuntarily. It’s not their choice. So to arrest a homeless person for everyday life activities is unconstitutional.

But the city of Miami has started to push back on this.

“The balance is that people have certain freedoms, but they can’t infringe on other people’s rights,” said Sarnoff. Homeless rights need to be weighed with “consideration for people who go to Heat games, people who come to visit the city of Miami, people who want to (shop) downtown, (or at) the outdoor cafes.”

The recent push to revisit Pottinger has been championed by Mayor Tomas Regalado, city commissioners and downtown residents and businesses.

They’re also concerned that Pottinger ties their hands for applying what Sarnoff calls ‘tough love’ to those who remain on the streets.

"While many of us don’t want to see homeless people and we don’t want to encounter homeless people – homelessness is not a crime.” - Ron Book, chairman of the Homeless Trust.

Among other things, the city is attempting to exempt the chronically homeless from the Pottinger settlement. This means that a homeless person who refuses help at least three times during a six-month period will be arrested or forced to live in a shelter.

According to the city, Pottinger currently prevents law enforcement officers from engaging with a chronically homeless person that “not only affects the health and welfare of the public at large, but of the homeless themselves.”

However, Ron Book, chairman of the Homeless Trust, said this would create an arrest-and-release policy, a revolving door between the streets and jail. This situation was one of the original reasons Pottinger was brought to court in the first place.

“The last time I checked even homeless people were protected by the Constitution of the United States,” said Book, adding, “While I wish we had the ability to force people into care or could force people off the streets, we don’t have that right. They have rights too. And while many of us don’t want to see homeless people and we don’t want to encounter homeless people – homelessness is not a crime.”

Steep Price Tag

In purely financial terms, Book raised concerns about the feasibility of arresting a homeless person. According to the Miami-Dade Department of Corrections, the cost of keeping a person in jail is $148 per day, so multiply that by 365, and that's $54,020 a year.

The city’s request to prevent Pottinger from covering the chronically homeless would not generally result in that person being incarcerated for a year. He or she would simply be arrested for minor misdemeanors that is already permissible under the Pottinger settlement, according to the city.

RELATED: City Of Miami Seeks 'Tough Love' Approach To Homelessness

“When I take a chronic person off the street (and put them) into one of my programs known as 'Housing First,' it costs me $16,000 a year to do that," Book said, "It is expensive. But I get them off the streets permanently. Their process will not get people off the streets permanently, and it's more expensive.”

Voice For The Voiceless

At one point during a recent court hearing to revisit the case, federal Judge Federico Moreno stopped the presenting lawyer and asked where Michael Pottinger was today. Benjamin Waxman, one of the lawyers who worked on the case with the American Civil Liberties Union since its original filing in 1988, told the courtroom that he was no longer alive.

As is so often the case with many of the homeless, they are often not able to advocate for themselves. When the original Pottinger case was filed, there were hundreds of homeless people involved in the class-action suit.

Today, what’s missing Stoops said, “is that we’re not asking homeless people themselves what needs to be done. We’re making decisions for them. Even some of the homeless agencies assume they know what’s going on with both the sheltered and the unsheltered population.”

The true experts are the homeless people, Stoops said, adding that it's their voice that is missing in this debate.

James Lature is one of the chronically homeless individuals that the City of Miami is trying to get off the streets with a little 'tough love.'
Credit Wilson Sayre

Lature is one of those voices.

“I think the city needs to do something about people if they want people off the street. They can't just sit back and think that they can just live in their condo,” said Lature, “you got to do something to change things if you don't want homeless people to be on the streets.”

Lature insisted that if the city did more to help the situation of those living on the streets and then a person refused services, that might be grounds to arrest someone. But he doesn't think the city is at that point yet.

Lature is one of these chronically homeless people that the city wants to put in a shelter. But after being unable to find a job and living in a shelter for six months, he ended up back on the streets.

House Versus A Home

There is an important difference between what Lature and other homeless call a ‘place’ and a shelter. A place is yours, somewhere individuals can set their own schedule, choose their own lifestyle and be alone. A shelter can’t provide all that, despite a continuing need for shelter beds.

Jessica Vilches has been on the streets since 1986. She has been unable to enter into a drug treatment program.
Credit Wilson Sayre

“When were talking about shelters,” said Stoops, “you're talking about beds, you're talking about cots, you're talking about people sleeping on the floor. A shelter is not a home.”

Lature added that he wouldn't like to be forced to stay in a shelter. “I feel like a person should be left to their own free will, you know, cause some people like the streets.”

Jessica Vilches has been homeless since 1986. She admits that her drug problem keeps her on the streets. Though this could not be verified, she claims that athough she wants to go into a program, there's no place that can take her.

“Maybe if I go to jail they can do something for me... get a court order to go to a drug program,” she said.

Many reasons exist as to why Vilches could have been turned away, including her own refusal to comply with the intake requirements.

But changes to the way the city manages affordable housing is not an issue Pottinger addresses.