De-Occupy Honolulu et al v. City and County of Honolulu et al

Filing 126

ORDER DENYING PLAINTIFFS' SUPERCEDING MOTION FOR PRELIMINARY INJUNCTION, DOC. NO. 85 , ON PLAINTIFFS' FACIAL CONSTITUTIONAL CHALLENGES re 85 - Signed by JUDGE J. MICHAEL SEABRIGHT on 5/21/13. (emt, )CERTIFICAT E OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

DE-OCCUPY HONOLULU;
)
CATHERINE RUSSELL;
)
CHRISTOPHER SMITH; ANDREW )
SMITH; MADORI RUMPUNGWORN; )
DOMINIC JAMES; and JOHN DOES )
1-50;
)
)
Plaintiffs,
)
)
vs.
)
)
CITY AND COUNTY OF
)
HONOLULU; WESTLEY CHUN, in )
his personal and official capacity;
)
TRISH MORIKAWA, in her personal )
and official capacity; LARRY
)
SANTOS, in his personal and official )
capacity; KEN SHIMIZU, in his
)
personal and official capacity; and
)
JOHN DOES 1-50,
)
)
Defendants.
)
________________________________ )

CIVIL NO. 12-00668 JMS-KSC
ORDER DENYING PLAINTIFFS’
SUPERCEDING MOTION FOR
PRELIMINARY INJUNCTION,
DOC. NO. 85, ON PLAINTIFFS’
FACIAL CONSTITUTIONAL
CHALLENGES

ORDER DENYING PLAINTIFFS’ SUPERCEDING MOTION FOR
PRELIMINARY INJUNCTION, DOC. NO. 85, ON PLAINTIFFS’ FACIAL
CONSTITUTIONAL CHALLENGES
I. INTRODUCTION
Plaintiffs De-Occupy Honolulu, Catherine Russell, Christopher Smith,
Andrew Smith, Madori Rumpungworn, and Dominic James (“Plaintiffs”) are part
of the “Occupy” movement that has taken place throughout various cities.

Plaintiffs have maintained a constant presence at Honolulu’s Thomas Square for
over a year, where they have erected tents, signs, and other artwork. Plaintiffs
bring this action against Defendants City and County of Honolulu (the “City”) and
Westley Chun, Trish Morikawa, Larry Santos, and Ken Shimizu in their personal
and official capacities (collectively, “Defendants”), who have conducted,
participated, and/or overseen several impoundments of Plaintiffs’ property at
Thomas Square. Defendants have conducted these impoundments pursuant to
Chapter 29, Articles 18 and 19 of the Revised Ordinances of Honolulu (“ROH”),
which provide that the City may seize personal property left on public property
after providing twenty-four hours notice. Plaintiffs assert that these ordinances and
impoundments violate the First, Fourth, Fifth, and Fourteenth Amendments, and
the Hawaii Constitution, and assert related state law claims.
Currently before the court is Plaintiffs’ Superceding Motion for
Preliminary Injunction, Doc. No. 85, in which Plaintiffs argue that they are entitled
to injunctive relief because ROH Art. 19 (“Article 19”) on its face violates the First
Amendment and the due process clause of the Fourteenth Amendment. Although
Plaintiffs also initially raised as-applied challenges, the parties subsequently agreed
that they will enter into a Stipulated Injunction addressing these claims. As a
result, the court addresses Plaintiffs’ facial challenge only, and DENIES Plaintiffs’
2

Superceding Motion for Preliminary Injunction on the facial challenges.
II. BACKGROUND
A.

Factual Background
The only claims at issue for purposes of the Motion for Preliminary

Injunction are Plaintiffs’ claims that Article 19 is facially invalid.
Article 19 is directed to prohibiting stored personal property on public
property. The purpose of Article 19 is to “maintain public areas in clean, sanitary,
and accessible condition, to prevent harm to the health or safety of the public, to
prevent the misappropriation of public property for personal use, and to promote
the public health, safety and general welfare by ensuring that public property
remains readily accessible for its intended uses.” ROH § 29-19.1.
To that end, ROH § 29-19.3 prohibits persons from storing “personal
property” on “public property.” “Personal property” is defined as “any and all
tangible property, and includes, but is not limited to, items, goods, materials,
merchandise, furniture, equipment, fixtures, structures, clothing, and household
items.” ROH § 29-19.2. “Public property” is defined as “all property that is
owned, managed or maintained by the city, and shall include, but not be limited to
any street, sidewalk, replacement sidewalk, medial strip, space, ground, mall,
building, structure, public park, and any other property of the city.” Id.
3

