Last week, the U.S. Supreme Court ruled that municipalities can enforce sit-lie and camping ordinances against homeless people, even if there aren't enough shelter beds available.
This decision marks a significant shift in how cities can implement these regulations.
Salmah Rizvi, executive director of the American Civil Liberties Union of Hawaiʻi, explained that it is constitutional to punish a personʻs conduct, but not their status. The Supreme Court ruling now says sleeping in public does not make a person homeless. The conclusion that follows is that their conduct of sleeping outside is what is being punished.
“They describe instances or situations where you have campers or tourists or other folks who are sleeping outside and saying, 'For these reasons, you can punish this conduct of sleeping outside,'” she said.
“But we know this to be false. We know that these ordinances the vast majority of which just punish houseless neighbors who can't find anywhere else to go.”
Rizvi was concerned that the ruling may be used by cities to criminalize other public behavior related to homelessness.
But city Deputy Corporation Counsel Ernest Nomura does not believe it will cause lawmakers to enact harsher laws to address homelessness.
“ I think the city has always enforced its ordinances and state law consistent with the law,” he said. “And so we don't think that there will be any increase in enforcement.”
The city advocated for the decision from the court. It signed onto two separate briefs urging the court to strike down the precedent about shelter space.
Nomura said one of the most "helpful" aspects of the Supreme Court opinion is that it eliminated the need to determine who is involuntarily homeless, which was the provision that there needed to be enough shelter space open to give people citations.
Last year, Honolulu expanded the commercial areas where sitting and lying on the sidewalk between 5 a.m. and 11 p.m. was prohibited. That was in addition to many other parts of the island that already have that restriction like Chinatown, areas in Kailua and Ala Moana.
The city has also increased the number of citations it gives out for 14 of the commonly associated laws with sit-lie ordinances.
They include sidewalk obstruction, camping without a permit and violating park rules and regulations.
In 2021 about 6,500 of those types of citations were given out. In 2022, that jumped to 8,200. And in 2023, it passed 8,500.
There were also bills introduced at the state level during this legislative session to explain sit-lie ordinances, although none of them passed.
Nomura explained that the Honolulu Police Department will continue to work with homeless individuals to try to place them in shelters before giving citations. This includes the city’s Homeless Outreach and Navigation for Unsheltered Persons shelter that moves around the island. It’s currently in ʻAiea.
Mayor Rick Blangiardi’s office clarified the city’s policy on clearing homeless encampments. It explained that the enforcement is based on community complaints “directed to the property, not the person.”
While the Department of Facility Maintenance does not issue citations during those enforcements, the Honolulu Police Department may issue citations for trespassing or other criminal violations.
“This is separate from sanitation efforts/enforcement actions,” a city spokesperson wrote in a statement.
“HPD will educate and warn people who are violating park closure rules. HPD also offers individuals alternative shelters, including HONU or other IHS facilities. When individuals refuse to leave the park and/or refuse assistance, they are subject to citation or arrest," the spokesperson wrote.
However, Tanya Brown, chair of the Partners in Care advisory board, explained that these types of enforcement are harmful to those experiencing homelessness.
“Enforcements really push us back steps,” she said. “Whatever the person is unable to carry with them or taken to a shelter, it ends up being trashed. And sometimes that is the vital documents that we just literally gave them.”
The city is required to store items for 45 days, but the storage is located on Sand Island and is difficult to access without a vehicle.
Darryl Vincent is the president of US Vets, an organization advocating for homeless veterans. He explained that criminalizing sitting or lying on the sidewalk is not an effective way to reduce homelessness.
“If we provide the right amount of care, the right amount of housing and wrap-around services when they get into housing, we all know that if we were able to have the amount of support we need, we can put almost an end to this,” he said.
“When I say an end, it doesn't mean that you will never see an individual sleeping on the street. Of course, that will happen, but we will know who that individual is, how long they're there, and we'll be able to get them to housing whenever we make that engagement ready.”
Both Rizvi and Vicent said that giving homeless people citations makes it more difficult for them to secure housing and jobs.
Instead, Vincent said there needs to be strategic planning around types of housing for people with different needs, especially using a "housing-first strategy." That’s when people are put in housing and then surrounded by services.
Kauhale, tiny home villages, are an example of this. The city and state plan to open a new one downtown near ʻAʻala Park within the next week.
Rizvi explained that there are still avenues for legal challenges in the enforcement of sit-lie laws and other homeless enforcement actions. She pointed to the Hawaiʻi Constitution, which leaves a door open to challenge the city’s laws and enforcement.
“The federal constitution uses the word cruel and unusual, but our state constitution uses the words cruel or unusual, meaning that we're hoping in the future we can do impact litigation around this for the Hawaiʻi State Court to clearly say that this is a disjointed two-step test,” she said.
“Anything that is cruel or unusual punishment cannot be inflicted and criminalizing houseless neighbors can definitely be considered cruel, even if it's not unusual, even if lots of states are engaging in this behavior. It doesn't have to be both.”
The ACLU has pending litigation against the city regarding its sit-lie ordinances and enforcement actions. Nomura expected that the Supreme Court decision would help the city defend against the ACLU’s complaint.
Original article found on Hawaii Public Radio: https://www.hawaiipublicradio.org/local-news/2024-07-03/supreme-courts-s...