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Case Name Pottinger v. City of Miami PN-FL-0005
Docket / Court 1:88-cv-02406-FAM ( S.D. Fla. )
State/Territory Florida
Case Type(s) Policing
Attorney Organization ACLU Chapters (any)
Legal Services/Legal Aid
Case Summary
This case predates PACER. Therefore, access to documents related to this case is limited.

In December of 1988, the plaintiff, as representative of a class of homeless persons, filed this § 1983 lawsuit against the City of Miami in the U.S. District Court for the Southern District of ... read more >
This case predates PACER. Therefore, access to documents related to this case is limited.

In December of 1988, the plaintiff, as representative of a class of homeless persons, filed this § 1983 lawsuit against the City of Miami in the U.S. District Court for the Southern District of Florida. The plaintiffs' complaint alleged that the City’s police department had “a custom, practice and policy of arresting, harassing and otherwise interfering with homeless people for engaging in basic activities of daily life . . . in the public places where they are forced to live.” The plaintiffs asked the Court for an injunction against the City to prohibit its police from arresting homeless persons who engaged in “life-sustaining conduct” in public, and from seizing and destroying their property. The district court found the City liable and granted the plaintiffs' request for injunctive relief.

The City appealed, challenging the basis and scope of the injunction. In December of 1994, following oral argument, the case was remanded to allow the district court to “issue appropriate clarifying language to guide the [C]ity in its determination of the scope of its duties under the injunction, and [to] consider whether its injunction should be modified in light of . . . events [that transpired subsequent to its order granting the injunction].” Pottinger v. City of Miami, 40 F.3d 1155, 1157 (11th Cir. 1994). On remand, the district court conducted an evidentiary hearing and ruled that the injunction would remain in effect because the circumstances had not changed significantly.

The City appealed again, and oral arguments were heard in January of 1996. The court instructed the parties to try to settle their dispute. After negotiating for nearly two years, the parties entered into a settlement agreement, which the district court subsequently approved.

Under the settlement agreement, the City agreed to implement various forms of training for its law enforcement officers in order to sensitize them to the unique struggle and circumstances of homeless persons. The agreement outlined three options for enhanced training procedures: (A) training and education provided at the School of Justice and Safety Administration at Miami Dade Community College; (B) post-Academy training; and (C) in-service training. The City was required to adopt in-service training, and had to choose between options (A) and (B).

In addition to improved training procedures, the City was required to adopt a Departmental Order regarding the treatment of homeless individuals and the City's commitment to respect the rights of homeless people. This order implemented the protocol that law enforcement officers had to follow when encountering homeless individuals. Pursuant to the new law enforcement protocol, police officers were forbidden from arresting or detaining homeless people not engaged in criminal activity. Police could only approach a homeless person to advise him or her of shelter, services, or available assistance. If a homeless person was reasonably believed to be mentally ill, law enforcement could take the person to a receiving facility for involuntary examination.

Further, if law enforcement observed a homeless person engaging in life-sustaining conduct misdemeanors—including activities such as eating, sleeping, sitting, congregating, or walking in public—they could warn the homeless person to stop the conduct and alert them to available shelter. If the homeless person accepted the available shelter, the police officer could not make an arrest and instead, had to make arrangements to transport the individual to the shelter. However, if no shelter was available, no warning could be given nor arrest made. If law enforcement observed a homeless person engaging in non-life sustaining conduct misdemeanors, they could warn the homeless person to stop the unlawful conduct, or if deemed appropriate, detain or arrest the person. Similarly, if law enforcement observed a homeless person committing a felony, they could detain or arrest that person. Finally, the agreement required that law enforcement respect the personal property of all homeless individuals and forbid the destruction of personal property.

Additionally, the settlement agreement required that the City adopt a procedure for monitoring and accounting for its officers' encounters with homeless persons. It also called for the creation of an Advisory Committee to monitor law enforcement contact with homeless persons.

