The Pottinger Agreement Abolished

By Rupal Ramesh Shah

The homeless are once again set up to struggle against the city of Miami and its police as the Pottinger Agreement was abolished in federal court on Feb. 15, 2019.

The city claimed, in its legal filing to end the agreement, that it had created numerous homeless outreach services including shelter beds, new jail-diversion programs for the homeless and mentally ill, and the creation of a full-time Department of Veterans Affairs and Homeless Services. U.S. District Judge Federico Moreno said these multiple shelters and social services form a safety net for the homeless rendering the specific protections in the Pottinger Agreement unnecessary.


“One set of constraints mentioned in the legal filing was their inability to search homeless people’s belongings for bombs or weapons — which they say is necessary to keep everyone safe…”


Miami Mayor Francis Suarez and Miami City Manager Emilio Gonzalez supported Moreno’s decision. Gonzalez said in a news release, “The circumstances today have changed, and the Pottinger Agreement restricts the City from acting in the best interest of homeless persons and residents in general. Without the constraints of the Pottinger Agreement we can better provide services for the homeless with dignity and compassion.”

One set of constraints mentioned in the legal filing was their inability to search homeless people’s belongings for bombs or weapons —  which they say is necessary to keep everyone safe — as the agreement was written before Sept. 11 and the Boston Marathon bombing.

According to the Miami New Times, even with the Pottinger Agreement in place, the homeless have continued to suffer as the police have harassed the homeless on more than one occasion. The American Civil Liberties Union (ACLU)  stated that the Pottinger Agreement is necessary and have continued to advocate for it.

The agreement came about from a class action lawsuit by 5,000 homeless individuals and the ACLU against the city of Miami in 1988. After ten years, in 1998, the city settled on the agreement which ensured that the police could not arrest the homeless or destroy their belongings. Instead, they had to give the homeless a chance to enter a shelter before arresting them.

Ben Waxman, the ACLU attorney who worked on the 1988 Pottinger lawsuit, told Miami New Times that the city has been trying to sweep the homeless out of the downtown area for months with “recent aggressive gentrification” raising property values. The city’s attorneys had also stated another reason to end the Pottinger Agreement is due to the growth of the residential population and commercial activity in Miami.

“The rapid gentrification of Miami in the 20 years since the signing of the Pottinger Agreement does not mean that the city can return to the failed policy of trying to use the criminal justice system to address homelessness in Miami,” continued Waxman, who is also the lead counsel in the Pottinger case.

The legal director of ACLU Florida, Nancy Abudu, says the city trying to dissolve the Pottinger agreement shows there are issues of criminalizing homelessness all over Florida, “Rather than using the criminal justice system to go after those with so little foothold in society, cities should focus resources on treating the underlying causes of homelessness.”

In response to the court’s ruling, Waxman said, “For over thirty years, the Greater Miami Chapter of the ACLU of Florida has fought for the constitutional rights of people experiencing homelessness in Miami. Homeless people historically have had their rights violated and are often not treated with compassion or dignity. We are still evaluating the possibility of an appeal. We hope the City will live up to the trust the court has placed in it to continue to uphold the rights of homeless persons in Miami.”
Waxman admits he doesn’t have the answers to reduce or eliminate homelessness, but he doesn’t believe that the current solutions are working and knows new approaches are needed.