good morning your honor that's been waxman cooperating in tourney for the miami and florida a c l u on behalf of the plaintiffs a class of involuntary homeless people residing in the city of miami for twenty years the potting jury consent decree has protected plaintiffs from miami government wide policy of targeting them for harassment arrest and property destruction based on their homeless status the gap between homeless people and shelter space remains large the district court found that the people exceeded shelter space in miami and the district court hearing saw some thirty six homeless  persons about forty two separate incidents of property destruction harassment and arrests in two thousand and eighteen in violation of the consent decree in unrefuted testimony that the district court credited witnesses testified they were woken by blaring buzzers and bright lights in the dead of night and were told to move out and to not return and then had their meager belongings swept to the street gathered and trucked away as garbage others were told without pretense of arrest to move on and leave the areas where they work the system the city's systematic and widespread campaign  homeless people from encampments so that homeless people would not return planned at the highest city levels was identical to the campaign recounted by judge actions in decision miss mr mannesmann i thought there was ample evidence that these encampments became six very hazardous was and moving these and eventually out from these encampments was to clean them up and to ensure that they weren't a public health hazard is that not right it's this is part of what was going on judge but vic the case really is not about the facts of the appeal is about the district court serious errors in misinterpreting the consent decree a contract essentially between the primary protections for homeless people is protected against summary caesar and destruction of property it protected against harassment and it protected against arrest for minor offenses like being in a park after hours or tr on public property regarding property the written consent decree required that the city respect personal property of all homeless people and that it preserve the property of a homeless person to the extent possible it specifically prohibited the city from destroying and this is a quote destroying any personal property known to belong to a homeless person or readily recognizable as the property of a homeless person except  important distinction judge show flat the the consent decree allowed the city to seize property that was contaminated but the way the district court construed it is it allowed the city to and destroy property that was in an area that might have been contaminated so in a location or that was stored near or together with other things that were contaminated so there was a very clear delineation in the consent decree that before they could seize that this property had to be contaminated but the district court said well if it's in a location where there is contamination or if it's with other property that's contaminated i'm going to allow it to be seized which is contrary to the very language of the consent decree that so essentially the court is not your son went to court what the court said in terms of contamination was that if the it's not done it's an area that's the problem it's it's the of hazardous property with other property that makes all of that pose a health hazard and that there were some items for example unintended arissa goals that pose no health hazard that were left alone by the city workers but for example if you had items in a bag at least some of which were  contaminated to city workers were required to search through a back to figure out whether there was anything salvageable there or not is is that a fair interpretation of what the district court found that is and in our position is a given that this runs contrary to and is a mis interpretation a legal error in the interpretation of the consent decree that went out of its way to specifically provide enhanced protection to identification to medication to eyeglasses to things that are absolutely vital to the survival of homeless persons and it to ensure that those items could not be seized unless they themselves w and so what was required what was required was that if there was a location that was generally unsanitary then city workers needed to go in and determine whether this property that was a orded very special protection by the consent decree whether it in fact was contaminated and the judge excused all of that based on again the property being a location so these were encampments where there were lots of people all there was lots of property and the court can look for instance i mean the best example is for instance the video to be pristine looked to be uninfected although the location clearly was unsanitary and at the video shows that that property was ultimately kicked to the street gathered like garbage and trucked away and that was just one glaring example of the testimony of all of the homeless people that in forty two separate incidents showed that this was what was going on so again the focus of the argument and the error is in the court when did that particular incident occur i don't have the date of that particular incident but there is some concern about that because the incident was long before was literally months before the health hazard that was subsequently declared in that area but it's a very telling in graphic video example of what the city was doing the other thing that the court did is it essential e engrafted upon the consent decree or requirement that homeless people carry their belongings are around with them day to day when they were out doing their daily business whether it's five be finding food getting services that when items are quote commingled with food soil materials and garbage creating a public health crisis there are contaminated and it's a bag containing contaminated property decipher what is and is not contaminated in inside a bag is difficult and go in through a bag that possesses contaminated materials to fish out and contaminated materials is not a requirement of the decree are you saying that those statements are error i am i'm we're saying that that was a misinterpretation so i'm looking