City plans homeless sweep of state’s Nimitz Highway medians

The city plans to take a new approach this week to clear out a handful of persistent homeless encampments on state-owned, grassy medians along Nimitz Highway that thousands of tourists drive past on their way from Daniel K. Inouye International Airport to Waikiki.

Mayor Kirk Caldwell told the Honolulu Star-Advertiser that the sight of blue tarps and tents along one of Honolulu’s busiest corridors is a “shameful” impression for the 95,000 to 100,000 tourists every day on Oahu, who mostly stay in Waikiki.

“It’s the first impression our visitors have,” Caldwell said. “It’s just not a good impression.”

So Caldwell has ordered a special city cleanup crew to sweep the encampments this week— without the usual 24-hour notice — on land that belongs to the state Department of Transportation.

“We can go out there and enforce there without 24 hours notice (because) it impacts health and safety immediately,” Caldwell said. “It’s dangerous. … It’s a basic safety issue. It’s getting worse.”

Caldwell does not want to see the encampments expand. And he also hopes to avoid the cat-and-mouse game that began in the summer of 2015 when the city moved into the entrenched Kakaako homeless encampment that swelled to more than 300 people, resulting in a spike in crime and concerns over sanitary conditions.

Federal officials at the time called it one of the largest homeless encampments in the country.

As the city’s cleanup crew moved onto state property in Kakaako, untold numbers of homeless merely carried their belongings to nearby private property, or walked across Ala Moana Boulevard to wait out the sweeps — only to return again.

With his new approach, Caldwell hopes to restrict the encampments along the Nimitz Highway medians so they don’t grow into “another Kakaako.”

“Right now it’s pretty bad on Nimitz,” Caldwell said.

The grassy medians around the old Hilo Hattie site are outside of the city’s new sit-lie enforcement zone in Iwilei, which has seen its homeless population grow as sit-lie bans elsewhere forced more homeless into Iwilei.

Danny Garcia, 49, and his dog, Luscious, have been living on one of the Nimitz Highway medians off and on since September 2015.

They were swept out of Kakaako, and Garcia is prepared to be swept again.

Caldwell said his “compassionate disruption” approach has forced some homeless into shelters, where they can get help with housing, employment and various other challenges.

But Garcia, who’s been homeless for five years, said he isn’t one of them.

“I don’t get it,” he said. “They’re not focusing on what the true problem is — cost of living and the minimum wage.”

Asked what he’ll do when he’s swept again, Garcia said, “I’m always ready to lose it all.”

STATE EFFORT

In a statement, state Department of Transportation spokesman Tim Sakahara said DOT and the city are working together to prevent more encampments from popping up on DOT land.

The department, Sakahara wrote, “is specifically prioritizing areas where activities are considered health and safety risks for those illegally residing in the right of way, and for those that use the highways facilities, such as along H-1 Freeway and Nimitz Highway. HDOT has recently received new funding that will be utilized to address issues such as the obstruction of sidewalks and the building of structures within the HDOT right-of-way.

“We continue to refine our joint procedures for prioritizing areas for cleanup, notice of intent to clear an area, and abandoned property management to ensure that all are treated with respect, and the HDOT facilities remain safe. In the meantime, we continue to work with the governor’s coordinator on homelessness who has been providing outreach services for the people living within HDOT property in advance of any efforts to remove illegal campers.”

Philip Richardson is one of the many Iwilei business owners frustrated with the growing numbers of homeless people blocking, defecating on and urinating on sidewalks.

“Obviously, the city and state need to get together,” Richardson said. “Iwilei Road is looking like a war zone. It’s absolutely disgusting.”

Caldwell said he recently shopped for a washing machine at the Lowe’s store on the Ewa end of the Nimitz Highway encampments, where “they’re throwing two-by-fours into the road and drivers have to drive around. It’s really a bad situation.”

The state, Caldwell said, “could use help with enforcement,” adding, “We’re going to step it up. … People expect the city to step up and do more with homelessness and enforcement, and we’re going to do it.”

The city’s special cleanup crew that clears out homeless encampments costs $78,000 annually.

CITY IRKED

At the same time, Caldwell is frustrated that the state Legislature in its last session failed to pass a bill that would have imposed its version of a sit-lie ban on state lands, which would have made it harder for homeless people to avoid getting swept.

“We could have worked together and the state could have stepped up and done their part,” Caldwell said. “Instead, we’re filling the vacuum.”

Councilman Joey Manahan, who represents Iwilei, said the bill that was killed in the Legislature could have helped the city and state better coordinate their homeless enforcement efforts.

“That would be really helpful to partner with the state to do enforcement on encampments on medians and state property,” he said. “It looks kind of dangerous, especially when there’s a lot of traffic. And when you’re coming off a plane and going into Waikiki, it must leave a negative impression when you see these tents popped up all along the way. We need better coordination, obviously — whether it’s the state or private property owners.”

The question of liability also has arisen with the obvious hazard of homeless people living in the middle of a busy state highway.

Personal injury attorney Glenn Honda said homeless people would likely bear much of the responsibility themselves if they should get hit by a car — not the state and certainly not the city.

While the driver of a vehicle that hits a homeless person in a median also could be held liable, Honda said, “I don’t think the state has any liability just because they haven’t been able to clean them out of there. I don’t think the state has a duty to protect these people in the middle of a freeway. It’s an open and obvious risk. Clearly, the city’s not going to have any liability. It’s not their property.”

Trial lawyer Mark Davis, a partner in the law firm of Davis Levin Livingston, could not think of any Hawaii case in which a homeless person successfully sued the state or city for an injury while they were living illegally on government property.

Even though state and city officials know that homeless people are living on the Nimitz Highway medians, Davis said, “I’m not sure it’s enough to hold them liable.”

A potential jury would have to weigh multiple factors before determining liability, Davis said.

“If a plaintiff in Hawaii was also negligent, say was 25 percent of the cause of the accident, then whatever judgment or verdict he receives would be reduced by that 25 percent,” Davis said. “However, if he is 50 percent or more at fault, then he recovers nothing. If it’s 50-50, the victim gets nothing. The person being sued has to be more at fault than the victim.”

If a homeless person asked Davis to sue either the state or city because they were injured while living on a highway median, Davis said, “my sense is that they probably don’t (have a case) unless they were confronted with a specific situation that someone was at risk (of injury), as opposed to a general situation of people hanging out on medians.”

While Caldwell is taking a new tack for the homeless on state-owned, highway medians in Iwilei, Honolulu police are ready to begin enforcing the latest sit-lie ban in Iwilei on June 13, HPD spokeswoman Michelle Yu said.

“I do believe that sit-lie works, that compassionate disruption works,” Caldwell said. “Allowing encampments to become more permanent and grow in size … is dangerous.”

In Kakaako, Caldwell said, “we also saw a criminal element come in where the criminals are preying on the weak. I never want to see that happen again.”