This morning, a Hawaii Circuit Court judge will be asked to consider a preliminary injunction against the City and County of Honolulu, temporarily banning what the city calls “enforcement actions” but what the American Civil Liberties Union of Hawaii (ACLU) calls unconstitutional “sweeps” of homeless people from public properties.
The judge should dismiss this motion — and ultimately, Hawaii’s courts would best serve justice by denying the ACLU lawsuit behind it.
Hawaii’s imminent rulings on both the preliminary injunction and the lawsuit, filed in July, will turn on an interpretation of Hawaii’s Constitution, which forbids “cruel and unusual punishment.”
The U.S. Constitution also forbids cruel and unusual punishment, and in federal court cases affecting Hawaii, national civil rights law has been interpreted to allow street and park cleanups, so long as homeless people aren’t displaced without being offered shelter and services.
Because federal civil rights protections for Oahu’s homeless are already observed, a Hawaii court ruling that tightens restrictions beyond federal standards would be a misguided overreach.
To be clear: Homeless people should not be chased from one sidewalk to the next without being provided an offer of shelter, as well as direct, individual support for mental or physical health problems, hunger and other basic human needs. Each person who is forced to pack up a camp due to a cleanup, or is given notice they are violating sit-lie prohibitions on city sidewalks, should have access to immediate services in these aspects.
ACLU’s lawsuit, though, argues that a homeless person or group cannot be disturbed, even if offered shelter, unless shelter is available for the whole of Oahu’s homeless population. This turns a civil rights protection intended for individuals into a guarantee for an entire class of people, imposing unreasonable requirements on local government.
Pushing back, Mayor Rick Blangiardi and the city’s Corporation Counsel have publicly — and properly — defended city action, arguing that cleanups conducted by the city and Honolulu Police Department serve to protect people, neighborhoods and businesses from the adverse affects of people camping or living in public areas. That includes human waste, pest-attracting garbage and the establishment of nodes for criminal activity including drug-dealing, robbery and assaults.
The value of the city’s approach can be seen in areas, including Waikiki and Chinatown, where consistent efforts have been made to clean up encampments and congregation of homeless people. Data and direct observation show there has been a clear improvement in street cleanliness and passability, and a corresponding reduction in the incidence of crime. This is a trend that should be encouraged — along with the development of more shelter space and programs to help unsheltered people move off sidewalks and out of the bushes.
Honolulu’s residents overwhelmingly support cleanups and enforcement of city sit-lie laws prohibiting sleeping or camping on sidewalks during certain hours and in specific districts. The city says enforcement actions are driven primarily by community complaints and requests.
The damage to a community’s sense of safety and well-being caused by proliferating homeless camps must also be considered. In San Francisco, where human waste has become a common sight on the city’s central streets, the issue has contributed to a significant drop in tourism and a string of store closures. California has recently joined Hawaii and other western states in asking the U.S. Supreme Court for more specific guidelines on the constitutionality of breaking up and cleaning up homeless encampments, or enforcing sidewalk sleeping bans, where health and safety concerns are involved.
Hawaii’s courts would do best to defer to these federal decisions, rather than carve out a damaging “protection” for public camping that would do more harm than good.
