City and County of Honolulu Corporation Counsel Donna Leong issued the following statement today in response to a lawsuit filed by the American Civil Liberties Union of Hawai‘i Foundation:

“The Department of the Corporation Counsel will defend the city in this lawsuit vigorously. In other challenges, federal courts have upheld the constitutionality of the Stored Property and Sidewalk Nuisance Ordinances. The ordinances support the safety, health, and welfare of all residents of the City and County of Honolulu and the city believes the ordinances will survive the current challenge.

“The city will continue to enforce the Stored Property and Sidewalk Nuisance Ordinances.”

The American Civil Liberties Union of Hawaii Foundation (ACLU) and the law firm of Alston Hunt Floyd & Ing filed a class-action lawsuit today against the City and County of Honolulu in federal court. The lawsuit alleges that the city violated the United States Constitution when it destroyed personal property belonging to the plaintiffs—who are or have been homeless—without due process of law.

The lawsuit alleges that instead of impounding and storing seized property and giving adequate opportunity to reclaim the items, property seized by city officials was instead immediately destroyed. The lawsuit also alleges that no notice, receipt, or information regarding how property might be recovered was given to the plaintiffs.

The lawsuit seeks stop the city from violating the plaintiffs’ constitutional rights; end the practice of destroying personal property without following procedures; and to require the city to pay damages and attorneys’ fees.

In one unannounced sweep in Kakaako, on November 13, 2014, city officials allegedly seized and destroyed plaintiffs’ property, including their food, childrenʻs toys, prescription medications and government identification documents. In some cases, entire tents, obviously filled with personal belongings, were thrown into a waiting garbage truck and crushed. City workers have repeatedly refused to allow property owners to retrieve necessary personal belongings like medications and identification documents, instead threatening them with arrest if they interfere with the sweep. The lawsuit alleges that the city continues to violate the Constitution in its sweeps by announcing that it will immediately destroy certain items (like tarps and perishable food) and that it will arrest anyone who gets in the way.

“The Fourth and Fourteenth Amendments prohibit the government from seizing a person’s property and destroying it without due process, but that’s exactly what happened to the plaintiffs,” said attorney Kristin L. Holland, of counsel with the law firm of Alston, Hunt, Floyd and Ing. “We will seek all available remedies for our clients, and will work to ensure that these violations do not recur.”

“The Constitution protects us all equally, regardless of who we are and whether we are rich or poor,” said ACLU Hawaii Legal Director Dan Gluck. “Using arrests to solve homelessness and destroying what little property a homeless individual has to survive is contrary to a fair and just community. All these policies do is set families back and makes it harder for them to build productive lives.”

“Like many people here, my husband and I are working hard. Weʻre saving up for a small apartment for us and our four-year-old daughter,” said Tabatha Martin, one of the plaintiffs. “Every time the city comes and throws away our tents, or our clothes, or our IDs, they throw away our lives. We have to start all over again and pay to replace those things. All of our savings are used up, keeping us on the street even longer.”

The American Civil Liberties Union of Hawaii Foundation and the law firm of Davis Levin Livingston, today, announced a settlement of a lawsuit that challenged Hawaii County laws prohibiting individuals from holding signs asking for help. As a result of the settlement agreement, the Hawaii County Council amended seven different subsections of the Hawaii County Code (Hawaii County Code §§ 14-74, 14-75, 15-9, 15-20, 15-21, 15-35, and 15-37), including laws that had unconstitutionally restricted “solicitation” (a form of speech protected by the First Amendment).

Attorney Matthew Winter of Davis Levin Livingston, said: “The right of free speech applies with equal force to an unsheltered person asking for help as it does to a politician asking for votes. The government cannot suppress speech it does not like—the ability to freely express oneself is the heart of our democracy. Today’s settlement is a victory for all residents of and visitors to Hawaii County, because it is a victory for the most fundamental of our civil liberties.”

