Honolulu Mayor Kirk Caldwell plans to introduce what he calls a “somewhat revolutionary” bill to remove homeless people camping on public sidewalks.

“We want to take back our sidewalks that are designated for safe passage and not have to resort to walking into the street or to walk around people who are blocking their way,” he said at his State of the City address this week.

City spokesman Andrew Pereira said the mayor is looking at an islandwide measure akin to the city’s existing ban on sitting and lying down on sidewalks.

But lawyers who have sued the city in the past for measures they say criminalize homelessness are waiting on the sidelines.

An elderly woman walks past tents located along Beretania Street across from Aala Park. 4 june 2015. photograph Cory Lum/Civil Beat

A woman walks past tents along Beretania Street across from Aala Park in 2015.

Cory Lum/Civil Beat

Sit-lie bans have been expanded several times in Honolulu since the first one was instituted in Waikiki in 2014.

Mayor Kirk Caldwell presser Magic Island smiling1. 1 nov 2016

Mayor Kirk Caldwell

But a bill proposing an islandwide ban introduced in October didn’t last two weeks before the City Council legal affairs committee killed it, fearing legal challenges.

During those two weeks, Nick Kacprowski, an attorney at Alston Hunt Floyd and Ing, said he was gearing up to sue the city.

“We were definitely ready to go if that one passed,” Kacprowski said. “We were prepared to sue so if they do it again, I can’t say with 100 percent certainty that we would sue, but we would very strongly consider it.”

Successful Suit Over Property Disposal

Three years ago, Kacprowski’s firm partnered with the American Civil Liberties Union of Hawaii in a federal class-action lawsuit against Honolulu’ stored property and sidewalk nuisance ordinances.

It resulted in the city agreeing to not immediately dispose of any personal items during the enforcement of the ordinances.

In 2006, the 9th U.S. Circuit Court of Appeals deemed a citywide ban in Los Angeles unconstitutional because it criminalized people for sitting, sleeping or lying on sidewalks in a city where there weren’t sufficient homeless shelter beds.

Children sit on an Ohe Street sidewalk during a sweep of a homeless area in 2015.

Cory Lum/Civil Beat

Even if it doesn’t encompass all sidewalks on Oahu, a major expansion of the ban could be unconstitutional if the island doesn’t have enough shelter beds or if safe zones state lawmakers are considering creating do not provide adequate shelters, Kacprowski said.

Concerns over a legal challenge led Caldwell to veto a measure that would have expanded the sit-lie ban along a residential, rather than commercial or industrial street, last June.

In his speech Tuesday, Caldwell talked again about “compassionate disruption,” his longstanding  two-pronged approach to homelessness that aims to prod the homeless into shelters where they can receive needed services.

The second-term mayor pointed to three housing projects the city is building for homeless people in Iwilei, Moiliili and Waikiki. The projects would add more than 60 units to the city’s inventory for homeless.

“This is how we’re addressing the root cause of homelessness and we’re going to keep doing more,” Caldwell said.

Councilman Brandon Elefante said the mayor’s push to build more housing for the homeless is impressive and a smarter move than legalizing tent cities.

But as the only council member who consistently votes against expanding the sit-lie ban, Elefante criticized the “disruptive” side of the administration’s approach.  

“We also have to continue to treat them as human beings,” Elefante said. “What we’ve gone through and our lawsuits with the city through the ACLU, we also have to keep that frame of mind.”

Safer Sidewalks

Almost a year has passed since the City Council passed a bill to expand the sit-lie ban along streets in Iwilei and Kapalama.

The results have been dramatic, said Matt Isoda, an instructor at Technics Jiu Jitsu and Legacy Muay Thai Academy in Kapalama.

“It’s just been a lot safer,” Isoda said. “People can actually utilize the sidewalk.”

There are fewer fights, less public defecation and less visible drug dealing, he said.

“It’s very uncomfortable to see people suffering on the street. … But let’s remember that just because people are out of sight  doesn’t mean that they’re not still experiencing homelessness.” — Jen Stasch, Partners In Care

The gym’s students, including one with impaired vision, had to walk on the road to avoid tents, Isoda said, and homeless people would ask passersby for money, making them uncomfortable.

The sit-lie ban made sidewalks accessible to pedestrians, but it’s hard to say if the homeless people who were  moved out wound up in shelters or were helped at all.

Every year Partners in Care, a coalition of nonprofit homeless service providers, conducts a survey of the islands’ homeless population. Surveyors count those living in emergency or transitional shelters as “sheltered” and those on sidewalks, in forests, along river beds and in other public areas as “unsheltered.”

The number of homeless people living unsheltered increased by about 58.6 percent in the past five years. As a share of the overall homeless population, those without shelter increased by 15 percentage points.

Oahu’s Sheltered And Unsheltered Homeless

Source: Partners In Care

Overall the number of homeless people on Oahu has steadily increased since the Caldwell administration passed the original sit-lie ban.

“It’s very uncomfortable to see people suffering on the street. Its very uncomfortable to be exposed to that,” said PIC director Jen Stasch. “So it seems that you know, out of sight, out of mind, but let’s remember that just because people are out of sight  doesn’t mean that they’re not still experiencing homelessness in our community.”

Organizations that are a part of PIC receive Continuum of Care money from the U.S. Department of Housing and Urban DevelopmentThe federal government deducts points from applications for Continuum of Care funds if communities have laws that it construes as criminalizing homelessness.

Go To A Shelter Or Go To Court

One known effect of measures that penalize homeless people for using public spaces is police officers handing out more tickets.

The State Offie of the Public Defender went as far as creating a new court to address the growing backlog of cases involving homeless people with fines for violating park closures, the sit-lie ban and camping without a permit.

“We tried compassionate disruption and it didn’t work,” said Mateo Caballero, legal director at the American Civil Liberties Union of Hawaii. It’s “more difficult for them to climb out of poverty. Ultimately jails and enforcement are a poor alternative to housing and social services.”

Stasch said the constant prodding, tickets and criminal records pose a barrier to housing and economic stability.

For one thing, landlords are reluctant to accept people with criminal records.

Stasch added that the homeless should go to shelters by their own free will, not because existing everywhere else becomes a criminal offense.

In his fiscal year 2019 budget request, Caldwell asked for $500,000 for homeless outreach services and $400,000 for the city to recruit landlords to house the homeless.

“It’s really important to see the balance here. Keeping public spaces open and then making sure we provide the best services for those in need,” said Marc Alexander, the city’s director of housing.

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