State v. Beltran (HSC November 16, 2007)
Background. Beltran and her friends, Keawemauhili and Lucas, were cited for Camping w/o a permit in violation of Revised Ordinances of HNL, Ord. 10-1-3(a)(2). They appeared in district court and moved to dismiss on the grounds that the ord. was unconstitutionally overbroad and vague. The motions were denied and the parties pleaded no contest w/ the right to appeal the denial of their motions. The ICA vacated on the grounds that it was unclear whether the ord. was prosecuted as a strict liability offense and remanded. The HSC then took it up.
Standing Schmanding. Beltran first argued that the overbroad definition of “camping” infringed on her DP right to privacy and freedom of movement. When alleging that a statute is overbroad, the challenger must be “directly affected by the claimed overbroad aspects” unless the statute affects the freedom of expression. As her expressive conduct is not at issue, she would have no standing to challenge the ord. as overbroad.
Notwithstanding standing, the HSC noted that when criminal laws reach a “substantial amount” of constitutionally-protected conduct, the HSC has examined them for voidness and overbreadth even when it could conceivably have had some valid application. State v. Shigematsu, 52 Haw. 604, 483 P.2d 997 (1971). The HSC found that this was such a case.
Casting an Awfully Wide Net. When facially challenging a statute the court examines whether the ordinance “reaches a substantial amount of constitutionally protected conduct.” A substantial amount is based on the ambiguous as well as ambiguous scope of the law; in other words, “the vagueness of a law affects overbreadth analysis.” The ordinance defined “camping” to include conduct “regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.” According to the HSC, “other activities” easily encompasses well-protected conduct such as walking around and looking up at the sky. Because the ordinance includes activity not specifically regulated by the ordinance, there was a “substantial amount” of constitutionally-protected conduct. The HSC held the void for overbreadth.
A Study In Vagueness. A criminal statute is void for vagueness unless it (1) gives the reader of ordinary intelligence a reasonable opportunity to know what conduct is prohibited so that he/she may act according; and (2) provides explicit standards for those applying the statute to avoid arbitrary and discriminatory enforcement.
Camping is defined as “the use of public park[s] for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth-breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.”
The HSC noted that “living accommodation” distinguishes this activity from a daytime beachgoer. So far, so good. However, the “reasonably appears” standard in the 2d sentence brings it down. The HSC stated that the standard requires the actor to view his or her self as a third person would instead of informing the actor as to how to avoid a violation. It also gives complete discretion to the police in determining whether a person has violated the regulation. Thus, it would also be void for vagueness.
The County’s Scylla and Charybdis. The City and County of HNL’s camping ordinance is unconstitutional. So what happens now? The C & C has amended this particular definition several times over the years (presumably to combat the ever-growing homeless problem on the Leeward side). Now they’ve got to amend it again. Perhaps they should just strike the 2d sentence. That would take care of the vagueness problem. But then comes the overbreadth problem. Does that long and involved definition infringe on a “substantial amount” of constitutionally-protected conduct? Shigematsu waxes eloquently about the freedom of movement encompassing the “right of men [and women] to move from place to place, . . . to stand under open sky in a public park and enjoy the fresh air, to lie down on a public beach and enjoy a sunbath, . . . and the right to associate with others[.]” Id. at 610, 483 P.2d at 1001. So how does the County do it? How do you define camping without running into either one of these sea monsters? But is sleeping in the park a protected activity? Wouldn’t that be part of a “sunbath”? What about a moonbath? Is that just as constitutionally-protected as a sunbath? If so, then can Beltran and her friends sleep over?
But prosecutors should not get too upset by this. Perhaps Beltran and her friends were trespassing onto public parks and recreational grounds in violation of HRS § 708-814.5.