Russell v. City of Honolulu
| Decision Date | 29 November 2013 |
| Docket Number | CIVIL 13-00475 LEK-RLP |
| Parties | CATHERINE RUSSELL; TERRY ANDERSON; (DE)OCCUPY HONOLULU; AND JOHN DOES 1-50, Plaintiffs, v. CITY AND COUNTY OF HONOLULU; JOHN DOES 1-50, Defendants. |
| Court | U.S. District Court — District of Hawaii |
Before the Court is Plaintiffs Catherine Russell ("Russell"), Terry Anderson ("Anderson"), and (De)Occupy Honolulu's (collectively "Plaintiffs") motion for preliminary injunction ("Motion"), filed on September 19, 2013.1 [Dkt. nos. 5-9.] Defendant the City and County of Honolulu ("the City") filed its memorandum in opposition on October 7, 2013, and Plaintiffs filed their reply on October 15, 2013.2 [Dkt. nos.15, 16.] This matter came on for hearing on October 28, 2013. Appearing on behalf of Plaintiffs were Brian Brazier, Esq., and Richard Holcomb, Esq., and appearing on behalf of the City were Ernest Nomura, Esq., and Dawn Spurlin, Esq. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Plaintiffs' Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.
This case arises from the City's summary removal of property from (De)Occupy Honolulu encampment that the City has deemed as sidewalk-nuisances. Plaintiffs seek a preliminary injunction to prevent the City from summarily confiscating their property pursuant to Chapter 29, Article 16 of the Revised Ordinances of Honolulu ("Article 16" and "ROH"). For the reasons more fully stated below, Plaintiffs' Motion is GRANTED insofar as this Court HEREBY ENJOINS the City from violating Plaintiffs' procedural due process and Fourth Amendment rights in its enforcement of Article 16, and orders the City to (1) return all removed items identified in the Declaration of Catherine Russell in Support of Motion, filed 9/19/13 (dkt. no. 8) ("Russell Declaration"), and its exhibits, to Russell; (2) return all of the removed items identified in the Declaration of Terry Andersonin Support of Motion, filed 9/19/13 (dkt. no. 9) ("Anderson Declaration"), and its exhibits, to Anderson; (3) revise its form Summary Removal Notice, and any other similar notices, to include notice to the property owner of the right to reclaim necessities without a fee and without a hearing, as well as notice of the right to seek a waiver of the fee for the remaining items from the hearings officer; and (4) to the extent that property owners are present at the time of removal of items pursuant to Article 16, provide oral notice to the property owners of the right to reclaim necessities without a fee and without a hearing and the right to seek a waiver of the fee for the remaining items from the hearings officer. The Motion is DENIED in all other respects.
On September 19, 2013, Plaintiffs filed their Complaint for Deprivation of Civil Rights, Damages, Declaratory and Injunctive Relief ("Complaint") against the City. The action arises from the City's numerous raids upon the (De)Occupy Honolulu encampment. [Complaint at ¶ 2.] Plaintiffs allege that:
During those raids, numerous items of Plaintiffs' personal property have been seized, stolen by Defendants, and/or destroyed. These raids were conducted without notice. Defendants ransom the seized property for $200 or, aggrieved property owners may request a hearing. Yet, when Plaintiffs requested hearings as directed on theback of the post-seizure notice, they have received no response.
[Id. at ¶ 3.] The City relies on "Bill 7," which was enacted and codified as Article 16,3 as authorizing the summary confiscation of Plaintiffs' property and other similar property. Plaintiffs allege that Article 16 is unconstitutional on its face and as applied to Plaintiffs. Further, Plaintiffs contend that, even assuming, arguendo, that Article 16 is constitutional, the City regularly disregards certain provisions of Article 16. [Id. at ¶ 5.]
Russell is member of (De)Occupy Honolulu. She is homeless and, for more than a year, she has periodically resided at the (De)Occupy Honolulu encampment. Anderson is also a member of (De)Occupy Honolulu. He is not homeless, but he regularly stays at the encampment as an act of protest. [Id. at ¶¶ 11-12.]
Plaintiff (De)Occupy Honolulu is an unincorporated association comprised of a wide range of people from widely varying economic, social, and ethnic backgrounds. Its purpose is to condemn, protest and advocate against social injustices, including legal, governmental and social policies victimizing the homeless population of Honolulu and throughout Hawaii. Much like other "Occupy Wall Street" affiliated groups which have and continue to maintain a presence in most major American cities, its members attempt to further these purposes by maintaining a constant public vigil, conducting organized demonstrations, and erecting signs expressing their political views to be viewed by the public. . . .
