New laws and $80,000 settle panhandling lawsuit

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Hawaii County has agreed to pay $80,000 and rewrite its panhandling laws to settle a civil rights lawsuit filed by a Kailua-Kona man.

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Hawaii County has agreed to pay $80,000 and rewrite its panhandling laws to settle a civil rights lawsuit filed by a Kailua-Kona man.

The settlement agreement filed Monday by U.S. District Court Judge Susan Oki Mollway was approved by the Hawaii County Council in executive session in January and follows changes to two county ordinances signed into law June 12 by Mayor Billy Kenoi.

The American Civil Liberties Union of Hawaii Foundation and the law firm of Davis Levin Livingston, who represented Justin Guy, praised the agreement. Guy was cited in June 2014, while holding a sign off Kaiwi Street in Kailua-Kona saying, ” Homeless Need Help.” The citation was later dropped.

“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,” Guy said in a statement.

As part of the settlement of the case, Hawaii County repealed code provisions that criminalized solicitation and begging. So called “offensive” speech, by itself, is no longer a crime unless the speech is “likely to provoke a violent response,” which is not protected by the First Amendment. Solicitation of support and donations has also been decriminalized.

“This lawsuit and settlement are important, because they show that the law must be applied equally to everyone,” ACLU Legal Director Daniel Gluck said in a statement. “When a politician or police officer can wave a sign on the road asking for the public’s support, but a poor person faces criminal charges for the exact same conduct, that is wrong.”

The settlement also set new rules for how activities are regulated in county parks. Small groups of fewer than 75 no longer need a permit to hold free speech activities in county parks. Larger groups seeking to hold free speech activities in county parks on short notice may do so without having to obtain a permit 20 days in advance. Instead, the group can simply notify the county of the planned demonstration.

The changes respond to Mollway’s 2014 opinion that the 1999 county ordinance was content-based. The judge granted a temporary restraining order prohibiting the county from enforcing its panhandling law.

Corporation Counsel Molly Stebbins praised the county attorneys who worked on the case.

“We feel the agreed-upon code changes strike the proper balance between First Amendment protections and public safety concerns,” Stebbins said.

The ACLU, along with Honolulu attorney Matthew Winter of Davis Levin Livingston, had asked Mollway to overturn the county ordinance banning aggressive solicitation anywhere and the blanket ban against panhandling in any county park.

The settlement agreement states that the $80,000 is “to be distributed as the ACLU deems appropriate.”

An unspecified portion of the money is paid as damages to Guy, who has returned to the mainland to pursue an education, Winter said. Guy, through the ACLU, declined to be interviewed.

The remainder goes to attorney fees and costs under a statute that allows legal help for indigents, Winter said.

“Without such a statute, poor people, especially homeless people, would not be able to hire attorneys,” he said.

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Winter said Guy, who is no longer homeless, learned a valuable lesson through the proceedings.

“He’s a bright young man, and someone I had a lot of respect for,” Winter said. “For a long time, he really had negative thoughts about the legal process. But he was able to see the process working for him. … He now wants to be part of society.”

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