As homelessness surged in the 1980s, the City of Miami responded with efforts to drive homeless people out of the City or out of sight. It routinely arrested homeless people for minor misdemeanors – for example, sitting on public sidewalks or sleeping in parks at night after they closed – that homeless people could not avoid committing. It also routinely undertook sweeps in which it deliberately destroyed homeless people’s property. At the time, there were as many as 6,000 homeless people and well under 1,000 shelter beds available, meaning people living on the streets had no place else to live and were involuntarily homeless. In 1988, the Greater Miami Chapter of the ACLU brought suit in federal district court charging that the City was violating homeless people’s constitutional rights.
After hearing evidence of the City’s conduct, federal district court Judge C. Clyde Atkins ruled in 1992 that “the City has used the arrest process for the ulterior purpose of driving the homeless from public areas.” He further found that homeless people were not choosing to be homeless, but had no choice. He ruled that criminalizing homelessness violated the homeless people’s rights under the Fourth, Fifth and Eighth Amendments of the Constitution, as well as their procedural due process rights.
The City appealed Judge Atkins’ ruling to the Eleventh Circuit Court of Appeals. Ultimately Court of Appeals ordered the parties to mediate in 1996. After 20 months of intensive negotiations, the plaintiffs and the City reached a settlement creating limits on the police power to arrest homeless people and requiring the City to respect homeless people’s property. The Consent Decree, which created the Pottinger rules in their original form was approved by Judge (now Chief Judge) Federico Moreno in 1998. They were somewhat modified in 2014.