“The Constitution protects the homeless too.”
That’s the title of a column by Erwin Chemerinsky, dean of the law school at UC Irvine, analyzing a decision of the 9th Circuit Court of Appeals which was recently allowed to stand by the U.S. Supreme Court.
In Lavan v. City of Los Angeles, 2012 DJDAR 12545 (9th Cir. Sept. 5, 2012), the 9th Circuit affirmed a preliminary injunction issued by the federal district court which prevents the city from seizing property in Skid Row absent an objectively reasonable belief that it is abandoned, presents an immediate threat to public health or safety, or is evidence of a crime, or contraband. The injunction also prevents the city from destroying the property, absent an immediate threat to public health or safety, without maintaining it in a secure location for a period of not less than 90 days
Chemerinsky quotes Judge Kim McLane Wardlaw, who wrote the 9th Circuit’s majority opinion:
As we have repeatedly made clear, ‘[t]he government may not take property like a thief in the night; rather, it must announce its intentions and give the property owner a chance to argue against the taking.’ This simple rule holds regardless of whether the property in question is an Escalade or an EDAR, a Cadillac or a cart. The city demonstrates that it completely misunderstands the role of due process by its contrary suggestion that homeless persons instantly and permanently lose any protected property interest in their possessions by leaving them momentarily unattended in violation of a municipal ordinance. As the district court recognized, the logic of the city’s suggestion would also allow it to seize and destroy cars parked in no-parking zones left momentarily unattended.”
The majority opinion concluded:
This appeal does not concern the power of the federal courts to constrain municipal governments from addressing the deep and pressing problem of mass homelessness or to otherwise fulfill their obligations to maintain public health and safety. In fact, this court would urge Los Angeles to do more to resolve that problem and to fulfill that obligation. Nor does this appeal concern any purported right to use public sidewalks as personal storage facilities. The City has instead asked us to declare that the unattended property of homeless persons is uniquely beyond the reach of the Constitution, so that the government may seize and destroy with impunity the worldly possessions of a vulnerable group in our society. Because even the most basic reading of our Constitution prohibits such a result, the City’s appeal is DENIED.
In light of theses legal decisions, it’s hard for me to see how the city’s latest law allowing officials to seize and destroy items left on city sidewalks without prior notice complies with what is now the law of the land. The city’s new law also requires payment of a $200 fee to retrieve any belongings taken. What a sham! That might as well be a $200,000 fee from the perspective of most homeless campers.
Credit to Larry Geller’s DisappearedNews.com for keeping the city’s policies in the public eye, including some revealing video.
As Larry commented in a recent post:
It will sadly take a federal judge to protect the civil rights that we all enjoy, including those without roofs over their heads. And gobs of taxpayer money of course: at $15,000 each time for the raids plus legal fees when a court eventually takes this up. See: Mayor admits huge waste of money in homeless raids (4/3/2013).
“Insanity: doing the same thing over and over again and expecting different results.”–Albert Einstein, (attributed)
I need to end with this observation: the raids have not removed people from the street. Caldwell raids the tents over and over again, spending money, to what end?
That money would be better spent on evidence-based approaches to assisting the homeless to move into permanent living situations—instead of cruelly stealing their possessions from them.
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How much did those planters on King st. cost I wonder, and how much does it cost to shuffle them around chasing the tents?
This is sad and absurd.
Housing first.
Aloha, Laurie. I’m an activist who frequents Thomas Square. The word is that the planters costs $30,000 per-sidewalk. If you total the sum of planters on Beretania and both sides of King, that comes to $90,000. I cannot substantiate these claims, as the City has not publicly released the costs, but this is coming second-hand from a City Hall meeting.
Something to keep in mind too is the costs of planting ficuses and the erecting of fences around Thomas Square, neither of which have been publicly revealed.
“. . . planting ficuses . . .” Wasn’t this part of the beautification project for the Thomas Square anniversary?
As far as trying to help the homeless, it seems the ones that are highly visible tend to be the most comfortable with their situation and often times just plainly refuse any help. I know that the City doesn’t just conduct an emotionless sweep. They bring along people who do outreach to try and encourage these people to take shelter and get help. There are homeless who claim there’s no shelter space available. Yet when the operators of shelters say their facility has space there’s some reason that it’s not acceptable..