at the district court order following the hearing doc and eighty two i'm on page thirty four and it said that the evidence showed and this is this concerns callie's property that we just discussed the unsanitary conditions in that location and again the court can see for itself from the video that the area was clearly unsanitary but the concern again and the protection provided in consent decree by clear language is that the property was protected and could not be tampered with unless the property itself was contaminated and it's our position that just because an area is unsanitary does not excuse the city from abiding by the strict language of this contract that it entered into and governed for twenty years to determine in fact if these vital pieces of property identification medication eyeglasses that received special protection in this decree the city was required to determine even if it was difficult even if it was not easy to examine items one by one they were required to deter turman this by the very language of the consent decree that the city entered and the judge excused the city by saying well the location was unsanitary or the property was for homeless people to carry their belongings because it would be too difficult that goes against the very premise of course if what the district court was saying was that that would be a good practice for an end to undertake and not now i did not understand what the district court said on that point to be something that was somehow required by the decree in my misunderstanding that no what he what he did again was excused the destruction of these vital pieces of property and place so the city takes issue with mr waxman's stating that this case is not about the facts this this case is exactly about the facts after thirty this case started thirty years ago with a class that i think i think to a large degree mr worksman says it's not about the facts because he thinks that a lot of us finding students far are infected by legal error in the district court's interpretation of the crat and and if he's wrong about if he's wrong about those interpretations then it seems to me the law that his case kind of collapses correct your honor as any is wrong allowing the city to discard property of homeless individuals that was in a location it was unsanitary but if you look at what the district court the dischord never said that st bar and the district court's findings of fact as your honor read out were that these areas were in such a state and the and the personal effects that may have been discarded were commingled with so much human waste hypodermic needles soil bed linens dirty mattresses that you know this is this particular area the one that they're focusing on the incident involving mr collie wasn't determined a health hazard by the florida department of health because it was so and unsanitary and the city was ordered to bring in a biohazard team to help clean it up  idea what factually we're dealing with but the district court did not air the district court found based on six days of testimony that the city did not discard any personal property that it did not determine was contaminated and  the consent decree allows for discarding property to disease contaminated or poses a public health hazard and that is what happened here in l a i do understand that it's it's a difficult situation nobody wants to be going out and you know  dealing with this if you can see that the it's not it's not broad you know sort of picture of the video but you can see that there is a lot of material in the area and that the there's just there was a dirty mattress in the video it's there's a lot of consumer needed material that they're just  and i understand i mean what yeah if you look at that video they said there was a cooler there honestly it looked like an empty cat litter container just to give you an idea of sort of the way  the district court statement about keeping homeless people keeping personal small personal attacks that are very cherished with them unlike their cell phones a lot of them said their cell phones were left in a bag or a suitcase and had somehow been you know discarded the came back to the area and then the judge as just prior pointed out was just saying this would probably alleviate that problem if it's a very small item and something they can keep on him he wasn't saying that consent buyers it and again with respect to all of the things with the harassment of homelessness and he would just point out that the consent decree it only says what it says and it's not meant to be an end product around a nine hundred and eighty three dollars action for any alleged violation of the constitutional right of a homeless person in the city of miami and the the language that they're focusing on for saying that you know this constitutes harassment and a violation of our constitutional rights and therefore a violation of the consent decree actually is prefatory language which says the city adopts the me doesn't say anything about asking a homeless person to move whether it be for cleanup or for some other purpose and there was no violation of the can send to me with any of those orders the district court went further to find that there was no actual violation correct john of the police department always had written guidelines it's the other city departments and it's kind of it's a little ironic that after thirty years when twenty years ago we entered into this consensus the primary focus was the police department so much  settlement agreement actually attached the departmental order that was to be adopted and it was approved by all the parties and so the police have always had a process and that's built into the departmental order of the department so that other departments had amendments the consent decree having to do with obstructing a sidewalk with a two thousand and fourteen amendment obstructing a sidewalk is no law if it completely blocks the duster in traffic or if they're blocking the right of way is no longer considered a life sustaining misdemeanor that cannot be arrested for so long as it says you were given a prior warning yet there's one warning right yes and it's always a concern for me is warning which is important one because the video that they show construed against you know the drafter or what not but i