In October of 2000, the parties filed a joint motion to modify the settlement agreement. The agreement had established a $600,000 “Start Off Fund” in order to compensate qualified class members. The payments were to be made within two years. But since they started later than expected, the parties asked the district court to modify the agreement to allow payments to continue until the fund was exhausted. The district court did as the parties requested. No one sought attorneys’ fees for the work performed during the 2000 modification process.

In September of 2013, the City filed a motion to modify the agreement. According to the City, the improvements in programs and services did not ameliorate problems for two subgroups of the homeless population—"the chronically homeless and sexual predators." The plaintiffs' attorney filed a response opposing the motion, arguing that, in effect, the City was attempting to terminate the settlement agreement as to the “chronically homeless” and registered sex offenders. In October of 2013, the district court held a hearing on the City’s motion for modification and suggested that the parties mediate their dispute.

In the 2014 addendum approved by the district court, the parties agreed to some of the modifications proposed by the City. The major changes were: (1) that registered sex offenders or sexual predators under certain Florida statutes were no longer afforded some of the protections provided by the original settlement agreement; (2) a facility was considered a shelter if it could accommodate the homeless for a minimum of 24 hours and had mats at least three inches thick for the homeless to sleep on; (3) starting a fire in a park no longer constituted “life-sustaining conduct;” and (4) arrests could now be made for “life-sustaining conduct” misdemeanors after a warning even if a shelter was available, but only if the conduct involved “imminent threat of physical injury.” The City's requested modifications concerning the chronically homeless did not become part of the 2014 addendum.

Following the addendum, the plaintiffs' attorney moved for $476,094.55 in attorneys’ fees for the work performed by counsel during the modification process. The district court denied the motion, ruling that the settlement agreement permitted attorneys’ fees for enforcing the agreement, but not for opposing modifications to the agreement. In addition, the district court found that the plaintiffs were not the prevailing party as to the City’s motion. Pottinger v. City of Miami, No. 88–2406–CIV, 2014 WL 2890061 (S.D. Fla. June 25, 2014).

The Court of Appeals upheld the district court's ruling on the grounds that the language in the parties' settlement agreement was clear with regards to attorneys' fees not being available for the modifications of contracts. Pottinger v. City of Miami, 805 F.3d 1293 (11th Cir. 2015).

For more than two years, the parties operated under the consent decree without any need for court enforcement. In April and May of 2018, the parties attended two mediation conferences. However, the parties were unable to reach an agreement. On May 30, 2018, the City filed a motion to terminate, or in the alternative modify, the consent decree. The City argued that its treatment of homeless individuals was fundamentally different from what it was when the litigation began in 1988. The City noted that it had significantly increased the number and scope of programs and services to assist the homeless community and had overhauled its police practices concerning interaction with homeless individuals and disposition of their belongings.

In response to the City's motion to terminate the consent decree, the plaintiffs filed a motion to enforce the consent decree and hold the City in contempt. The plaintiffs argued that, starting in late 2017, the City had been systematically violating the consent decree by seizing and destroying the plaintiffs' property, banishing the plaintiffs from certain areas of the City, and arresting them for "life sustaining misdemeanor conduct" without offering shelter or assistance as required by the consent decree. Essentially, the plaintiffs alleged that the City had reverted back to its actions and conduct that precipitated the lawsuit. They included nearly two dozen declarations from homeless individuals who had been subjected these police practices.

After holding a status conference, District Judge Federico A. Moreno called for an evidentiary hearing on the new allegations. The hearing was held on September 24–26, October 24 and 25, and November 1, 2018. As of November 23, 2018, the parties have until December 4, 2018 to file their proposed findings of fact and conclusions of law. The case remains ongoing.

