Peery v. City of Miami, No. 19-10957

Decision Date01 October 2020
Docket NumberNo. 19-10957
Parties David PEERY, Plaintiff-Appellant, v. CITY OF MIAMI, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Dante Pasquale Trevisani, Raymond J. Taseff, Florida Justice Institute, Benjamin Samuel Waxman, Black Srebnick Kornspan & Stumpf, PA, Kelley S. Roark, Ritter Zaretsky Lieber & Jaime, LLP, Arthur J. Rosenberg, Florida Legal Services, Inc., Daniel Boaz Tilley, ACLU Foundation of Florida, Inc., Miami, FL, Nancy Gbana Abudu, Southern Poverty Law Center, Decatur, GA, Stephen J. Schnably, University of Miami School of Law, Coral Gables, FL, for Plaintiff-Appellant.

Kerri McNulty, Warren Bittner, Carlos Humberto Gamez, John Anthony Greco, Christopher Allan Green, Douglas Andrew Harrison, George Kearsley Wysong, III, Office of the Miami City Attorney, Forrest Lee Andrews, Lydecker Diaz, LLC, Kendall Coffey, Coffey Burlington, PL, Scott Allan Cole, Thomas Emerson Scott, Jr., Cole Scott & Kissane, PA, Anna Theresa Neill, Kenny Nachwalter, PA, Juan Carlos Perez, Angones McClure & Garcia, PA, Miami, FL, for Defendant-Appellee.

Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.


This appeal requires us to decide whether the district court abused its discretion when it terminated a consent decree that regulated how the City of Miami treats its homeless residents. Twenty years after the consent decree's adoption, the City moved to terminate it based on changed circumstances, fulfillment of its purpose, and substantial compliance with its requirements. The homeless argued the City was still systematically violating the consent decree and moved the district court to hold the City in contempt and to sanction it for committing the violations. The district court ruled the City had not violated the consent decree, granted its motion for termination, and denied the opposing motion for contempt. Because the district court correctly interpreted the decree and did not abuse its discretion by terminating the decree, we affirm.


In 1998, the City of Miami entered into a consent decree concerning its treatment of the homeless. The decree arose out of a complaint filed by a class of homeless persons against the City. The district court determined the City had unconstitutionally arrested homeless persons for "life-sustaining conduct" and "used the arrest process for the ulterior purpose of driving the homeless from public areas." Pottinger v. City of Miami , 810 F. Supp. 1551, 1566, 1580–83 (S.D. Fla. 1992). After mediation, the parties reached a settlement agreement known as the Pottinger Agreement, which the district court adopted as a consent decree.

Under the consent decree, the City "adopt[ed] a policy ... to protect the constitutional rights of homeless persons, to prevent arrests and harassment of these persons, and the destruction of their property, inconsistent with the provisions of this Settlement Agreement." The consent decree mandated a variety of City policies, including restrictions on how City employees may interact with the homeless and dispose of their property. For example, it created a category of "life sustaining conduct" misdemeanors: activities like camping in parks or loitering in restrooms. When police observe a homeless person committing such a crime, they ordinarily may arrest the person only if there is available shelter, the officer offers shelter, and the person refuses the shelter. The City also promised to respect the personal property of the homeless and to follow its internal procedures for taking custody of that property. The consent decree ordinarily bars the City from "destroy[ing] any personal property known to belong to a homeless person, or readily recognizable as property of a homeless person," such as "belongings organized or packaged together in a way indicating it has not been abandoned." But it permits the City to dispose of property that "is contaminated or otherwise poses a health hazard to [City] workers or to members of the public."

In 2013, the district court granted the motion of the homeless to add Carole Patman and David Peery as class representatives; the original class representatives were either deceased or unlocatable. Shortly thereafter, in 2014, the district court approved the parties’ proposed modification to the consent decree. Among other changes, the modification narrowed the scope of "life sustaining conduct" misdemeanors. Under the revised consent decree, "after one warning," individuals may not block otherwise-walkable sidewalks. Subject to the modification, the City of Miami has been bound by the consent decree for more than 20 years.

