David Peery v. City of Miami

977 F.3d 1061

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 1, 2020
• Docket: 19-10957
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10957 ________________________

D.C. Docket No. 1:88-cv-02406-FAM

DAVID PEERY,

Plaintiff-Appellant, versus

CITY OF MIAMI,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida _______________________

(October 1, 2020)

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

WILLIAM PRYOR, Chief Judge:

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 Case: 19-10957 Date Filed: 10/01/2020 Page: 2 of 26

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 sanctioned 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.

I. BACKGROUND

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

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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

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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.

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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

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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.”

II. STANDARD OF REVIEW

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.

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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).

III. DISCUSSION

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 (2009).

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

institutional-reform consent decrees like the Pottinger Agreement, which

“involve[] areas of core state responsibility” and “raise sensitive federalism

concerns.” Id. at 448, 450. Courts must “ensure that responsibility for discharging

the State’s obligations is returned promptly to the State and its officials when the

circumstances warrant.” Id. at 450 (internal quotation marks omitted). To do

otherwise is to usurp the role of elected officials and deprive the people of their

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right to a democratically accountable government. See generally Ross Sandler &

David Schoenbrod, Democracy by Decree: What Happens When Courts Run

Government (2003). Once a durable remedy is in place, “continued enforcement of

the [consent decree] is not only unnecessary, but improper.” Horne, 557 U.S. at

450.

The homeless argue that the district court erred in its interpretation and

application of the consent decree and that it misapplied the burden of proof for the

motion for termination. We consider and reject these arguments in turn. We then

explain why the district court was correct to grant the City’s motion for termination

and to deny the homeless class’s motion for enforcement and contempt.

A. The District Court Correctly Interpreted and Applied the Consent Decree. Because a consent decree is a contract, we follow the rules for interpretation

of contracts and apply principles of state contract law. Frulla v. CRA Holdings,

Inc., 543 F.3d 1247, 1252 (11th Cir. 2008); Reynolds v. Roberts, 202 F.3d 1303,

1312–13 (11th Cir. 2000). In Florida, “the plain meaning of the language used by

the parties controls as the best indication of the parties’ agreement,” so contract

terms “should be interpreted in accordance with their plain and ordinary meaning.”

In re Std. Jury Instructions—Contract & Bus. Cases, 116 So. 3d 284, 315 (Fla.

2013). Florida courts look to dictionaries to determine the plain and ordinary

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meaning of words. Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008,

1024 (11th Cir. 2014).

The homeless argue the district court misinterpreted several provisions of

the consent decree. We examine each interpretive dispute in turn. Although the

homeless identify one misinterpretation, they fail to identify any errors that

establish noncompliance by the City.

As modified, the consent decree prohibits City workers from “destroy[ing]

any personal property known to belong to a homeless person, or readily

recognizable as property of a homeless person . . . except as permissible by law

and in accordance with the department’s operating procedure, or if the property is

contaminated or otherwise poses a health hazard or obvious safety issue to [City]

workers or to members of the public.” The district court concluded that items are

contaminated when they are “commingled with food, soiled materials, and garbage

creating a public health crisis.” If a bag contains contaminated property,

“[d]eciphering what is and is not contaminated inside a bag is difficult and going

through a bag that possesses contaminated materials to fish out [uncontaminated

materials] is not a requirement of the [c]onsent [d]ecree.” The homeless argue that

this interpretation erroneously allows City workers to discard property in

unsanitary areas, instead of requiring an individualized determination whether

property is hazardous.

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We agree with the district court that property becomes contaminated when it

is commingled with items that are contaminated or hazardous. Take, for example,

personal notes that are “mingle[d] or mix[ed] together” with unsanitary items such

as garbage or bodily fluids. Commingle, Webster’s New International Dictionary

(3d ed. 1993). The exposure makes the notes “soil[ed], stain[ed], corrupt[ed], or

infect[ed] by contact or association” and “unfit for use [because of] the

introduction of unwholesome or undesirable elements.” Contaminate, Webster’s

New International Dictionary (3d ed. 1993). And exposure transforms the notes

into “a possible source of peril, danger, duress, or difficulty.” Hazard, Webster’s

New International Dictionary (3d ed. 1993) (emphasis added). Likewise, if a bag

has been contaminated or contains contaminated items, City workers need not

search through it for still-clean items. The entire bag is hazardous because of the

health and safety risks involved. When a worker decides to discard contaminated

items, his decision reflects an assessment of each item’s status, not that of the

surrounding area. Indeed, the City consistently left uncontaminated items, such as

“unattended bicycles, which pose no . . . health risk, . . . on the street.”