The City is helping the homeless by forcing them to accept shelter.
The so-called advocates are hurting the homeless by allowing drugs and mental illness to force them to live on the streets.
Neither you nor Larry Geller seem to acknowledge that some number of the homeless will never accept housing or even tent city-type accommodation under any circumstances, whether due to mental illness or political persuasion or otherwise. What are we to do then? Just shrug, hold our nose, and look the other way as we head to the bank, the museum, or the.symphony?
Whoa.
The issue I’m pointing to has nothing to do with my views of the problem of those without housing.
I’m looking at the legal opinions that are now the law of the land and can’t figure out how the city can defend its current procedures. It’s a related but quite distinct issue.
The court made clear it was not barring any programs to move the homeless. It is demanding due process and other constitutional rights be protected in the process.
As Larry said, I doubt imposing a $200 fee on the homeless as the condition for reclaiming their belongings is going to meet that “due process” criteria.
Please read the decisions and then come back with more comments, please.
Well Ian, if you are really interested in the legal aspects, then lets look at what you left out of your Chermerinsky excerpt:
Even if police have a reasonable belief that the property has been abandoned, there
is no justification for summarily destroying it. The police should be required to keep
it for a period of time to allow it to be claimed. As Judge Wardlaw noted: “As we have
repeatedly made clear, ‘[t]he government may not take property like a thief in the
night….”
The Honolulu ordinance differs from the Los Angeles ordinance in that Honolulu is storing the property to allow for it to be claimed.
This is why the ACLU hasn’t been able to immediately shut down the operation.
With all due respect to your legal based opinion Ian, you don’t live in the neighborhoods where your morning walk is blighted by dozens and dozens of tents, shopping carts and makeshift camps. Imagine if you will the walk you and the Mrs so enjoy daily on the beach had dozens of makeshift camps and trash and the smell of urine and feces….I’m guessing that reality overtime might just even wear you out….we deserve our sidewalks and parks back. How nice it would be for those who live in the neighborhoods effected if their only complaint was a broken picnic table that you recently reported on. The City I think has a plan to try and at least begin to adopt a silolution but at the same time begin to respect those of us who live and play in these areas and give us some relief.
Once again, it’s not “my” legal opinion, it’s the opinion of the 9th Circuit that the Supreme Court declined to review.
The question isn’t how we feel about it, but how a policy can comply with it and still address the problem that you describe quite well.
The homeless issue is becoming as important as fixing roads to the quality of life in urban Honolulu and suburbs in East and Windward Honolulu. So thank you to Ian for staying on top of this issue and it’s many nuances.
After reading this blog post I did some Internet research — okay, I typed words into Google’s search engine — and found this Sept. 2012 article from CivilBeat.com about the 9th circuit court ruling: http://www.civilbeat.com/articles/2012/09/10/17043-federal-ruling-brings-homeless-belongings-ban-into-question/
These appear to be the key article’s grafs:
“But it’s unlikely that the decision will have a direct bearing on Honolulu’s “stored property” ordinance, according to local land use and property rights lawyer Robert Thomas.
Thomas cited “carefully crafted” nuances in the Honolulu law that effectively distinguish its policies from those deemed unconstitutional in the 9th Circuit case.
“It’s not directly applicable, it doesn’t make our ordinance illegal,” he said in reference to the ruling. The ordinance “certainly seems to be shielded up a bit better. It gives the city more ability to address the problem.”
One distinction is that the Honolulu ordinance requires the city to store the property upon seizing it. In Los Angeles, city officials would immediately destroy the belongings, said Thomas.
The Honolulu measure also gives individuals a 24-hour grace period before their belongings are considered ‘stored’ property. Los Angeles officers would “swoop in and grab” a homeless person’s belongings the second it was unattended, according to Thomas.
“The distinction is enough to at least get you away from the situation that the court decided in this L.A. case was unconstitutional,” he said. “What the 9th Circuit found offensive was that it was deemed ‘abandoned’ immediately.”
Still, Thomas — who supports the 9th Circuit decision — said the ruling could have a meaningful effect on how Honolulu officials choose to apply the ordinance.
“It does have a warning sign: You can’t treat people differently because they’re homeless,” Thomas said. “The decision really does emphasize that we should think of property rights as civil rights.””
