In many ways, it was deja vu all over again.

Last week, Honolulu Mayor Kirk Caldwell signed into law yet another bill that expands the boundaries of Honolulu’s “sit-lie” ban — a series of ordinances that prohibit people from sitting or lying on sidewalks and in pedestrian malls.

The signing of Bill 66, which adds areas in Iwilei and McCully-Moiliili, marked the second expansion of the ban’s coverage area in three months — and the fifth time since the Honolulu City Council adopted the original measure in 2014 for the Waikiki Special District.

Since its inception, the ban has been an integral part of what Caldwell calls “compassionate disruption,” a strategy aimed at prodding the homeless into shelters where they can receive needed services.

But critics say the never-ending expansion is evidence that the whole concept is a bust: The ban, they say, singles out homeless people and only pushes them from one place to the next — a textbook example of “the criminalization of the homeless.”

By continuously extending the coverage area of the ban, the American Civil Liberties Union of Hawaii and other critics say Honolulu is inviting a legal challenge.

(To see the sit-lie ban’s expanded coverage area, click on an icon at the top-left corner and select additional measures.)

Warnings And Citations

In November, the National Law Center on Homelessness and Poverty went so far as to single out Honolulu in its “hall of shame,” criticizing the city for the ban — which has resulted in thousands of warnings and citations.

The Honolulu Police Department has issued 26,905 warnings and 1,140 citations, as well as making a handful of arrests — 28 in all — since the ban’s enforcement began in 2015, according to spokeswoman Michelle Yu.

The center also noted that, across the country, homeless advocates have been mounting legal challenges to an array of statutes they see as “anti-homeless” in recent years.

The list of successful legal challenges includes Jones v. City of Los Angeles, a 2006 case in which the 9th U.S. Circuit Court Appeals — whose jurisdiction also covers Hawaii — ruled that it was unconstitutional for the city to enforce laws that criminalized people for sitting, sleeping or lying on sidewalks.

The only thing that may have kept Honolulu from being sued so far is that the ban is selectively applied — mostly in commercial and industrial areas in Waikiki, downtown and other regions on Oahu — as opposed to citywide. The Los Angeles law, by contrast, applied to the entire city.

But Mateo Caballero, legal director of the American Civil Liberties Union of Hawaii, says the further the city goes in expanding the ban, the more difficult it will become to defend it in court.

“At this point in time, we are following the expansion of the sit-lie closely and deeply concerned about it,” Caballero said. “We do have serious constitutional concerns, and, as the sit-lie expands, it’s more and more clear that it is targeting the homeless, and that they’re leaving them no option but to break the law.

“Ultimately, the issue for us is, ‘Are they targeting the homeless and making it into a crime to be homeless in Hawaii?’ That’s the question — whether (the ban) is constitutional under the Eighth Amendment,” Caballero said. “I think the more laws they pass to expand the sit-lie, the closer we get to that point.”

Nickolas Kacprowski, an attorney at Alston Hunt Floyd and Ing, concurs — but points out that it’s unclear whether the city has already gone too far and tipped the scale against its chances in court.

“I don’t know where the boundaries are in terms of where the court would go in terms of how far the sit-lie ban can go before it finds it unconstitutional,” said Kacprowski, whose law firm partnered with the ACLU of Hawaii on a federal class-action lawsuit in 2015 that challenged how the city was enforcing its stored property and sidewalk nuisance ordinances.

“It’s one thing if it’s just in Waikiki, but, if they expand it far enough — and maybe we’re at that point now — it’ll eventually be broad enough that it violates the Constitution for the reasons laid out in the Jones case,” Kacprowski said.

Mayor Kirk Caldwell during presser. 21 may 2015. photograph Cory Lum/Civil Beat
In 2015, Mayor Kirk Caldwell vetoed Bill 6, a measure that expanded Honolulu’s “sit-lie” ban. Ultimately the Honolulu City Council overrode his veto. Cory Lum/Civil Beat

Compassionate Disruption?

For his part, Caldwell has been busy making sure that the expansion of the ban’s coverage area is confined to commercial areas to keep its goal focused on protecting businesses, not targeting homeless people — a distinction that could prove crucial in court.

In May 2015, for instance, Caldwell vetoed Bill 6, saying that the measure extends the ban to include “zoned apartment or residential use” areas, in addition to having other “legal deficiencies.”

But the City Council ultimately overrode Caldwell’s veto, reasoning that the city was facing a homelessness “crisis.”

Tents line Iwilei Road near Salvation Army Building where city is sweeping adjacent state properties. 5 june 2017
Tents line Iwilei Road near Salvation Army Building. Cory Lum/Civil Beat

“Mayor Caldwell seems to think that, if the law gets challenged, the sky is going to fall on Honolulu and all of our sit-lie ordinances. I disagree,” Councilman Joey Manahan said at the time. “I recognize that the law may be challenged, but the sky is not going to fall.”

At last week’s bill-signing press conference, Caldwell made no mention of the veto override, as he opted to focus on what he says is the success of compassionate disruption.

“We have a very vigorous compassionate disruption program going on for the past four or so years, and I think it’s made a difference both in how our community looks and (how it) also allows people to move down our sidewalks and in our parks much more freely,” Caldwell said.

“But I also believe it’s resulted in more people seeking shelter and in our housing.”

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