ROH §§ 29-19.3 and 29-19.4 outline when the City may impound
personal property located on public property. Pursuant to ROH § 29-19.3(a), the
City may impound at any time “personal property placed on public property [that]
interferes with the safe or orderly management of the premises or poses a threat to
the health, safety, or welfare of the public.” And pursuant to ROH § 29-19.3(b),
the City may impound personal property on public property after giving twentyfour hours written notice requiring its removal. ROH § 29-19.4(a) provides that
the written notice:
shall be deemed to have been served if a copy of the
written notice is served on the person storing the personal
property or is posted prominently and conspicuously on
the stored personal property. The written notice shall
contain the following:
(1) A description of the personal property to be
removed (such description may refer to an attached
photograph).
(2) The location of the personal property.
(3) The date and time the notice was posted.
(4) The section of the ROH that is being violated.
(5) A statement that the personal property will be
impounded if not removed within 24 hours.
(6) The location where the removed property will
be stored.
(7) A statement that impounded property will be
sold or otherwise disposed of if not claimed within
30 days after impoundment.
(8) A statement that the property owner shall be
responsible for all costs of removal, storage and
disposal.

4

Once personal property is impounded, ROH § 29-19.5(a) requires the
City to store it, and the owner of the impounded property “shall be assessed
moving, storage, and other related fees and costs” and “shall bear the responsibility
for the risk of any loss or damage to the impounded property.”
If the City wishes to dispose of the impounded items, “[a]t least 30
days prior to disposal of impounded personal property, the city shall serve notice in
writing apprising the owner of the personal property of the description and location
of the impounded personal property and of the intent of the city to sell, donate, or
otherwise dispose of the impounded property.” ROH § 29-19.5(b). Alternatively,
the City may auction, sell by negotiation, keep by the City, or donate to any other
government agency or charitable organization impounded personal property. ROH
§ 29-19.5(c).
Prior to disposal, an owner may repossess his impounded property
“upon submitting satisfactory proof of ownership or entitlement and payment of all
unpaid rent, debts, and charges owing and all handling, storage, appraisal,
advertising, and other expenses incurred by the city in connection with the
proposed disposal of the impounded property.” ROH § 29.19-7.
///
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B.

Procedural Background
On December 12, 2012, Plaintiffs filed this action, and their Second

Amended Complaint asserts claims titled: (1) Violation of Fourth Amendment;
(2) Due Process Violation; (3) First Amendment Violation; (4) Takings Clause;
(5) Conspiracy; (6) Failure to Train and Supervise; (7) Hawaii Constitution -Unreasonable Seizure; (8) Hawaii Constitution -- Property and Due Process
Protections; (9) Hawaii Constitution -- Freedom of Speech; (10) Hawaii
Constitution -- Law of the Splintered Paddle; (11) Conversion; (12) Replevin;
(13) Negligence; (14) Negligent Supervision and Training; (15) Trespass to
Chattels; and (16) Fraud. Doc. No. 80.
On April 1, 2013, Plaintiffs filed their Superceding Motion for
Preliminary Injunction. Doc. No. 85. Defendants filed an Opposition on April 15,
2013, Doc. No. 90, and Plaintiffs filed a Reply on April 29, 2013. Doc. No. 95. At
a May 10, 2013 status conference, the parties agreed that although Plaintiffs had
raised both facial and as-applied challenges to Article 19, the parties would be able
to reach an agreement regarding a stipulated injunction as to Plaintiffs’ as-applied
claims, leaving only the facial challenge for the court to decide. On May 15, 2013,
Defendants submitted supplemental briefing on the facial due process challenge.
Doc. No. 122. A hearing was held on May 17, 2013.