your i mean it's i understand it's a modification that was written ritually city did not include this is something that clearly benefits the homeless class and has taken care of this case for over twenty years he accepted the case when it was several he understands the agreement he was there and approved the modification and two thousand and fourteen and he conducted a six day trial in this case he understands that agreement and there's nothing complex about that agreement in fact almost every provision in that agreement deals with the police law enforcement training departmental orders compliance protocol the only one section deals with the disposition of property and that doesn't even require for reading any procedures and the city did was above his own internal procedures and when they were about to do a clean up operation which as you noted judge pryor was absolutely needed in this area i mean th e state declared a health hazard they had a procedure a procedure they would give the homeless a seven day written notice before they would clean up an area then the outreach teams would come back in individually tell them hey we're going to be playing in this place up so they had warnings all the time certainly when the when the products were taken that they would they were examined if they were contaminated mr permitted under the agreement if they were contaminated they weren't then they were thrown away if they could discern things in the property they took them and they had a protocol they would leave a notice there that's the next thing that they had seized the property and where he could pick it up and then they would go back and tell him again berkeley you know we've taken the property of notes so they had a complete procedure they fault it wasn't in writing but it was done and this and this court made factual findings on all these issues and ruled against the plaintiffs so it's not a complicated with the ixia all you this trying to do is take this written agreement and make it into a denote a review it's not it's an abuse of discretion this judge knows this thing inside and out and he interpreted properly in addition besides is making sure that he dealt with every issue that they raised and scott it is true isn't it that we still interpretation of the terms that it created was correct or not that's a question of law right that that would be a question of law yes or what my position is is that a he did interpret it correctly and he made the factually terminations that perec to and in addition you know judge i would point out this thing has been on the books thirty years they've had thirty five thousand encounters with the police that are documented with these people never once before the founding of this motion to terminate you have a record that it is factually supported and b the standard here under four is substantial compliance substantial compliance and in good faith there was a plethora of evidence which he accepted that the city faith compliance and a durable remedy for dealing with isolated incidents that might be problems that's that's absolutely true in fact there was testimony even from the plaintiffs on witness dr lightman that the model city is the model for the united states and homeless issues because of the protocol programs it gets adopted that's in the record and he quoted from it so we're we're where the model we we have it and it's in place it was evidence we're not going to go back and if they're what i had you know the judge in the opening and in the closing asked me a question he said it was such a good deal why should i terminated and i told him there's a lot of reasons one the city has done it for twenty years they've done the model they've made it other cities should adopt it to this if you want to be in parity with the other thirty four cities with the same rights three it this agreement was never contemplated to be in be observant of that tracked ok thank you chief judge judge heil want to get right to judge hall's question i'm looking at docket entry three hundred and eighty two this is the departmental order that talks about the warnings in paragraph nine six point two three it discusses it says if an officer determines that an individual is a homeless person and though his through his observation determines that a life sustaining conduct misdemeanor is occurring in his presence he must st check to see if there is an available shelter so we've got an officer coming upon archer and bass and before he does anything he's required to check if there is a vailable shelter right then and if we go down this is on page thirty five of docket entry three hundred and eighty two it says if the officer has probable cause to arrest  homeless person and there is no available shelter the officer shall not make an arrest nor take any other police action and then it says in parentheses warnings etc so as the district court did recognize correctly in the if there is not available shelter and the officer cannot offer that then it pretty hip it's having any contact whatsoever with that homeless person now i'm not saying if the city is going in and isn't attempting to clean up an unsanitary area that the an officer or a city worker can't say to the homeless person would you please step aside so we can clean this area that's the way it should have been but the testimony from witness after witness was that homeless people were told leave and don't come back and the judge said well there's a general bar against harassment but that that doesn't bar the police from saying move on and move  code for leave and don't come back and this is the testimony that was provided by witness after witness people at a bus stop look at the video of java bro video for her encounter at five hundred and seventy eight dash thirty nine shows that these police officers came upon her they didn't suggest they were going to arrest her they simply turkey told her we tell them what or what to do or do we send it back for him to determine what the remedy should be well again i think the st thing that needs to be done is the misinterpretation of the decree need remand it to the district court to determine the appropriate remedy for the can for a finding gets condemned and to reinstate the decree that that's exactly correct and that it that is our prayer for relief your honor