County of Hawai‘i Faces First Amendment Lawsuit Challenging Panhandling Laws

Case to be heard by Judge Mollway on Friday, 9/19/14, 9:30 a.m.

HONOLULU, HAWAI‘I –Hawai‘i County laws prohibiting expressive activity run afoul of the right to free speech, according to a lawsuit filed today in federal court by the American Civil Liberties Union of Hawaii Foundation (“ACLU”) and Davis Levin Livingston on behalf of plaintiff Justin Guy.

On June 3, 2014, Mr. Guy held a sign saying “Homeless Please Help” while standing to the side of Kaiwi Street in Kailua-Kona.  A Hawai‘i County Police Department (“HCPD”) officer told him that panhandling was illegal and ordered him to move – just as other HCPD officers had done before.  Mr. Guy offered to move to a different street, but the officer said he’d be arrested if he did so.  Mr. Guy told the officer that he thought he had a right to hold a sign by the side of the road, after which the officer cited him for violating sections 14-75 and 15-20(a) of the Hawai‘i County Code, relating to “panhandling.”

The ACLU of Hawaii has been trying to resolve this issue informally for over a year.  In June 2013 – and several times since – the ACLU reached out to the Hawaii County Office of the Corporation Counsel, explaining that this ordinance is unconstitutional because it unlawfully restricts free speech rights.  The Hawaii County Corporation Counsel has never provided the ACLU with a substantive response to its repeated inquiries.

Although the charges against Mr. Guy were dropped, the law remains on the books and Mr. Guy (and others who wish to exercise their First Amendment rights) are still at risk of criminal prosecution for engaging in constitutionally protected behavior.

Matthew Winter, an attorney with Davis Levin Livingston, said:  “Laws limiting free expression often wind up being used to stop speech with which the government disagrees.  Here, the law allows political candidates to hold signs by the side of the road, but prohibits the poor from holding signs asking for help.  The First Amendment does not allow the government to pick and choose which messages it likes and which ones it will allow in public spaces.  That is why we need this law off the books.”

ACLU of Hawaii Senior Staff Attorney Daniel Gluck added: “The courts have consistently held that the homeless have the same free speech rights as everyone else.  People can’t be sent to jail merely for holding a sign by the side of the road.”

The lawsuit filed today asks the court to invalidate the laws, order HCPD end its practice of threatening Mr. Guy (and others) for exercising their First Amendment rights, and award damages to Mr. Guy.