[ OUR OPINION ]
reaches Honolulu sidewalks
WHEN Sebastian Blanco and a 17-year-old girl were arrested downtown on Wednesday, hopscotch became illegal in Honolulu. It will remain that way unless a judge who appreciates the First Amendment and common sense explains to police that putting chalk to sidewalk does not amount to criminal property damage.
Two demonstrators have been arrested for drawing with chalk on downtown sidewalks.
Honolulu prosecutors could relieve the judge of that chore by simply dropping the charges. Police should extend an apology to Blanco, the girl and the seven other members of the Not in Our Name group who demonstrated against weapons of mass destruction. The arrests in the area of Fort Street Mall and Bishop Street were a foolish and unlawful affront to freedom of expression.
Blanco, a University of Hawaii graduate student in Japanese studies, had written "Remember Nagasaki" in chalk on a downtown sidewalk to commemorate the dropping of an atomic bomb there and on Hiroshima 58 years ago. The girl, a straight-A high school student headed for college on the mainland, had drawn body outlines in chalk on a nearby sidewalk as part of the protest.
Blanco and the girl were arrested on suspicion of fourth-degree criminal property damage, a petty misdemeanor. The law does not say what constitutes "damage," but it is difficult to imagine how chalk, which will be washed away by the next rain or worn away in a short time by normal pedestrian traffic, can be regarded as such.
As the 9th U.S. Circuit Court of Appeals, whose jurisdiction includes Hawaii, concluded in 1995, "No reasonable person could think that writing with chalk would damage a sidewalk." That ruling came from a lawsuit alleging an unlawful arrest by a Berkeley, Calif., police officer of a man who refused to acknowledge an order to stop writing with chalk on a sidewalk, "A police state is more expensive than a welfare state -- we guarantee it." The court ruled that the officer was not immune from being sued.
Honolulu Police Maj. Michael Tucker says officers will ask children marking the sidewalk for hopscotch to clean up the marking, but there is no indication that has happened in the past. It is hard to envision police arresting a youngster for drawing a hopscotch pattern on a sidewalk, but Becky Johnson, an activist for the homeless, dubbed her cause "The Hopscotch Rebellion" after being arrested last year on the sidewalks of Santa Cruz, Calif. She had written on a sidewalk, in chalk, "Vandals don't use chalk" and "Sleeping is not a crime," referring to the city's camping ban.
Alas, Johnson lost her case in March when a panel of Superior Court judges named Art Danner, Tom Kelly and Robert Atack upheld her conviction. "This decision was not unexpected," she grimaced on an Internet site afterward. "'Drumhead' Danner, 'Kangaroo Kelly' and 'Artichoke-heart' Atack never heard a city attorney's argument that wasn't persuasive."
The prosecutor in Johnson's case was helped by the fact that a content-neutral Santa Cruz ordinance specifically forbids the drawing in any medium of anything whatsoever on sidewalks other than official traffic signs or markings. Honolulu has no such ordinance.