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A day after Labor Day, a small section of the Kakaako homeless encampment was the site of a media spectacle.
A throng of reporters and cameramen descended on the area near the Kakaako Gateway Park, as the city’s maintenance crew began the much-anticipated sweep — the first enforcement action there since late last year.
The sweep was the first salvo in the city’s plan to clear out the encampment — in what Mayor Kirk Caldwell calls “phased enforcement” — by the year’s end.
The two statutes — enacted in 2011 and 2013, respectively — allow the city to remove property left on sidewalks, either after issuing a 24-hour notice or immediately if the items are deemed “nuisances.” But the lawsuit, filed by 15 people — who are or have been homeless — alleges that the city has been skirting provisions in both statutes requiring that removed items be stored for a minimum of 30 days.
The plaintiffs, who are represented by the American Civil Liberties Union of Hawaii and the law firm of Alston Hunt Floyd and Ing, argue that the city’s practice amounts to an infringement of their constitutional rights.
In 2012, a similar argument was successfully made before the 9th U.S. Circuit Court of Appeals in a landmark case known as Lavan v. City of Los Angeles.
In Lavan, eight homeless people filed a lawsuit with a similar grievance: Their belongings, left temporarily unattended on sidewalks, were seized and immediately destroyed as part of what the plaintiffs described as the city’s “ongoing practice targeting the homeless on Skid Row.”
“The crux of our case is that the city has violated our clients’ constitutional rights by seizing and immediately destroying their property. That’s exactly what happened in the Lavan case.” — Daniel Gluck, legal director of the ACLU of Hawaii
The 9th Circuit — whose jurisdiction also covers Hawaii — ultimately affirmed a lower court’s preliminary injunction against the city’s practice, ruling that it violated the Fourth Amendment’s prohibition on unreasonable search and seizure, as well as the Fourteenth Amendment’s due process guarantees.
Daniel Gluck, legal director of the ACLU of Hawaii, says the same legal principles apply to his clients’ case.
“The crux of our case is that the city has violated our clients’ constitutional rights by seizing and immediately destroying their property. That’s exactly what happened in the Lavan case,” Gluck said. “The court ruled very clearly that the city cannot immediately destroy property. It violates homeless individuals’ right to due process.”
For their part, the city’s attorneys have been putting forth an argument that boils down to this: Lavan doesn’t apply here.
In court documents, the attorneys argue that the stored property and sidewalk nuisance ordinances are fundamentally different from LA’s “bag, tag and trash” ordinance.
Unlike LA’s statute, the attorneys say, the two Honolulu statues have “built-in procedural safeguards that preserve the personal property owner’s possessory interest in the removed and stored property … and does not authorize summary dispossession and destruction of personal property.”
But it’s no secret that the maintenance crew discards plenty of items on the spot during the sweeps — even though the statutes allow the immediate destruction of only “perishable” items.
In fact, as part of its routine updates, the city often publicizes the amount of items that get discarded. According to press releases, for instance, the Sept. 8 sweep and three subsequent enforcement actions in Kakaako resulted in a total of more than 16 tons of discarded items, while six bins of property were stored.
Ross Sasamura, director of the Honolulu Department of Facility Maintenance, says his crew discards some personal property when the owners give consent.
“There are times when people are there when we come in, and we would ask them to take their valuables and anything they can carry with them. And then we ask them, ‘Do you want anything to be stored?'” Sasamura said. “There’s times when people say, ‘No. Just get rid of it. Because I can’t afford the $200 (retrieval fee) to get everything back.’ Or, ‘I just don’t want them anymore. I’ll just find something else.'”
At a Sept. 22 hearing, Ernest Nomura, deputy corporation counsel for the city, told the court that the rest of what gets discarded is trash, not “personal property.”
The city doesn’t spell out how it determines whether any given item is trash. During a morning sweep in Kakaako on Sept. 17, the whole process appeared subjective.
“Lavan is totally inapplicable here because … the city does not destroy personal property,” Nomura said. “But I don’t think anybody can disagree with it that it has every right to remove and discard what is obviously trash. … We’re not interested in dismantling homeless individuals’ personal property or removing their social security cards or trashing their personal identification or financial information. None of that is being destroyed by the city.”
In the court documents, the city cites examples of what it does discard:
|“They include used syringes, garbage bags filled with trash, plastic bags filled with feces and urine, water bottles and soft drink bottles filled with urine, urine-soaked, bed bug ridden wet mattresses, scrap metal parts from bicycles, automobiles, air conditioning units, broken wicker baskets, broken milk crates, soiled with feces, moldy clothing, smashed corrugated boxes and box parts, soiled and ripped tarps, soiled carpet remnants, ripped plastic sheets, plastic containers filled with stagnant water.”|
But the city doesn’t spell out how it determines whether any given item is trash.