[Id. at ¶ 13.] Plaintiffs also allege that (De)Occupy Honolulu maintains communal property at the encampment, and some of the property that the City seized and destroyed was (De)Occupy Honolulu's communal property. Plaintiffs therefore assert that the organization itself, and its members individually, have been injured by the raids. [Id.]
The Complaint alleges that Article 16, in combination with Bill 39 (enacted and codified as ROH Chapter 29, Article 18 ("Article 18")),4 Bill 54 (enacted and codified as ROH Chapter 29, Article 19 ("Article 19")),5 Haw. Rev. Stat. § 708-814.5, ROH § 10-1.2(a)(12)-(14), (b)(9), and ROH § 10-1.6(d), effectively criminalizes homelessness. [Id. at ¶ 17.] Plaintiffs allege that, "[i]f homeless citizens move out of the parks to the only other place available to them, i.e., the sidewalks, the City has subjected those vulnerable citizens to having all of their worldly assets summarily seized and ransomed for $200 . . . ." [Id.] Plaintiffs argue that $200 fee is "extraordinarily high[,]" usually exceeds the value of the seized property, and appears to be unrelated to the actual cost of the seizure process. Plaintiffs contend that the fee "was arbitrarilyassigned and operates to punish homeless citizens for homelessness." [Id. at ¶ 22.]
ROH § 29-16.3(a) states that sidewalk-nuisances are subject to summary removal, but ROH § 29-16.3(b)(2) requires the Director of the Department of Facilities Management ("the Facilities Director" and "the Facilities Department") to store the property for at least thirty days and to provide post-seizure notice. The ROH § 29-16.2 definition of a "sidewalk-nuisance" includes "any object or collection of objects . . . ." Plaintiffs emphasize that Article 16 does not define the term "collection of objects" and leaves that term "to the arbitrary discretion of city officials." [Complaint at ¶ 20.] ROH § 29-16.6 creates exceptions from the definition of a "sidewalk-nuisance," including objects or collections of objects smaller than forty-two inches by twenty-five inches by forty-three inches, provided that they also meet certain other requirements. Plaintiffs argue that there are no known tents that would meet the size requirements for the ROH § 29-16.6(1) exception, but, besides Plaintiffs' tents, "many or all of the objects seized in this case met the criteria of ROH § 29-16.6." [Complaint at ¶ 20.]
Plaintiffs also point out that only persons who have a current mailing address can file a written request for a hearing to contest the seizure, and the only issues appealable in thehearing are whether the City properly removed the items and whether the City properly assessed the fee pursuant to Article 16. If the Facilities Director rules in favor of the City, the property owner has only seven days to pay the $200 fee, or the City destroys or sells the property. [Id. at ¶ 22 (citing ROH § 29-16.3(d)).] Plaintiffs also argue that, pursuant to the rules governing the hearing procedure, which the Facilities Director adopted and the mayor and corporation counsel approved ("the Hearing Rules"),6 the Facilities Department can elect not to hold the hearing at all. In addition, the Facilities Department cannot hold the hearing until at least seven days after the petitioner receives notice of the hearing, and the Facilities Department has up to 120 days to hear and dispose of the appeal. The petitioner has the burden of proof and the burden of production to establish grounds to waive the $200 fee. [Id. at ¶¶ 23-24 (citing Hearing Rules §§ 14-5-9, 14-5-11(a), 14-5-21, 14-5-23(a)).]
Plaintiffs argue that the time periods involved in the hearing procedure violate their due process rights, and they emphasize that "the property seized includes but is not limited to: food, medication, shelter, clothing, money, instruments used in earning income, and basic hygienic products." [Id. at ¶ 25.]
The Complaint describes an unnoticed raid on July 25, 2013 of (De)Occupy Honolulu's camp at Thomas Square at about 10:40 p.m. City officials seized property inside and outside of tents without giving owners the opportunity to remove property from the area. Plaintiffs argue that, even assuming arguendo that ordinance is valid, many of the items seized fit within the ROH § 29-16.6(1) exception and should not have been seized. Anderson was the custodian of the (De)Occupy Honolulu property seized during that raid. He has been attempting to retrieve the property from the City, but has been unable to do so. Plaintiffs argue that it is unclear whether each item taken is deemed a separate sidewalk-nuisance or whether groups of items taken during the same raid constitute separate nuisances. The fee could be as low as $200 for all of the items taken during the July 25, 2013 raid, or as high as $15,800 if each item is a separate nuisance. [Id. at ¶¶ 24-31.7]
The Complaint describes a similar raid on July 31, 2013 at about 4:15 a.m., another raid on August 2, 2013 at about 4:24 a.m., and Anderson's similar inability to...
To continue reading
Request your trial