The consent decree also prohibits “destroy[ing] any personal property . . .

readily recognizable as property of a homeless person.” The district court

concluded that it would be “unreasonable” for City workers to credit a non-

owner’s statement when determining whether property is abandoned, such as when

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another homeless person tells the workers of the property’s status. The homeless

argue that this interpretation incorrectly allows police to ignore evidence of

property’s ownership.

We agree with the homeless that third parties’ statements are probative of

ownership, particularly because police know that it is common for homeless people

to temporarily leave items and to ask others to watch their property during their

absence. But it makes no difference here. The consent decree’s ban on destruction

of readily recognizable property does not apply when the property is contaminated

or otherwise a health hazard or obvious safety issue. And the district court found

that the City’s takings of property were “to discard contaminated property,” not

due to the unrecognizability of the property as that of a homeless person. As we

have explained, the district court correctly understood the consent decree’s

exception for contaminated property.

Section VI.9 of the consent decree provides that the City “expressly

adopt[ed] a policy as provided for herein 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 district court ruled that, although the consent decree generally

prohibited harassment and “specifically prohibited arrests,” it did not prohibit the

police from ordering the homeless to move. The homeless contend that this

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interpretation condones police harassment and misconduct less invasive than arrest

in violation of a categorical promise to protect the constitutional rights of the

homeless. They argue that, by telling homeless persons to “move on,” police

violate fundamental constitutional rights, including the “right to remain in a public

place unaccosted by the government.”

The homeless misunderstand Section VI.9 in several ways. To start, this

provision is not categorical. It contains two qualifiers: the City “adopt[ed] a

policy” to advance the listed objectives only “as provided for herein,” and the City

aims to accomplish the objectives only to the extent they are “[]consistent with the

provisions of this Settlement Agreement.” Instead of a categorical obligation, the

provision operates as a statement of purpose, identifying the goals to be advanced

elsewhere in the consent decree. See Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts § 34, at 219 (2012) (“[A]n expansive

purpose in the preamble cannot add to the specific dispositions of the operative

text.”). As a prefatory statement, it does not have binding effect; the City violates

the consent decree only by violating one of its specific requirements. Johnson v.

Johnson, 725 So. 2d 1209, 1212–13 (Fla. Dist. Ct. App. 1999).

Moreover, police move-on orders do not raise a constitutional issue. The

homeless assert the orders violate their Fourth, Fifth, and Fourteenth Amendment

rights. They are incorrect.

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The homeless urge us to adopt the view of our sister circuit that the Fourth

Amendment encompasses a right to remain in any public place. See Bennett v. City

of Eastpointe, 410 F.3d 810, 834 (6th Cir. 2005) We decline to do so. Bennett

purports to apply Florida v. Bostick, 501 U.S. 429 (1991), but Bostick cuts the

other way. Bostick makes clear that even when a person is not free to leave, there is

not necessarily a seizure under the Fourth Amendment. Id. at 435–36. The key

question is whether a reasonable person can “terminate the encounter” with police.

Id. at 439. A person who is told to leave one place but “remains free to go

anywhere else that he wishes” can undoubtedly terminate his encounter. Salmon v.

Blesser, 802 F.3d 249, 253 (2d Cir. 2015).

To be sure, Catron v. City of St. Petersburg, 658 F.3d 1260 (11th Cir. 2011),

recognized a “constitutionally protected liberty interest,” for purposes of due

process, “to be in parks or on other city lands . . . that are open to the public

generally.” Id. at 1266 (citing City of Chicago v. Morales, 527 U.S. 41, 54 (1999)

(plurality opinion)). But this liberty interest is neither fundamental, see Doe v. City

of Lafayette, 377 F.3d 757, 769–73 (7th Cir. 2004), nor limitless. So even if a

permanent deprivation of access to public spaces might violate the Due Process

Clause, there is no “constitutional right to use public parks under all conditions and

at all times.” Catron, 658 F.3d at 1266–67 n.5; accord Hannemann v. S. Door

Cnty. Sch. Dist., 673 F.3d 746, 757 (7th Cir. 2012).