After it adopted the decree, the City enacted internal reforms and programs to support the homeless. The Homeless Trust, the funder and overseer of the "continuum of care" for the homeless in Miami-Dade County, manages a panoply of services that did not exist before the decree. Its programs include homeless assistance centers, a hotline for homeless persons seeking aid, and housing and healthcare facilities. And the City created outreach teams that help the homeless find the resources they need. These efforts have contributed to a 90 percent reduction in countywide homelessness levels since the adoption of the consent decree. The remaining homeless population consists predominantly of the chronically homeless, who are resistant to offers of shelter.

Against this backdrop, the City in 2018 moved to terminate the consent decree or, at least, to modify it, and provided three reasons for that requested relief. First, it had remedied the underlying constitutional violations and so fulfilled the purpose of the decree. Second, changed circumstances—including increased safety concerns amid the risk of urban terrorist attacks and the rise of the opioid epidemic—made Pottinger ’s continuation inequitable. Third, substantial, good-faith compliance with the consent decree obviated the need for continued judicial oversight.

Simultaneously, the homeless moved to enforce the consent decree and to hold the City in contempt for "systematic" violations of the decree. In particular, the homeless alleged that the City violated the decree during its 2018 clean-up operations. The operations addressed health and sanitation problems at the downtown homeless encampments. One witness described a clean-up site as a "horror movie" and "opioid den" that required a special biohazard waste clean-up crew. The City tried to relocate the encampments’ residents before the clean-ups, but some residents remained as the operations began. City workers ordered those individuals to move so that the clean-ups could occur, and some homeless persons lost possessions they left behind during the clean-ups. The homeless alleged that the real purpose of the clean-ups was to target and disperse the homeless and that the move-on orders and takings of property violated the consent decree.

After a seven-day evidentiary hearing, the district court granted the City's request for termination and denied the homeless class's motion for enforcement and contempt. It terminated the decree because the City "ha[d] substantially complied with the core purpose of the Pottinger Agreement," that is, "to stop the criminalization of homelessness." The development of extensive non-arrest resources "is exactly the type of durable remedy that requires this Court to cease its oversight of these primarily state functions." The district court found no evidence that would negate a finding of substantial compliance. The district court also found changed circumstances in Miami, but it did not rely on those findings as a basis for termination.

The district court denied the contempt motion because the evidence did not prove any violations of the consent decree, much less by the required standard of clear and convincing evidence. It explained why the City's actions during the clean-ups did not violate the consent decree. The purpose of the clean-ups was to combat "squalor and unsanitary conditions," a goal that benefitted the homeless. The City discarded only property that was "commingled with [items] ... that clearly pose[d] health and security concerns"—in other words, items Pottinger permitted the City to discard. And the consent decree did not forbid police officers from telling the homeless to move, both before the clean-ups and in other circumstances. Finally, the district court declined to make a finding regarding whether arrests of two homeless persons not preceded by warnings to stop obstructing the sidewalk violated the consent decree because there was no evidence of the events leading up to the arrest. Regardless, the district court found that "overwhelming evidence supports the finding that City police will not revert to arresting [homeless] individuals."


We review a decision regarding the enforcement or termination of a consent decree for abuse of discretion. Johnson v. Florida , 348 F.3d 1334, 1341 (11th Cir. 2003) ; Resnick v. Uccello Immobilien GMBH, Inc. , 227 F.3d 1347, 1350 (11th Cir. 2000). We review factual findings for clear error. Johnson , 348 F.3d at 1341. And we review de novo the interpretation of a consent decree and the application of a consent decree to the facts. Reynolds v. McInnes , 338 F.3d 1201, 1211 (11th Cir. 2003).


A district court may terminate a consent decree when "the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable." Fed. R. Civ. P. 60(b)(5). As the party seeking termination, the City "bears a heavy burden of persuasion." Johnson , 348 F.3d at 1341. But because Rule 60(b)(5) uses the disjunctive "or," the City can prevail if any of the three grounds applies. Horne v. Flores , 557 U.S. 433, 454, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009).

The application of Rule 60(b)(5) is especially flexible in the context of...

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