On June 3, 2014, Justin Guy stood on the side of Ka‘iwi Street in Kailua-Kona holding a sign that read: “Homeless Please Help.” A Hawai‘i County Police Department (HCPD) officer told him that panhandling was illegal and ordered him to move. Guy offered to relocate to a different street, but the officer said he’d be arrested if he did so. When Guy told the officer he believed he had a right to hold his sign by the side of the road, the officer cited him for violating sections 14-75 and 15-20(a) of the Hawai‘i County Code, relating to “panhandling.”
Yesterday, the American Civil Liberties Union of Hawaii Foundation (ACLU) and the law firm of Davis Levin Livingston filed a lawsuit on behalf of Guy that asks the court to invalidate the two laws, to order HCPD to end its practice of arresting citizens simply for exercising their First Amendment rights, and to award damages to Guy.
“Laws limiting free expression often wind up being used to stop speech with which the government disagrees,” said Matthew Winter, an attorney with Davis Levin Livingston. “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.”
Although the charges against Guy were dropped, the two laws Guy was cited in violation of remain on the books and Guy and others are still at risk of criminal prosecution for engaging in what the ACLU says is constitutionally protected behavior.
“The courts have consistently held that the homeless have the same free speech rights as everyone else,” said ACLU of Hawaii Senior Staff Attorney Daniel Gluck. “People can’t be sent to jail merely for holding a sign by the side of the road.”
The ACLU has been trying to resolve this issue informally for over a year. In June 2013, and several times since, the ACLU says it reached out to the Hawaii County Office of the Corporation Counsel, explaining that this ordinance is unconstitutional because it unlawfully restricts free speech rights. As of right now, the Hawaii County Corporation Counsel has yet to provide the ACLU with a substantive response to its inquiries.