Friday, January 22, 2021
Hawai'i Free Press

Current Articles | Archives

Thursday, June 26, 2014
Prohibiting Sitting Or Laying Down On Oahu's Sidewalks 24/7 Makes Law More Susceptible To Challenge
By Robert Thomas @ 2:03 AM :: 3683 Views :: Homelessness

Prohibiting Sitting Or Laying Down On Oahu's Sidewalks 24/7 Makes Law More Susceptible To Challenge

by Robert Thomas, Inverse Condemnation, June 25, 2014

Here's a follow up to last week's story on the "sit-lie" and "don't use the bathroom in public" ordinances now being considered by the Honolulu City Council (see "As Judge Kozinski Said, It's A Sidewalk, Not A Sideseat Or A Sidebed").

Today's Star-Advertiser reports in "Sit-lie ban sought for all Oahu" that the scope of the ban may be expanded from Waikiki, and that the prohibition on urinating and defecating in public in Waikiki is also being proposed to include the entire City and County. In other words, island-wide. The sit-lie ban is also being considered as an all-day thing, not just the limited hours in the initial bill.

While limiting the hours and geographic scope of the sit-lie ban would seem to tacitly encourage this behavior in the off-hours and in other parts of town, the Seattle ordinance on which these things are patterned was so limited, so it seemed like a good starting point for thwarting any legal challenges. Expansion of the scope may leave a slightly wider opening for challenge. Although the NInth Circuit upheld the Seattle ordinance on the grounds that the prohibited conduct was conduct and not speech and the limited geographic and temporal scope of the ordinance was not dispositive, see Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996), a later decision by a different panel of the Ninth Circuit, Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), concluded that a 24-hour city-wide sit-lie prohibition was tantamount to the criminalization of the homeless when there was proof that the plaintiffs has no access to shelter, and thus was cruel and unusual punishment. The Jones reasoning has never been adopted by another court, and the panel opinion was later vacated by agreement of the parties after they settled the case, but the arguments presented remain.

Robert Thomas, a Hono­lulu attorney who specializes in land use and government law, said he believes the Wai­kiki sit-lie bill likely would pass constitutional muster because a 9th Circuit Court of Appeals ruling determined in 1996 that the Seattle law regulates conduct, not free speech.

However, homeless advocates have argued successfully, in a 2006 9th U.S. Circuit Court of Appeals case, that Los Angeles laws disrupting the homeless on public sidewalks serve to criminalize homelessness, Thomas said. Attorneys opposed to the LA ordinances successfully argued that because homeless shelters in the area were turning away people, those on the street had nowhere to go.

"That turned these into status offenses," Thomas said, noting that the U.S. Supreme Court has ruled in other cases that laws cannot be imposed against people based on their status.

As a result, he said, expanding the sit-lie bill to geographically include all of Oahu "makes it more likely to be challenged."

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 sit-lie ordinance 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").

The whole homeless issue has become the hot topic of the moment, even getting our town splashed on the pages of the New York Times recently: "Honolulu Shores Up Tourism With Crackdown on Homeless."

In other words, more to come.




TEXT "follow HawaiiFreePress" to 40404

Register to Vote


808 Silent Majority

ACA Signups Hawaii


Alliance Defending Freedom

Aloha Pregnancy Care Center

American Council of Trustees and Alumni


Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Ballotpedia Hawaii

Better Hawaii

Blaisdell Memorial Project

Broken Trust

Build More Hawaiian Homes Working Group

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

Coffee Break

DVids Hawaii

E Hana Kakou Kelii Akina


Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation



Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes


Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii


National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Hawaiian

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii


OHA Lies

Opt Out Today

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons

Pro-GMO Hawaii


Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Save Dillingham Airfield

School Choice in Hawaii

Sink the Jones Act

Statehood for Guam

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

UCC Truths

US Tax Foundation Hawaii Info

VAREP Honolulu

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii