First Amendment Victory in Kona “Panhandling” Case

Judge grants temporary restraining order against Hawaii County

HONOLULU, HAWAI‘I – Advocates declare a victory for freedom of speech as United States District Court Judge Susan Oki Mollway entered a temporary restraining order (“TRO”) against Hawai‘i County. The TRO prohibits Hawai‘i County from interfering with Plaintiff Justin Guy’s right to hold a sign (saying “Homeless Please Help”) by the side of the road. Mr. Guy was represented by The American Civil Liberties Union of Hawaii Foundation (“ACLU”) and the law firm of Davis Levin Livingston.

Judge Mollway granted Mr. Guy’s request for a TRO, meaning that the County must immediately cease interfering with Mr. Guy’s free speech rights. In ruling that Hawai‘i County Code § 14-75 runs afoul of the right to free speech, Judge Mollway wrote that “it is unclear why public safety cannot be addressed with less restriction than section 14-75 imposes.” She further asserted that plaintiff Guy “is likely to succeed on the merits of his challenge to section 14-75 of the Hawaii County Code.”

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 “leave the area” – just as other HCPD officers had done before. The officer then cited Mr. Guy for violating Hawaii County Code §14-75, which prohibits solicitation for money in a wide range of public places in the County. The criminal charges against Mr. Guy were eventually dismissed, but the lawsuit was brought to protect the constitutionally guaranteed free speech rights of Mr. Guy and others wishing to express their views.

Matthew Winter of Davis Levin Livingston, said: “All people have a constitutional right to express their views publicly – whether those views are popular or not. This right of free speech applies with equal force to an unsheltered person asking for help as it does to a politician asking for votes.  The government cannot suppress speech it does not like, and it is the ability to freely express oneself, which is the heart of our democracy. Today’s ruling is a victory for all residents of and visitors to Hawaii County, because it is a victory for the most fundamental of our civil liberties.”

Plaintiff Justin Guy said, “The County of Hawaii should treat homeless people with dignity, and recognize that we have constitutional rights – including the right to free speech – just like everyone else.”

The panhandling ordinance had been of concern to the ACLU for some time, prior to the case being filed. ACLU Senior Staff Attorney Daniel Gluck said: “For more than a year, we repeatedly tried to address these issues informally with the Hawaii County Office of Corporation Counsel. We never received a substantive response. We are pleased that Mr. Guy will be able to exercise his constitutional rights without fear of arrest, and we are going to continue to continue this work to ensure that everyone – regardless of economic status – is treated equally under the law.”

The Court set a further hearing in this case for January 21, 2015 to address the constitutionality of several county laws restricting solicitation.