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Police often ask individuals to temporarily leave public spaces, Salmon, 802

F.3d at 253, and doing so does not create a constitutional deprivation. Nor are

move-on orders inherently harassment. Harassment involves repeated or systematic

behavior, and it involves efforts to annoy or bother. See, e.g., Harass, Webster’s

New International Dictionary (3d ed. 1993) (“to vex, trouble, or annoy continually

or chronically”); Harassment, Black’s Law Dictionary (11th ed. 2019) (“Words,

conduct, or action (usu. repeated or persistent) that, being directed at a specific

person, annoys, alarms, or causes substantial emotional distress to that person and

serves no legitimate purpose; purposeful vexation.”); Harass, Merriam-Webster

Online, https://www.merriam-webster.com/dictionary/harass (“to annoy

persistently”) (last visited Sept. 30, 2020). There is no evidence that the move-on

orders were either systematic or intended to annoy. On the contrary, they ordinarily

occurred to facilitate needed cleaning. And the orders were temporary: there is no

evidence that police threatened the subjects of the move-on orders with arrest or

that the individuals risked arrest if they later returned to their preferred locations.

Insofar as any member of the homeless class believes his civil rights have been

violated, he may seek relief in an individual action. See 42 U.S.C. § 1983.

The homeless also erroneously contend the district court should have found

the City in violation of the decree for instances where police told individuals to

move without first offering services. The consent decree states that, for homeless

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persons not engaged in any criminal conduct, “[t]here can be no arrest or detention.

A law enforcement officer . . . may approach the homeless person and advise him

or her of shelter, services, or assistance which are then currently available.” But

“may” alone is not an exclusive term. Because the consent decree does not say that

police may approach the non-criminal homeless only to offer shelter, police may

approach them for other, non-prohibited purposes as well. Scalia & Garner,

Reading Law § 8, at 93–94; accord Bauer Nike Hockey USA, Inc. v. United States,

393 F.3d 1246, 1250 (Fed. Cir. 2004). Even if the homeless consider this outcome

odd as a policy matter, where the plain meaning of the text is clear, “something

that may seem odd . . . is no basis for disregarding or changing the text.” Scalia &

Garner, Reading Law § 37, at 237 (internal quotation marks omitted).

Next, the homeless argue that the phrase “one warning” in the consent-

decree modification means one contemporaneous warning. The modified decree

requires that “after one warning, no person . . . may obstruct a sidewalk in such a

way as to endanger other persons by requiring them” to walk on the street instead

of an otherwise-walkable sidewalk. The homeless contend that police violate the

consent decree by arresting an obstructer without first warning him to desist, even

if the obstructer has been warned on several previous occasions. They argue that

the consent decree’s purpose is to protect the homeless, so we should construe

“one warning” to provide maximal protection. But the question is what the text

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says, and assumptions based on purpose alone beg the question. “No text pursues

its purpose at all costs.” Scalia & Garner, Reading Law § 2, at 57.

If the drafters of the 2014 modification intended to require one warning per

homeless-police interaction, they “would have done so expressly.” Dir. of Rev. v.

CoBank ACB, 531 U.S. 316, 325 (2001). Indeed, the modification simultaneously

added a requirement that police must give a contemporaneous warning before they

may cite a homeless person for littering if there is a usable trash receptacle within

300 feet. Material variations in the text reflect variations in meaning. See Scalia &

Garner, Reading Law § 25, at 170. So we do not read the phrase “after one

warning” to mean a warning every time.

Suppose a police officer sees a homeless person obstructing the sidewalk

and warns him to stop. The modification establishes that “after [that] warning,

[the] person . . . may [not fully] obstruct a sidewalk.” If on later patrols the officer

sees the same homeless person again obstructing the same sidewalk, must the

officer repeat his warning continually to reinstate the prohibition? Perhaps the

homeless are right that contemporaneous warnings are desirable. But we must

follow the text of the decree and respect the omissions the drafters chose to make.

See Scalia & Garner, Reading Law § 8, at 95–96.

