New law targets squatters
By James Gonser
Advertiser Urban Honolulu Writer
Hawai'i has adopted one of the nation's severest penalties to discourage people from living on public property, raising objections among advocates for the homeless and questions about whether the law can be enforced.
But the Hawai'i law bans individuals for an entire year from the public areas where they are cited, going well beyond what other communities have done.
State Sen. Robert Bunda, who introduced the measure that later was signed into law by Gov. Linda Lingle, said it is directed at squatters who have lived for more than a decade on the beaches at Mokule'ia and defied attempts to maintain public access to the area.
However, the law, known as Act 50, makes no specific mention of Mokule'ia and is applicable statewide.
"The statute by its very terms applies without limitation to all public places," said Lois K. Perrin, legal director of the American Civil Liberties Union of Hawai'i. "Public places are just that public. With that characterization comes certain constitutional rights such as access, assembly, speech and travel. The statute is patently unconstitutional and dangerous for a number of reasons."
Perrin said similar laws banning people from public places in other parts of the country have been stricken down as unconstitutional.
Opponents of the measure fear it could be used to make life much more difficult for homeless people living on public property across the state at a time when homelessness is on the rise.
"I'm very disappointed that Hawai'i seems to have latched on to this one particular trend toward criminalizing homelessness," said Rebecca Anderson, with the Legal Aid Society of Hawai'i. "It's a model that has been proven over and over not to work. It doesn't do anything to solve homelessness."
Before the new law was passed, the only remedy police had was to ticket illegal campers and order them to leave.
Act 50 stipulates that people found illegally occupying public property such as beaches and parks are subject to ejection accompanied by a warning that if they return within a year they face arrest leading to a $1,000 fine and/or 30 days in jail.
The law also stipulates that officers must keep a record of that warning along with a photo or other means to identify the offender.
Before: People living illegally in public beaches and parks have been committing what is called simple trespassing a noncriminal violation. The maximum penalty for simple trespassing is a $500 fine. Now: The new law makes living in public places criminal trespass in the second degree, a petty misdemeanor, and violators are subject to a $1,000 fine and/or 30 days in jail in addition to being banned from the area for a year.
At a glance
Before: People living illegally in public beaches and parks have been committing what is called simple trespassing a noncriminal violation. The maximum penalty for simple trespassing is a $500 fine.
Now: The new law makes living in public places criminal trespass in the second degree, a petty misdemeanor, and violators are subject to a $1,000 fine and/or 30 days in jail in addition to being banned from the area for a year.
North Shore residents have complained for years that the litter from campsites creates a mess, that the lack of public restrooms at the Army beach and Ka'ena Point is a health hazard and people are often intimidated from using the beaches for fear of theft or violent behavior from squatters. And if the squatters are ticketed or kicked off one beach, they just move to another one without leaving the area.
"I think they've been given enough warnings," Bunda said. Under the new law "if they are not off, they get fined and arrested. It's not about homelessness. It's about squatting."
Marie Beltran and her family have lived on the beach at Mokule'ia for 12 years. The Hawaiian family claims it has a right to live on the beach and intends to remain there even if warned to stay away for a year and threatened with arrest.
They have lived at several sites on the coast, and now live in the city's Mokule'ia Beach Park, which allows camping with permits. The permits allow camping for five days at a time Friday through Tuesday with campers required to move out every Wednesday and Thursday while the park is cleaned.
Beltran said her family and a handful of others get permits to camp at the park and leave on cleaning days.
"We have a right to be here because our ancestors (were) from here," Beltran said. "I cannot go to the Mainland and say that's my home. I cannot go to Japan and call that my home. This is my home, right here. I will never give this place up."
Jim Fulton, spokesman for the city prosecutor's office, said geographic restrictions are being used with existing statutes to fight crime. They keep prostitutes out of sections of Waikiki and drug dealers out of Weed and Seed crime-fighting areas, he said.
"It can be a condition of bail, it can be a condition of conviction," Fulton said. "This is a policy that is part of other existing laws, and all the Legislature is doing here is modifying the violation to allow this."
Rebecca Troth, legal director of the National Law Center on Homelessness and Poverty in Washington, said the difference is that prostitutes and drug dealers have committed a crime and been convicted in a court. Troth said she has never heard of a law that includes a year-long ban from a public place simply by being given a warning by police.
"The courts have found you can't criminalize everyday activities of life when homeless people perform them in public if there is nowhere else for homeless people to go," Troth said. "If there are no alternatives it could be an Eighth Amendment violation. It is cruel and unusual punishment to criminalize sleeping in public and trespassing on park property when there are no shelters available."
A government survey showed that the number of homeless statewide last year was up nearly 16 percent from five years ago, overwhelming shelters and services across Hawai'i.
Maj. Stephen Kornegay, district commander for Central O'ahu and the North Shore, said he has concerns about enforcing the law at Mokule'ia because people at the city beach park can legally stay there as long as they have permits, which are issued weekly by the city.
Police don't have jurisdiction over the Army beach or the state park and must coordinate enforcement activities with either the Department of Land and Natural Resources or the Army.
"At Mokule'ia Beach Park, the biggest problem we have down there is with a certain group of individuals who are continually camping, in effect living in the park," Kornegay said. "We check on them on a weekly basis and they always have a camping permit. So somebody with a camping permit is not considered trespassing."
Kornegay said keeping track of who has been given a warning is another problem, and he is not sure how that will be recorded and made accessible to officers trying to make an arrest.
Donald Whitehead, executive director of the Washington-based National Coalition for the Homeless, said putting people in jail is no way to deal with homelessness.
But a number of cities nationwide have passed laws that criminalize activities associated with homelessness, according to the 2003 edition of "Illegal to be Homeless: The Criminalization of Homelessness in the United States," a report by the National Law Center on Homelessness and Poverty.
Among them, Orlando, Fla., has prohibited sitting or lying on sidewalks in the downtown core district; Santa Barbara, Calif., has made it illegal to lean against the front of a building or store; Atlantic Beach, Fla., has made it illegal to sleep on the beach between 11 p.m. and 6 a.m and to use public parks for any reason between sunset and sunrise or 8 p.m. and 6 a.m., whichever is later.
Augusta, Ga., has banned all forms of panhandling, and Boulder, Colo., has passed laws that restrict panhandling in its two main shopping districts.
Corona, Calif., has made it illegal to sleep anywhere on public property, including a car parked on a public street or in a garage. Gardena, Calif., has made it illegal to sleep in cars on public streets between 10 p.m. and 6 a.m.
White said Hawai'i's Act 50 is "a very excessive law and does nothing to address the issue of homelessness. It actually exacerbates the issue in most cases. A person gets fined, ticketed, banned, and their homelessness is not changed at all. Once that year is over or they get out of jail they are still homeless. We find that this is a practice that has no validity for any reason."
Bunda said the issue is an ongoing conflict between the public's right to have access to beaches and parks and the plight of the homeless who often live in those places with nowhere else to go.
Reach James Gonser at firstname.lastname@example.org or 535-2431.