State v. Kaeo
| Decision Date | 29 June 2021 |
| Docket Number | NO. CAAP-16-0000515,CAAP-16-0000515 |
| Citation | 150 Hawai‘i 105,497 P.3d 120 |
| Parties | STATE of Hawai‘i, Plaintiff-Appellee, v. Samuel K. KAEO, Defendant-Appellant |
| Court | Hawaii Court of Appeals |
On the briefs:
Hayden Aluli, Wailuku, for Defendant-Appellant.
Renee Ishikawa Delizo, Deputy Prosecuting Attorney, for Plaintiff-Appellee.
Defendant-Appellant Samuel K. Kaeo (Kaeo ) appeals from the "Trial Decision and Order" filed on June 15, 2016, and the "Judgement and Notice of Entry of Judgment" (Judgment ) filed on June 29, 2016, by the District Court of the Second Circuit (District Court ).1 On July 31, 2015, Plaintiff-Appellee State of Hawai‘i (State ) charged Kaeo by Complaint with: refusal to provide ingress or egress in violation of Hawai‘i Revised Statutes (HRS ) § 852-1 (count 1 ); failure to disperse in violation of HRS § 711-1102 (count 2 ); and disorderly conduct in violation of HRS § 711-1101(1)(d) (count 3 ).2 The State ultimately proceeded only on count 3.
On June 29, 2016, after a bench trial for count 3, the District Court convicted Kaeo of disorderly conduct, in violation of HRS § 711-1101(1)(d) (2014)3 and sentenced Kaeo to pay a fine of $200 and a fee of $30.
On appeal, Kaeo contends that his conviction should be reversed because: (1) he engaged in constitutionally protected conduct; and (2) findings of fact (FOFs ) 4 and 23, and conclusions of law (COLs ) 1, 2, and 3 in the Trial Decision and Order are erroneous.
We conclude that Kaeo's conduct in this case was not constitutionally protected conduct, and that the District Court did not err in its findings of fact and conclusions of law that Kaeo challenges on appeal. We therefore affirm the Judgment by the District Court.
On July 30, 2015, a convoy of vehicles was scheduled to transport large components from the Central Maui Baseyard (Baseyard ) to the Daniel K. Inouye Solar Telescope (DKIST ) construction site at the summit of Haleakalâ on Maui. The convoy was scheduled to leave at 10 p.m. through what was called the MECO gate.
Joseph McMullen (McMullen ), a project manager at DKIST testified that the Baseyard is an outdoor storage facility just off of Mokulele highway used by DKIST to hold large components. McMullen's duties included managing the day-to-day construction of the DKIST and delivery of the materials for the telescope's construction. According to McMullen, at around 7 p.m. on the day in issue, Kaeo arrived at the Baseyard, spoke with McMullen, asked McMullen "is this the place where the transport was going to happen?", and after being told it was, Kaeo told McMullen "you better get ready" and that they "were in for the night." McMullen testified that initially there were about ten protesters, but the number continued to grow. At around 8:30 p.m., the Maui Police Department (MPD ) set up lights across the median. McMullen testified that by 10:00 p.m., over a hundred protesters were outside the Baseyard, holding signs and walking around the crosswalk located outside the gate. At around 9:30 p.m. and 10:00 p.m., the convoy attempted to exit the Baseyard through the MECO gate as scheduled. According to McMullen, after the gates were opened, the trucks made a turn and the nose of a truck was pulled out just beyond the gate but was unable to go any farther as the protesters approached the trucks and the trucks had to stop. McMullen testified the protesters were just a few feet from the trucks, with the truck engines still running. McMullen also testified that the transport convoy consisted of four vehicles, three trucks, and several mechanics trucks, and he was in one of the vehicles.5 Further, McMullen testified that approximately twenty people, including the truck drivers, were involved with transporting the materials to the construction site.
MPD received a call for assistance and Lieutenant Wade Maeda (Lt. Maeda ) was dispatched to the Baseyard at 10:05 p.m. Lt. Maeda testified that when he first arrived at the Baseyard, the road and sidewalk outside the MECO gate were completely covered with people. Lt. Maeda also testified he informed one of the protesters that there were specific guidelines for peaceful protest and that the protesters were currently breaking the law. Lt. Maeda told several protesters to disperse. At around 10:15 p.m., Lt. Maeda activated the Specialized Emergency Enforcement Detail (SPEED ) team because the protesters did not disperse and the convoy could not leave.
Lt. Maeda further testified that lines of five or six people connected their hands through PVC pipes and used duct tape to secure the PVC pipes to their arms so the pipes could not be slipped off. The first line of people laid themselves down approximately twenty feet from the Baseyard gate, preventing the convoy from moving forward. Lt. Maeda testified that at this point the truck engines were still running.
MPD Captain Clyde Holokai (Captain Holokai ), commander of the SPEED team, testified that Kaeo was part of the first line of people connected with PVC pipes and that Kaeo had both arms connected to another protester. Captain Holokai approached the line of protesters on the ground, asked if they wanted to do this and warned they would be arrested. The protesters did not respond and remained on the ground. Captain Holokai ordered his sergeant and the dismantling team to start removing the PVC pipes.
Sergeant Russell Kapalehua (Sgt. Kapalehua ) testified that the protesters lying on the ground connected with PVC pipes would not stand up on their own and that it would have taken a lot of people to carry the protesters off the road. Sgt. Kapalehua also testified that it would have been hazardous to attempt to remove the protesters while they were connected. According to Sgt. Kapalehua, the SPEED team moved slowly to cut the PVC pipe with a hacksaw to ensure no one was injured. Sgt. Kapalehua testified that he could almost feel the heat of the engine from the trucks while he worked to get Kaeo detached. At around 12:45 a.m., the SPEED team finished separating the chained protesters and the convoy left. MPD arrested the protesters who had been chained together, including Kaeo.
Kaeo contends that his conviction must be reversed because his actions in this case were constitutionally protected conduct and speech under the First and Fourteenth Amendments of the United States Constitution and article I, § 4 of the Hawai‘i Constitution.6
"Questions of constitutional law are reviewed de novo under the right/wrong standard." State v. Miranda, 147 Hawai‘i 171, 179, 465 P.3d 618, 626 (2020) (citing State v. Ui, 142 Hawai‘i 287, 292, 418 P.3d 628, 633 (2018) ).
The First Amendment to the U.S. Constitution and article I, § 4 of the Hawai‘i Constitution prohibit the enactment of any law that abridges freedom of speech or the right peaceably to assemble.7 However, these rights are not without limits.
In Cox v. State of La., 379 U.S. 536, 554-55, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), the U.S. Supreme Court explained that:
The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.
(citations omitted) (emphases added).
The U.S. Supreme Court then stated: "We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech." Id. at 555, 85 S.Ct. 453. The Supreme Court then reaffirmed that "it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Id. (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 93 L.Ed. 834 (1949) ).8
Notwithstanding Kaeo's argument that he intended to express his opposition to the DKIST construction in a peaceful and non-violent manner, he protested by physical conduct, chaining himself to others and blocking the transport convoy from having access to the highway from the Baseyard. See State v. Jim, 105 Hawai‘i 319, 334, 97 P.3d 395, 410 (App. 2004) (...
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