Officials debate impact of court opinion on city homeless laws

The American Civil Liberties Union of Hawaii said a recent federal court decision could spell trouble for two bills before the Honolulu City Council that make it illegal to obstruct or “lodge” on sidewalks and other public property, as well as existing ordinances that target the homeless.

But Mayor Kirk Caldwell and his administration, which initiated the bills, said the 9th Circuit Court of Appeals decision in Martin v. City of Boise deals with laws that are different from what’s being proposed, or already on the books, in Honolulu.

The Council on Wednesday voted 7-1 to give the second of three required approvals to Bills 51 and 52, which are seen primarily as a means for the city to remove the homeless from sidewalks and other public property. The Council Public Works, Infrastructure and Sustainability Committee will take the bill up again at 1 p.m. Wednesday. Councilman Brandon Elefante was the one “no” vote. Councilman Joey Manahan was on the mainland attending a conference.

Bill 51 would make it illegal between 6 a.m. and 10 p.m. to “create, cause or maintain” an obstruction on an Oahu public sidewalk if it “interferes, impedes and/or prevents” pedestrians from moving through freely. Administration officials say the measure is not simply aimed at the homeless, but anyone who obstructs the sidewalk — including, for instance, the company that recently left commercial scooters on sidewalks without city approval. Violators could be subject to fines of up to $100.

Bill 52 would make it a petty misdemeanor to “lodge” on a sidewalk or other public space. It defines “to lodge” as “to occupy place temporarily; to sleep; to come to rest and refuse to vacate” a public place. The bill states specifically that a police officer issuing a citation must first verify there is shelter space within a reasonable distance and to offer to take the person being cited to the shelter.

Mateo Caballero, ACLU Hawaii legal director, said last month’s Boise opinion concluded that government cannot criminalize “the state of being homeless in public spaces” or “conduct that is the unavoidable consequence of being homeless.” The court reaffirmed that doing so would be a violation of the Eighth Amendment, which prohibits cruel and unusual punishment, Caballero said.

The case against Boise was brought by six current or former homeless residents of Boise who alleged that the city’s Camping and Disorderly Conduct Ordinances violated the Eighth Amendment. The majority opinion concluded that “a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no ­sleeping space is practically available in any shelter.”

Caballero said Bill 52, prohibiting lodging, is “nearly identical” to the Boise ordinance.

“Just as in city of Boise, there is not enough shelter space to house the over 2,100 people without shelter on Oahu on any given night,” he said. “Additionally, as the city’s own statistics show, many of the people that go into shelters cannot find affordable, permanent housing at the end of their stay, so they inevitably end up back on the streets.”

Caballero added that the new bills arise after the city has already passed a series of other bills aimed at criminalizing homeless that, “when woven together,” violate the Eight Amendment.

But Caldwell told Council members that the Boise case “applied to a camping ordinance, not sit-lie.” Honolulu’s so-called sit-lie ordinance “is very defined” and applies only to certain commercial areas during business hours, he said.

“When we enforce there, there is enough shelter space for people to go into,” Caldwell said. “So I think to take this case and apply it broadly to what we’re doing here is not the proper way to do an analysis.”

Alluding to what he calls his “compassionate disruption” approach to addressing homelessness, Caldwell said he disagrees with those who believe it’s better to allow a homeless encampment such as the one at Honolulu Stadium Park. The city recently closed the park temporarily to make repairs, which, in the process, removed several dozen people living there. “We’re trying to get people into shelter space where they can be taken care of and then put into permanent, supportive housing,” he said. “But to allow people to live on our sidewalks and in our parks, destroying public property and also hurting themselves, I think is less compassionate.”

Marc Alexander, executive director of the city’s Office of Housing, said, “What we try to do with our shelters, which continue to have vacancies every month, is we try to create flow, move people out of the shelters and other homeless programs into permanent housing, which then allows us to move other people into the shelters.”

Regarding Bill 52, Alexander said, “The key element is having shelter space available when we do enforcement and providing the means to get to that shelter space.”

He said there are approximately 2,200 unsheltered individuals on the island, and he estimated there are 200 to 300 vacant shelter beds each night.

“That’s why I speak about the issue of flow,” Alexander said. “We do not try to reach out and enforce all 2,200 unsheltered homeless people at one time. We do it systematically, and what we do is make sure that (in) an area that we have targeted, that there is available shelter space for those that would avail themselves to such serv­ices, as well as transportation available.”

Councilman Trevor Ozawa said he needed the specifics of the administration’s plan. “In the (Boise) opinion, so long as there is a larger number of homeless than there is available bed space, that law is not enforceable,” he said.

In response, Alexander said, “Unless a state or municipality have a right-to-shelter law, and there are very few that do, it would be impossible for any jurisdiction to have enough shelter space to house simultaneously all sheltered and unsheltered homeless persons.”