Tabatha Martin is a fixture at the Kakaako homeless encampment.

For the past two years, she has had her tent set up on a sidewalk along the crowded stretch of Ohe Street, where she lives with her husband, Tracy, and their 4-year-old daughter, T.M.

By her count, Martin has been displaced eight or nine times by city sweeps — the enforcement of two ordinances aimed at clearing sidewalks and parks for public use.

American Civil Liberties Union of Hawaii Legal Director Daniel Gluck with Tabatha Martin and her 4-year-old daughter, T.M., on Wednesday.

American Civil Liberties Union of Hawaii Legal Director Daniel Gluck with Tabatha Martin and her 4-year-old daughter, T.M., on Wednesday.

Cory Lum/Civil Beat

Each time, Martin said, her belongings — tents, clothes, identification documents and even her husband’s heart medication — were removed and thrown away.

“We have to start all over again and pay to replace those things,” Martin said. “All of our savings are used up, keeping us on the street even longer.”

“The system that the city has set up, even when they do follow the laws to the letter — which they have not — is an impossible burden for families to meet.” — Daniel Gluck, legal director of the ACLU of Hawaii

On Wednesday, Martin and 14 others — who are or have been homeless — filed a federal class-action lawsuit to prevent the city from carrying out any more sweeps.

The lawsuit alleges that the sweeps — which caused the plaintiffs “incredible hardships” and left children “devastated and hungry” — amounted to an infringement of constitutional rights: the Fourth Amendment prohibition against unreasonable search and seizure, as well as the Fourteenth Amendment’s due process guarantees.

“The city has not followed basic requirements of due process in seizing and immediately destroying our clients’ property,” said Daniel Gluck, legal director of the American Civil Liberties Union of Hawaii, which is representing the plaintiffs along with the law firm of Alston Hunt Floyd and Ing.

Jenny Lee, public policy director for the Hawaii Appleseed Center for Law and Economic Justice, says the lawsuit’s allegations echo what she’s been hearing from the community.

“The property ordinances have had a really devastating and traumatic effect on a large number of homeless people, so we are glad that the ACLU is there defending the people’s rights,” Lee said.

HPD Sgt Deric Valoroso checks if anyone is in their tent to hand out a written warning at Makai Gateway Park in Kakaako. 1 sept 2015. photograph Cory Lum/Civil Beat

In recent weeks, the city has resumed its enforcement of the stored property and sidewalk nuisance ordinances in the Kakaako homeless encampment.

Cory Lum/Civil Beat

Keeping the Homeless on the Move

Under Mayor Kirk Caldwell, the city has been dispatching a crew from the Honolulu Department of Facility Maintenance five days a week — at an annual cost of about $750,000 — to enforce the stored property and sidewalk nuisance ordinances.

The two statutes allow the city to remove items left on sidewalks, either after issuing a 24-hour notice or immediately if they’re deemed “nuisances” — which is defined as “any object or collection of objects … on or over any sidewalk.”

Along with the sit-lie ban, the sweeps have been an integral part of what Caldwell calls “compassionate disruption,” a strategy underpinning his effort to combat homelessness in the city.

The thinking is, the sweeps can help prod homeless people into shelters where they can receive needed services.

“The city believes the ordinances will survive the current challenge.” — Honolulu Corporation Counsel Donna Leong

A July analysis of city records by Civil Beat showed that, in May and June alone, the eight-man maintenance crew carried out 164 sweeps at more than 40 sites throughout Oahu.

In the lawsuit, the plaintiffs allege that the maintenance crew routinely took away their belongings required for “mere existence” and “the care of their children” — including tents, sleeping bags and food — as well as identification documents necessary to get a job, get into shelters and receive other benefits.

The city “knew or objectively should have known that plaintiffs’ property … was not abandoned,” the lawsuit says. “The items were in well-populated homeless encampments that were actively in use. In some cases, plaintiffs, or other victims of the sweeps, made it clear that their property was being taken.”

The lawsuit also alleges that the plaintiffs were given no opportunity to reclaim their belongings because they were immediately removed and thrown away — even though the statutes allow only “perishable items” to be destroyed immediately.

Even if the city did store their belongings, the plaintiffs say they had virtually no means to retrieve them — they would have needed to scrounge up $200 for a retrieval fee and find a way to get to a distant Halawa facility.

“The system that the city has set up, even when they do follow the laws to the letter — which they have not — is an impossible burden for families to meet,” Gluck said.

Not the First Challenge

This is not the first time that the stored property ordinance faced a legal challenge.

Members of (de)Occupy Honolulu also challenged the stored property ordinance in 2012.

Members of De-Occupy Honolulu also challenged the stored property ordinance in 2012.

Michael Levine/Civil Beat

In 2012, members of De-Occupy Honolulu — an offshoot of the Occupy Wall Street movement — filed a lawsuit against the statute, alleging that it violated their constitutional rights by allowing illegal seizure of their property and interference with their right to free speech.

The lawsuit eventually led to an agreement between the city and De-Occupy Honolulu that spells out a process for retrieving seized properties. Later, the two parties also reached a settlement in which the city admitted no wrongdoing but agreed to pay $1,000 and return seized items.

Across the country, an array of similar statutes have come under legal attack in recent years. And, increasingly, they are being struck down by the courts.

Gluck says one case is particularly relevant to his clients’ lawsuit: In 2012, the 9th U.S. Circuit Court of Appeals, which covers Hawaii, ruled in Lavan v. City of Los Angeles that seizing and destroying the personal belongs of homeless people on sidewalks violated the Fourth and Fourteenth amendments and ordered the city to hold the belongings for at least 90 days.

The arguments, Gluck says, were “almost exactly what we are asserting here, which is that it violates the constitutional right to due process to seize and destroy property that’s not abandoned.”

But Corporation Counsel Donna Leong said Wednesday she remains confident that the court will ultimately side with the city.

“In other challenges, federal courts have upheld the constitutionality of the stored property and sidewalk nuisance ordinances,” Leong said in a statement. “The ordinances support the safety, health, and welfare of all residents of the city and county of Honolulu, and the city believes the ordinances will survive the current challenge.”

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