More than 30 years ago, a small group of cooperating attorneys with the ACLU of Florida’s Greater Miami Chapter sued the City of Miami on behalf of some 6,500 people experiencing homelessness to prohibit the city from arresting and harassing them, and destroying their property. The ACLU lawsuit resulted in a decree prohibiting the city from violating the constitutional rights of the plaintiffs based on their homeless status. In October, a panel of judges at the Eleventh Circuit Court of Appeals affirmed Federal District Judge Federico Moreno’s 2018 termination of the 20-year Pottinger Consent Decree. We will now watch to see whether the city has indeed instituted “durable” reforms to counter what the courts found to be a policy and practice of mistreatment.

In 1992, following weeks of testimony by individuals who were homeless, as well as experts on police procedures, public health officials and city administrators, Federal District Judge C. Clyde Atkins entered his landmark judgment ruling that the city had systematically violated the plaintiffs’ Fourth, Fifth, Eighth, and Fourteenth Amendment rights based on their homeless status.

The city appealed, based in part on its claim that it had changed its ways. It now had programs to assist those struggling with homelessness and contributed to the Miami-Dade Homeless Trust, which administered assistance programs and built a shelter to house some of the people in need. Following an additional hearing, Judge Atkins lauded the city’s and county’s efforts but ruled that so long as any people experiencing homelessness on the streets of Miami were still subject to arrest and property destruction based on their homeless status, the court’s judgment must stand.

Upon the city’s further appeal, the Eleventh Circuit Court of Appeals ordered the parties to mediate and, if possible, resolve their dispute. Following some 20 months of intensive negotiations, the parties entered a settlement agreement that was adopted by the district court in 1998 and became the Pottinger Consent Decree. The decree broadly required the city to respect the constitutional rights of the plaintiffs. It established a protocol that police were required to follow before arresting plaintiffs for “life-sustaining misdemeanor conduct,” offenses that people experiencing homelessness necessarily committed by virtue of their homelessness.
Those included sleeping in a park after curfew, trespassing on public property, and limited public nudity (by virtue of a lack of restrooms available to them). The protocol entailed first warning individuals who were homeless to stop any offending conduct and offering them available shelter. The decree also required the city to train its police on how to respect people experiencing homelessness, follow city-wide procedures for handling personal property found in public, keep records of their encounters, and compensate those individuals whose rights had been violated.

For some 20 years, with minor modifications negotiated by the parties in 2014, the Pottinger Decree kept the city in check and protected the property rights and freedom of movement of individuals experiencing homelessness.  It has served as a nationwide model for protecting our neighbors in need.

In 2018, following a series of city “clean-up” operations directed at homeless encampments that were deemed public health threats, the city moved to terminate the decree. Simultaneously,
 based on the city’s summary seizure and destruction of property during these operations, and city police and workers’ orders that the individuals experiencing homelessness leave these encampments and other areas and not return, plaintiffs moved to enforce the decree and hold the city in contempt.

Following a seven-day evidentiary hearing, Judge Moreno terminated the consent decree and denied the plaintiffs’ request for enforcement and contempt. The court found that the city was justified in destroying the plaintiffs’ personal belongings because they were “commingled” with contaminated property, and that orders to “move on” were necessary to facilitate clean-up operations. Ultimately, the court ruled that the city had “substantially complied” with the terms of the decree and had implemented “durable” reforms in its treatment of people experiencing homelessness, such that federal district court oversight was no longer necessary.  

The ACLU appealed the district court’s ruling. On Oct. 1, a panel of the Eleventh Circuit Court of Appeals affirmed Judge Moreno’s termination of the decree.

The district court’s ruling and appellate court’s affirmance were based on a finding that the City of Miami had fundamentally changed its way of dealing with homelessness and no longer needed to be policed. For instance, independent of the decree, the city adopted a police departmental order that incorporated many of the elements of the decree. The courts presumed that the city would continue to respect the rights of individuals struggling with homelessness as identified in Judge Atkins 1992 judgment. They presumed that the city would strive, through the Miami-Dade Homeless Trust and other programs, to secure housing for all homeless in Miami and ensure the “continuum of care” necessary to provide a path back to sheltered society.  Both courts reminded the city that if it returned to its former ways, those experiencing homelessness were free to seek further injunctive or compensatory relief through civil rights actions.

The ACLU expects the city to abide by its pledge of durable reforms. This is particularly essential amid the COVID-19 pandemic. The Centers for Disease Control and Prevention (CDC) have warned against breaking up encampments of this vulnerable population during the crisis. We expect the city to strive to provide its homeless with housing and other assistance. We will continue to monitor the city’s conduct and will not hesitate to return to court if the city fails to keep its word.  

In early October, the United States Labor Department reported that women were leaving the workforce at four times the rate of men. A few months earlier, a report from McKinsey Global revealed that while women made up 43 percent of the workforce, they had borne 56 percent of COVID-related job losses. This data — and much more — led one news source to call this moment “America’s First Female Recession.”

