Despite Mayor Kirk Caldwell’s veto of one attempt, Honolulu City Council members appear dead-set on expanding the city’s controversial “sit-lie” ban — even though they acknowledge they’re increasing the chance of a legal challenge.

On Wednesday, the City Council will take up a spate of new bills aimed at pushing the boundary of the existing laws banning people from sitting or lying on sidewalks and in pedestrian malls.

The glut of proposals comes less than two weeks after Caldwell exercised his veto power for the first time to block Bill 6, a measure that would apply the sit-lie prohibition to portions of McCully, Aala and Punchbowl, as well as the area along Kapalama Canal — all outside of the city’s premier business districts.

Caldwell said Bill 6 contained “legally flawed language” and, if signed into law, would make the city’s entire sit-lie ban vulnerable to court challenges.

Tents and other belongings along the shores of the Kapalama Canal. 19 may 2015. photograph by Cory Lum/Civil Beat

A growing homeless encampment along the Kapalama Canal is one of the areas targeted by the glut of new City Council bills.

Cory Lum/Civil Beat

On Monday, Councilwoman Ann Kobayashi, who introduced the bill, told Civil Beat that she’s still unsure whether her colleagues will move to override the mayor’s veto.

But Kobayashi is taking no chances: Last week, she introduced a new measure, Bill 47, that essentially presents the original language of Bill 6 — without amended language that added the Aala and Kapalama areas to the bill’s coverage area.

“The original (sit-lie) bill helped Waikiki but not local small businesses in other areas. They are now suffering, so I think we should do what we can to take care of them.” — Councilwoman Ann Kobayashi

Bill 47 is among five measures introduced by various council members during the past two weeks. Taken together, they would effectively restore — and even further expand — the ban’s proposed coverage area under Bill 6.

Ultimately, Kobayashi said, her constituents’ concerns outweigh any fear of legal challenges.

“The original (sit-lie) bill helped Waikiki but not local small businesses in other areas,” Kobayashi said. “They are now suffering, so I think we should do what we can to take care of them.”

Councilman Joey Manahan, who introduced Bill 46 on Thursday to cover areas along “city-owned streams” including Kapalama Canal, could not be reached for comment. But Manahan told the Honolulu Star-Advertiser that he agreed with Kobayashi: “Sometimes, you need to test the law in order to be able to come up with the best policy to be able to address an issue,” he told the newspaper. “At this point, people are just so frustrated. They want some kind of action.”

Manahan’s bill, introduced with Council Chair Ernest Martin, would prohibit people from “lingering or remaining on streambank areas” so that they don’t “urinate, defecate, bathe or otherwise contaminate the stream waters, resulting in unsanitary and unhealthy conditions.”

‘Highly Irrational’ Approach to the Problem

Some political observers say taking chances with a court case isn’t the most sensible way to go about making policy decisions.

“This is a highly irrational way that public policies sometimes get made in democracies,” said Colin Moore, a University of Hawaii political science professor.

But Moore says none of this is surprising.

“Politicians behave this way all the time,” Moore said. “Think about it from the perspective of individual members of the City Council. Right now — with the exception of Waikiki — they have nothing but angry constituents. So they have nothing to lose. It doesn’t really matter if it goes to the court, or that it costs the city any money to defend the ban. For them, it’s a win — they can still go back to their constituents and say, ‘Look, I tried absolutely everything that I could do.'”

Mayor Kirk Caldwell discusses the layout of the ADA showers and restrooms in Sand Island homeless community during press conference held at Sand Island. 2 june 2015. photograph Cory Lum/Civil Beat

Mayor Kirk Caldwell discusses the layout of the proposed Sand Island homeless community during a press conference at Sand Island on Tuesday.

Cory Lum/Civil Beat

Besides bills 46 and 47, the City Council will consider three other sit-lie measures this week.

Bill 43, introduced by Councilman Ron Menor, who voted yes with reservations on Bill 6, is an alternative proposal from Caldwell that makes the sit-lie ban applicable only to sidewalks and excludes areas zoned for residential or noncommercial uses.

Bill 44, introduced by Councilwoman Carol Fukunaga, covers two pedestrian malls — College Walk Mall and Kila Kalikimaka Mall — in her district’s Aala area.

Bill 48, introduced by Martin and Fukunaga, expands the sit-lie ban to include “expanded sidewalk area” and “sidewalks on both sides” in areas essentially covered by the mayor’s proposed plan.

Kobayashi says these bills could have been avoided if the original sit-lie ban functioned the way it was pitched by Caldwell, who proposed creating a tent encampment on Sand Island to make sure that the displaced people would have places to go.

“At the end of the day, we can keep passing more sit-lie bills, moving folks farther and farther out into our communities, but it’s the housing that is the real answer.” — Mayor Kirk Caldwell

“We passed the original bill with an understanding that the (Sand Island) facility would open up,” Kobayashi said. “But that never happened — instead, homeless people moved into all these other areas. That’s why we had to do Bill 6.”

On Tuesday, Caldwell had a ready reply: He announced his plans to build a facility on Sand Island that uses up to 25 “modified shipping containers,” instead of the tents that were originally proposed, to temporarily house 75 to 100 people.

The facility, which will feature a “central hygiene trailer” that contains showers and bathrooms, as well as a communal dining area, will be accessible by shuttle service, Caldwell told reporters at a press conference on Sand Island.

“At the end of the day, we can keep passing more sit-lie bills, moving folks farther and farther out into our communities, but it’s the housing that is the real answer,” Caldwell said. “I’d like the Council to let us see how (Sand Island) works and improve on it. And then go from there.”

‘Almost Like a Refugee Camp’

Andrea Freeman, a law professor at the University of Hawaii, says the net effect of the City Council’s recent actions is that the court’s intervention is increasingly likely.

“They are pushing the court to make clear statements about what is and what is not acceptable,” Freeman said.

But, even if the court intervenes, Freeman says some portions of the sit-lie ban might survive. “The idea that, if they push it, they stand to lose more than if they didn’t push it at all — that shouldn’t be true, if the court is doing its job correctly,” she said. “What (the courts) do is just excise the parts of the bill that are unconstitutional and leave in the parts that are. That’s how they operate. They don’t usually strike down the entire bill.”

Still, that doesn’t mean that, from a public policy standpoint, it’s smart to keep criminalizing homelessness, says Jenny Lee, staff attorney at the Hawaii Appleseed Center for Law and Economic Justice.

“It is a crisis, but we’re not reacting like we should in the U.S. We’re the richest country in the world and we’re reacting in a way almost like a refugee camp,” Lee said. “Why don’t we do something that does actually solve the problem?”

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