ACLU opposes bills offered to address issues with homeless

The American Civil Liberties Union of Hawaii said Friday that it “strongly opposes” two of the five bills offered by Maui County Mayor Alan Arakawa to deal with the homeless problem in the county – prohibiting sitting and lying on public sidewalks and going to the bathroom in public areas.

“The poorest Maui County residents will face criminal penalties for the basic life functions of sleeping and going to the bathroom,” said Daniel M. Gluck, legal director of the ACLU of Hawaii, in an email Friday.

The other three measures, presented to the County Council on Nov. 25, prohibit drinking in public areas, stealing shopping carts and aggressive begging.

The package of bills “are intended to help protect and preserve the public health, safety and welfare,” Arakawa said in a letter to council Chairman Mike White in November.

The mayor recently has been critical of the council for not taking action on his bills.

“These proposed bills were created because our police officers said they needed better legal tools to protect our community, and we have vetted each one through our Corporation Counsel attorneys,” he said in Monday’s “Ask The Mayor” column in The Maui News.

Council members and their staffs say that the measures could pose legal and other issues.

“There are policy and constitutional concerns on these bills and each of them will have to be thoroughly reviewed,” said White on Friday in an email. “I have not received a strong indication on the need for these new laws to address homelessness and if they are even enforceable.”

White said that he looks forward to discussing the bills in more detail in the council’s Policy Intergovernmental Affairs Committee, whose chairman is Mike Victorino. An attempt to reach Victorino on Friday was unsuccessful.

The ACLU particularly was opposed to the bills prohibiting sitting and lying on public sidewalks and urinating or defecating on public streets, sidewalks or locations owned or maintained by a government agency. The bathroom bill has exceptions for medical conditions verified by a licensed physician.

The sit/lie bill has exceptions for anyone with a medical condition or emergency and anyone engaged in “expressive conduct not otherwise disallowed.” A sit/lie ban was enacted by the City and County of Honolulu in 2014.

“Specifically, we strongly oppose both the sit/lie ban and the proposal regarding bathroom use,” said Gluck. “These measures criminalize the status of being homeless – that is, these measures make it a crime to be poor – violating both the Hawaii Constitution and the United States Constitution.”

Maui’s homeless shelters “are consistently full” and “the county does not provide sufficient restrooms for families and individuals who are homeless,” Gluck added.

On the panhandling measure, Gluck said that the county Corporation Counsel’s office did ask the ACLU Hawaii for comment because the ACLU had sued Hawaii County over its anti-solicitation ordinance and won. The version Gluck reviewed was similar to the one the ACLU and Hawaii County had worked out, “though we raised concerns about some of the language in Maui’s proposal,” he said.

Arakawa said in “Ask The Mayor” that county attorneys conferred with Big Island lawyers and the ACLU in drafting the bill to make sure not to violate the First Amendment right of free speech.

“The county has not contacted us about any of the remaining ordinances, some of which are unconstitutional,” Gluck added.

He said that “any implication that we approve of” the sit-lie or public-bathroom-use bills “or that we believe them to be constitutional is incorrect.”

An attempt to obtain comment from the Mayor’s Office on Friday was unsuccessful.

* Lee Imada can be reached at