2009 Hawaii Code
Volume 14
TITLE 37 - HAWAII PENAL CODE
CHAPTER 711 - OFFENSES AGAINST PUBLIC ORDER
§711-1102 - Failure to disperse.

     §711-1102  Failure to disperse.  (1)  When six or more persons are participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm, a law enforcement officer may order the participants and others in the immediate vicinity to disperse.

     (2)  A person commits the offense of failure to disperse if the person knowingly fails to comply with an order made pursuant to subsection (1).

     (3)  Failure to disperse is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993; am L 2001, c 91, §4]

 

COMMENTARY ON §711-1102

 

  This section provides a procedure under which a peace officer can order a group of six or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm to disperse.  A similar order may be made to others in the immediate vicinity.  Failure to obey such an order is a misdemeanor.  The offense is thus an aggravated form of disorderly conduct which does not reach the point of riot or unlawful assembly.

  Previous Hawaii law contained a somewhat similar section, allowing an order to disperse after "force or violence has been used disturbing the public peace."[1]

 

Case Notes

 

  As this section's limit on freedom of association and movement is only within the immediate vicinity of the disorderly conduct and there is no "unlimited and indiscriminately sweeping infringement upon the freedom of movement and association", this section does not violate article I, §2 of the Hawaii constitution.  101 H. 153 (App.), 64 P.3d 282.

  Section not unconstitutionally vague under article I, §5 of the Hawaii constitution as its language is specific and clear, it is narrowly tailored to a person's failure to disperse pursuant to a law enforcement order to leave the immediate vicinity of disorderly conduct, and citizens of this State should thus have no difficulty in understanding this section.  101 H. 153 (App.), 64 P.3d 282.

  This section does not violate the right to privacy under article I, §2 of the Hawaii constitution as it is not a "sweeping infringement on the freedom of movement and privacy"; to prevent the substantial harm or serious inconvenience, annoyance or alarm to the public, it is reasonably necessary for law enforcement to order those participating in the disorderly conduct and those in the immediate vicinity to disperse until the disorderly conduct comes to an end.  101 H. 153 (App.), 64 P.3d 282.

 

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§711-1102 Commentary:

 

1.  H.R.S. §764-3.