Finally, the homeless point to two “interpretations” by the district court that

were not interpretations at all. The district court suggested the homeless “should”

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keep important items such as “identifications, prescriptions, eye glasses, or

phones” on their person, to minimize the risk of loss. Contrary to the assertion of

the homeless, this statement did not create an extratextual requirement; it instead

described a best practice. And the district court referenced one instance where

police ordered a homeless person to move that was “admittedly under investigation

by the City of Miami Police Internal Affairs.” The homeless contend that this

reference meant that the district court allowed internal investigations to excuse

violations of the consent decree. But the district court only described the facts of

that episode, and it later correctly concluded that police may tell the homeless to

move.

B. The District Court Correctly Applied the Burden of Proof on the City’s Motion for Termination. The party seeking to terminate a consent decree “bears a heavy burden of

persuasion” to justify termination. Johnson, 348 F.3d at 1341. But the party

seeking contempt bears the initial burden to show that the consent decree has been

violated. FTC v. Leshin, 618 F.3d 1221, 1232 (11th Cir. 2010). A district court errs

if it merges or cross-applies these burdens. Jeff D. v. Otter, 643 F.3d 278, 285, 287

(9th Cir. 2011).

According to the homeless, the district court misapplied these burdens. They

argue that the district court effectively assigned them the burden on the motion to

terminate because the court did not make factual findings in a few instances where

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the homeless presented evidence. But this argument misunderstands both the

standard for termination and the record.

The district court correctly bifurcated its analyses of the two motions. Cf.

Jeff D., 643 F.3d at 285. In considering termination, it focused on what the City

affirmatively established by looking to City policies, available resources, and

testimony from both sides. It then considered whether any alleged violations were

significant enough to render the City noncompliant. It found that, even crediting

the allegations of the homeless, the actions were not “the type of deviation

necessary to find a lack of substantial compliance”; they were “minor” or “trivial”

enough not to undermine the consent decree’s objectives. Only after applying the

burden for termination did the district court consider whether any of the violations

met the contempt standard.

Moreover, review for substantial compliance requires considering the

totality of the circumstances. See Jackson v. Los Lunas Cmty. Program, 880 F.3d

1176, 1200, 1203 (10th Cir. 2018). Where the balance of the evidence is close, a

few disputed findings or omissions might be outcome-determinative. But the

district court found the weight of the evidence by far favored the City. Indeed, the

district court suggested that, even construing instances of alleged police

misconduct—one of the issues where the homeless say the district court shifted the

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burden of proof by failing to make factual findings—in favor of the homeless, the

City would still satisfy its burden of proving substantial compliance.

The other three “errors” identified by the homeless are of no help either. In

two, the district court made factual findings for the City. And in one, any error was

harmless.

First, the district court did not ignore the question whether City workers’

takings of property violated the consent decree, as the homeless contend. Instead,

the district court found the workers’ takings complied with the consent decree. City

workers took only items that were “commingled with backpacks, mattresses,

sheets, food, etc. that clearly pose health and security concerns”—contaminated or

hazardous items not protected by the consent decree.

Second, the district court did not leave open whether the City left notices at

clean-up sites after taking property. Instead, it found that “[t]he evidence . . .

showed that City workers complied with their procedures,” including by “le[aving]

notes at the scene on the fences to let people know the location of property.” To the

extent the homeless dispute the factual findings, we affirm them on clear-error

review: the findings are “plausible in light of the record viewed in its entirety.”

Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985). Indeed, the homeless

acknowledge there is evidence in the record of the City’s provision of notice.

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True, the district court did not discuss past informal objections made by the

homeless to the City’s practices. And informal consent-decree enforcement can be

relevant to evaluating compliance. But the district court’s omission was, at most,

harmless error. Cf. John B. v. Emkes, 710 F.3d 394, 411 (6th Cir. 2013).

What matters is whether the City is “now in compliance . . . , and whether [it

is] committed to remaining in compliance.” Jackson, 880 F.3d at 1203 (emphasis

added). The district court correctly focused its analysis on the City’s 2018 actions

to determine whether it was then in substantial compliance. The homeless argue

the district court should also have addressed allegations they previously raised

informally, but the only possible violations they identify are isolated occurrences

from 2009 and 2014. Additional consideration of a few incidents alleged to have

occurred several years earlier does not bear on the determination of present

compliance.

