The city’s efforts to address homelessness by routinely cleaning up city sidewalks suffered a setback Thursday when a federal judge ordered officials to stop the immediate disposal of property seized in the sweeps and start videotaping items they destroy.
The order by U.S. District Judge Helen Gillmor comes amid a court challenge by the American Civil Liberties Union of Hawaii and the Honolulu law firm Alston Hunt Floyd & Ing, which asked Gillmor to issue a preliminary injunction that would prevent the city from destroying personal property during its homeless sweeps. Mayor Kirk Caldwell calls the sweeps “compassionate disruption.”
“This case is not about people’s ‘right’ to live on sidewalks. … 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.”
A court hearing on the request for a preliminary injunction is scheduled for January.
Until then, following Gillmor’s order, a special maintenance crew charged with enforcing the city’s separate sidewalk nuisance ordinance and stored property ordinance must:
» Tag all personal property stored on public property for 24 hours before it’s impounded — and allow anyone claiming ownership to take the property before it’s seized. Place smaller items in bins tagged with an identifying sticker so the owner can recover them.
» Store personal property near the Halawa Yard. Anyone who produces an impoundment notification with a specified tag number will be given the property for free, as long as they sign a statement that they are unable to pay. Property left beyond 30 days can then be destroyed.
» Record on video anything that’s destroyed and provide justification for its destruction. If “the city immediately disposes of any property on the basis that the property would be hazardous to store, the city will video record a detailed description of all the hazards posed by each item disposed, as well as a detailed reasoning why the hazard cannot be removed or why reasonable accommodation could not be made to store the item,” according to Gillmor’s order.
She wrote, “Nothing in this stipulation and order shall be construed in any way to allow … (anyone) to use or occupy city sidewalks or other city public property in any way other than their intended use.”
In response to Gillmor’s ruling, Honolulu Corporation Counsel Donna Leong wrote in an email, “The scheduling stipulation allows the parties to properly prepare for the hearing on the motion for preliminary injunction that is currently set for Jan. 25, 2016. The stipulation 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.”
Kristin Holland, an attorney with Alston Hunt Floyd & Ing, said in a statement, “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.”
The ACLU of Hawaii said that city crews seized and disposed of more than 134,000 pounds of property during six weeks of sweeps of the so-called “Kakaako makai” encampment. In August, 293 people were counted living in the encampment as 911 calls and assaults escalated, including a June 29 attack on state Rep. Tom Brower (D, Waikiki-Ala Moana-Kakaako).
Gillmor’s order goes beyond the Kakaako crackdown and also applies to smaller sweeps that a special crew from the city conducts every day to keep sidewalks clear.
“The city has admitted that it has allocated only about 1,000 square feet of space to store all property taken under the ordinances — clearly insufficient for the personal possessions of the hundreds of persons and families displaced by sweeps,” the ACLU said in a news release.
Dan Gluck, the ACLU’s legal director, said in a statement that Gillmor’s order “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.”
Gilmor’s order applies to “tents, tarps, children’s toys, suitcases, laundry baskets, shelves/crates, backpacks, baby strollers/cribs, air compressors, recreational items like surfboards, bicycles, clothing, bedding, coolers, household goods and furniture.”
The city can “dispose of property that is wet, soiled, dirty, sharp or odorous only if such items are hazardous or are contaminated by mold or infested with insects, roaches, bedbugs, etc.,” Gillmor wrote. “(W)et tents must be stored unless they are hazardous due to a condition other than simply being wet.”
Gillmor’s order followed a national media conference call Thursday morning in which U.S. Housing and Urban Development Secretary Julian Castro announced progress in reducing homelessness across the country.
Since 2010, when President Barack Obama launched what Castro called the “first-ever comprehensive strategy to prevent and end homelessness,” veteran homelessness has fallen by 36 percent; family homelessness dropped 19 percent and chronic homelessness declined 22 percent.
“Certain communities are making significant positive progress, while others are struggling in light of the widespread housing affordability crisis, budget shortages, or slow adoption of best practices,” Castro said in a statement.