Update: more on the issue from the New York Times: "Honolulu Shores Up Tourism With Crackdown on Homeless."
Check out the headline story from today's Honolulu Star-Advertiser, "Mayor's sidealk strategy targets Waikiki homeless," about two bills proposed by Honolulu's mayor to address some difficult urban issues.
The first bill is our iteration of the so-called "sit-lie" ordinance, which prohibits people from sitting or lying on sidewalks in the Waikiki Special District. A similar ordinance was upheld by the Ninth Circuit in Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996), in which Judge Alex Kozinski, in his inimitable fashion, wrote:
The first step to wisdom is calling a thing by its right name. Whoever named “parkways” and “driveways” never got to step two; whoever named “sidewalks” did.
. . .Plaintiffs claim it is unconstitutional for the city to curtail their use of the sidewalk as a sideseat or a sidebed.
Id. at 302-03 (emphasis added).
The other ordinance being proposed would prohibit people from urinating or defecating in public in Waikiki. Read more about these developments at the story link above (for paid subscribers). We commented on the proposed sit-lie ordinance by recalling Judge Kozinski's statement above:
Robert Thomas, a Honolulu attorney who specializes in land use and government law, said he does not see the difference causing any constitutional problems for Honolulu because the key part of the 9th Circuit ruling was its determination that the Seattle law regulates conduct and not free speech.As for the no-evacuation ordinance:
"It's just conduct and not free speech, and the First Amendment (guaranteeing free speech) doesn't really kick in at that point," Thomas said.
Homeless advocates may still argue that the bill would criminalize homelessness, he said.
A number of jurisdictions, particularly on the West Coast, have sit-lie laws in place. A municipal judge in Portland, Ore., struck down that city's sit-lie law in 2009 for being overly broad, although efforts appear to be underway to craft a new version. Opponents to such legislation may also try to tackle it through the state court system, Thomas said.Thomas said a cursory check of U.S. law databases found prohibitions against urination and defecation to be quite common, and none has been successfully challenged and turned back.
"I think it would be awful tough to convince a court that this is unconstitutional," Thomas said. "It's basically public hygiene."
We shall see whether these ordinances, if adopted, go unchallenged.