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III. STANDARD OF REVIEW
“A preliminary injunction is an extraordinary and drastic remedy
[that] is never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008)
(citation and quotation signals omitted). To obtain a preliminary injunction, a
plaintiff “must establish that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). So long as all
four parts of the Winter test are met, “a preliminary injunction [may] issue where
the likelihood of success is such that ‘serious questions going to the merits were
raised and the balance of hardships tips sharply in [plaintiff’s] favor.’” Alliance for
Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). “In other words,
‘serious questions going to the merits’ and a hardship balance that tips sharply
toward the plaintiff can support issuance of an injunction, assuming the other two
elements of the Winter test are also met.” Id. at 1132.
IV. ANALYSIS
To be entitled to preliminary injunctive relief under Winter, Plaintiffs
must “make a showing on all four prongs.” Id. Based on the following, the court
finds that Plaintiffs have failed to establish that they are entitled to preliminary

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injunctive relief as to any of their facial challenges at this time because Plaintiffs
have failed to establish at least one prong for each claim.
A.

First Amendment
Plaintiffs seek preliminary injunctive relief on the basis that Article 19

is “overly broad and/or serves as a prior restraint to vigils or demonstrations lasting
more than 24 hours” and therefore violates the First Amendment. Doc. No. 85-1,
Pls.’ Mot. at 14. Plaintiffs are not likely to succeed on this facial challenge.
1.

Overbreadth
The overbreadth doctrine protects against the chill of constitutionally

protected speech that may arise from a threat of enforcement of an overbroad law.
Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936,
944 (9th Cir. 2011) (en banc) (“Redondo Beach”). “In a facial challenge to a law’s
validity under the First Amendment, the ‘law may be invalidated as overbroad if a
substantial number of its applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.’” Id. (quoting United States v. Stevens, 130 S.
Ct. 1577, 1587 (2010)). Plaintiffs “need not necessarily introduce admissible
evidence of overbreadth, but generally must at least ‘describe the instances of
arguable overbreadth of the contested law.’” Id. (quoting Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 449 n.6 (9th Cir. 2008)).

8

A content-neutral ordinance such as Article 191 is subject to
intermediate scrutiny under the “time, place, and manner” test. See id. at 945.
Under this test, “the government may impose reasonable restrictions on the time,
place, or manner of protected speech, provided the restrictions ‘are justified
without reference to the content of the regulated speech, that they are narrowly
tailored to serve a significant governmental interest, and that they leave open
ample alternative channels for communication of the information.’” Id. (quoting
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
Applying these principles, Article 19 -- to the extent it regulates
speech2 -- is a reasonable “time, place, and manner” restriction.3 First, Article 19 is
justified without reference to the content of any speech -- Article 19 prohibits the
storage of private property on public property so that public property is available
for use by all persons. Second, Article 19 is narrowly tailored to prohibit the

1

At the May 17, 2013 hearing, Plaintiffs conceded that Article 19 is content-neutral.

2

Article 19 does not directly regulate speech, instead, it prohibits personal property from
being stored on public property for more than twenty-four hours. It may arguably regulate
speech, however, to the extent it prevents an individual from engaging in expression using
personal property on public property for more than twenty-four hours. Because the court finds
that the Article 19 does not meet the “time, place, and manner” test, the court assumes without
deciding that Article 19 in fact regulates speech for purposes of the analysis.
3

That Article 19 regulates speech on public sidewalks, which “‘occup[y] a special
position in terms of First Amendment protection,’” Redondo Beach, 657 F.3d at 944, does not
change the analysis. Courts nonetheless apply the “time, place, and manner” to such regulations.
See, e.g., id.; Snyder v. Phelps, 131 S. Ct. 1207, 1218 (2011).
9

storage of private property on public property -- Article 19 does not ban all
personal property on public property, only personal property left on public
property for more than twenty-four hours. Ward, 491 U.S. at 798 (explaining that
an ordinance “need not be the least restrictive or least intrusive means of”
achieving the government’s goals, but it may not “burden substantially more
speech than is necessary”). As a result, Article 19 affects at most only a minute
sliver of protected speech -- individuals who wish to engage in protected speech
for more than twenty-four hours using personal property to engage in such speech.
Third, given the small amount of protected speech affected, Article 19 still leaves
open numerous alternative channels for protected speech. See Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 293 (1984).
The court therefore finds that Plaintiffs are not likely to succeed on
their facial overbreadth challenge and are therefore not entitled to preliminary
injunctive relief on this claim. See, e.g., DISH Network Corp. v. F.C.C., 653 F.3d
771, 776-77 (9th Cir. 2011) (determining that where claimant failed to establish
likelihood of success on the merits, the court “need not consider the remaining
three” elements for preliminary injunctive relief).
///
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2.

