ACLU hopes Supreme Court homeless win helps Honolulu case

The American Civil Liberties Union of Hawaii hopes its victory before the Hawaii Supreme Court over Maui County homeless sweeps will bolster its case against Honolulu when its lawsuit over Oahu’s homeless policies goes to trial in October.

In July the ACLU — and the civil rights law firm of Goldstein, Borgen, Dardarian &Ho — filed a lawsuit alleging that Honolulu’s homeless sweeps and other “anti-houseless” laws should be ruled illegal and unconstitutional because they violate Hawaii’s state constitutional prohibitions against cruel and unusual punishment.

The ACLU particularly wants Honolulu’s sit-lie ban, park closure rules, camping prohibition in city parks and the 12-year-old sidewalk nuisance and stored property ordinances ruled illegal and unconstitutional in Circuit Court.

In an earlier, separate lawsuit against Maui County filed by the ACLU, the Hawaii Supreme Court wrote last month that the due process clauses of both the U.S. and Hawaii Constitutions required Maui County to hold a hearing before seizing — and immediately destroying — homeless property in September 2021.

Taylor Brack, staff attorney for the ACLU of Hawaii, told the Honolulu Star-Advertiser on Monday that the Hawaii Supreme Court’s ruling over its Maui lawsuit likely will help its case against Honolulu.

While the issues are different — the Maui case focused on violations of due process and the Honolulu case alleges cruel and unusual punishment — Brack said both lawsuits focus on “the constitutional rights of houseless people. So I do think there is a connection.”

City spokesperson Scott Humber told the Star-Advertiser in an email that the “ACLU Hawaii filed a motion for interlocutory appeal, asking the Court to allow them to immediately appeal the decision on the preliminary injunction. The Court denied this request, so the parties are proceeding to prepare for the permanent injunction proceeding. The City anticipates that Plaintiffs will file a motion to certify the case as a “class action” shortly, which the City will vigorously oppose.”

Asked for comment about the Supreme Court’s ruling regarding the Maui sweep, Humber said that “The Hawaii Supreme Court in its recent ‘homeless’ decision involving the County of Maui recognized that the City and County of Honolulu has a constitutionally sound pre-and post-deprivation process that addresses the concerns raised by ACLU Hawaii against the County of Maui’s ‘take and destroy’ process. The City is confident that a similar challenge to Honolulu’s ordinances on the grounds presented in the Maui County case would not succeed and will continue to pass constitutional scrutiny as decided by Circuit Court and recognized by the Supreme Court.”

On Monday the ACLU celebrated its Hawaii Supreme Court victory over the 2021 Maui County sweep. County officials had ignored multiple requests for contested case hearings before destroying property belonging to the homeless.

Maui County had argued “it did not need to conduct a contested case hearing because such a hearing was not required by administrative rule, by statute, or by constitutional due process,” according to the Supreme Court’s ruling.

But the court wrote that Hawaii’s Constitution states, “No person shall be deprived of life, liberty or property without due process of law. … The Fifth Amendment to the United States Constitution similarly states, ‘No person shall be … deprived of life, liberty, or property, without due process of law …’”

“Today, we hold that unabandoned possessions of houseless persons constitute property protected by the due process clause of Article I, Section 5 of the Hawai‘i Constitution,” the court wrote in its decision.

Destroying homeless possessions immediately also represented “a decision the County cannot reverse,” the court said.

The court’s decision upheld an earlier ACLU win on behalf of its plaintiffs in Maui’s Second Circuit Court, which Maui County then appealed to the Supreme Court.

Maui County spokesperson Laksmi Melelani Abraham told the Star-Advertiser that, “The County respects the decision of the Hawaii Supreme Court and the concerns that motivated it. The County does not plan to appeal the Court’s decision and rather will review its policies to ensure that they comply with the Court’s ruling and our obligations to protect the rights of all of Maui’s citizens.”

The ACLU’s victory in what the Hawaii Supreme Court called the “Kanaha Sweep” represents the latest favorable court ruling against policies in western states toward clearing out encampments and other actions intended to address homelessness.

Last year the 9th U.S. Circuit Court of Appeals affirmed a lower-court ruling blocking anti-camping ordinances in San Francisco.