Daniel Fryer - 04/17/2016
Eva Richardson - 11/23/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
Assistance of counsel (6th Amendment)
Due Process
Equal Protection
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Reporting
Training
Defendant-type
Jurisdiction-wide
Law-enforcement
General
Aggressive behavior
Disparate Treatment
Excessive force
Failure to train
False arrest
Funding
Over/Unlawful Detention
Pattern or Practice
Search policies
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Defendant(s) City of Miami
Plaintiff Description Group of homeless individuals
Indexed Lawyer Organizations ACLU Chapters (any)
Legal Services/Legal Aid
Class action status sought Yes
Class action status granted Yes
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 1998 - n/a
Filing Year 1988
Case Ongoing Yes
Docket(s)
1:88-cv-02406-FAM (S.D. Fla.)
PN-FL-0005-9000.pdf | Detail
Date: 11/19/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Order Granting Plaintiffs' Motion for Certification of Class Action (720 F.Supp. 955) (S.D. Fla.)
PN-FL-0005-0015.pdf | WESTLAW| LEXIS | Detail
Date: 07/21/1989
Source: Google Scholar
Findings of Fact and Conclusions of Law and Order on Plaintiffs' Request for Declaratory and Injunctive Relief (810 F.Supp. 1551) (S.D. Fla.)
PN-FL-0005-0016.pdf | WESTLAW| LEXIS | Detail
Date: 11/16/1992
Source: Google Scholar
Opinion (40 F.3d 1155)
PN-FL-0005-0017.pdf | WESTLAW| LEXIS | Detail
Date: 12/07/1994
Source: Google Scholar
Findings and Order on Limited Remand from the Eleventh Circuit Court of Appeals [ECF# 360] (S.D. Fla.)
PN-FL-0005-0001.pdf | Detail
Date: 04/07/1995
Source: PACER [Public Access to Court Electronic Records]
Order on Join Motion to Certify to Court of Appeals Intent to Proceed with Approval Provisions of Settlement Agreement [ECF# 383] (S.D. Fla.)
PN-FL-0005-0003.pdf | Detail
Date: 02/25/1998
Source: PACER [Public Access to Court Electronic Records]
Settlement Agreement [ECF# 382]
PN-FL-0005-0004.pdf | Detail
Date: 02/27/1998
Source: PACER [Public Access to Court Electronic Records]
Eleventh Circuit of Appeals Order Granting Parties' Joint Motion for Remand [Ct. of App. ECF# 384]
PN-FL-0005-0002.pdf | Detail
Date: 04/17/1998
Source: PACER [Public Access to Court Electronic Records]
Omnibus Order Approving Class Notice of Settlement Agreement with Specified Revisions; Setting Dates for Receipt of Objections to Settlement Agreement and for Public Hearing; [Title Truncated] [ECF# 391] (S.D. Fla.)
PN-FL-0005-0005.pdf | Detail
Date: 05/12/1998
Source: PACER [Public Access to Court Electronic Records]
Joint Motion to Approve Settlement Agreement [ECF# 397]
PN-FL-0005-0006.pdf | Detail
Date: 09/23/1998
Source: PACER [Public Access to Court Electronic Records]
Final Order Approving Settlement and Dismissing Case [ECF# 398] (S.D. Fla.)
PN-FL-0005-0007.pdf | Detail
Date: 10/05/1998
Source: PACER [Public Access to Court Electronic Records]
Order Approving Settlement Agreement Modification [ECF# 459] (S.D. Fla.)
PN-FL-0005-0008.pdf | Detail
Date: 10/04/2000
