It was meant be a swift response to an emerging problem.

In late October, Gov. David Ige announced that the state would start enforcing nighttime closure rules at two Kakaako parks, a move aimed at clearing out the fast-growing homeless encampments there.

As early as Nov. 12, Ige said, the Hawaii Community Development Authority, which oversees the two parks, would begin its enforcement actions.

But the sweeps have not been forthcoming — for seven weeks.

That’s because, behind the scenes, state officials were busy crafting the language of what they call “abandoned property protocol,” a set of rules guiding how HCDA will enforce nighttime closure rules at Kewalo Basin Park and Kakaako Waterfront Park.

Last week, the HCDA board finally signed off on the protocol’s language, satisfied that it will protect the “health and safety” of the public, as well as the rights of people whose belongings could be confiscated.

The move paves the way for enforcement actions as early as this week.

But critics say they aren’t convinced that the protocol will safeguard the rights of homeless people, whose population is now estimated at about 180 in the parks.

Too Much Discretion?

Under the protocol, HCDA officials are authorized to remove any “abandoned property” that they encounter in HCDA-controlled parks during nighttime closure hours, so long as they provide its owner with a “reasonably opportunity” to move it first.

The removed items are to be stored for 30 days, so that people have a chance to retrieve it with a showing of “satisfactory proof of ownership.”

But HCDA can sidestep the storage requirement and immediately dispose of an item under certain conditions — if it’s perishable, threatens “the health, safety or welfare of the public,” or is considered “inappropriate” for storage due to being “wet, soiled, dirty, sharp, odorous, contaminated by mold or infested with insects, roaches or bed bugs.”

Nickolas Kacprowski, an attorney at Alston Hunt Floyd and Ing, finds this provision troubling, saying that too many things can fall into the category.

“It leaves completely at the discretion of people who are there (to determine) what is ‘wet, soiled, dirty,'” Kacprowski said. “What does it mean, really? What if it’s raining when they’re doing this? Does it mean they can throw everything away? In terms of ‘soiled,’ how dirty does the stuff have to be?”

Kacprowski’s law firm is partnering with the American Civil Liberties Union of Hawaii to work on an ongoing federal class-action lawsuit challenging how the city is enforcing its stored property and sidewalk nuisance ordinances.

In the lawsuit, the plaintiffs allege that the city is illegally cracking down on the homeless by removing their belongings and immediately destroying them — in violation of their basic rights under the Fourth and Fourteenth amendments of the Constitution.

Daniel Gluck, legal director of the ACLU of Hawaii, says HCDA’s enforcement actions — if implemented as prescribed by the protocol — will leave the state as vulnerable as the city is to a similar legal challenge.

“The ACLU has serious concerns about these proposed rules, as they purport to give government officials broad discretion to throw away people’s belongings without due process,” Gluck said in a statement. “This is the exact same problem that led to our current litigation against the City and County of Honolulu.”

For his part, Joshua Wisch, special assistant to Hawaii Attorney General Doug Chin, says the protocol was developed as “part of the state’s coordinated effort to deal with this complex issue with compassion and respect.”

Wisch points out that the HCDA is required to cite a “health and safety reason” if it is to consider any items to be “inappropriate” for storage under the protocol’s immediate-disposal provision.

And the protocol ensures that “people’s property interests are reasonably protected, and their property is treated with dignity” by directing the HCDA to film, photograph or take notes on how it handles any abandoned items, so that they’re “properly assessed, stored, and disposed of,” Wisch says.

But, in the end, Gluck says the state would be better off providing more housing, instead of trying to replicate Mayor Kirk Caldwell’s “compassionate disruption.”

“Sweeping homeless individuals off of public land doesn’t help anyone unless those people have somewhere to go,” Gluck said. “The reality is that there are still nearly 2,000 men, women and children sleeping outdoors in Honolulu every night, and only a handful of shelter beds. We can’t arrest our way out of this problem.”