2011 Hawaii Code
DIVISION 5. CRIMES AND CRIMINAL PROCEEDINGS
TITLE 37. HAWAII PENAL CODE
711. Offenses Against Public Order
§711-1105 Obstructing.

§711-1105 Obstructing. (1) A person commits the offense of obstructing if, having no legal privilege to do so, the person knowingly or recklessly obstructs any highway or public passage, whether alone or with others.

(2) A person in a gathering commits the offense of obstructing if the person refuses to obey a reasonable request or order by a law enforcement officer to move:

(a) To prevent obstruction of a highway or other public passage; or

(b) To maintain public safety by dispersing those gathered in dangerous proximity to a public hazard.

(3) An order to move under subsection (2)(a), addressed to a person whose speech or other lawful behavior attracts an obstructing audience, is not reasonable if the obstruction can be readily remedied by police control.

(4) A person is not guilty of violating subsection (1) solely because persons gather to hear the person speak or because the person is a member of such a gathering.

(5) Obstructing is a petty misdemeanor if the person persists in the conduct specified in subsection (1) after a warning by a law enforcement officer; otherwise it is a violation. [L 1972, c 9, pt of §1; gen ch 1993; am L 2001, c 91, §4]

COMMENTARY ON §711-1105

Although obstructing was formerly covered by the disorderly conduct statute, it raises certain important problems which indicate that it should have separate treatment. Primarily the problems relate to free speech and types of expressive conduct which, under the aegis of free speech, are constitutionally protected. Normally, the act of obstructing a public highway presents a great public inconvenience and serves no useful purpose. However, where the obstruction is caused by a crowd listening to a speaker, or even by a crowd protesting some official action, important goals are served by leaving the group as free from restriction as possible. The proposed section accomplishes these objectives.

Subsection (1) defines obstructing as knowing or reckless obstruction of any highway or public passage. "Obstructs" is defined in §711-1100 as "renders impassable without unreasonable inconvenience or hazard." This conduct constitutes a violation, and if the defendant fails to heed a warning by a peace officer, it may be treated as a petty misdemeanor. However, subsection (4) makes clear that a person does not violate subsection (1) solely because of the fact that people gather to hear the person speak, or because the person is a member of such a gathering.

Subsection (2) is intended to allow reasonable control by peace officers of a public gathering which obstructs highways or which is dangerously close to a public hazard, such as a flood. A person who fails to heed a reasonable request by a peace officer in such circumstances is guilty of a violation. However, subsection (3) declares that a person engaged in speech or other lawful behavior which attracts an obstructing crowd cannot be asked to move if the obstruction can be readily remedied by police control.

Previous Hawaii law treated obstruction as a part of disorderly conduct.[1] The prior statute recognized and protected the rights of the speaker, but it seems insufficient in that it did not protect the rights of the listening audience. The Code attempts to remedy this point.

__________

§711-1105 Commentary:

1. H.R.S. §772-2(2) and (3).