This week, Colleen Ammerman joined At Liberty to discuss why this is happening, and what we can do about it. Ammerman is the director of Harvard Business School’s Gender Initiative. She is also the co-author of an upcoming book Glass Half Broken: Shattering the Barriers That Still Hold Women Back at Work.

While disparities in pay and access to power in the workplace are not new, Ammerman says the divides are now starker than ever because of COVID-19: “What we’re seeing the pandemic do is really just both reveal and entrench some of these inequalities, both along racial and gender lines.”

How COVID-19 Is Setting Working Women Back

How COVID-19 Is Setting Working Women Back

In early October, the United States Labor Department reported that women were leaving the workforce at four times the rate of men. A few months earlier, a report from McKinsey Global revealed that while women made up just 43% of the workforce, the...

In early October, the United States Labor Department reported that women were leaving the workforce at four times the rate of men. A few months earlier, a report from McKinsey Global revealed that while women made up just 43% of the workforce, the...

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Four years ago, an election altered the reality of Muslims in America and all over the globe. As president, Donald Trump made real his promise to ban Muslims by abusing his authority under the Immigration and Nationality Act (INA). Once that ban was legitimized by the Supreme Court, he used the same authority to issue ban after ban, discriminating against Black and Brown people in furtherance of his white supremacist agenda.
 
As we round the corner on this presidential term, it is critical that these discriminatory bans and all the related policies, including social media vetting, are rescinded and a more stringent standard is put in place to protect against these abuses of authority by future presidents. Every executive order and proclamation using authority INA 212(f) must be rescinded immediately and the original National Origin-Based Antidiscrimination for Nonimmigrants Act (NO BAN Act) must be signed into law to protect the American people from such discrimination and abuse moving forward.
 
Throughout his campaign, Trump promised to ban Muslims from the United States with naked vitriol that disregarded the Constitution and the American ideal of equality. In the days and weeks that followed, people from all walks of life preemptively promised to register with Muslims if Trump created a registry, and safety pins became a symbol to express silent solidarity for all who might be attacked. In an attempt to prevent harm to Muslims in its final days, the Obama administration dismantled the framework for the original post-9/11 registration program, National Security Entry-Exit Registration System (NSEERS). Few realized the forthcoming reality, and instead many hoped that Trump’s campaign was an attempt to garner the votes with his base and would not manifest in discriminatory policies.
 
That hope was short-lived. Just one week into his presidency, Trump issued his Muslim ban, sending his own administration into disarray and our country into chaos. But this time it was different. Instead of the public silence that followed NSEERS, as people were disappeared from our country, many were outraged and ready to act. In hours, airports nationwide were flooded with protesters demanding that Muslims be let into the country. Members of Congress, including Rep. John Lewis, showed up and waited for every person at the airport to be released.
 
It was a defining moment in American history: an uprising that made our collective resistance to oppression and discrimination clear.
 
However, the will of the people is not always immediately reflected in the outcomes of our government or our systems. Though numerous courts rejected Trump’s ban and cited its naked discrimination and animus, the administration repeatedly re-enacted it — and even claimed that the third version of the ban was the result of a secret process that was disconnected from the President’s promise to ban Muslims from the United States. Ultimately, the Supreme Court decided that claim gave it just enough cover to uphold the third Muslim ban, in a 5-4 ruling that is one of the court’s historic failures.
 
It was not the first time the Supreme Court failed, and it likely won’t be the last. One of the most infamous Supreme Court failures was allowing the incarceration of Japanese people in America through so-called internment camps. It was 40 years after Fred Korematsu refused to submit to Japanese incarceration camps that his conviction was finally overturned in federal court, though the Supreme Court decision still stood. A few years later, a bill was passed and signed into law providing redress and reparations for those who were incarcerated. A few months after that, Fred Korematsu was awarded a Medal of Freedom. Indeed, he spent his life fighting for these freedoms and recognition alongside numerous advocacy organizations and people all over the country. It’s no surprise that his daughter, Karen Korematsu, founded the Korematsu Institute and has played a critical role in defending the rights of Muslims.
 
Much like Japanese incarceration, the Trump administration used fear-mongering under the veil of “national security” to further its discriminatory agenda — this time by suspending visas under INA 212(f) to repeatedly ban Black and Brown people. It began with the Muslim and refugee bans, and once legitimized by the Supreme Court, it extended to more countries, specifically targeting Africans, as well as the asylum ban and a ban on certain people unable to prove they would have health insurance products. Once the pandemic hit, Trump used the same authority to issue ban after ban — again, preying on people’s fears while failing to implement an effective response or meet people’s need for COVID-relief.
 
Eventually though, the systems catch up with the people they represent — though many get hurt along the way. Muslims, along with other Black and Brown people, have been hurting for far too long.
 
It is time to rescind the Muslim ban, all the bans that came after it, and the corresponding policies. It is time to put a more stringent standard in place to prevent future abuses of this authority, like that in the original NO BAN Act. It is time for civil rights and liberties again.

Manar Waheed, Senior Legislative and Advocacy Counsel, ACLU