Prior Restraint
The prior restraint doctrine provides that “a law cannot condition the

free exercise of First Amendment rights on the unbridled discretion of government
officials.” World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676, 687 (9th
Cir. 2010) (quoting Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814,
818 (9th Cir. 1996) (internal quotation marks omitted)). “Unbridled discretion
challenges typically arise when discretion is delegated to an administrator, police
officer, or other executive official,” as opposed to a legislative body. Id. (quoting
Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1042 (9th
Cir. 2009)). The prior restraint doctrine generally applies in the licensing context,
requiring an “official to provide an explanation for his decision.” Id. (quoting
Long Beach Area Peace Network, 574 F.3d at 1025).
The prior restraint doctrine does not apply to Article 19. Article 19
neither creates a permitting structure, nor gives any City officials unbridled
discretion in determining when to impound items of personal property. Rather,
Article 19 outlines that the City may impound personal property left on public
property only if it poses a threat the “health, safety, or welfare of the public,” or
only after giving twenty-four hours notice. ROH § 29-19-3. The court therefore
finds that Plaintiffs are not likely to succeed in establishing that Article 19 is an
11

impermissible prior restraint, and are therefore not entitled to preliminary
injunctive relief on this claim.
B.

Due Process -- Lack of Hearing
Plaintiffs assert that Article 19 violates the due process clause of the

Fourteenth Amendment because it offers no opportunity for hearing, whether
before or after the seizure of personal property.
Under the Fourteenth Amendment, “[n]o state shall . . . deprive any
person of life, liberty, or property, without due process of laws.” U.S. Const.
amend. XIV. “Property” for purposes of the Fourteenth Amendment includes an
individual’s personal possessions. See Fuentes v. Shevin, 407 U.S. 67, 84 (1972).
Where a protected interest is implicated, the relevant question is “what procedures
constitute ‘due process of law.’” Lavan v. City of Los Angeles, 693 F.3d 1022,
1031 (9th Cir. 2012) (quoting Ingraham v. Wright, 430 U.S. 651, 672 (1977)).
“The fundamental requirement of due process is the opportunity to be
heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge,
424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). “This inquiry [] examine[s] the procedural safeguards built into the
statutory or administrative procedure of effecting the deprivation, and any
remedies for erroneous deprivations provided by statute or tort law.” Zinermon v.
12

Burch, 494 U.S. 113, 126 (1990). As Mathews outlines, determination of what
process is due is a fact-specific inquiry requiring consideration of three factors:
First, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal
and administrative burdens that the additional or
substitute procedural requirement would entail.
424 U.S. at 335.
Applying these principles, there is no dispute that Plaintiffs have a
property interest in their possessions that are impounded and stored pursuant to
Article 19. See Lavan, 693 F.3d at 1031 (determining that plaintiffs have a
property “interest in the continued ownership of their personal possessions”).
Thus, the relevant question is whether Plaintiffs have a likelihood of success in
establishing that Article 19 violates the Fourteenth Amendment for failure to
provide either a pre- or post- deprivation hearing. Considering the Mathews
factors, the court finds that Plaintiffs have not carried their burden.
First, the court recognizes that a strong private interest exists in
Plaintiffs’ continued ownership of their possessions, especially given that the
possessions impounded under Article 19 may be everything that a homeless

13

individual owns. See, e.g., id. at 1032 (“For many of us, the loss of our personal
effects may pose a minor inconvenience. However, . . . the loss can be devastating
for the homeless.” (quoting Pottinger v. City of Miami, 810 F. Supp. 1551, 1559
(S.D. Fla. 1992)); see also Kincaid v. City of Fresno, 2006 WL 3542732, at *37
(E.D. Cal. Dec. 8, 2006) (“[A] homeless person’s personal property is generally all
he owns; therefore, while it may look like ‘junk’ to some people, its value should
not be discounted.” (quotations and citations omitted)).
Yet Article 19 includes several safeguards to prevent the erroneous
deprivation of Plaintiffs’ property, including that the City must: (1) provide
twenty-four hours written notice before items are seized, ROH §§ 29-19.3(b),
29-19.4(a); (2) provide post-seizure notice describing the items that have been
taken and the location where they may be retrieved, ROH § 29-19.5(b);4 and
(3) hold seized items for at least thirty days before destruction. Id. Thus, at every
step -- pre-seizure, post-seizure, and pre-destruction -- the City is required to
“announce its intentions” and allow Plaintiffs the opportunity to either move their
items away from public property to avoid seizure or retrieve them post-seizure.5
4

