The Hawaii Supreme Court handed Hawaiian activist, cultural practitioner, peacemaker and musician Laulani Teale a significant victory last month by unanimously overturning her arrest and conviction for disorderly conduct during a 2012 protest.
Her “crime,” according to court records, was to make repeated attempts to speak with then-Mayor Peter Carlisle when he appeared at the city’s annual Lei Day Festival at Kapiolani Park and, for a time, was seen shaking hands and speaking with members of the audience. Police blocked Teale from approaching the mayor and, when she repeatedly tried to walk past them, arrested her and led her away in handcuffs.
The court’s decision narrows the application of the “disorderly conduct” law and will make it more difficult in the future to use “disorderly conduct” as a catch-all charge to control situations in which the authority of the police is questioned or challenged.
But the court’s decision sidestepped allegations, raised in Teale’s appeal, that police officers gave false or misleading testimony, and improperly threatened to arrest a member of Teale’s group after he refused to comply with an order to turn off his video camera and stop recording the scene when police confronted and arrested Teale.
On May 1, 2012, Laulani Teale, along with her 8-year old daughter, joined Teale’s mother at the city’s annual Lei Day program at Kapiolani Park in what has become a family tradition. The three generations made haku lei and taught lei-making to those gathering for the city program.
Then Teale took a break and, with a small group of supporters, began a quiet, nonviolent protest. She blew a pū, or conch shell, from a position 50 to 60 yards to the side of the bandstand to announce their presence, and the group walked slowly through and in front of the crowd, interacting with and trying to educate members of the audience.
Several carried signs. One read: “City & County, Protect Real Culture.” Another: “Protect, Don’t Steal.”
And this: “Respect Kānāwai Māmalahoe.” That was, it appears, the crux of their message. The “Law of the Splintered Paddle” is attributed to King Kamehameha I, is incorporated into the State Constitution, and is also depicted on a plaque at the base of the famous Kamehameha statute that stands in front of the building housing the Hawaii Supreme Court.
The law “assured that every man, woman and child would be able to travel freely and in peace, with the right ‘to lie down to sleep by the roadside without fear of harm.’”
It is commonly taken as a reminder that all people must be respected and that the powerful should not be allowed to mistreat those who are weaker.
That was Laulani Teale’s mission that day, to attempt to speak truth to power, to try to talk to then-Mayor Peter Carlisle, who was present at the event, about how city workers had ignored their own rules by confiscating a banner painted by a visiting artist for use in a May 1 event being planned by the (de)Occupy Hawaii protest group.
There’s so much wrong with this picture of a Hawaiian peace and sovereignty activist, and cultural practitioner, being arrested for “disrupting” a city program supposedly honoring Hawaiian culture, all for the offense of trying to present her grievances directly to the mayor after the city bureaucracy proved impenetrable.
Three days earlier, Teale was assisting visiting artist Raul Gonzales, who painted a large banner of a splintered paddle for use during a Thomas Square (de)Occupy Honolulu event scheduled for May 1. Gonzales, a well-known indigenous artist who was visiting from Los Angeles, contributed his time and materials. According to documents filed in the case, “the banner was left to dry at Thomas Square, where it was moved (still somewhat wet), by volunteers into a tent to protect it from the elements.”
The next morning, a Sunday, city authorities conducted a “sweep” of Thomas Square, one of a series of controversial raids in which property belonging to (de)Occupy protesters was seized by city workers, backed up by police.
The banner was one of two among the items taken although, as spelled out in Teale’s appeal, the seizure was apparently illegal because the tent had been in place less than 24 hours and had not been tagged, as required by city ordinance.
“Teale was notified of the illegal confiscation and spent the day calling city offices, including the Mayor’s Office, the Department of Facilities Maintenance, and others, in an attempt to retrieve the banner for use in the scheduled ceremony,” according to her appeal. “When making these calls, Teale expressed the importance of her commitment to facilitating the use of the banner for its cultural and ceremonial purposes, and her willingness to be reasonable and do anything necessary to remedy the problem.”
Teale persisted, despite getting the runaround from city officials, and issued a press release announcing her intention to protest during the city’s Lei Day Festival on May 1.
“I will be raising my voice in protest at the event, along with others who have been abused by the City,” she announced, pointing to the city’s continued “illegal raids … taking place at Thomas Square and houseless encampments throughout Honolulu.”
After participating in the lei-making demonstration, Teale met with several Honolulu police officers at the event, including HPD Capt. Ryan Borges, the commander on the scene. She explained their plan for a nonviolent protest, and informed the officers they were looking for Mayor Carlisle.
When Borges expressed concern, Teale pointed out, “he’s public, we’re public,” referring to the mayor.
“We’re not going to hurt anybody. Don’t worry,” she explained to Borges. “We’re peaceful people.” And then off they went looking for the mayor, without any further interference from Borges.
They soon saw the mayor in front of the seating area “shaking hands and mingling with the crowd,” according to Teale’s appeal. The mayor was “in a totally unmarked area and there are no ropes or other visible demarcations discouraging or prohibiting approach.”
