The Miami Police Department has been banned since 1998 from arresting homeless people for sleeping outside or from destroying their property on public sidewalks. Thanks to a decade-long ACLU lawsuit that resulted in that '98 agreement, cops must give the homeless a chance to enter a shelter before they can be arrested for "life-sustaining" activities such as showering outdoors.

But Miami doesn't want to abide by those rules anymore. Earlier this week, the city filed a legal brief asking a court to vacate the so-called Pottinger Agreement because the city wants police to have more leeway to arrest the homeless.

The ACLU responded today with a legal rebuttal that accuses MPD of "systematically" breaking the law, destroying homeless property, and "harassing" the homeless by arresting them, verbally threatening them, and blasting their sleeping areas with power-washing "clean-ups." Some homeless residents even say the city has used hoses to spray them.

The ACLU and other homeless advocates argue the harassment has seriously escalated in the past "three to six months" in an attempt to clear the homeless out of a quickly gentrifying downtown. The ACLU says Miami Police and city employees are acting as badly toward the homeless as they did before the 1988 Pottinger lawsuit that led to the agreement.

"Plaintiffs have amassed nearly two dozen declarations from homeless persons who recently have had their property destroyed, have been ordered to leave public sidewalks while committing no crime, or have been harassed by police and/or arrested without being offered shelter," the ACLU writes. "Plaintiffs possess video evidence demonstrating that the City is collecting and destroying homeless persons’ property en masse. They have video evidence of homeless persons being arrested without probable cause, and without any offer of shelter."

The ACLU has previously shared some of its evidence with New Times. In April, MPD officers were filmed "cleaning up" a homeless encampment downtown and destroying property in an apparent violation of the Pottinger rules. The next month, MPD officers were filmed arresting Tabitha Bass, a woman activists say needed medical care. Instead, she spent three days in a jail cell and later died; the ACLU says her arrest also violated the Pottinger Agreement.

The legal filing continues, describing what the ACLU says is a systematic plan to "clean up" downtown by sweeping out the homeless:

Beginning some three to six months ago or more, the City embarked upon a “cleanup” of various targeted areas throughout Miami. City employees, typically working under the supervision of the police, have seized what are clearly homeless people’s belongings and hauled them off like trash – at times over the desperate pleadings of individuals trying to save them. Separately or in connection with these “clean-ups,” City police officers have been threatening homeless persons with arrest – explicitly or implicitly in the form of orders to move on from an area – without offering shelter, and often without even citing any legal violation. On many occasions, these hreatst have amounted to banishment from a given area, as the police admonish homeless persons to stay away from that area and not come back. Finally, City police have failed to document their interactions with homeless persons in the “clean-ups” and sweeps, as required by the Consent Decree.



In its brief earlier this week seeking to get rid of the Pottinger rules, the City of Miami argues that the regulations prevent cops from acting in some necessary situations, such as preventing the homeless from obstructing sidewalks or urinating outdoors. The city argues that because it offers more homeless services and its officers are slightly better trained to deal with the homeless now than in 1998, the Pottinger Agreement is no longer necessary.

More callously, the city also argues that because the agreement was written prior to the September 11 terror attacks, the rules somehow prevent cops from screening homeless people for bombs or weapons. (Data shows the homeless are overwhelmingly not responsible for terror attacks.)

Perhaps most transparently, the city outwardly admitted in its legal filings that it's requesting the rule amendments because downtown Miami has undergone a "demographic change" in recent years and there are more luxury hotels, condominiums, and shopping areas in the neighborhood than there were 20 years ago.

Earlier this week, attorneys for the city dismissed many of the ACLU's allegations as "outlier incidents."

"It's important to note that good-faith, substantial compliance does not require full compliance," the city's attorneys wrote.

But the ACLU now argues that its documented cases of rule-breaking show that the Pottinger Agreement needs to be enforced more heavily rather than repealed. The civil rights group says MPD has launched coordinated "clean-up" operations that violate the existing codes.

Witnesses say the city sets up clean-up procedures at a moment's notice. An officer will wake up people sleeping in an encampment by "sounding loud buzzers and shining bright lights on homeless people" at 5 or 6 a.m. before calling in fleets of trucks and power washers later in the day. Sometimes the city uses signs to notify the encampment — other times not.

"The time between warning and commencement of the clean-up can be as little as five minutes," the ACLU says. "In Overtown, City employees woke up one individual known as Rhode Island Red and would not even give him a minute to gather his belongings; the City ended up seizing all his belongings except his backpack. Some people have been told by City employees that they can take only what they can move in 30 seconds. Individuals who haven’t left quickly enough have been sprayed with the power washer."

Close to 20 homeless residents told the ACLU that police have destroyed their property — including cases were city officials have "trashed homeless people's medicines, Florida ID cards, social security cards, birth certificates, phones, clothes, shoes, blankets, jackets, toiletries, food, cash, eyeglasses, sleeping bags, a bike" and other family heirlooms, including photographs and stuffed animals. City officials have been videotaped threatening the homeless, including one instance where a city employee raised his fist at a homeless man who simply wanted his items removed from a garbage pile.

The ACLU also says the city is basically banishing homeless residents from areas in downtown at a moment's notice.

"Apart from these 'clean-ups,' there have also been multiple instances of police officers ordering homeless individuals to move on or leave an area — without citing any claimed violation, and without offering shelter. Individuals who are subjected to these orders have no practical choice but to comply," the filing reads. The ACLU adds that a "constant in these clean-up operations and police orders to move on or leave an area is the fact that no one is offered shelter" according to the Pottinger Agreement. When arresting or interacting with the homeless, the ACLU says, MPD is also failing to document or report the interactions adequately, per the Pottinger rules.

Rather than even remotely agree to amend the 1998 settlement, the ACLU is now asking a federal judge to punish the city instead.

"Based on the City’s grievous misconduct and the devastating injuries Plaintiffs have suffered as a result, Plaintiffs seek (1) enforcement of the amended consent decree, (2) compensatory damages, (3) attorney fees for filing this action and obtaining any relief, and (4) for this Court to hold the City in contempt and impose a punitive fine," the filing reads.