The September article and opinions refer to Bill 56, which became law last year, required a 24 hour notice, storage, etc.
The city just started enforcing Bill 7, which passed in April. This bill makes it illegal for anyone to construct any “sidewalk nuisance,” e.g., tent, on a sidewalk. Since it is illegal to “construct” these “nuisances,” does that mean Honolulu’s law falls outside of the court’s ruling?
Thank you for the clarification. Very difficult for those not at City Hall everyday to keep track of which bill does what.
You’re welcome, and I agree it’s difficult to keep up.
Wait a minute.
When were those roads “fixed” and just where did that happen? Certainly not in Hilo nor the places I visited on Oahu last May!
“fixing” not fixed.
@rlb_hawaii — Lavan is on point here. The city brings garbage trucks on its raids into which it dumps much personal property and crushes it into rubble. What is taken and stored requires not only a $200 fee to retrieve but a trip to a far-away storage yard to claim.
In any case, seizing the personal property has not apparently removed anyone from the streets. Caldwell admitted the high cost of each raid, and the accumulated cost (for little result) should be of concern to taxpayers.
There is already one case in federal court on behalf of the Occupy encampment that is asking for damages against the City. Again, taxpayers will pay for any settlement, and nothing has been achieved.
Your point is noted.
Oh, the planters (at least on the Beretania St. side of the park where I have measured) are not wide enough for two wheelchairs to pass, and the planters extend the entire length of the block. It’s possible that there could be an ADA lawsuit one day on that also.
Do they legally need to be wide enough for 2 wheelchairs to pass (I’m guessing you mean in the opposite direction)?
People are suffering “tent fatigue” and are about ready to accept any course of action that gets the folks off the sidewalks.
Many people on this blog and elsewhere are saying we need to help these people not confiscate their property. I know that with every sweep team there are social services people who offer help and try to get the homeless off the street and into shelters. However, many refuse. I personally know two homeless people who both refuse to go into a shelter. The help is there, the services are there the shelters are available but for many reasons there are those who refuse help. I have yet to see anyone on this blog or anywhere else offer any viable options for dealing with those who refuse help. My feeling is to offer help to those who want it. But for those who don’t, the community has every right to take whatever measures are necessary to get them off of public property.
Some of the people of Honolulu- I’d say the majority, judging by many comments here and elsewhere- disgust me more than any “smell of urine and feces” or “visual blight” ever could.” Your “shelters” are little more than nightly prisons. It’s up to you to stop whining and find real solutions- stop punishing people and hoping they’ll just “go away.” Dehumanizing the houseless of Honolulu dehumanizes you, not them.
Obviously, you don’t have to experience the “homeless” on a daily basis like some of us. Those of the “homeless” that are just plain bums and drug users hide behind the homeless issue using it to justify their right to do what ever they please.
You don’t live in a neighborhood where families can’t walk the streets after nightfall and whose children are denied the use of public parks because of these “homeless”.
Kirk Caldwell has at least tackled this problem head on in a systematic and reasonable manner to protect the public’s right to use city and county facilities, services, side walks and streets. He has done, in less than 7 months on the job, more than the last three elected Honolulu mayors have done in decades.
Were it my choice, I would have chose more draconian remedies and make it less attractive to those who chose to live outside of society’s rules at the public’s expense.
Caldwell could hardly be more draconian. The tents are on the streets in the first place because that’s the only place left. As to doing “more”, I doubt he has moved many people off the streets at all, while running up a bill for raids that (by his own estimation) should be well over $1 million by now. Plus the cost of planters, as yet unknown.
His plan to help only 75 people into permanent housing is hardly anything, and “Housing First” should have been implemented a decade ago at least, when many other states started their programs.
There will always be some people on the streets. It’s part of urban life. As to “rules”, the rules are that everyone has civil rights, a roof over one’s head is not a requirement in the Constitution.
Before you start citing the small number of people who are “homeless”, take a good hard look at the people you are talking about. Many come from the mainland with no ties to Hawaii and with the expectation that being homeless in paradise is far less mean than on the mainland.
