A federal judge has ordered the city to make notification changes in the enforcement of the city’s sidewalk nuisance ordinance and directed the return of belongings seized from two members of the protest group (de)Occupy Honolulu.
U.S. District Judge Leslie Kobayashi granted a preliminary injunction to Cathy "Sugar" Russell and Terry Anderson for violating their due-process and Fourth Amendment rights during a series of raids from July to September at (de)Occupy Honolulu’s Thomas Square encampment.
However, Kobayashi also ruled that the plaintiffs are unlikely to prove that the sidewalk nuisance ordinance is unconstitutional on its face, and she did not prevent the city from continuing enforcement of the law.
"The city is very pleased with the court’s decision," said Jesse Broder Van Dyke, spokesman for the city.
The injunction, issued Nov. 29, orders the city to provide targeted homeless with notice that confiscated "necessities" — important personal items needed for survival and functioning in society, such as medications — can be reclaimed without a fee or hearing.
Notification must also be given regarding rights to seek a waiver of a $200 fee required for the return of all the other seized items, the judge ordered.
In their request for an injunction, Russell and Anderson sought to prove the city violated their First Amendment rights to protected speech and related activities and that the city intended to chill those rights. But the judge concluded it was unlikely they would succeed on the merits of the claim.
In her ruling, Kobayashi said the public has a legitimate interest in being able to safely use public sidewalks and to be free from nuisances on those sidewalks.
"The public, however, also has an interest in ensuring that the city enforces (the law) in a constitutional manner," the judge wrote. Therefore she would issue only a limited preliminary injunction that would not block the city from continuing to enforce the law, she said.
Christopher Nova Smith, a representative of (de)Occupy Honolulu, described the ruling as a victory for the group that has occupied Thomas Square since fall 2011, protesting various government and private business practices.
Smith said the injunction allows the lawsuit to move forward and provide a continued spotlight on the "unconstitutional, illegal raids" that have occurred under the law.
The ordinance, approved by the City Council in the spring, allows the city to clear sidewalks of any tents, furniture, sleeping bags or items without any more than a few minutes’ notice to those who own the items.
The suit, filed in U.S. District Court on Sept. 19, claims that Russell and Anderson were subjected to "a continuing assault" on their property, due-process rights and First Amendment rights.
The law requires the city to retain seized property for a minimum of 30 days to allow owners to claim items if they pay a $200 removal, storage and handling fee. The ordinance also allows a property owner to contest the seizure by submitting a written request for an appeals hearing.
But the lawsuit accuses the city of failing to respond to such requests made by (de)Occupy members.
The County Council approved the law to address complaints raised over access to city sidewalks impeded by tents and other objects.
City officials have seized items from (de)Occupy Honolulu’s Thomas Square encampment more than a dozen times since the end of July, according to the suit.
The raids have also occured at other areas where the homeless congregate, including parks, pedestrian malls and sidewalks in Pawaa, McCully-Moiliili, Kakaako, Iwilei and Chinatown.
Smith said (de)Occupy organizers are now spreading out to other parts of the city to inform the homeless of their rights under the law. He said they’re also urging the homeless to take video of the seizures where possible to document potential abuses.
"Their violent behavior to attack the homeless is all because of the city’s inability to help the homeless overcome their problems," Smith said.
