Facts about Pottinger. Elena Bondarenko.
Miami has one of the most complex legal/logistical frameworks in the country for dealing with homelessness. I have been working on this issue as an attorney, looking into regulatory reasons as to why homelessness is still so prevalent and how we can help. In the process, it amazed me how much of the decision-making was done from behind a desk by individuals with little understanding of the true battles that are fought on the sidewalk. I made sure to go on outreach and health visits with the Lazarus Project, police, and the IDEA Needle Exchange Program. An important factor in homelessness is substance abuse and mental health. We need to treat these two problems in a more innovative manner, forming teams of professionals and recovered peers, for example. Housing is a factor, sure, but many of the chronic homeless are not ready to live alone.
The Pottinger lawsuit was filed over 30 years ago when Miami was a very different place. In 1988, an injunction was entered by the court to prevent the arrest of the homeless for simply being homeless and for the destruction of their property. After 10 years of litigation, a consent decree was entered, providing certain guidance to the City on law enforcement as it relates to homeless individuals (Pottinger Agreement). It was later modified, in 2014, to exclude sex offenders from protected class and allow for more flexibility in law enforcement. Last September, Judge Federico Moreno terminated the Pottinger Consent Decree, agreeing that the City not only complied with it over the years but, also, that it was no longer necessary. As opined, Pottinger was in place for 20 years and caused a revolution in this community as to the treatment and care of the homeless. Now there is much more respect for the rights of the homeless and they have many resources. At the same time, Downtown has evolved dramatically into a thriving residential place with over 90 thousand residents, including families with children. The ACLU appealed the decision, and the lawsuit is currently pending.”
In sum, whether someone is wearing a designer suit or soiled and ripped clothes, the same exact law should apply to them! What Pottinger represented back in the ’90s is the law of the land today. Some residents resent the fact that a homeless individual sleeps or lies on a bench. But why shouldn’t they? Because they don’t comply with our aesthetic standards? If you and I have the right to sit or lie on a bench so do the homeless. We demand that panhandling be eliminated, but that is a violation of the First Amendment, freedom of speech. If a little girl can ask for money for her Girl Scouts’ program, preventing a homeless person from panhandling is an infringement of his free speech rights, with more serious implication like controlling the message. Aggressive panhandling, intimidating or threatening pedestrians… That is a different story. Just because you are homeless you are not entitled to break the law.
Regarding Pottinger protection that the City must always embrace, regardless of the outcome of the case.
Pottinger protects the homeless regarding life-sustaining misdemeanors — things that you have to do to survive. There are a lot of misconceptions about that. Police can and should approach individuals engaging in those acts (like urinating on the sidewalk). The only thing that Pottinger mandates is that they do not arrest the homeless without first offering them to be taken to shelter. The homeless individual then should have a choice. However, if there is a bathroom within a ¼ mile, and you choose the sidewalk, or if you fully obstruct the sidewalk — then Pottinger protections are not applicable.
DDA PUBLIC FLYER — HOMELESS IN MIAMI
ACTIVITY PROTECTED UNDER POTTINGER:
- Being in a park after curfew hours
- Some public nudity as is necessary to carry on the daily necessities of life
- Sitting/laying down on sidewalks without fully blocking them
- Living or sleeping in vehicles
- Loitering in restrooms
- Littering if there is no trashcan within 300 feet
- Camping in parks without assembling temporary structures
- Sleeping on park benches
- Trespassing on “public property” other than structure or conveyance
Note: Before approaching, Police officers must be ready to first offer to take a homeless person to a shelter. If a person refuses to go to a shelter, he/she may be arrested by the officer.
ACTIVITY NOT PROTECTED UNDER POTTINGER:
- NO — Fires in parks
- NO — 100% Obstructing sidewalks (NO lying perpendicular or forcing pedestrians to walk onto the street) ▲arrestable after warning
- NO — Littering (within 300 feet of a trash receptacle)
- NO — Temporary structures in parks (tents)
- NO — Lewd conduct
- NO — Intentional public nudity ▲ immediately arrestable
- NO — Urinating or defecating on a public ROW if there is an open public restroom within ¼ mile ▲immediately arrestable
POTTINGER PROTECTIONS DO NOT APPLY TO REGISTERED SEX OFFENDERS OR PREDATORS
PERSONAL PROPERTY PROTECTED UNDER POTTINGER
- The personal property known to belong to a homeless person shall not be destroyed or abandoned
- Contaminated property or property that poses a health hazard or obvious safety issue to the public is not protected
- Abandoned personal property is not protected
PROPOSED LAW ENFORCEMENT PROTOCOL
- Police SHALL NOT arrest or detain a Homeless Person not engaged in any Criminal Activity.
- Police MAY arrest a Homeless Person who is engaged in “Life-Sustaining” Misdemeanor ONLY IF the homeless person is offered an option of going to a shelter within Miami-Dade County but refuses to go.
- 10 Life Sustaining Misdemeanors: 1. Being in a park after curfew hours. 2. Public nudity as is necessary to carry on the daily necessities of life UNLESS nudity is INTENTIONAL IN PLAIN VIEW OF OTHERS (immediately arrestable.) 3. Call of nature if there is a PUBLIC RESTROOM within a ¼ mile (immediately arrestable.) 4. Siting/laying on sidewalk UNLESS the person is blocking the sidewalk requiring others to walk onto a street (a warning must be given prior to arrest.) 5. Living or sleeping in vehicles. 6. Loitering in restrooms. 7. Littering UNLESS there is a trashcan within 300 feet (a warning must be given prior to citation) 8. Camping or being in parks after closing hours. 9. Sleeping on park benches. 10. Trespassing on “public property” other than structure or conveyance.
- Police MAY arrest a Homeless Person WITHOUT offering shelter if a homeless person is a registered sex offender or sexual predator, committed a felony offense, committed a lewd, lascivious or indecent act upon or in presence of a person, committed a misdemeanor not listed above. Started a fire in a park. Assembled a temporary structure in a park.
- Police are ALWAYS allowed to approach a homeless person and offer shelter, services or assistance.
- Police SHALL ALWAYS attempt to secure small personal items of a homeless person such as identification, medicine, eyeglasses.
- Police SHALL ensure that large personal items are secured by an outreach worker or by the arresting officer UNLESS such items are contaminated or pose a health hazard or obvious safety issue to the public.
- Police do NOT have to keep mattresses.