Then there are the drug users and hard core sociopaths who wish to manipulate the “homeless issue” to their benefit. Well, the solution that Kirk Caldwell has crafted addresses some of these dregs of society in a firm and entirely legal manner. Remember, Abercrombie has had three years in office with a “homeless coordinator” and there was no significant change in the homeless situation until Caldwell was elected. Meaningful action trumps rhetoric and good intentions any day.
My solution is a one way ticket to Phoenix and to let Sheriff Joe deal with these hard core homeless.
Wait a minute, many of the homeless “come from the mainland with no ties to Hawaii…”? Did you see the video in the story? Joe and Makalani are obviously not from the mainland.
Some of the homeless are the “dregs of society” but most are just displaced … people with a place they can?t get to. No one seems to mention the cost of housing in Hawaii is … $677,250 for a median single fam home — just checked — which far exceeds the income of the median family (which is about $74,000 a year).
While some of the homeless are mentally ill or the “dregs” as you call them, that isn?t a crime either. Most of the homeless are people that can?t afford private housing. We need alternate housing. Oh hell, we need alternate economy and alternate politics.
If we are putting people on a one-way ticket, I nominate the rich guys and “investors” who are raising the cost of housing here.
You are welcome to place those homeless you feel are “local” in your home if you want to help them so badly. If you look at all the social services and tax dollars spend for the last 20 years to help the homeless, it hasn’t been for the lack of many people’s efforts at trying to help these people.
Granted, there are local folks that are totally unable to cope with the economic realities of modern day Hawaii. However, the solution is not to allow them to impede the rights of other citizens the right to use public facilities or sidewalks. There are adequate alternative housing available to them. It is their choice not to take advantage of them for one reason or another.
Ultimately, if one cannot make it or survive in the economic reality of modern Hawaii, people are free to leave Hawaii and have 49 other states to reside in. No one is guaranteed or given the right to live any way they want, that is why we have laws to live by.
Is it a “crime” that a young boy cannot go to the local park to play any more because the restrooms have been taken over by the “dregs” of society? The simple answer is “Yes”, in my view. Many public bathrooms are locked at night in Waikiki, simply to prevent those same “dregs” from destroying the facilities or attacking some drunk tourist who actually feels “safe” in Hawaii.
You say, “if one cannot make it or survive in the economic reality of modern Hawaii, people are free to leave Hawaii and have 49 other states to reside in.” The people who feel so threatened by homeless people in their area have to face the fact that they live in economically challenged neighborhoods.
If they are so offended by having to share public facilities with poorer members of the public, they ought to just ante-up and move to a richer neighborhood. They could move to Hawaii Loa Ridge gated community where there are no homeless people. Speaking of which there is a public park area at the top of the ridge that to my eye looks perfect for baby luaus and other such events.
Stay tuned for invitations.
You are totally misguided and unrealistic in what is really happening. “Sharing” public facilities is not equal to “denying” the public the right to use the taxpayers funded and maintained facilities. When a child is denied the use of toilet because it is “occupied” or even destroyed by a homeless person, that is not “sharing”.
You are utterly without any grip on the real situation that is taking place in the communities that are burdened by this problem. I pay my taxes and I don’t have to move to a gated community to enjoy the rights and benefits of a citizen of Hawaii to enjoy its public services and facilities.
If you don’t like what is happening in Hawaii, you are free to leave any time you want as far as I am concerned. No one person or government owes you or your “occupied” pals anything except the rights everyone else enjoys, no more and no less.
For me, I am staying right here and will support the efforts of the Caldwell administration in addressing this problem.
We finally agree on most points.
You say, ” ?Sharing? public facilities is not equal to ?denying? the public the right to use the taxpayers funded and maintained facilities.” Agree. All should be able to share public facilities, even the poor.
“I don’t have to move to a gated community to enjoy the rights and benefits of a citizen of Hawaii to enjoy its public services and facilities.” Agree. Rich and poor alike should be able to enjoy the rights and benefits of a citizen of Hawaii.
“If you don’t like what is happening in Hawaii, you are free to leave any time you want as far as I am concerned.” Agree. You can leave any time you want.
“No one person or government owes you or your “occupied” pals anything except the rights everyone else enjoys, no more and no less.” Agree. My “occupied pals” are waiting for the Federal Court to determine if they and Honolulu?s poor and homeless have the right to property and free speech that everyone else enjoys.