This post-seizure notice must be served on the owner of the impounded property if
known, or “posted for three consecutive days on the public property where the property was
stored or seized” if the owner is not known. ROH § 29-19.5(b).
5

Article 19 stands in stark contrast to other ordinances allowing immediate seizure and
(continued...)
14

See Lavan, 693 F.3d at 1032 (“[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.” (quoting Clement v. City of Glendale, 518 F.3d
1090, 1093 (9th Cir. 2008)). By giving these opportunities to prevent permanent
deprivation of Plaintiffs’ possessions, the process outlined in Article 19 appears
wholly reasonable, see Lavan, 693 F.3d at 1032 (“[D]ue process requires law
enforcement “to take reasonable steps to give notice that the property has been
taken so the owner can pursue available remedies for its return.” (quoting City of
West Covina v. Perkins, 525 U.S. 234, 240 (1999)), and Plaintiffs offer no
explanation of how a hearing would add any additional value to prevent the
erroneous deprivation of personal property.6 Indeed, to avoid seizure of their
5

(...continued)
destruction of property, which were determined to violate due process. See, e.g., Logan v.
Zimmerman Brush Co., 455 U.S. 422, 434 (1982) (“[T]he State may not finally destroy a
property interest without first giving the putative owner an opportunity to present his claim of
entitlement.”); Lavan, 693 F.3d at 1033 (“The district court did not abuse its discretion when it
found a likelihood of success on Appellees’ Fourteenth Amendment claims, as the City admits it
failed utterly to provide any meaningful opportunity to be heard before or after it seized and
destroyed property belonging to Skid Row’s homeless population.”); Propert v. Dist. of
Columbia, 948 F.2d 1327, 1335 (D.C. Cir. 1991) (“Although [a municipality] may have a strong
interest in the prompt removal of supposed junk vehicles from the streets, its interest in the
immediate destruction of such vehicles is far from apparent.”); Kincaid, 2006 WL 3542732, at
*38 (“The City’s process, or lack thereof, creates not just the risk, but the certainty of erroneous
deprivation.”).
6

The court recognizes that some broad language in Stypmann v. City & Cnty. of San
Francisco, 557 F.2d 1338, 1344 (9th Cir. 1977), suggests that a hearing is generally required,
whether pre- or post-seizure. See id. (“Seizure of property without prior hearing has been
(continued...)
15

property, Plaintiffs may simply remove their items from public property within
twenty-four hours of notice being posted, and to avoid their destruction, Plaintiffs
may simply seek their return from the City. Given these multiple opportunities to
prevent permanent deprivation, a hearing, whether pre- or post-seizure, would add
little to prevent an erroneous deprivation.
Also weighing against additional procedures is that the City has a
substantial interest in ensuring that public property is available for use by
everyone. Article 19 articulates its purpose as to “maintain public areas in clean,
sanitary, and accessible condition, to prevent harm to the health or safety of the
public, to prevent the misappropriation of public property for personal use, and to
promote the public health, safety and general welfare by ensuring that public
property remains readily accessible for its intended uses.” ROH § 29-19.1. Article

6

(...continued)
sustained only where the owner is afforded prompt post-seizure hearing at which the person
seizing the property must at least make a showing of probable cause.”). The court does not
construe Stypmann, however, as requiring a “hearing” in the formal sense where Article 19
provides twenty-four hours notice before the seizure, and further provides that the owner of
impounded property may simply obtain its return by establishing proof of ownership. Under
such circumstances, a hearing would add nothing to prevent an erroneous deprivation, which in
any event could be adequately addressed through state tort law. See Catron v. City of St.
Petersburg, 2009 WL 3837789, at *8 (M.D. Fla. Nov. 17, 2009) (determining that state tort law
provided adequate due process for any negligent loss of seized property under ordinance similar
to the City’s ordinance in this action) (citing Parratt v. Taylor, 451 U.S. 527, 541-44 (1981)
(finding a pre-deprivation hearing unworkable because a state cannot predict the negligent loss
of property), overruled by Daniels v. Williams, 474 U.S. 327, 336 (1986), (finding that no
Section 1983 liability arises out of a government official’s negligent act)).
16

