A homeless Hawaii Island man has joined the American Civil Liberties Union to file suit against Hawaii County officials, claiming the county code provisions regarding panhandling are unconstitutional.
According to the complaint and a request for a temporary restraining order, filed Tuesday in the U.S. District Court in Honolulu, Justin Guy was arrested and cited earlier this year for soliciting donations on Kaiwi Street in Kailua-Kona. Guy contacted the ACLU, which had already been trying, unsuccessfully, to discuss the county’s code provisions, in two separate chapters, with the Corporation Counsel’s office.
“The First Amendment protects the right to free speech,” ACLU of Hawaii Senior Staff Attorney Daniel Gluck said. “Solicitation is a kind of speech.”
The U.S. Supreme Court has upheld that point, Gluck said, adding that government can’t “pick and choose” which constitutional rights to allow.
Corporation Counsel Molly Stebbins said the county had received the lawsuit. Hawaii County Code 14-75 prohibits aggressive solicitation, Stebbins said, and those rules strike the “proper balance” between the First Amendment and public safety concerns.
Gluck said the codes don’t just limit aggressive soliciting, however. The two parts of code disallow any solicitation at all in parks, for example, and lay out a number of other areas and ways in which solicitation, in the form of panhandling, aren’t allowed in Hawaii County.
Guy was cited this summer, after being approached by multiple police officers while holding a sign that read, “Homeless Please Help.” According to the complaint, he is now afraid to sit in any public area with his sign.
“His free speech has therefore been, and continues to be, chilled,” the complaint said.
The citation was later dropped.
Further, Gluck said, “there’s no indication” that Guy was being aggressive in how he was panhandling.
Gluck said the ACLU in Hawaii was in the process of creating a document explaining First Amendment rights when it reviewed Hawaii County’s code. In doing so, attorneys found the two provisions they argue are unconstitutional, 14-75 and 15-20(a). For more than a year, ACLU attorneys left messages with former Corporation Counsel Lincoln Ashida and his successor, Stebbins.
The lawsuit is asking the court to rule the county’s code unconstitutional, that the county’s actions, through a police officer, violated Guy’s constitutional rights, and order the county to address the situation so that no one else’s rights are infringed upon in the same way. The temporary restraining order request, which is scheduled to be heard Sept. 19 in Honolulu, calls for the court to order the county to “cease interfering” with Guy’s right to free speech.
Central Kona Councilman Dru Kanuha, who was part of a county task force to look at homeless here, said he couldn’t comment on the lawsuit specifically, but could address the problems caused by panhandling.
“To me, panhandling is unacceptable in this community,” Kanuha said, acknowledging the Supreme Court’s ruling that allows the practice. “In our county, aggressive panhandling is against the law. … We’re also looking at public safety. A lot of (panhandlers) are blocking line of sight for vehicles. It does become a dangerous situation on more major thoroughfares.”
Responding to panhandling requires a delicate balance between public safety and people’s rights, North Kona Councilwoman Karen Eoff said, adding she couldn’t address the lawsuit’s specifics, either.
“Opinions about panhandling are rooted in deeply held beliefs about individual liberty, public order and social responsibility,” Eoff said. “Tension between opposing viewpoints will undoubtedly always exist. Police will always be under some pressure to deal with the issues surrounding panhandling, and we have to make sure there are effective and fair ways to do so. Our county code seeks to balance individual’s First Amendment protections, freedoms of speech and expression with public safety concerns.”