United States District Court, D. Hawaii
For Stratford Goodhue, Doreen Goodhue, Plaintiffs: Daniel M. Gluck, Lois K. Perrin, LEAD ATTORNEYS, American Civil Liberties Union Hawaii, Honolulu, HI; Mark S. Davis, LEAD ATTORNEY, Davis Levin Livingston Grande, Honolulu, HI; Matthew C. Winter, Michael K. Livingston, LEAD ATTORNEYS, Davis Levin Livingston, Honolulu, HI.
For County of Maui, a municipal corporation, Darrell Ramos, Sergeant, Maui Police Department, in his individual capacity, Asbel Polanco, Officer, Maui Police Department, in his individual capacity, Defendants: Thomas W. Kolbe, LEAD ATTORNEY, Department of the Corporation Counsel Maui, County of Maui, Wailuku, HI.
For County of Maui, a municipal corporation, ThirdParty Plaintiff: Thomas W. Kolbe, LEAD ATTORNEY, Department of the Corporation Counsel Maui, County of Maui, Wailuku, HI.
For Avery Chumbley, Maui Fair Alliance, ThirdParty Defendants: Jeffrey S. Portnoy, LEAD ATTORNEY, John P. Duchemin, Cades Schutte, Honolulu, HI.
For Maui Fair Alliance, Avery Chumbley, Counter Claimants: John P. Duchemin, Cades Schutte, Honolulu, HI.
For County of Maui, a municipal corporation, Counter Defendant: Thomas W. Kolbe, LEAD ATTORNEY, Department of the Corporation Counsel Maui, County of Maui, Wailuku, HI.
ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Alan C. Kay, Senior United States District Judge.
For the following reasons, the Court hereby DENIES Plaintiffs' Motion for Partial Summary Judgment.
This case arises out of an incident that occurred at the 2013 Maui County Fair. The Maui Fair is an annual event organized and run by Third Party Defendant Maui Fair Alliance. In 2013, the Maui Fair attracted over 90,000 visitors. (Mot., Ex. 1 (Chumbley Depo.) at 12, 76.) The fair is held at the War Veterans Memorial Complex, a public park owned and controlled by Defendant the County of Maui (" the County" ). The park is bordered by Kaahumanu Avenue on the south, Kanaloa Avenue on the east, Baldwin High School
on the west, and the War Memorial Stadium on the north.
The Maui Fair is open to the general public, but there is an admission fee for visitors to enter the fenced area (referred to as the " ticketed area within the paid gate" ). (Mot., Ex. 1 (Chumbley Depo.) at 22.) There are three entrances, or " paid gates," into the ticketed area: the " Kanaloa Gate," located just off Kanaloa Avenue on the east end of Halia Nakoa Street; the " Baldwin Gate," located on the western end of Halia Nakoa Street; and the " Stadium Gate," located on the northern edge of the fairgrounds, next to the War Memorial Stadium and the stadium parking lot. (Maui Fair Alliance Opp'n, Ex. A (Chumbley Depo.) at 23-24.)
The Kanaloa Gate is the most heavily trafficked of the three entrances, with at least 25,000 paying visitors using it to enter the 2013 fair. (Mot., Ex. 1 at 29-30.) To reach the Kanaloa Gate, fairgoers must walk down a sidewalk bordered on one side by a narrow grass or dirt strip, and on the other side by Kanaloa Avenue, a five-lane road. (Maui Fair Alliance Opp'n, Ex. B (S. Goodhue Depo.) at 49-50; Mot., Ex. 1 (Chumbley Depo.) at 30.) The Kanaloa Gate is directly across Kanaloa Avenue from one of the main parking and bus drop-off areas for the fair. (Mot., Ex. 1 at 30.) Thus, to reach the Kanaloa Gate from the parking and drop-off areas, pedestrians must cross Kanaloa Avenue at one of several crosswalks or intersections; the Maui Police Department provides off-duty officers to work as traffic controllers to aid pedestrians in crossing the road and regulate traffic around the fair. (Id. at 30, 54.)
Plaintiffs Stratford and Doreen Goodhue (" Plaintiffs" ) are evangelical Christians. (Mot., Ex. 3 (S. Goodhue Depo.) at 21-22.) As part of their religious mission, they create and distribute gospel tracts, or small pamphlets discussing their religious beliefs. (Id. at 29-30.) In 2012, Plaintiffs distributed gospel tracts outside the Maui Fair, adjacent to the sidewalk on the west side of Kanaloa Avenue, approximately 100 feet from the Kanaloa Gate without incident. (Id. at 45-46.) The Plaintiffs believed that the Maui Fair was a unique opportunity to distribute gospel tracts because of the number of people in one place at one time, and they decided to return to the fair the following year. (Id. at 142-43.)
During the 2013 fair, Plaintiffs stood distributing gospel tracts near a large banyan tree next to the Kanaloa Avenue sidewalk, approximately 50 to 150 yards away from the Kanaloa Gate. (Mot., Ex. 2 (Ramos Depo.) at 33, 35 (estimating Plaintiffs stood 40-50 feet from the gate); Ex. 1 (Chumbley Depo.) at 29 (estimating 50-50 yards from the gate).) Plaintiffs chose this location because of the large amount of foot traffic going towards the entrance to the fair. (Mot., Ex. 3 (S. Goodhue Depo.) at 48.) On Thursday, October 3, 2013, Plaintiffs distributed tracts in this location for approximately five hours without incident. Plaintiffs state that police officers walked past them approximately 25 times without saying anything about their conduct. (Mot., Ex. 3 (S. Goodhue Depo.) at 53-54, 76, 70.) Other members of Plaintiffs' church chose to distribute tracts in other places near the Kanaloa Gate, or near other gates to the fair. (Maui Fair Alliance CSF, Ex. B (S. Goodhue Depo.) at 120-125.) For example, one couple stood along the Kanaloa Avenue sidewalk, but on the other side of the Kanaloa Gate, near where fairgoers exited, rather than entered, the fair. (Id., Ex. E (D. Goodhue Depo.) at 20-25.)
