CA11: A move-on order isn’t usually a 4A violation

In terminating a consent decree involving how the City of Miami deals with homeless people, the Eleventh Circuit notes that a move-on order isn’t usually a Fourth Amendment violation. Peery v. City of Miami, 2020 U.S. App. LEXIS 31175 (11th Cir. Oct. 1, 2020):

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).

. . .

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.

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