City officials have reached a court-sanctioned agreement that temporarily prevents them from immediately disposing of any personal items during the enforcement of the stored property and sidewalk nuisance ordinances.

The agreement is the latest development in the ongoing federal class-action lawsuit filed by 15 plaintiffs — who are or have been homeless — alleging that the city is illegally cracking down on the homeless by removing their belongings and immediately destroying them.

Under the agreement, the city’s maintenance crew is prohibited from throwing out any items that are considered a “sidewalk nuisance” or “personal property” under the terms of the two ordinances.

The items include: “tents, tarps, children’s toys, suitcase, laundry baskets, shelves/crates, backpacks, baby strollers/cribs, air compressors, recreational items like surfboards, bicycles, clothing, bedding, coolers, household goods and furniture.”

The agreement comes two weeks after the plaintiffs, who are represented by the American Civil Liberties Union of Hawaii and the law firm of Alston Hunt Floyd and Ing, filed a motion alleging that the city has been misrepresenting how it enforces the ordinances.

From the beginning, the city has been insisting to the court that its maintenance crew destroys only items that are “obviously trash.”

City and County workers disassemble a wooden structure and load the wood into a trash truck near the intersection of Keawe Street and Ilalao Street. 17 sept 2015. photograph by Cory Lum/Civil Beat
The city’s maintenance crew disassembles a wooden structure and load the wood into a trash truck near the intersection of Keawe and Ilalao streets in September. Cory Lum/Civil Beat

But the plaintiffs allege that, during the discovery process, city officials acknowledged that they have been skirting provisions in the two ordinances requiring that removed items be stored for a minimum of 30 days.

“Defendant’s statements in its testimony, briefing and at the hearing created the false and misleading impression that it stored all property encountered while enforcing the stored property ordinance and sidewalk nuisance ordinance,” the plaintiffs wrote. “It is now clear that those claims are not true.”

Late Wednesday, the parties reached the agreement at the prodding of U.S. District Court Judge Helen Gillmor.

Under the agreement, the city can still dispose of any items that are hazardous, perishable, or “contaminated by mold or infested with insects, roaches, bedbugs, etc.” But it can’t throw out any items simply because they are “wet, soiled, dirty, sharp or odorous” or “too large to fit inside a storage bin.”

The city also agreed that, when disposing of any items, it would videotape them and document the reasons that justify the disposal. And it would have to allow property owners to retrieve their items during the sweeps.

In a statement, Daniel Gluck, legal director of the ACLU of Hawaii, said the agreement “gives the plaintiffs in our lawsuit significant relief and substantially changes what the city has been doing during its sweeps of homeless encampments.”

“If the city continues to conduct itself like it did in Kakaako in the last two months, it is subject to being held in contempt of court,” Gluck said.

In a statement to Civil Beat, Corporation Counsel Donna Leong said the agreement “allows the city to continue to enforce the stored property and sidewalk nuisance ordinances in a manner that is consistent with constitutional principles until the hearing.”

The agreement will be in effect until the court rules on the plaintiffs’ motion for a preliminary injunction. The next court hearing is scheduled for Jan. 12.

“We are glad that this agreement will require the city to follow the law while the case moves forward and as Hawaii’s lawmakers find ways to meaningfully address the crisis of homelessness,” said Kristin Holland, an attorney at Alston Hunt Floyd and Ing. “This case is not about people’s ‘right’ to live on sidewalks, and no one is seeking to force the city to store trash or hazardous goods — there is no such right or obligation. It is about illegally taking and destroying personal possessions, the constitutional right of everyone to reclaim property seized by the government, and the right to challenge that seizure. These rights apply to everyone equally, rich or poor.”

You can read the agreement here:

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