And a separate 9th Circuit panel ruled against Grants Pass, Ore., saying it could not enforce local ordinances that made it illegal for homeless people to use “blanket, pillow, or cardboard box for protection from the elements.”

The decision applies across nine states including Hawaii, Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington.

The U.S. Supreme Court in January said it will hear arguments in the Grants Pass case.

In the Maui case, the Hawaii Supreme Court found that Maui County ignored written contested case hearing requests from some occupants of a “large” homeless encampment on Amala Place near Kanaha Pond and the Wailuku-Kahului Wastewater Treatment Plant.

The “Kanaha Sweep,” as the Supreme Court called it, grew out of similar concerns behind other homeless efforts across Hawaii that continue to challenge law enforcement and government officials.

“The Court acknowledges that Defendants (Maui County) may have important interests in public health, safety, and the maintenance of its public spaces, but on balance they do not outweigh the significant private interests at stake,” the court wrote.

The county also argued that people “have no right to indefinitely store personal items on public land after receiving notice that the County intended to clear its property,” the court said.

But the court found that “these costs do not justify infringing the basic constitutional rights of homeless individuals.”

The administration of then-Maui Mayor Michael Victorino had been trying to get the members of the encampment to move off public land and into shelters, the Supreme Court found.

“Mayor Victorino was concerned about the upcoming rainy season and believed it was not compassionate to allow people to continue living among mounds of rubbish, human waste, and used syringes,” the court wrote in its March decision.

The county also argued that “it had a substantial and compelling interest in keeping the Kanaha property clean and safe to avoid liability for failure to police its property,” the court wrote. “It also asserted its interests in accessing the wastewater treatment facility and bird sanctuary on the property.”

Scott Fretz, the Maui branch manager for the state Department of Land and Natural Resources’ Division of Forestry and Wildlife “stated that Kanaha a Pond was an important breeding site for numerous species of endangered waterbirds,” the court found. “The fence around the pond had been vandalized, syringes and other hazardous waste littered the area, and his staff had been harassed and threatened.”

Eric Nakagawa, the director of Maui’s Department of Environmental Management, “stated that his staff had reported individuals blocking the roadway entrance to the Kahului wastewater treatment plant on Amala Place, starting verbal arguments, and jumping on a truck during an incident in which police were called,” the court wrote.

But Hawaii courts have concluded “that homeless individuals have a property interest in possessions, such as tents, tarps, blankets, and medications, even when these possessions are kept in a public space,” the court wrote.

Some of the items seized by Maui County included necessary items “used as shelter and life-sustenance” including one woman’s “pots and pans, tents, a canopy, folding tables, diapers, a stroller, a playpen, a baby’s car seat, her sister’s two vehicles, and her niece’s two vehicles,” the court found.

ACLU client Sonia Davis said in a statement Monday that, “For me, the sweep has been a huge stress. During the sweep, I felt like I was a target. The police officers involved in the sweep were so intimidating. I was terrified by their threats to take me to jail. I felt like I had no choice but to leave everything behind. That day, the County destroyed my vital documents, my vehicles, and even my grandchildren’s baby pictures. Even though we won the case I still feel hurt. It’s always going to be with me. But with this case, I finally got to be heard. And hopefully this never happens to others living on the streets; whatever they have left shouldn’t be taken away.”

The Supreme Court found flaws in Maui County’s multiple notices and press releases announcing the impending sweep, starting with the first notice on Sept. 14, 2021, ahead of the actual sweep that occurred from Sept. 20 to Sept. 24.

The notices gave no information on how people could retrieve their possessions, nor said they would be immediately destroyed, which Maui County did, the court found.

“The method for providing notice and procedures Defendants (Maui County) used did not afford Plaintiffs with the ability to meaningfully challenge the Kanaha Sweep and the taking and destruction of their property,” the court found.

“… The notice to vacate contained no information on who to contact to challenge the sweep,” the court concluded. “It also contained no information as to what would happen to the personal property cleared from the premises. The notice, however, did contain contact information and a list of services offered to houseless individuals by Mental Health Kokua, Ka Hale I Ke Ola, Family Life Center, and the Salvation Army.”

The court found that homeless people had sent “written requests for contested case hearings before the sweep, but the County did not act upon the requests.”

One of the plaintiffs met with Mayor Victorino, who assured her “that property wrapped in duct tape or caution tape would not be seized by police. It was,” the court found.