During a morning sweep in Kakaako on Sept. 17, the whole process appeared subjective.
According to a press release, that day’s sweep yielded no stored items but produced 3.17 tons of trash — including a sturdy plywood-reinforced structure, which stood near the corner of Ilalo and Keawe streets.
Sasamura said that the structure was tossed into a dump truck because its owner, who was still struggling to gather his belongings when the sweep began, gave the go-ahead to take it down before he left.
But, during the same sweep, the maintenance crew also discarded a lounge chair, which was sitting unattended several yards away but appeared to be in working order — even though the statutes specifically identify “furniture” as among items that the city should impound.
And, according to a June study by the University of Hawaii, the confiscation of identification documents appears rampant during the sweeps. The study found that more than a half — or 57 percent — of survey respondents, who were living at encampments in Aala Park, Kakaako and along Kapalama Canal, have lost their documents during the sweeps, and only 16 percent of them managed to retrieve them later.
Given the city’s practice, the plaintiffs’ attorneys say they are convinced that its de facto policy is to treat what’s left behind by homeless people during the sweeps as abandoned, and therefore trash.
Kristin Holland, an attorney at Alston Hunt Floyd and Ing, says the policy flies in the face of the city’s own rules.
“I would challenge the city to show us where in either ordinance it says city workers can call things trash and put them in a garbage truck,” Holland said. “What the ordinances require is, if something is removed, either on the sidewalk nuisance ordinance or the stored property ordinance, the city needs to impound it for 30 days.”
“We’re not interested in dismantling homeless individuals’ personal property or removing their social security cards or trashing their personal identification or financial information. None of that is being destroyed by the city.” — Ernest Nomura, deputy corporation counsel for the city
In the lawsuit, the plantiffs also argue that the city “knew or objectively should have known” better: “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. But the city seized the property and destroyed it anyway.”
In this regard, the attorneys say, the city is taking the same ill-advised approach that got LA into trouble with Lavan.
In 2011, LA began taking the position that, if unattended on sidewalks, homeless people’s belongings could be considered abandoned, meaning that the city was free to seize and immediately destroy them.
A few months later, a district court in California ruled that the city’s practice violated the Fourth and Fourteenth amendments and issued an injunction prohibiting the city from seizing and destroying property “absent an objectively reasonable belief that it is abandoned, presents an immediate threat to public health or safety, or is evidence of a crime.”
The court also observed that ruling in the city’s favor would have been akin to saying, “All parked cars (even those in no parking zones), locked-up bicycles and tied-up dogs can be seized and destroyed simply because the owner has stepped away to buy a gallon of milk.”
In rejecting the city’s appeal, the 9th Circuit was even more cutting in its assessment: “The city has … asked us to declare that the unattended property of homeless persons is uniquely beyond the reach of the Constitution, so that the government may seize and destroy with impunity the worldly possessions of a vulnerable group in our society,” it wrote. “Because even the most basic reading of our Constitution prohibits such a result, the city’s appeal is denied.”
In Honolulu, it’s too early to tell how Lavan will shape U.S. District Court Judge Helen Gillmor’s view on the case.
Last week, Gillmor denied the plaintiffs’ request for a temporary restraining order to immediately halt the sweeps. But she indicated that her ruling wasn’t necessarily a statement on the merit of the lawsuit — rather, it stemmed from her concern that “we don’t have the meeting of the minds of the parties” over even the basic facts about the sweeps.
“Until we get to the position where we have the information that the court can rule on as to what the facts are here, until that is presented in a forum where both sides can be heard, and the issues can be joined, I do not have sufficient information here to issue a temporary restraining order,” Gillmor ruled.
But Gillmor is moving forward with the plaintiffs’ request for a preliminary injunction and set a hearing in mid-December.
Meanwhile, the plaintiffs’ attorneys say they’re likely to file an amended motion to take another shot at a temporary restraining order before the December hearing.
“It’s certainly stressful to our clients having to know that the city may come and destroy their property,” Gluck said. “So we certainly would like to have had (the temporary restraining) order in effect, but the lawsuit will continue.”
Gluck added that filing a separate case to challenge the city’s “sit-lie” ban could also be in the cards in the future. “The city can’t continue along this path, thinking that this is the solution to the homelessness,” he said.