But as Teale approach, she was blocked, first by a single police officer, and later surrounded by several officers preventing her from approaching or speaking to her elected official.
What followed, all captured by the video camera, was a series of confusing and conflicting interactions between Teale and different police officers intent on blocking her from speaking to Carlisle.
At one point, while officers surround her, one officer warned that she would be arrested if she got close to his weapon.
“While he is saying this, Teale is visibly shoved by a third policeman,” and falls slightly forward, which drew a repeat of the warning. “You get close to my weapon, you will get arrested.”
And, a few minutes later, she was arrested and charged with disorderly conduct.
Teale was charged with violating Section 711-1011(a), Disorderly Conduct.
“A person commits the offense of disorderly conduct if, with intent to cause physical inconvenience or alarm by a member or members of the public, or recklessly creating a risk thereof, the person … Engages in fighting or threatening, or in violent or tumultuous behavior.”
Teale defended herself during the three-day trial before First District Court Judge Dean Ochiai.
Prosecutors and police saw this as a simple case. Teale was warned to stay away from the mayor but repeatedly attempted to approach him. In doing so, she disturbed some members of the audience, who reportedly shouted hostile comments toward her, and allegedly caused the program to be halted several times.
She was not allowed to present any information about the context of her protest, including the confiscation of the banner and other property from Thomas Square, and the failure of city officials to respond to her many telephone inquiries.
During her cross-examination of witnesses, Teale repeatedly questioned whether any witnesses had seen any behavior that fit the definition of disorderly conduct. Did she fight or threaten anyone? Was she ever violent?
There was, it seems, no evidence she had directly engaged in any fighting, threatening or violent behavior. But the police testified that the circumstances, taken as a whole, nevertheless warranted the disorderly conduct charge.
And the judge agreed.
Teale, now represented by attorney Walter Rodby, appealed.
The Intermediate Court of Appeals upheld her conviction with a brief summary disposition order issued in June 2016.
“The evidence showed that Teale’s actions caused a disruption in the midst of the May Day program and interfered with the audience’s enjoyment of the program, causing members of the audience to voice their disapproval and tell the police to remove her,” the ICA ruled. “We conclude that the State presented sufficient evidence to show that Teale recklessly created a risk that her conduct would cause physical inconvenience or alarm by a member or members of the public.”
The ICA found Teale had engaged in “tumultuous behavior,” which it found sufficient to sustain her conviction.
In its Feb. 28 decision, the Supreme Court noted testimony that Teale had been “persistent” and “aggressive” in seeking to meet with the mayor to “ask (the Mayor) certain questions.” However, it noted testimony of one police officer that “Teale was not violent, confrontational, or threatening.”
“There was also no evidence that Teale was screaming, shouting, or belligerent at any time during the May Day event or in her interactions with police officers or spectators.”
So the court focused on the ICA finding that “Teale had engaged in ‘tumultuous behavior.’”
“Tumultuous” had not previously been defined in statute or in case law, the court found, making the issue one of “first impression.”
The court tackled this head on, pointing first to legal commentary on the statute, which found that the law was intended to be narrowly applied.
She stood on principle, and refused to back down in her quest for social justice.
It is meant to cover “actual fights and other behaviors tending to threaten the public generally.”
“A person may not be arrested for disorderly conduct as a result of activity which annoys only the police … Police officers are trained and employed to bear the burden of hazardous situations, and it is not infrequent that private citizens have arguments with them,” the court said, citing the legal commentary on the provision.
In addition, the court rejected the idea that disorderly conduct can be proved by the reactions of observers.
Prosecutors, along with the lower courts, “reasoned that Teale’s conviction was warranted because her actions caused the audience members at the May Day event to be inconvenienced and annoyed. However,” the court found, the statute “is limited to conduct which is itself disorderly,” and “the offense requires that the defendant engaged in fighting, threatening, or violent or tumultuous behavior.”
“(T)he reaction of the crowd ‘clapping and cheering that the obstruction to their enjoyment of the program was being removed’ does not transform Teale’s behavior into something it was not,” the court concluded.
And the high court rejected broad definitions of “tumultuous” adopted by the Intermediate Court, which would have swept up behavior that is “disorderly or noisy,” “irregular,” or “contrary to public order or morality.”
These “cannot be fairly characterized as rising to the same intensity or seriousness as ‘fighting,’ ‘threatening,’ or ‘violent’ behavior,” the high court ruled.
In the end, the court ruled, citing a 1995 case: “Though Teale may have disagreed or not complied with the police officers’ orders, ‘arguments with the police, without more, do not fall within the ambit of the disorderly conduct statute.”
Reading through this case, and knowing a bit about Laulani Teale’s history of nonviolent social action, I find myself in awe of her quiet persistence. She could easily have paid a small fine and put this whole incident behind her, but refused. She stood on principle, and refused to back down in her quest for social justice. She demonstrated that one can be open and respectful but unyielding. And she prevailed.
The next time, the city would be wise to listen to what she has to say. As would we all.