Ruling due on sidewalk nuisance law

Both city officials and (de)Occupy Honolulu members are hoping a U.S. district judge will make a ruling Friday on the protest group’s encampment on the sidewalks near Thomas Square and the city’s efforts to remove them.

Members of (de)Occupy Honolulu, an offshoot of the Occupy Wall Street movement that protests government policies on homelessness and other perceived social injustices, filed a lawsuit in December seeking to block the city’s enforcement of the so-called "stored property ordinance."

The law, which took effect more than a year ago, allows the city to seize tents or other property left on city sidewalks provided those items are tagged at least 24 hours in advance. Since the first few raids, (de)Occupy Honolulu supporters have been getting around the ordinance by playing what amounts to a cat-and-mouse game: Once items are tagged by city officials, (de)Occupy members remove them and replace them with similar items.

The (de)Occupy Honolulu lawsuit alleges that the law on its face violates the constitutional rights of the campers by illegally seizing their property, fails to provide "due process" before seizing and destroying the property, and interferes with free speech and other activities guaranteed by the First Amendment.

Judge J. Michael Seabright is scheduled to hear on Friday both the city’s motion to dismiss the case and (de)Occupy Hono­lulu’s motion for a preliminary injunction.

"The ultimate goal is to have the city follow the law … the constitutional law and their own law," said Richard Holcomb, an attorney for (de)Occupy Honolulu.

The lawsuit says not only is the stored property ordinance unconstitutional, but also that the city has failed to even follow the ordinance as written. The complaint cites a number of possible violations, including instances in which city officials allegedly unlawfully destroyed items belonging to (de)Occupy Hono­lulu members, seized other items that were not tagged, or removed items from a nearby private location after the property owner had allowed it to be stored.

Regardless of whether the stored property ordinance survives the legal challenge, "you can’t go around throwing people’s stuff in the trash can," Holcomb said.

The city Department of Corporation Counsel, the city’s lawyers, said in an emailed statement Wednesday that Seabright has "expressed his preliminary inclination that the ‘stored property’ ordinance … is constitutionally valid" and allowed the city to continue to enforce it.

"The city is cautiously optimistic that the judge will ultimately rule in favor of the city," Corporation Counsel Donna Leong said in the statement.

In court documents, city attorneys said the factual assertions and allegations against the city "are merely conclusoryand do not give rise to a plausible theory of liability against (city officials)."

City attorneys said the stored property ordinance was intended to ensure that public property is "clean, sanitary and accessible." Personal property that is seized is held for at least 30 days, allowing the property owner ample time to pick up the property after presenting satisfactory proof of ownership, city attorneys said.

The filings of city attorneys described (de)Occupy Honolulu’s constitutional challenges as "at best … threadbare recitals of the elements of the constitutional causes of action supported by mere conclusory statements."

In a Feb. 22 filing, city attorneys said, "This case is not about the homeless. This case is about a mixed bag of self-absorbed social protesters — recent mainland transplants — who have seen fit to pitch their tents, invoke King Kamehameha’s law, and drag bulky item pickup junk furniture and other personal property on the sidewalk fronting one of Hono­lulu’s most historic and culturally significant public parks."

Cathy "Sugar" Russell, one of the (de)Occupy Hono­lulu members who filed the lawsuit, said the action is not designed to protect the rights of only the group, but also homeless people throughout Oahu.

While Thomas Square has seen the most items tagged, the city has used the ordinance to force items off sidewalks and other city properties in Waikiki, Iwilei and other areas where the homeless congregate.

The stored property ordinance "has been used to torment the houseless population and it needs to come to an end," Russell said.