C. The District Court Did Not Abuse Its Discretion by Granting the Motion for Termination.

Abuse of discretion is a deferential standard, and our review is especially

deferential where, as here, “the District Court has effectively been overseeing a

large public institution over a long period of time”—in this case, since 1999. Rufo

v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 394 (1992) (O’Connor, J.,

concurring in the judgment); see also Labor/Cmty. Strategy Ctr. v. L.A. Cnty.

Metro. Transp. Auth., 564 F.3d 1115, 1121 (9th Cir. 2009) (explaining that the

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district court is “uniquely positioned” to evaluate consent-decree compliance). We

must affirm unless the homeless can prove “there was no reasonable basis for the

district court’s termination order.” Gonzales v. Galvin, 151 F.3d 526, 531 (6th Cir.

1998). They cannot satisfy their burden: the district court’s ruling was both

reasonable and correct.

A court should terminate a consent decree if at least one of three grounds is

met: if “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); Horne, 557 U.S. at 454. The City

argues, and the district court agreed, that it has “satisfied” the judgment through

substantial compliance with the consent decree’s requirements. Although this

ground “has been relied on very rarely” in our caselaw, 11 Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2863, at

450 (2012), the City is correct that it has satisfied the judgment if it is in substantial

compliance with the consent decree. See, e.g., Frew v. Janek, 780 F.3d 320, 330–

32 (5th Cir. 2015). And the district court was correct to find the City in substantial

To evaluate a motion to terminate a consent decree, the district court begins

“by determining the basic purpose of the decree.” United States v. City of Miami, 2

F.3d 1497, 1505 (11th Cir. 1993). If there is good-faith compliance, the decree is

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satisfied, and the court may terminate it. See id. Because a consent decree is a

contract, Reynolds, 202 F.3d at 1312, we measure compliance in terms of

substantial performance. Johnson, 348 F.3d at 1344; City of Miami, 2 F.3d at 1508

n.38.

Substantial performance, or substantial compliance, exists when the consent

decree’s fundamental purpose has been accomplished, and any deviations from the

decree are “unintentional and so minor or trivial as not substantially to defeat the

object which the parties intend[ed] to accomplish.” Jeff D., 643 F.3d at 284, 288

(internal quotation marks omitted). There need not be “strict and literal compliance

with the contract provisions.” Id. at 284 (internal quotation marks omitted); accord

In re Std. Jury Instructions, 116 So. 3d at 306–07. So “a federal court should

terminate supervision once the defendant comes into [substantial] compliance with

the law,” because “indefinite federal court oversight of state institutions is

disfavored.” Johnson, 348 F.3d at 1341.

The district court identified the “core purpose” of the consent decree as

“stop[ping] the criminalization of homelessness.” This purpose follows from the

history of Pottinger: the original lawsuit arose to stop the City from “arresting [the

homeless] for the involuntary, harmless acts they were forced to perform in public

and seizing and destroying the [property of the homeless] without following its

own[] procedures.” And that definition accords with our directive that “the purpose

22 Case: 19-10957 Date Filed: 10/01/2020 Page: 23 of 26

of the decree . . . is not to be conceived at too high a level of generality.” Sierra

Club v. Meiburg, 296 F.3d 1021, 1031 n.11 (11th Cir. 2002).

To prove the consent decree’s purpose has been “fully achieved,” the City

had to establish (1) current substantial, good-faith compliance, and (2) that it is

“unlikely . . . [to] return to its former ways” absent the consent decree. Bd. of Educ.

v. Dowell, 498 U.S. 237, 247 (1991). If the City has put a “durable remedy” in

place, the district court should terminate the consent decree. Horne, 557 U.S. at

The record supports the finding by the district court that the City is in

substantial compliance. That finding depends on “the City’s record of compliance

with the decree,” as well as other relevant undertakings. City of Miami, 2 F.3d at

1508. The district court found that the City achieved “the goal of the [c]onsent

[d]ecree . . . to reform the manner that City [p]olice treated the homeless.” All

police officers receive training on Pottinger’s requirements, and the City has put in

place body-camera-usage, records-keeping, and disciplinary procedures to monitor

and regulate interactions between the police and the homeless. As a result, the City

no longer “arrests . . . the homeless for being homeless.” The City also created

procedures and training for other City departments, including procedures for

handling property. The City provided “ample evidence” these procedures were

23 Case: 19-10957 Date Filed: 10/01/2020 Page: 24 of 26

followed, such as through the placement of notices in advance of clean-ups and the

provision of shelter beds for the displaced homeless.

