Federal Ruling Brings Homeless Belongings Ban Into Question
09/10/2012
Michael Levine/Civil Beat
The U.S. 9th Circuit Court of Appeals, ruling in a Los Angeles case, recently said it is unconstitutional for the government to seize homeless people's temporarily unattended property.
But what does that mean for Honolulu's ordinance that prohibits people from leaving their stuff in public areas?
Hawaii is under the 9th Circuit's jurisdiction, but Honolulu legal experts say the city ordinance is different in a number of important ways from the Los Angeles policy and practice.
But Occupy Honolulu protester Andy Smith said the ruling offers a beacon of hope.
“It basically states what we’ve been stating all along,” he said. “It’s what we have been pushing for and trying to get accomplished.”
Critics have branded Honolulu's measure as a de facto ban against the homeless living on Oahu sidewalks. The law, approved by the Honolulu City Council late last year, allows Honolulu officials to confiscate items that have been left on public property for more than 24 hours after being marked with a warning notice.
The 9th Circuit lawsuit concerned a series of incidents in Los Angeles in which police seized and destroyed homeless individuals’ belongings the instant they were left unattended on public property. The episodes transpired in the Los Angeles’ Skid Row district, which the highest concentration of homeless people in the city, according to the case document.
The individuals had “stepped away from their personal property, leaving it on the sidewalks, to perform necessary tasks such as showering, eating, using restrooms, or attending court,” reads the document. They “had not abandoned their property, but City employees nonetheless seized and summarily destroyed” their EDARs — charity-provided mobile housing units — and carts.
Two of the three judges on the circuit panel asserted that such actions violated the individuals’ Fourth and Fourteenth Amendment rights.
In Honolulu, city officials last week raided the Occupy encampment, confiscating property that they had tagged as "stored." Handwritten signs that referenced the 9th Circuit decision were among the items that were seized.
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.”
DISCUSSION: What do you think about the 9th Circuit Court ruling and its implications for Honolulu?
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Federal Ruling Brings Homeless Belongings Ban Into Question
Critics have branded Honolulu's measure as a de facto ban against the homeless living on Oahu sidewalks. The law, approved by the Honolulu City Council late last year, allows Honolulu officials to confiscate items that have been left on public property for more than 24 hours after being marked with a warning notice.
The 9th Circuit lawsuit concerned a series of incidents in Los Angeles in which police seized and destroyed homeless individuals’ belongings the instant they were left unattended on public property. The episodes transpired in the Los Angeles’ Skid Row district, which the highest concentration of homeless people in the city, according to the case document.
The individuals had “stepped
Two of the three judges on the circuit panel asserted that such actions violated the individuals’ Fourth and Fourteenth Amendment rights.
In Honolulu, city officials last week raided the Occupy encampment, confiscating property that they had tagged as "stored." Handwritten signs that referenced the 9th Circuit decision were among the items that were seized.
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.”
Although the Honolulu raids do seize "untagged" property, the wording of Bill 54 (now ordinance 11-029) puts much greater (nearly impossible) documentary burden on the homeless. The "impounded" property is "stored" but requires credit card receipts to recover. Of course, most people -- let alone homeless people -- cannot produce credit card receipts for tents, suitcases, clothing, medications, etc. Certain items (including all perishables such as food in coolers) can be declared "trash" and are seized and destroyed on site.
In LA, police were sweeping in and taking unattended property. Here, the Office of Housing (doublespeak straight out of Orwell's "1984") separates people from their belongings and takes it. Here's a short video showing Trish Morikawa (Office of Housing) stealing a tent.
It's easy to blame the poor for their unsightly public poverty, but as the article points out, "you can't treat people differently because they're homeless." Well, you can, but you shouldn't.
http://youtu.be/obs5kS6X3ck
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