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Hawaii Sued Over Law That May Ban Access

The ACLU says limits on entry to public property could chill basic rights. State officials say the group's concern is based on a false premise.

September 08, 2004|From Associated Press

HONOLULU — A new law allowing police and other authorities to ban people from public property for up to a year without a specific reason is unconstitutional, the American Civil Liberties Union said in a federal lawsuit filed Tuesday.

The law could potentially be used to keep voters out of polling places or bar groups such as native Hawaiians from the grounds of the state Capitol, thereby chilling their constitutional rights to free speech, the ACLU said.

The law, known as Act 50, prohibits a person or group from entering a public building, park or other public place for up to one year after a warning or request to leave the premises has been issued.

It was aimed at removing squatters from public campgrounds, parks, beaches and other public places where they illegally put up tents and other temporary shelters. Under the law, those who "knowingly enter or remain unlawfully" on premises after a "reasonable warning" face charges of second-degree trespass, a misdemeanor, except in cases where actions are protected under federal labor laws.

In its lawsuit, the ACLU of Hawaii said Act 50 was too broad and was being used to restrict free speech by banning people from public places. The suit asks the U.S. District Court in Honolulu to strike down the law and prevent officials from enforcing the act.

Atty. Gen. Mark Bennett, who along with Gov. Linda Lingle was named as a defendant, said the state would "vigorously defend" the law. He said the ACLU's lawsuit was based on the flawed premise that authorities would abuse the law.

"Basically, every law is capable of being abused if you have an official whose goal is to abuse it," Bennett said. "But just because a statute is capable of being abused doesn't mean that the statute is unconstitutional.

"If you have those types of abuses, you deal with them on an individual basis."

The legislation was passed 47 to 0 in the House and 21 to 0 in the Senate this year and signed into law by Lingle on May 4.

The ACLU contends there are no standards or procedures for issuing a warning and no way for someone to appeal, adding that the law potentially could be applied to almost any situation.

For example, the lawsuit said, a police officer could stop someone from filing a lawsuit in court, a lifeguard could ban environmentalists from a beach, elections officials could prevent Democrats from entering voting areas such as public schools and government officials could bar native Hawaiians from the grounds of the state Capitol and Iolani Palace.

Under the law, "it is enough that the police officer or authorized person finds the individual to be unsavory or disagrees with the content or message of the individual's speech or activity," the lawsuit said.

Bennett noted that there are many legitimate reasons -- such as threats or harassment -- to motivate authorities to bar someone from public property, adding that those who feel they are being wrongfully silenced can sue.

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