A Honolulu law firm that challenged the city’s tactics in clearing the once-sprawling Kakaako homeless encampment is now asking city officials to provide video they may have shot of Monday’s unannounced sweep of homeless encampments on state-owned land along Nimitz Highway.
The Honolulu law firm of Alston Hunt Floyd &Ing and the American Civil Liberties Union of Hawaii in January 2016 won a federal class-action injunction against the city that requires officials to store any personal property they seize for 45 days; video-record any items seized with less than 24-hour notice; and give advance warning of a sweep by 3 p.m. the day before, said law firm attorney Nickolas Kacprowski.
Mayor Kirk Caldwell told the Honolulu Star-Advertiser that the city would begin sweeping the state Department of Transportation’s grassy medians without advance notice because the encampments — in the middle of one of the island’s busiest traffic corridors — created an imminent “health and safety issue.”
But Kacprowski said the encampments are hardly new.
“They’re sweeping an area where people have been for months and months and months,” Kacprowski said. “It gets incredulous to say, ‘We just realized it’s an imminent hazard.’ With that explanation, you could think of a way of never giving notice. … ‘People living on the streets is a public safety hazard, so we would never have to give notice.’ I can’t see how this would not violate the injunction. The injunction also says if they do a sweep without notice, they’re supposed to videotape the whole thing.”
City spokesman Andrew Pereira said in a statement Friday that the city will provide attorneys with video of Monday’s cleanup. Pereira also said that the Department of Facility Maintenance posted a notice of its planned enforcement action on Sunday, the day before its crew moved into Awa Street to clear the medians, and also sent an email to the office of ACLU-Hawaii.
But, Pereira said, “Because of the threat to public health and safety and the interference with the management of the highways, 24-hour notice was not required.”
He added, “The city crew that removed the materials had to exercise extreme caution due to the curvature of the highways and the speed of the vehicles on Nimitz Highway, which is a divided, eight-lane highway in that area.”
The injunction was ordered by Senior U.S. District Judge Helen Gillmor.
The original court case against the city was filed on behalf of plaintiffs including Tabatha Martin, who had been living on the sidewalks of Kakaako with her husband and 4-year-old daughter for two years when the city began sweeping in the summer of 2015.
Martin said at the time that the family would lose their tent, clothes and personal documents in the sweeps.
This week, following Monday’s sweep of the DOT medians along Nimitz Highway, Kacprowski and his attorney colleague Kristin Holland asked the city’s office of Corporation Counsel to provide any videos of that sweep by Wednesday.
City officials did not respond to a request for comment from the Star-Advertiser.
The 2016 injunction “does not apply to things that the state does, but if the state is inviting the city onto state lands to conduct these sweeps in a manner that violates the injunction, there are issues when people act in concert with others in violating the injunction,” Kacprowski said.
So Kacprowski and Holland wrote a separate letter to state Attorney General Doug Chin “to eliminate any possible doubt that the state has actual notice of the injunction and knows that having the city’s homeless sweep crew act on the state’s behalf in this manner violated the U.S. Constitution and exposes the state to substantial liability,” according to the letter. “The Martin case cost the city taxpayers over $600,000 in damages and in attorneys’ fees for itself and plaintiffs and resulted in an injunction being entered against it. If the state continues to act with the city to violate the constitutional rights of homeless individuals on state land, we will be forced (to) pursue the same claims against the state that we pursued successfully against the city.”
Chin’s spokesman, Josh Wisch, said the letter was received Friday, and the office had no immediate comment.
At this point Kacprowski said he is not seeking to take either the city or state to federal court.
He said he wants the city to comply with the injunction and is not endorsing homeless people to live illegally.