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Saturday, July 1, 2000

Prison guards and
domestic violence

Bullet The issue: The state Department of Public Safety is about to fire corrections officers with records of domestic violence.
Bullet Our view: It's taken too long to implement a federal law enacted nearly four years ago.

A federal law enacted in 1996 prohibits persons convicted of domestic violence -- either spouse or child abuse -- from possessing firearms. Although the amendment to the federal gun control law is broadly worded, its impact was greatest on people who are required to carry guns on the job, particularly police officers, prison guards and armed forces personnel.

Soon after the law took effect, then-Honolulu Police Chief Michael Nakamura praised the ban and promised to enforce it in the HPD. Nakamura announced that a dozen officers had been disarmed and assigned to desk jobs.

However, that program quickly unraveled as officers went to court, presumably with the chief's sanction, and succeeded in having their records of domestic violence expunged. In addition, Governor Cayetano pardoned several officers. Such actions effectively nullify the law.

Nearly four years later -- long after the city responded -- the state is finally about to take action. An estimated two dozen corrections officers have been identified as having domestic violence records. The Department of Public Safety says they must resign or be fired. Two state sheriff's deputies with domestic violence records have resigned.

Although prison guards usually do not carry guns, they may be required to and must qualify periodically with firearms.

The department sent out questionnaires in January to about 1,300 corrections officers asking whether they had been convicted of domestic violence. In addition, it conducted criminal background checks.

The delay appears to be caused by the union representing the guards, the United Public Workers. The state and the UPW have been discussing how to proceed with implementation of the law since 1997. It would be astonishing that such a delay -- the law, after all, was enacted in 1996 -- in enforcement would be tolerated if we did not appreciate the power of the public employee unions over state and local government. Even now the state and the union have yet to agree on a deadline for the guards to leave their jobs.

The law is certainly a hardship for the affected officers because it can deprive them of their livelihood, but it meets a need. Studies have shown police officers are more likely to engage in domestic violence than members of the general public.

In two studies in different parts of the country, 40 percent of officers questioned said they had employed violence at home in the past year; the rate among the general public is 16 percent.

There may be a few cases in which pardons may be justified, for example when the offense was committed many years ago and the officer had since had an exemplary record. For the most part, however, it is important to enforce this law -- and stop the foot-dragging.

Street performer rights

Bullet The issue: The American Civil Liberties Union has filed suit to block a city-county ordinance that would restrict the activities of street performers in Waikiki.
Bullet Our view: The city has legitimate concerns about pedestrian safety but it may be possible to deal with them in less restrictive ways.

STREET performers have become a colorful feature of life on the sidewalks of Waikiki. But there can be too much of a good thing -- for example, if they attract crowds who block sidewalks and create safety problems -- and the city-county has attempted to cope with the situation. An ordinance scheduled to take effect July 12 restricts performances to six locations and requires performers to obtain permits. Performances are limited to the hours between 10 a.m. and 10 p.m.

The American Civil Liberties Union has gone to court to block the ordinance, describing it as a violation of free expression as guaranteed by the First Amendment's protection of free speech.

It's not only street performers. One of the ACLU's clients in the suit is Shawn Kawelo, who leads a church youth group that sings, reads passages from the Bible and preaches in Waikiki.

In addition to objecting to the proposed restrictions on general grounds, the ACLU is protesting the exemption of performers who contribute to "a Hawaiian sense of place."

The ACLU's legal director, Brent White, says, "Telling someone they can sing a Hawaiian song, but not a religious hymn, is absolutely unconstitutional." He is certainly right about that.

Although the City Council says the ordinance is intended to protect pedestrians' safety, White says there is no evidence that anyone has ever been injured in Waikiki because of a street performer.

Perhaps not, but it could easily happen. Councilman Duke Bainum, who represents Waikiki, says police have told him that the crowds attracted by street performances sometimes push other people into the street. Bainum sensibly questions the attitude that nothing should be done until blood is spilled.

The city has a responsibility to deal with such safety issues, and these situations do present safety problems. The question is whether the response strikes a reasonable balance between the right of free expression and keeping the sidewalks safe.

A few years ago the city had to deal with T-shirt vendors who piled their wares on tables on Kalakaua Avenue sidewalks and claimed First Amendment protection because their shirts bore messages. There was also an issue of pedestrian safety in that case. The courts permitted the city to restrict the vendors to a few areas and remove them from most of Kalakaua, and the vendors eventually left.

The T-shirt vendors were exploiting the First Amendment to gain a commercial advantage. They didn't have any real interest in expressing anything.

That can't be said about the street performers; they clearly have First Amendment rights. It may be possible to deal with the safety issue adequately while imposing less onerous restrictions on the street performers.

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