19 balances this interest with Plaintiffs’ rights to their possessions through the
multiple opportunities given for Plaintiffs to avoid seizure and/or destruction of
their property. A hearing -- either pre- or post-seizure -- would certainly increase
the administrative burden of ensuring that public property is available for use by
the entire public, and as explained above, would add little procedural safeguard of
preventing erroneous deprivation of stored property on public property.
Considering these Mathews factors together, the court finds that
Plaintiffs are not likely to succeed on their claim that Article 19 requires a pre- or
post-deprivation hearing. As a result, Plaintiffs are not entitled to preliminary
injunctive relief on this claim.
C.

Due Process -- Fee Requirement for Return of Impounded Items
Plaintiffs assert that Article 19’s requirement that owners pay certain

fees7 before repossessing their property violates due process. Because Plaintiffs
have not established the likelihood of irreparable harm on this claim, the court
rejects that Plaintiffs are entitled to preliminary injunctive relief.8
7

Specifically, ROH § 29-19.8 provides that a person may repossess their seized property
upon “payment of all unpaid rent, debts, and charges owing and all handling, storage, appraisal,
advertising, and other expenses incurred by the city in connection with the proposed disposal of
the impounded property.” ROH 29-19.5 also provides that “the owner shall be assessed moving,
storage, and other related fees and costs” of impounded property.
8

Because Plaintiffs have not established irreparable harm, the court does not address the
likelihood of success on the merits on this claim. See Alliance for Wild Rockies, 632 F.3d at
(continued...)
17

Although Article 19 requires the payment of fees, in their
supplemental briefing and at the May 17, 2013 hearing, counsel for the City
represented that the City has not charged any fees (including charges for handling,
storage, etc.) to property owners seeking return of their impounded personal
property. Indeed, the City cannot charge fees at this time -- such fees and costs
must be first approved and “fixed” by the City Council. Specifically, the Revised
Charter of Honolulu (2000) § 3-112 provides that “[t]he council shall by ordinance
fix the fees and charges for all services rendered by the city and for the use of city
property and facilities, except as otherwise provided by this charter.” In other
words, before the City can charge any fees on property owners in relation to
Article 19, the City Council will first need to take action, and the City Council thus
far has failed to do so.
In light of these facts, Plaintiffs cannot establish irreparable harm at
this time -- the City cannot seek fees unless and until the City Council fixes such
fees, and whether and when such event occurs is entirely speculative. Because

8

(...continued)
1135; see also Amylin Pharm., Inc. v. Eli Lilly & Co., 456 Fed. Appx. 676, 679 (9th Cir. 2011)
(“To support injunctive relief, harm must not only be irreparable, it must be imminent;
establishing a threat of irreparable harm in the indefinite future is not enough. Rather, a plaintiff
must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”
(quotations and citations omitted)). Given the court’s finding of no possibility of irreparable
harm, this Order should not be construed as providing any determination of the merits of this
claim.
18

Plaintiffs cannot establish irreparable harm on this claim, Plaintiffs are not entitled
to preliminary injunctive relief. Of course, if the City takes steps to fix the fees
and/or otherwise charges fees to property owners seeking repossession of the
impounded property, Plaintiffs may renew their request for preliminary injunctive
relief on this claim.
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V. CONCLUSION
Based on the following, the court DENIES Plaintiffs’ Superceding
Motion for Preliminary Injunction, Doc. No. 85, to the extent it seeks relief based
on facial constitutional challenges.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 21, 2013.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

De-Occupy Honolulu et al. v. City & Cnty. of Honolulu et al., Civ. No. 12-00668 JMS-KSC,
Order Denying Plaintiffs’ Superceding Motion for Preliminary Injunction, Doc. No. 85, on
Plaintiffs’ Facial Constitutional Challenges

20