The American Civil Liberties Union of Hawaii and the City and County of Honolulu on Monday jointly agreed to dismiss a lawsuit challenging the city’s homeless sweeps program on Oahu.
Filed in July 2023, the ACLU of Hawaii’s lawsuit involving five homeless plaintiffs — Mahelona, et al. v. City and County of Honolulu — had challenged those sweeps and other city “anti-houseless” laws, which the group alleged “unjustly criminalized acts of survival that houseless people have no choice but to perform in public places.”
In August the ACLU filed for a preliminary injunction, arguing that the city’s sweeps of encampments constitute cruel or unusual punishment under the Hawaii Constitution, and asked the court to order the city to stop such targeted enforcement actions to prevent further irreparable harm.
During an October hearing, the court heard testimony from five named plaintiffs as well as others who are homeless.
But by January the court denied the request for a preliminary injunction to halt the alleged unconstitutional practices.
The dismissed litigation follows the U.S. Supreme Court’s June 28 ruling in City of Grants Pass v. Johnson.
The high court’s decision in that case now allows local governments to regulate public property, through laws such as camping ordinances and park closure rules, without violating the constitutional rights to protect against “cruel and unusual punishments” allowed under the Eighth Amendment.
“The Grants Pass decision does not directly impact our local lawsuit, Mahelona,” Taylor Brack, staff attorney for the ACLU of Hawaii, told the Honolulu Star-Advertiser on Monday. “The SCOTUS decision was based in federal constitutional law, and our local plaintiffs’ claims were asserted under state constitutional law.”
She added that “the parties agreed to dismiss this case in light of the 1st Circuit Court’s denial of the plaintiffs’ preliminary injunction motion.”
“Plaintiffs were subsequently denied the opportunity to appeal that denial,” Brack said.
Judge John M. Tonaki granted the formal dismissal. “Each party is to bear its own attorneys’ fees and costs,” the judge wrote. “All claims and parties are dismissed with prejudice, and the dismissal herein is a complete resolution of this matter.”
“There is no monetary settlement,” Scott Humber, the mayor’s communications director, told the Star-Advertiser. “Today’s dismissal of the lawsuit means there are no longer any challenges to any of our actions in addressing the homeless problem on Oahu.”
In a written statement, Mayor Rick Blangiardi said he was “extremely pleased with this outcome.”
“It completely strengthens our ability to enforce these laws to protect our residents and visitors,” the mayor said. “We’ll keep working with all stakeholders to address homelessness and make sure our public spaces remain safe and clean. We are also committed to working with Gov. Green and his team to provide unprecedented resources for helping the homeless, from shelters to permanent housing.”
Still, the ACLU contends federal cases like Grants Pass will indeed have an impact on the homeless.
“The Supreme Court’s ruling in Grants Pass opens the door for cities to ticket, fine, and jail people simply for trying to survive while poor,” Wookie Kim, ACLU of Hawaii’s legal director, said Monday in a written statement. “But just because the court says they can, does not mean cities and counties in Hawaii should. Local efforts to criminalize the unhoused may still violate the Hawaii Constitution.”
He said “Hawaii’s courts have a long history of providing broader protections under our” state constitution.
“Just last spring, the Hawaii Supreme Court ruled in Davis v. Bissen that homeless individuals have a constitutionally recognized property interest in their possessions and are entitled to a fair hearing before the state can seize and destroy their property,” he said.
“Moreover, it’s important to know that sweeps and enforcement of other actions, when applied to homeless people with no other options, may still violate other rights and be challengeable on other legal grounds under our Hawaii Constitution,” Kim said.
The city’s enforcement of the laws continued Monday.
That afternoon, 55-year-old Ronald San Agustin, who is disabled and lives in a tent, said a Honolulu Police Department corporal had just handed him a citation for a “structure on sidewalk” violation, near the John A. Burns School of Medicine on Ilalo Street in Kakaako.
“He came over and said, ‘Is this your tent?’” San Agustin told the Star-Advertiser. “I said, ‘No, I just watch it for a family that’s working. They’re working, and this is the best they can do.’”
He told the Star-Advertiser that “it’s not my tent, but I just took the ticket for the family” — a couple and their three adult children, who were not present when police appeared outside their four tents erected near the medical school.
Noting the heavy presence of canvassing HPD officers in the area that day, San Agustin contended that “we’re not on the sidewalk, we’re on the grass.”
“We’re not blocking anybody,” he said. “And (people) can still come and park; they have access to the parking meter.”
In answer to questions about the city’s response to the homeless, Humber said that “the city and the mayor remain committed to addressing homelessness and finding long-term solutions.”
“Homelessness is not a crime,” he said, “and we will continue to treat those experiencing homelessness with respect and empathy.”
Meanwhile, the problem of those living without shelter has increased over time.
The Star-Advertiser previously reported that based on the latest Point in Time Count data released in May, the number of homeless people on Oahu increased for the second year in a row — to 4,494 in January — with the greatest increase among those considered “unsheltered,” meaning they were not staying in homeless shelters.
The latest figure represents an 11.6% jump from 2023’s count.
According to Humber, the city “is actively initiating alternative solutions to homelessness, such as increasing housing inventory and expanding support services.”
“We have announced the opening of the Leahi Medical Respite, Waikiki Vista, HONU, and Iwilei Center in the last few weeks,” he said. “We are close to opening another Homeless Triage &Respite Center on North King Street in the next couple of weeks that will include 30 kauhale in the parking lot and 34 beds, and an urgent care center inside.”
Two similar projects are “in the works on the North Shore and Central Oahu,” he added.