Source: PACER [Public Access to Court Electronic Records]
Defendant, City of Miami's, Motion for Limited Modification of the Pottinger Settlement Agreement [ECF# 464]
PN-FL-0005-0009.pdf | Detail
Date: 09/11/2013
Source: PACER [Public Access to Court Electronic Records]
Order Requiring Evidentiary Hearing [ECF# 502] (S.D. Fla.)
PN-FL-0005-0010.pdf | Detail
Date: 10/29/2013
Source: PACER [Public Access to Court Electronic Records]
Joint Motion to Approve Settlement (With Addendum to Settlement Agreement) [ECF# 525]
PN-FL-0005-0014.pdf | Detail
Date: 12/12/2013
Source: PACER [Public Access to Court Electronic Records]
Order Granting Joint Motion to Approve Settlement (S.D. Fla.)
PN-FL-0005-0011.pdf | Detail
Date: 03/10/2014
Source: Bloomberg Law
Order Denying Plaintiffs' Verified Motion for Attorneys' Fees and Costs (2014 WL 2890061) (S.D. Fla.)
PN-FL-0005-0012.pdf | WESTLAW | Detail
Date: 06/24/2014
Source: Bloomberg Law
Opinion [Ct. of App. ECF# 563] (805 F.3d 1293)
PN-FL-0005-0013.pdf | WESTLAW| LEXIS | Detail
Date: 11/10/2015
Source: PACER [Public Access to Court Electronic Records]
Judges Atkins, Carl Clyde (S.D. Fla.)
PN-FL-0005-0001 | PN-FL-0005-0003 | PN-FL-0005-0005 | PN-FL-0005-0015 | PN-FL-0005-0016
Hatchett, Joseph Woodrow (Fifth Circuit, Eleventh Circuit)
PN-FL-0005-0017
Jordan, Adalberto Jose (S.D. Fla., Eleventh Circuit)
PN-FL-0005-0013
Moreno, Federico A. (S.D. Fla.)
PN-FL-0005-0007 | PN-FL-0005-0008 | PN-FL-0005-0010 | PN-FL-0005-0011 | PN-FL-0005-0012 | PN-FL-0005-9000
Plaintiff's Lawyers Abudu, Nancy G (Florida)
PN-FL-0005-9000
Kayanan, Maria (Florida)
PN-FL-0005-9000
Kochhar, Isha (Florida)
PN-FL-0005-9000
Neill, Anna T. (Florida)
PN-FL-0005-9000
Roark, Kelley S. (Florida)
PN-FL-0005-9000
Rosenberg, Arthur (Florida)
PN-FL-0005-0006 | PN-FL-0005-9000
Schnably, Stephen J (Florida)
PN-FL-0005-0004 | PN-FL-0005-0006 | PN-FL-0005-9000
Taseff, Ray (Florida)
PN-FL-0005-9000
Trevisani, Dante Pasquale (Florida)
PN-FL-0005-9000
Waxman, Benjamin Samuel (Florida)
PN-FL-0005-0004 | PN-FL-0005-0006 | PN-FL-0005-9000
Weisberg, Robert E. (Florida)
PN-FL-0005-9000
Defendant's Lawyers Andrews, Forrest Lee (Florida)
PN-FL-0005-9000
Bittner, Warren (Florida)
PN-FL-0005-0006 | PN-FL-0005-0009 | PN-FL-0005-0014 | PN-FL-0005-9000
Bru, Julie O. (Florida)
PN-FL-0005-0009
Coffey, Kendall Brindley (Florida)
PN-FL-0005-0004 | PN-FL-0005-9000
Cole, Scott Allan (Florida)
PN-FL-0005-0009 | PN-FL-0005-0014 | PN-FL-0005-9000
Gamez, Carlos Humberto (Florida)
PN-FL-0005-9000
Greco, John Anthony (Florida)
PN-FL-0005-9000
Green, Christopher Allan (Florida)
PN-FL-0005-9000
Harrison, Douglas Andrew (Florida)
PN-FL-0005-9000
Jones, A. Quinn III (Florida)
PN-FL-0005-0004
McNulty, Kerri Lauren (Florida)
PN-FL-0005-9000
Mendéz, Victoria (Florida)
PN-FL-0005-0014
Perez, Juan Carlos (Florida)
PN-FL-0005-9000
Scott, Thomas E. (Florida)
PN-FL-0005-0009 | PN-FL-0005-0014 | PN-FL-0005-9000
Vilarello, Alejandro (Florida)
PN-FL-0005-0006
Wysong, George (Florida)
PN-FL-0005-9000

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