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, according to a lawsuit filed Wednesday in Oahu Circuit Court by the American Civil Liberties Union of Hawaii.

The lawsuit follows a victory this month in Washington state by a sister ACLU organization that got some of Seattle’s homeless policies ruled unconstitutional because they violated that state’s prohibitions against cruel and unusual punishment, said Jongwook “Wookie” Kim, legal director for the ACLU of Hawaii.

The 9th Circuit Court of Appeals has made similar rulings in Idaho, according to Kim.

The lawsuit, which was filed by the ACLU and the civil rights law firm of Goldstein, Borgen, Dardarian & Ho, names five homeless plaintiffs but also is aimed at protecting Oahu’s more than 2,300 estimated unsheltered homeless.

Among a host of city laws, the ACLU particularly wants Honolulu’s sit-lie ban, park closure rules, camping prohibition in city parks, and the 11-year-old sidewalk nuisance and stored property ordinances ruled illegal and unconstitutional in Circuit Court.

“These laws are routinely weaponized against houseless people,” Kim said.

In 2014, the ACLU failed in U.S. District Court to overturn the city’s homeless sweeps.

Wednesday’s lawsuit asks for no monetary award.

“We understand that a lawsuit has been filed and the Department of Corporation Counsel is reviewing the allegations and cannot comment at this time,” said city spokesperson Ian Scheuring in an email.

The Walmart at Fort Street Mall in downtown Honolulu, which closed in April, frequently saw homeless people occupy its bathrooms and shoplift on their way out, according to various reports, sometimes threatening employees and customers.The closure has led to ongoing fears that illegal homeless activity will increase downtown.

Sherry Menor-McNamara, CEO and president of the Chamber of Commerce Hawaii, said that a potential court ruling prohibiting the city from enforcing its homeless laws could have “unintended consequences” for the chamber’s approximately 1,500 members across Oahu.

“Local businesses are still facing challenges from the pandemic when they had to close their doors, whether foot traffic, sanitation issues, potential losses in revenue,” Menor-McNamara said. “The lawsuit underscores the continued challenges and the need to improve the homeless situation … and support local businesses to keep their doors open, while ensuring dignity and respect” for Honolulu’s homeless.

The Legislature and Gov. Josh Green took “bold steps” this year to address homelessness and affordable housing, Menor-­McNamara said. As an alternative to lawsuits banning homeless enforcement, she said more work needs to continue to find realistic solutions.

“We need more concerted discussions,” she said. “We’re going to see more of that, I’m sure.”

Two of the five homeless plaintiffs — Faimafili Tupuola and Jared “Spider” Castro — appeared at an ACLU news conference Wednesday announcing the lawsuit. Over the past three years, all five plaintiffs have been issued between three and 231 citations “and several have been arrested multiple times,” according to the lawsuit.

All of them prefer the term “‘houseless’ to the more stigmatizing label ‘homeless,’” according to their lawsuit.

“Oahu, I’ve been raised here. This is my home,” Tupuola said. “I’m not homeless. I’m houseless.”

Homeless people who are forced to move from sidewalks frequently have critical property confiscated, including IDs, medications and personal hygiene products, according to the lawsuit.

“I’ve lost a lot, especially in these sweeps,” Tupuola said. “… Every time, starting over again, it really, really, really takes a toll.”

Tupuola teared up and said she’s been trying to save money for a permanent place to live but the constant seizure of her personal property makes it harder.

Castro said sweeps have cost him wheelchairs, two mopeds, a vehicle donated by a nephew and medical supplies that left him to push his late wife in a shopping cart to get medical attention, which he called “very demoralizing.”

If he had the money, it would cost Castro $200 to rent a truck to retrieve their seized belongings, he said.

The three other homeless plaintiffs are Gina Mahelona, Desmond Canite and Michael David Bryan.

The lawsuit claims Honolulu’s homeless laws are vague and overly broad, echoing arguments made by the Washington state chapter of the ACLU.

Seattle uses the term “obstructions” to justify clearing out homeless encampments.

King County Superior Court Judge David Keenan ruled that the term is overly broad, making some of the property removals unconstitutional, while removing other obstructions was justified, KUOW Public Radio reported last week.

KUOW quoted a portion of Keenan’s ruling that Seattle’s policies “do constitute cruel punishment to the extent that they rely on the overbroad ‘obstruction’ definition, because that definition allows the city to move unhoused people who are not actual obstructions, without offering unhoused people shelter.”

The Seattle Times reported that the city plans to appeal the ruling.

The Honolulu lawsuit also claims Honolulu’s sit-lie ban, sidewalk nuisance ordinance and other laws aimed at the homeless “are rarely, if ever, enforced against housed individuals — even though they would squarely apply to a tourist napping on Waikiki Beach, a business person who has stopped to take a cellphone call in the middle of Fort Street Mall, or a hiker sitting on the sidewalk by the Koko Crater railway trailhead. Instead, they are used to justify a campaign of criminalization, harassment, displacement, and property dispossession targeted exclusively at the houseless community.”

Data collected by the annual nationwide homeless census, the Point in Time Count, shows that Native Hawaiians comprise 19% of Oahu’s general population but make up 28% to 37% of the island’s homeless, according to the lawsuit.

At the same time, according to the lawsuit, there are only between 20 and 50 available shelter beds for the unsheltered Oahu homeless population estimated at 2,365 people on any given day.

Filed Mahelona v. City and County of Honolulu by Honolulu Star-Advertiser on Scribd