Homeless laws continue to face legal challenges

The city expects a judge’s ruling by the end of the year over a lawsuit challenging its enforcement of laws meant to crack down on homeless activity.

The American Civil Liberties Union has successfully convinced courts on the mainland to rule against similar laws aimed at unwanted homeless behavior. More recently, the ACLU and Maui County squared off Thursday before the state Supreme Court over a lawsuit the ACLU filed challenging the county’s immediate destruction of homeless possessions during a 2021 sweep, which all but halted sweeps on the Valley Isle over the past two years.

In July the ACLU — and the civil rights law firm of Goldstein, Borgen, Dardarian &Ho — filed a lawsuit alleging that Honolulu’s homeless sweeps and other “anti-houseless” laws should be ruled illegal and unconstitutional because they violate Hawaii’s state constitutional prohibitions against cruel and unusual punishment.

The ACLU particularly wants Honolulu’s sit-lie ban, park closure rules, camping prohibition in city parks and the 11-year-old sidewalk nuisance and stored property ordinances ruled illegal and unconstitutional in Circuit Court.

Whatever happens next in the courts will represent the latest turn in the city, state and nation’s efforts to address homelessness.

It’s a debate that continues to divide people across the country — especially in urban, tourist-reliant cities like Honolulu. But whether the best approach should start from a perspective of empathy or enforcement has failed to eliminate homelessness, dating as far back to biblical times.

What’s become clear is that there is no simple or easy approach.

“Homelessness is a complex and pressing issue, and it affects many individuals and families in our community,” Mayor Rick Blangiardi said in a statement after the ACLU lawsuit. “… This is not just a legal or political issue, it is a humanitarian crisis that affects everyone.”

In 2022 Hawaii had over 8,000 homeless people, including 300 children — resulting in the second-highest per capita rate of homelessness in the nation, according to Gov. Josh Green.

Many struggle with mental illness, addiction and conditions that lead to an average life span of only 53 years, according to Green, a medical doctor who often provided wound care to Chinatown’s homeless when he lived on the edge of Chinatown as lieutenant governor.

Another crisis emerges

Exacerbating the threat of homelessness, U.S. Housing and Urban Development Secretary Marcia L. Fudge told local and congressional leaders in July that “what we know is that Hawaii is the most expensive state to live in,” with the highest per capita rate of homelessness among Native Hawaiians and Pacific Islanders, at 121 per 10,000 residents.

And the Institute for Human Services, which operates Hawaii’s largest homeless shelters in Iwilei, has seen a new crisis: a growing number of senior citizens arriving at the agency’s men’s and women’s shelters, or being left by families who cannot care for relatives with Alzheimer’s disease and other forms of dementia.

Nearby, Chinatown’s River of Life Mission was founded to feed the homeless but more recently was blamed for attracting homeless people into Chinatown, who frequently threw their meals into the street, at vehicles and even defecated on sidewalks after they ate.

Chu Lan Shubert-Kwock, founder and president of the Chinatown Business and Community Association, helped rally merchants and residents to lobby River of Life and the city to shut down the mission’s feeding program, which Shubert-Kwock said has noticeably reduced homeless activity in the year since.

River of Life used to serve 600 to 700 meals a day in its dining room on North Pauahi Street but instead drives smaller portions out to homeless spots across Oahu. As of April, the new approach had gotten 77 people into shelters and detox programs.

While the number of homeless people in Chinatown has fallen, Shubert-­Kwock still sees plenty of people living on the street who appear to suffer from mental illness and substance abuse.

“It’s so horrible to see,” she said. “The city has addressed homeless issues for people who are capable of caring for their needs. But realistically speaking, we still see a lot of mentally ill people on our streets. Those are the ones that are not capable of making decisions and this is where we fail.”

Honolulu Police Department officers “are sympathetic and care,” she said, and the city, University of Hawaii and other organizations regularly perform wound care on the street, along with social service help that includes offers of shelter.

But there are not enough officers, mental health and substance abuse experts — or facilities to house them, Shubert-Kwock said.

