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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 partially 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 ... read more >
This case partially 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. The court issued its memorandum opinion on February 15, 2019. The court found that the defendant had been substantially compliant with the consent decree and terminated the agreement. By the same reasoning, the court denied the motion to hold the defendant in contempt. 359 F.Supp.3d 1177.

A month later, the plaintiffs appealed. On appeal they argued that the district court misinterpreted several aspects of the consent decree itself, by misplacing the burden of proof onto the plaintiffs, and by ignoring an alleged pattern of violating the consent decree. As of August 19, 2020, the case is still being adjudicated at the 11th Circuit Court of Appeals. Oral argument is scheduled for September 22, 2020.

Daniel Fryer - 04/17/2016
Eva Richardson - 11/23/2018
Jack Hibbard - 08/19/2020

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Issues and Causes of Action
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Constitutional Clause
Assistance of counsel (6th Amendment)
Due Process
Equal Protection
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Aggressive behavior
Disparate Treatment
Excessive force
Failure to train
False arrest
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
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 1998 - n/a
Filed 12/23/1988
Case Ongoing Yes
Additional Resources
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  See this case at (May provide additional documents and, for active cases, real-time alerts)
1:88-cv-02406-FAM (S.D. Fla.)
PN-FL-0005-9000.pdf | Detail
Date: 04/29/2020
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]
Memorandum Opinion [ECF# 682] (359 F.Supp.3d 1177) (S.D. Fla.)
PN-FL-0005-0018.pdf | WESTLAW| LEXIS | Detail
Date: 02/15/2019
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Atkins, Carl Clyde (S.D. Fla.) show/hide docs
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) show/hide docs
Jordan, Adalberto Jose (S.D. Fla., Eleventh Circuit) show/hide docs
Moreno, Federico A. (S.D. Fla.) show/hide docs
PN-FL-0005-0007 | PN-FL-0005-0008 | PN-FL-0005-0010 | PN-FL-0005-0011 | PN-FL-0005-0012 | PN-FL-0005-0018 | PN-FL-0005-9000
Plaintiff's Lawyers Abudu, Nancy G (Florida) show/hide docs
Kayanan, Maria (Florida) show/hide docs
Kochhar, Isha (Florida) show/hide docs
Neill, Anna T. (Florida) show/hide docs
Roark, Kelley S. (Florida) show/hide docs
Rosenberg, Arthur (Florida) show/hide docs
PN-FL-0005-0006 | PN-FL-0005-9000
Schnably, Stephen J (Florida) show/hide docs
PN-FL-0005-0004 | PN-FL-0005-0006 | PN-FL-0005-9000
Taseff, Ray (Florida) show/hide docs
Trevisani, Dante Pasquale (Florida) show/hide docs
Waxman, Benjamin Samuel (Florida) show/hide docs
PN-FL-0005-0004 | PN-FL-0005-0006 | PN-FL-0005-9000
Weisberg, Robert E. (Florida) show/hide docs
Defendant's Lawyers Andrews, Forrest Lee (Florida) show/hide docs
Bittner, Warren (Florida) show/hide docs
PN-FL-0005-0006 | PN-FL-0005-0009 | PN-FL-0005-0014 | PN-FL-0005-9000
Bru, Julie O. (Florida) show/hide docs
Coffey, Kendall Brindley (Florida) show/hide docs
PN-FL-0005-0004 | PN-FL-0005-9000
Cole, Scott Allan (Florida) show/hide docs
PN-FL-0005-0009 | PN-FL-0005-0014 | PN-FL-0005-9000
Gamez, Carlos Humberto (Florida) show/hide docs
Greco, John Anthony (Florida) show/hide docs
Green, Christopher Allan (Florida) show/hide docs
Harrison, Douglas Andrew (Florida) show/hide docs
Jones, A. Quinn III (Florida) show/hide docs
McNulty, Kerri Lauren (Florida) show/hide docs
Mendéz, Victoria (Florida) show/hide docs
Perez, Juan Carlos (Florida) show/hide docs
Scott, Thomas E. (Florida) show/hide docs
PN-FL-0005-0009 | PN-FL-0005-0014 | PN-FL-0005-9000
Vilarello, Alejandro (Florida) show/hide docs
Wysong, George (Florida) show/hide docs

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