Honolulu's Sidewalk Obstruction Prohibition Goes Island-Wide
by Robert Thomas, Inverse Condemnation, July 6, 2018
Honolulu's homeless problem is a tough nut to crack. There are no easy answers. People have rights, even if that means they have the freedom to live outside. But when a walk out the door of your downtown office becomes an exercise in dodging human waste, poor unfortunates in various stages of mental illness or addiction, and you pray for rain to wash away the odor, it really crystallizes what that that freedom sometimes means.
So we follow the legal issues -- not because we have any dog in the hunt -- but from the perspective of an interested citizen, wondering where this is going. Reporter Gordon Pang, in today's Honolulu Star-Advertiser has a piece "City lawyers work hard to ensure sidewalk bills will withstand challenges" about the City's latest efforts to do something. We were asked for our thoughts on two bills, one dealing with an island-wide prohibition on obstructing a sidewalk from 6am - 10pm, the other which would prohibit "lodging" in a public area, anytime. Our thinking:
“Obviously, (the bills) are designed to keep the homeless from setting up homes on the sidewalk,” said attorney Robert Thomas, who specializes in land use law.
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Thomas, who specializes in land use law, said it appears city lawyers have taken great pains to craft the bills with language that works around areas that federal courts have found unacceptable.
“They’ve put in what might be considered safety valves in there to keep them from a successful challenge,” Thomas said. The obstruction bill is similar to the sit-lie bill, “but there are some key distinctions” which might make it tougher for a challenge to be successful, he said.
The argument against an islandwide ban in the past has been that a blanket ban on sidewalk dwelling and storing amounts to discriminating against homelessness, making it unconstitutional. The courts have concluded generally that municipalities can, in the interest of public safety and health, regulate conduct, but not on status or speech, Thomas said.
The new obstruction bill takes the prohibition off during certain hours of the day, thus taking away the argument that it is a blanket ban on sleeping on the sidewalks or criminalizing homelessness, Thomas said.
And while the sit-lie bans are misdemeanors, the obstruction bill leads to a civil violation resulting in a fine or civil service, he said.
As for the lodging bill, “there has to be a place for you to go under this bill” before a person can be removed from the sidewalk, he said.
Thomas said he expects the bills, if they become law, to be challenged. “Now if I had to put money on it, I’d say that there is a better chance than not that they would stand up,” he said. “Of course, a lot of it depends on a particular situation — and how they’re enforced.”
Mr. Pang covers this issue (see "Honolulu mayor shifts course on homeless legislation" (June 29, 2018) for his last report), and obviously, this one isn't over yet.
Here are some of our own previous posts related to the subject:
One uniquely Hawaii angle on this issue has not been explored in the courts, as far as we can tell. In our state constitution, there's a provision that enshrines "the law of the splintered paddle" as a constitutional concept. According to the wikipedia entry (which is in accordance with our admittedly anecdotal understanding of the LOTSP):
It was created when Kamehameha was on a military expedition in Puna. His party encountered a group of commoners on a beach. While chasing two fishermen who had stayed behind to cover the retreat of a man carrying a child, Kamehameha's leg was caught in the reef. One of the fisherman, Kaleleiki, hit him mightily on the head with a paddle in defense, which broke into pieces. Kamehameha could have been killed at that point but the fisherman spared him. Years later, the same fisherman was brought before Kamehameha. Instead of ordering for him to be killed, Kamehameha ruled that the fisherman had only been protecting his land and family, and so the Law of the Splintered Paddle was declared.
Here's article IX, § 10 of the Hawaii Constitution in full:
The law of the splintered paddle, mamala-hoe kanawai, decreed by Kamehameha I -- Let every elderly person, woman and child lie by the roadside in safety -- shall be a unique and living symbol of the State's concern for public safety.
The State shall have the power to provide for the safety of the people from crimes against persons and property.
So can old folks, women, and children ignore the current sit-lie ordinance and these new measures, if adopted, under this provision? The punishment for those who break this command is "Hewa no, make" ("Break this law, and die"), which makes the whole declaratory judgment and injunction remedy kind of minor league. At least one recent op-ed made the case ("Law of the Splintered Paddle should apply to Hawaii's homeless").
We wish everyone luck on this one. As we said, no easy answers.