She particularly gets upset by the ACLU arguments on Maui and Oahu that county efforts violate the civil rights of homeless people.

“People living on the street in their filth can’t enjoy their civil rights,” Shubert-Kwock said. “It’s cruelty. I feel very strongly about that. It makes me sad. I feel so helpless. It doesn’t feel like the Christmas season. It’s not right. They are people. It’s not right.”

The ACLU did not immediately respond to a request for comment.

Search for new ideas

Former Mayor Kirk Caldwell tried a variety of enforcement actions and first-of-their-kind housing approaches during his eight years in office using a dual-­pronged approach he called “compassionate disruption.”

He understands the frustrations of Shubert-Kwock and others about homeless people with mental health and substance abuse issues.

But Caldwell doubts he would want the power to determine who should be taken off the street against their will and forced into treatment.

“If you force a homeless person into housing or treatment, where is that line? Who’s next ?” Caldwell said. “It’s the Nazi Germany thing. Pretty soon you become a state you don’t want to be in. I don’t know if I’d want that power because where does it lead, where does it stop?”

Caldwell was mayor when the city enacted the state’s first ban on sitting or lying — in Waikiki — and a series of other laws that the ACLU now wants ruled illegal.

The so-called sit-lie ban had immediate, unintended consequences in June 2015 when homeless people simply migrated ewa along Ala Moana Boulevard and set up tarps and tents in nearby Kakaako Waterfront Park, attracting even more homeless people.

It quickly exploded into one of America’s largest homeless encampments of more than 300 people over the summer of 2015.

And it drew a visit from federal homeless officials after then-state Rep. Tom Brower was chased by a mob of about 10 homeless people and beaten near the doorstep to the Hawaii Children’s Discovery Center and pummeled in front of children and their parents visiting the center.

The attack left Brower with a cut near his right eye, bruised ribs and scrapes on his leg and left hand.

The encampment included children and was unhealthy, unsanitary and dangerous.

“There was a rape,” Caldwell said. “The weak were preying on the weaker.”

The violence and attack on Brower and the sheer size of the encampment stunned residents and led to the realization that law enforcement efforts, alone, would not eliminate homelessness.

A flurry of activity and innovative ideas from Caldwell and then-Gov. David Ige quickly followed.

Caldwell desperately hoped his fellow mayors across America had found a successful approach, but none had.

“I didn’t see any formula that solved the problem. There was no comprehensive formula that works,” Caldwell said. “All the things that are being done today are all dabbling around the issues. But you have to try.”

Otherwise, he said, more people will become homeless.

“What will happen, what will this place look like?” Caldwell said.

Just like in Kakaako, “they will gather in larger and larger groups.”

Now, as a private citizen, Caldwell continues to look for new answers and is using his fundraising connections to work with a hui of business people to raise $3 million to help the approximately 250 residents of the Pu‘uhonua O Wai‘anae homeless encampment relocate from the edge of the Waianae Small Boat Harbor and onto private land they’ve already bought mauka of Farrington Highway.

The fundraising effort stopped following the Aug. 8 Maui wildfires but will resume.

For now, the group is soliciting donations of $10,000 to $25,000 from “people with means ” but will likely seek smaller donations depending on how the campaign goes.

Caldwell likes that Twinkle Borges and her supporters raised money on their own to move off public lands and onto their own property — a concept he hopes will inspire other homeless communities across the islands.

“It’s a unique project, the first of its kind in Hawaii where there’s no government involved,” Caldwell said. “It’s the homeless pulling themselves up by their bootstraps. It’s all self led and that’s a first in Hawaii.”

As mayor, Caldwell repeatedly told the Honolulu Star-Advertiser at the time that he received more complaints about homelessness than any other issue.

Now he still wants to find a way to help and continue his search for new ideas to get homeless people housed.

“My wife tells me, ‘Kirk you’re not the mayor anymore.’ I say, ‘I cared before I was mayor and I’ll care after I’m mayor.’”