Can Honolulu’s Sit-Lie Ban Pass Constitutional Muster?
What started with a push by the mayor to get the homeless out of Waikiki is now an ever-expanding effort by the City Council in the face of a migrating homeless population. Will a legal challenge put a stop to it?
The makeshift tents and debris perched precariously on the banks of Kapalama Canal are mostly blocked from the view of drivers on the H-1 freeway just a block away. But the rapidly expanding homeless encampment, located less than 2 miles from downtown Honolulu, is ground zero in the debate about the city’s mounting homeless problem.
Only months ago, fewer than 20 worn-out tents dotted the 500-yard stretch between King Street and Dillingham Boulevard — but more than 50 are there now.
The growth is a telltale side effect of the city’s “sit-lie” ban, based on a series of ordinances passed by the Honolulu City Council that prohibit people from sitting or lying on the city’s busiest sidewalks.
Cory Lum/Civil Beat
The aim of the ban — at least in its official telling — is to prod the homeless into shelters where they can receive needed services, a theory underpinning what Mayor Kirk Caldwell calls “compassionate disruption.” But, as Civil Beat recently reported, it has only pushed them out of the city’s central business districts and into less bustling areas, including the banks of the canal.
In response, the City Council has been steadily expanding the ban’s coverage area — an approach critics dismiss as haphazard and “a cat-and-mouse game” — to stem the flow of homeless people setting up their tents just outside its boundaries.
“We just took a chance with the bill. That’s why it may be declared illegal. Maybe it’s not worth the legal trouble, but what else can we do?” — Councilwoman Ann Kobayashi
In the process, it may be dragging the city deeper into perilous legal waters.
Across the country, homeless advocates have been mounting legal challenges to an array of statutes they see as “anti-homeless” — including sit-lie bans similar to Honolulu’s — based on a number of constitutional grounds.
And many are finding success. According to the National Law Center on Homelessness and Poverty, more than 70 percent of legal challenges against restrictions on sleeping in public have succeeded, as have two-thirds of legal disputes over laws banning panhandling. When it comes to bans on the public sharing of food, the center says all challenges have been upheld so far.
A Ban Too Far?
Will Honolulu’s sit-lie ban meet a similar fate?
The mayor and some City Council members have been working to prevent that. Their strategy: Narrowly tailor the ban so that it’s only about preventing sidewalks from being impeded and apply it just in designated business districts, like Waikiki and Chinatown.
The strategy is based on a legal calculation that, by making the ban to be about protecting businesses — rather than singling out homeless people — it can pass constitutional muster.
But the latest proposed expansion is threatening to blow up the entire plan.
Sit-lie bans and other prohibitions involving homeless people like these living along the Kapalama Canal are being shot down by courts across the country.
Cory Lum/Civil Beat
On May 6, the City Council passed Bill 6, an ordinance that extends the ban to include portions of McCully, Aala and Punchbowl, as well as the area along Kapalama — all outside of the city’s premier business districts.
Jenny Lee, staff attorney at the Hawaii Appleseed Center for Law and Economic Justice, says it’s hard to see the new ordinance as anything other than a measure targeting homeless people.
“If you look at areas like Waikiki or Chinatown, you could make an argument about commercial activities being impeded, but they keep spreading the boundary to areas where there’s no real documentation of complaints,” Lee said. “So what’s the justification in passing the bill now, besides picking on the homeless?”
Even Councilwoman Ann Kobayashi, who sponsored the bill, admits that the latest expansion is a risky move.
“We just took a chance with the bill. That’s why it may be declared illegal,” Kobayashi said. “Maybe it’s not worth the legal trouble, but what else can we do? Taking care of Waikiki is one thing, but all the residents and small businesses in other areas are suffering, too, and I feel that we should take care of them.”
Caldwell has until Friday to decide whether to sign the bill, veto it or let it become law without his signature. He hasn’t discussed publicly what he will do, and he and Corporation Counsel Donna Leong did not respond to Civil Beat’s request for comment.
Kobayashi says she’s yet to confer with Council Chair Ernie Martin to map out a plan in case Caldwell does exercise his veto power.
But the City Council could have the last word on the matter — it passed the bill on a 7-2 vote, enough to override the mayor’s veto, so long as no votes change.
In November, police informed homeless people in Kakaako that they had to move.