On Friday, October 4 at approximately 8:00 p.m., Third Party Defendant Avery Chumbley, president of the Maui Fair Alliance, observed Plaintiffs impeding pedestrian traffic on the sidewalk and approached
Plaintiffs and requested that they leave the area. (Mot., Ex. 1 (Chumbley Depo.) at 31-32.) There is some dispute as to whether Plaintiffs were located on the sidewalk or next to it. Plaintiffs state that they stood " on or adjacent to" the sidewalk, and that, while they occasionally walked onto the sidewalk to distribute their tracts, they generally stayed off the sidewalk and simply extended their arms so that people could take their pamphlets as they passed. (Maui Fair Alliance Opp'n, Ex. B (S. Goodhue Depo.) at 33, 52-53; Pl.'s CSF ¶ 1.) Mr. Goodhue testified that pedestrians " wouldn't have to get around my arm to get past me[,]" and that he was not impeding pedestrians' progress. (Mot., Ex. 3 (S. Goodhue Depo.) at 53-54.)
Conversely, Mr. Chumbley asserts that he saw Plaintiffs standing on the sidewalk, blocking pedestrian traffic, and forcing pedestrians to slow down, stop, or walk out into Kanaloa Avenue to get around them. (Id., Ex. A (Chumbley Depo.) at 33.) George Kaho'ohanohano, the Maui Fair Alliance's police liaison, also states that he saw Plaintiffs blocking the sidewalk. (Id., Ex. C (Kaho'ohanohano Depo.) at 27-28.) After being confronted by Chumbley, Plaintiffs moved across Kaahumanu Avenue, in front of the police station, and continued handing out their tracts there; however, there was far less foot traffic in their new location. (Mot., Ex. 3 (S. Goodhue Depo.) at 73-75.)
The following day, Saturday, October 5, the Plaintiffs returned to their original location near the Kanaloa Gate to distribute their tracts at approximately 5:00 p.m. (Id. at 77-78.) Mr. Goodhue states that he went to a ticket booth in an attempt to speak with a Maui Fair official regarding the distribution of the facts, but was unable to speak with anyone. (Id. at 78, 80-82.) Plaintiffs distributed their tracts without incident until approximately 7:30 or 8:00 p.m. (Id. at 82.) Chumbley states that, at that point, he once more observed Plaintiffs impeding pedestrian traffic and forcing pedestrians into the roadway to get around the congestion, and therefore once more approached Plaintiffs and asked them to leave. (Maui Fair Alliance Opp'n, Ex. A (Chumbley Depo.) at 42-44.) Plaintiffs responded that they believed they had a constitutional right to remain where they were, but that they would leave if a police officer " demands" it. (Id. at 43-44; Mot., Ex. 3 (S. Goodhue Depo.) at 86.)
Chumbley thereafter contacted Kaho'ohanohano, who met Chumbley at the Kanaloa Gate, along with two Maui County Police officers, including Defendant Darrel Ramos. (Mot., Ex. 1 (Chumbley Depo.) at 47; Ex. 2 (Ramos Depo.) at 17-18.) At the time, Ramos was off duty, working a " special duty" assignment at the fair. (Mot., Ex. 2 (Ramos Depo.) at 74.) Kaho'ohanohano states that he also saw Plaintiffs impeding pedestrian traffic and forcing pedestrians into Kanaloa Avenue to get around them. (Maui Fair Alliance, Ex. C (Kaho'ohanohano Depo.) at 27-28.) Chumbley states that he explained his concerns about the situation to Ramos, and told Ramos that the Maui Fair's permit covered the area where Plaintiffs were standing, therefore empowering him to request that they leave. (Id., Ex. A (Chumbley
Depo.) at 47-49.) Ramos states that the Maui Fair Alliance officials " had [received] numerous complaints with these people pushing pamphlets into passerby [sic] that may have been construed as harassment," and " needed assistance because they were concerned that their permit governed the area, and so they wanted police involvement." (Mot., Ex. 2 (Ramos Depo.) at 26.)
When Ramos arrived on the scene, he observed Plaintiffs " standing up on the side of the sidewalk," and did not see them " pushing any pamphlets into passerbys [sic]." (Id. at 33.) Ramos also stated that the area was not that crowded " at that specific second that I was there," but that it was a " dead moment where there's only 10 or 15 pedestrians on the sidewalk. 30 seconds later now you're bombarded with about 150." (Id. at 34-35.) Ramos approached Plaintiffs and explained that there had been " some complaints" about their activities and asked that they move across the street or to an area farther away from the Kanaloa Gate. (Id. at 46; Maui Fair Alliance Opp'n, Ex. D (Ramos Depo.) at 41.) Ramos stated that he believes Plaintiffs " probably" could have stayed in their original location " without committing a crime or potential crime" if they continued handing out their tracts " in a very peaceful manner." (Mot., Ex. 2 (Ramos Depo.) at 48.) He nevertheless asked them to leave because of the complaints the Maui Fair Alliance personnel stated they received, and because he believed the Maui Fair permit covered the location. (Id. at 49-51.)
Plaintiffs complied with Ramos's request and moved across the street where there was far less foot traffic. (Mot., Ex. 3 (S. Goodhue Depo.) at 86-87, 90.) Believing their First Amendment rights ...