The record also supports the finding that compliance will continue after the

termination of the decree. The City of Miami and the surrounding community have

developed a wide array of programs. This “continuum of care” includes the

Homeless Trust, which receives $60 million in tax revenue each year, and various

programs to “provide shelter, medical care, and other services,” as well as “to

avoid putting the mentally ill in jails.” These programs, along with formal police

policies, constitute a durable remedy. Because the City has a strong system in place

to address homelessness, it is unlikely to revert to arresting or mistreating the

homeless.

The homeless argue that the violations hidden by the “misinterpretations” of

the decree by the district court, combined with the City’s failure to develop

consistent procedures for handling the property of the homeless, foreclosed a

finding of substantial compliance. We disagree. As we have explained, the district

court did not overlook any alleged violations of the consent decree. Nor do the

homeless identify any inconsistencies in the City’s procedures that could bar a

finding of substantial compliance. Compliance is determined in relation to “the

object which the parties intend[ed] to accomplish.” Jeff D., 643 F.3d at 284

(internal quotation marks omitted). So inconsistencies or violations are relevant if

24 Case: 19-10957 Date Filed: 10/01/2020 Page: 25 of 26

they undermine the goal of “stop[ping] the criminalization of homelessness.” But

they are not relevant when, for example, the City provides more notice than its

policies require, or there is variation in which agency posts the required notice.

Even with discrepancies of this kind, there has been “performance nearly

equivalent to what was bargained for.” Pullam v. Hercules, Inc., 711 So.2d 72, 75

(Fla. Dist. Ct. App. 1998) (internal quotation marks omitted).

D. The District Court Did Not Abuse Its Discretion by Denying the Motion for Contempt.

Consent decrees “are enforced through the trial court’s civil contempt

power.” Reynolds v. Roberts, 207 F.3d 1288, 1298 (11th Cir. 2000). A party

seeking an order holding the defendant in contempt for violating the consent

decree must “move[] the court to issue an order to show cause why the defendant

should not be adjudged in civil contempt and sanctioned.” Id. The homeless did not

specifically ask the district court to issue a show-cause order in their contempt

motion. But the district court must apply the procedures for evaluating civil

contempt, regardless of whether either party explicitly requests them. See Mercer

v. Mitchell, 908 F.2d 763, 767 n.7 (11th Cir. 1990).

Before the district court grants a show-cause order, the movant “must first

establish by clear and convincing evidence that the alleged contemnor violated a

court’s earlier order.” Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir. 1998)

(alterations adopted) (internal quotation marks omitted). “The clear and convincing

25 Case: 19-10957 Date Filed: 10/01/2020 Page: 26 of 26

evidence must establish that: (1) the allegedly violated order was valid and lawful;

(2) the order was clear and unambiguous; and (3) the alleged violator had the

ability to comply with the order.” Riccard v. Prudential Ins. Co., 307 F.3d 1277,

1296 (11th Cir. 2002). We construe any ambiguities in favor of the party charged

with contempt. Leshin, 618 F.3d at 1231. Only if the moving party makes its prima

facie showing does the burden “shift[] to the alleged contemnor to produce

evidence explaining [its] noncompliance at a show cause hearing.” Id. at 1232

(internal quotation marks omitted).

The homeless failed to prove any violations of the consent decree, much less

any “unambiguous” violations. Riccard, 307 F.3d at 1296; see also Doe, 1-13 ex

rel. Doe Sr. 1-13 v. Bush, 261 F.3d 1037, 1062 (11th Cir. 2001) (explaining that

conduct cannot implicate contempt if it was in accordance with a “reasonable

interpretation” of the consent decree). Because the homeless failed to make the

necessary prima facie showing, the burden never shifted to the City to explain its

noncompliance, and there was no need for a show-cause hearing. See Thomas v.

Blue Cross & Blue Shield Ass’n, 594 F.3d 814, 821 (11th Cir. 2010). The district

court correctly denied the contempt motion.

IV. CONCLUSION

We AFFIRM the termination of the consent decree and the denial of the

contempt motion.