Sophie Cocke/Civil Beat
Many Cities Are Making New Laws
When Honolulu passed its first sit-lie ban last year, it joined a growing number of cities across the country enacting laws aimed at cracking down on the markers of homelessness, such as panhandling and sleeping, sitting and storing personal belongings on public spaces — even sharing food with homeless people.
In a July 2014 study, the National Law Center on Homelessness and Poverty examined policies in 187 cities and found that statutes prohibiting people from living out of their cars had increased by nearly 119 percent since 2011. People camping out in public parks and sidewalks now face bans in 64 cities, a 60 percent jump. And the number of cities banning sitting or lying in public spaces jumped from 70 to 100.
But the new laws are being challenged in court by homeless advocates, who make use of a variety of constitutional claims — including the Fourth Amendment prohibition on unreasonable search and seizure, the Eighth Amendment prohibition on cruel and unusual punishment, and the Fourteenth Amendment’s equal protection guarantees.
“I understand that, yes, we need to create spaces for our sidewalks, but these bills clearly target those people who are vulnerable and only move them around. It doesn’t solve the problem.” — Councilman Brandon Elefante
For Honolulu, it may be particularly instructive to look at the legal odyssey of Los Angeles, where a string of cases in the 9th U.S. Circuit Court of Appeals — whose jurisdiction also covers Hawaii — has forced the city to significantly dial back its anti-homelessness campaign.
Last year, for instance, the 9th Circuit struck down an ordinance banning people from sleeping in cars in Desertrain v. City of Los Angeles, holding that the ordinance was “unconstitutionally vague on its face,” and that it promotes “arbitrary and discriminatory enforcement” in violation of the equal protection clause of the Fourteenth Amendment.
In 2012, the court ruled in Lavan v. City of Los Angeles that seizing and destroying the personal possessions of homeless people on sidewalks violated the Fourth and Fourteenth amendments. The city now has to hold seized possessions for at least 90 days.
And, in 2006, the court ruled in Jones v. City of Los Angeles that it was cruel and unusual punishment to enforce laws that criminalized people for sitting, sleeping or lying on sidewalks when the city lacked adequate shelter space for homeless people. The judgment in this case was later vacated as part of a settlement that required the city to allow sleeping on sidewalks at night until an additional 1,250 units of housing could be built.
Scott Morishige, executive director of the homeless advocacy group PHOCUSED, says a similar settlement could prove to be a blessing in Honolulu — as far as encouraging the efforts to address the city’s affordable housing crisis.
“Maybe we could use an outside incentive like that in order to trigger a change here … to force the level of commitment that we really need to address the problem,” Morishige said.
Seattle’s Sit-Lie Ban Upheld
Elsewhere in the 9th Circuit, homeless advocates haven’t always come out on top.
In 1993, for instance, Seattle was sued over an ordinance banning sitting or lying on downtown sidewalks from 7 a.m. to 9 p.m. The court ultimately ruled that the allegations of due process and First Amendment violations were unfounded, concluding that sitting and lying are not “integral to, or commonly associated with, expression.”
“From a legal perspective, many of these laws are constitutionally questionable at best.” — Eric Tars, National Law Center on Homelessness and Poverty
Eric Tars, senior attorney at the National Law Center on Homelessness and Poverty, says the key takeaway from all the case law is that, sooner or later, ordinances like Honolulu’s sit-lie ban will end up being challenged in court.
“From a legal perspective, many of these laws are constitutionally questionable at best,” Tars said. “Add the cost of being sued and fighting a legal battle — when you could actually be fighting homelessness — and it simply doesn’t make much sense for (the cities) to pursue them.”
Councilman Brandon Elefante concurs.
“I’ve consistently voted no on all sit-lie measures because I don’t feel that it’s constitutionally right to do something like this,” Elefante said. “I understand that, yes, we need to create spaces for our sidewalks, but these bills clearly target those people who are vulnerable and only move them around. It doesn’t solve the problem.”
On Monday, Honolulu Prosecuting Attorney Keith Kaneshiro told the Civil Beat Editorial Board that he doesn’t see much point in pursuing cases resulting from the ban.
“I went to the mayor and his corporation counsel directly and indicated to both of them that I do not intend to criminalize homelessness,” Kaneshiro said. “It’s a social problem that they have to resolve. I told them, ‘You keep on having all these laws and want to make (them carry) criminal penalties, and hope that’ll do something.’ It won’t be successful.”
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