In late 2014, United States District Court Judge Susan Oki Mollway entered a temporary restraining order against Hawaii County prohibiting Hawaii County from interfering with Plaintiff Justin Guy’s right to hold a sign by the side of the road. In ruling that Hawaii County Code § 14-75 ran afoul of the right to free speech, Judge Mollway wrote that “it is unclear why public safety cannot be addressed with less restriction than section 14-75 imposes.”

On June 3, 2014, Mr. Guy held his sign saying “Homeless Please Help” while standing to the side of Kaiwi Street in Kailua-Kona. A Hawaii County Police Department (HCPD) officer cited Mr. Guy for violating Hawaii County Code § 14-75, which prohibited solicitation for money in a wide range of public places in the County. The criminal charges against Mr. Guy were eventually dismissed, and the lawsuit was brought to protect the constitutionally guaranteed free speech rights of people in Hawaii County. As part of the settlement of the case, Hawaii County repealed multiple code provisions that criminalized solicitation and begging, and will pay $80,000 in attorneys’ fees, costs and damages. The county also fixed several other code provisions dealing with free speech and protests, so that now:

- small groups (smaller than 75 people) no longer need a permit to hold free speech activities in county parks;

- larger groups (larger than 75 people) wishing to hold free speech activities in county parks on short notice (for example, in response to a breaking news story) may do so without having to obtain a permit 20 days in advance. Instead, the group can simply notify the county of the planned demonstration;

- “offensive” speech, by itself, is no longer a crime (unless the speech is “likely to provoke a violent response”—which is not protected by the First Amendment.).

- solicitation of support and donations is no longer a crime.

Plaintiff Justin Guy said, “The County of Hawaii should treat homeless people with dignity, and recognize that we have constitutional rights—including the right to free speech—just like everyone else.”

ACLU Legal Director Daniel Gluck said: “This lawsuit and settlement are important, because they show that the law must be applied equally to everyone. When a politician or police officer can wave a sign on the road asking for the public’s support, but a poor person faces criminal charges for the exact same conduct, that is wrong. The Constitution protects everyone equally, and the ACLU will continue to fight to ensure that everyone is treated equally under the law regardless of their economic status”

Image: a houseless woman packs up her belongings before being bused to Lighthouse Shelter in Waipahu | Governor’s Office

Reporters need to stop using the line that homeless people “do not like the rules” as the reason for low turnout at shelters. While that may be somewhat true in some sort of vague, blanket statement, what it ultimately does is undermines all of our efforts to get the community involved in actually helping people.

“They don’t like the rules” implies that the homeless are, instead, seeking a life of anarchy, turning many ordinary folks off to trying to help them. No one wants to help someone that is totally rebellious. It makes all of our jobs harder in seeking donations, support, volunteers and, ultimately, helping people.

It’s not just reporters though. When being interviewed, we in the service community need to, instead, name specific rules and issues that are not compatible and explain why people refuse particular shelters. For Instance, Lighthouse in Waipahu—where the governor recently announced 13 Kakaako homeless were transported by a city bus to receive needed services and temporary housing—does not have showers. It also has an early curfew that can make working a job difficult. If more people knew that these are the specific reasons why some people do not want to stay at Lighthouse, it might provoke sympathy from the larger community rather than scorn. Heck, maybe we could even raise enough money to help pay for the installation of showers.

Every facility has a unique set of rules, and some of those rules are not going to be compatible with every person seeking services. One of the most common rules is “No Pets.”  I know a number of people that will never give up their pet. Naming that as a specific rule/obstacle might help get more support for k9 Kokua and other organizations, and even help in getting shelters to set aside space for animals, or getting people to volunteer to care for animals while their owners are trying to get their life put back together.

The bottom line is. Saying “they don’t like the rules” does not help any of us. It is counterproductive. Naming specific obstacles, on the other hand, creates a call for action on how to overcome those obstacles.

Curtis J. Kropar is the Executive Director of nonprofit Hawaiian Hope, which provides technology services to other nonprofit organizations.