§711-1103  Riot.  (1)  A person commits
the offense of riot if the person participates with five or more other persons
in a course of disorderly conduct:



(a) With intent to commit or facilitate the
commission of a felony; or



(b) When the person or any other participant to the
person's knowledge uses or intends to use a firearm or other dangerous
instrument in the course of the disorderly conduct.



(2)  Riot is a class C felony. [L 1972, c 9, pt
of §1; gen ch 1993]



 



COMMENTARY ON §711-1103



 



  In light of recent demonstrations by students and other
militants, the importance of well-drafted statutes relating to riot, unlawful
assembly, and disorderly conduct is self-evident.  The goal is, on the one
hand, not to curtail legitimate exercise of the rights of free speech and free
assembly and, on the other hand, to give the police a useful tool to employ
against conduct which involves crime or physical danger and which is no longer
afforded constitutional protection.



  Riot is the most serious of the offenses against public
order.  It is made a class C felony both because of the greater number of
participants and because of the unlawful objectives.  At least six persons must
be involved (the defendant and five others) in "disorderly conduct,"
as that conduct is defined by §711-1101.  This number of participants is taken
from the previous Hawaii law and the Proposed Michigan Revised Criminal Code in
preference to the Model Penal Code's smaller number of participants (three). 
Because §711-1103 defines riot in terms of aggravated disorderly conduct, it is
necessary to prove the elements of disorderly conduct specified in §711-1101. 
In addition, there must be proof of one of two specified aggravating
circumstances.  Under subsection (1)(a) the accused must intend to commit or
facilitate the commission of a felony.  Subsection (1)(b) makes disorderly
conduct riot when the accused or any other participant to the accused's
knowledge uses or intends to use a dangerous instrument.



  Section 711-1103 is restrictively worded to prevent the use
of the section to break up orderly demonstrations, meetings, or processions
which happen to attract a hostile crowd, perhaps because unpopular views are
being expressed.  On the other hand, the section will be useful in breaking up
disorderly demonstrations which threaten harm in one of the specified ways.



  In the prior Hawaii law, riot was defined as:



Any use of
force or violence disturbing the public peace, or any threat or attempt to use
such force or violence, if accompanied by immediate power of execution, by six
or more persons acting together, and without authority or justification by
law....[1]



The penalty for participating in any riot was a fine of not
more than $1,000 or imprisonment of not more than two years or both.[2]  There
is no case law existing under this particular statute.



  Note on treason.  Although a number of proposed penal
code revisions have included a crime of treason against the State, no such
crime is here included.  Treason is an offense amply covered in federal law,[3]
and is not likely to be directed against the State government.  It is the
position of the Code, therefore, that riot and the other offenses in this
chapter are sufficient to deal with any threat to the safety of the State.  In
fact, the crime of treason was not previously covered by Hawaii law, although
there were numerous sections, repealed by this revision, which covered various
treasonous activities.  Those sections are discussed below.  It will readily be
seen that the sections in this chapter and in Chapters 5 and 7 make it
unnecessary to deal so specifically with the activities previously covered by
Hawaii law.  Moreover, there was considerable doubt about the constitutionality
of some of the sections, particularly those relating to "criminal
syndicalism," as they appeared to penalize speech and assembly rather than
any activities directed at carrying out treasonous goals.  To the extent that
these activities ought to be criminal, they are made so by the Code's provisions
on solicitation, conspiracy, attempt, terroristic threatening, riot, unlawful
assembly, and the like.



  The former law on treasonous activities was embodied in a
number of provisions.  H.R.S. §§721-1 to 721-5 prohibited anarchistic
publications and criminal syndicalism.  Anarchistic publications were those
which advocated or were intended to advocate "the commission of any act of
violence, such as sabotage, incendiarism, sedition, anarchy, rioting or breach
of the peace..."[4]  The printing, selling, or distribution of such
anarchistic publications was punishable by a fine of not more than $1,000 or
imprisonment for not more than one year.  Upon a second conviction for the same
offense within five years from the first conviction, a fine of not more than
$5,000 or imprisonment for not more than one year, or both, could be
imposed.[5]  Criminal syndicalism was defined as "the doctrine which
advocates crime, sabotage, violence, or other unlawful methods of terrorism as
a means of accomplishing industrial or political ends."[6]  Committing
criminal syndicalism in its various forms was punishable by a fine of not more
than $5,000 or imprisonment for not more than ten years.[7]  Two or more
persons were prohibited from assembling for the purpose of advocating or teaching
the doctrine of criminal syndicalism.  The penalty for so doing was a fine of
not more than $5,000 or imprisonment for not more than ten years, or both.[8] 
Knowingly permitting the use of a building for unlawful assembly was punishable
by a fine of not more than $500 or imprisonment for not more than one year, or
both.[9]



  Intentional injury to or interference with property
(sabotage) was prohibited as follows:



Whoever
wilfully destroys, impairs, injures, interferes, or tampers with real or
personal property intending or having reasonable grounds to believe that such
act will hinder, delay or interfere with the preparation of the United States
or of any of the states or territories for defense or for war, or with the
prosecution of war by the United States, shall be fined not more than $10,000
or imprisoned at hard labor not more than twenty years, or both.[10]



  The same penalty was imposed for industrial sabotage
(intentionally defective workmanship) of any article or thing to be used in
connection with the preparation by the United States or any state or territory
for defense or for war.[11]



  Besides the above, the use of disloyal or contemptuous
language concerning the United States, its armed forces, or its flag, or the
commission of an act of disloyalty which was reasonably calculated to cause a
breach of the peace was punishable by a fine of not less than $100 nor more
than $1,000, or imprisonment for not more than ten years, or both.[12]  The use
of pacifistic language during a time of war was punishable by a fine of not
more than $1,000 or imprisonment for not more than one year, or both.[13]



 



__________



§711-1103 Commentary:



 



1.  H.R.S. §764-1.



 



2.  Id. §764-2.



 



3.  18 U.S.C. §2381.



 



4.  H.R.S. §721-1.



 



5.  Id.



 



6.  Id. §721-2.



 



7.  Id. §721-3.



 



8.  Id. §721-4.



 



9.  Id. §721-5.



 



10. Id. §767-2.



 



11. Id. §767-3.



 



12. Id. §733-1.



 



13. Id. §733-2.