§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.



 



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§711-1105 Commentary:



 



1.  H.R.S. §772-2(2) and (3).