Maui County Council to consider 7 exceptions to curfew
By Chris Hamilton
Maui News Staff Writer
By Chris Hamilton
WAILUKU — Maui County minors likely will soon have more reasons to stay out legally past the county's curfews — but hanging out in a park past midnight to talk to the opposite sex isn't one of them, according to The Maui News.
The American Civil Liberties Union of Honolulu appeared yesterday to have successfully petitioned the County Council to add seven exceptions allowing youths to be outside past curfew, such as an emergency, a parent's written permission to be in a public place or coming directly home from a rally. The county currently allows only one exception — if the minor is accompanied by a parent or guardian.
A bill to add the new exceptions passed first reading by an 8-0 vote yesterday and needs to be approved in another reading on July 25 before advancing to Mayor Charmaine Tavares' desk for final action. Council Chairman Riki Hokama was absent and excused.
However, in several letters and hearings since April, the ACLU apparently convinced council members and county attorneys that the existing code was in violation of a 1997 U.S. 9th Circuit Court of Appeals decision and the county could face a civil rights lawsuit.
Maui County Police Chief Tom Phillips said that while the amendments give minors more rights, the change won't affect the pragmatic way in which police officers enforce the law.
"It's kind of what we do already," Phillips said. "If they are at a legitimate event or on their way home from work, we don't arrest juveniles. Our typical violations are for the kids who are out drinking at 2 a.m. in Iao Valley. That's why we didn't object to the changes."
But Honolulu ACLU staff attorney Laurie Temple said her office focused on Maui County's curfew laws after receiving complaints that the curfew was being enforced unfairly and police officers were abusing the rights of children as well as parents' rights to raise their children as they see fit.
Temple declined to cite any specific examples, saying divulging that information goes against ACLU office policy.
"Our preference would be an outright repeal of the entire ordinance," Temple said. "However, we believe that the revisions will go a long way toward ensuring that minors' as well as parents' rights will be protected."
What the proposed law will not change is the actual curfew. In Maui County, the curfew is 8 p.m. for youths under age 13, 10 p.m. for those ages 13 to 15 and midnight for 16- and 17-year-olds. There's also already on the books a one-hour grace period for minors to get home from school and other sanctioned events.
Temple also said that Maui County's law went beyond the state's statute and violated the precedent set by the federal appeals court when it struck down similar strict curfews in the case of Nunez v. San Diego.
Hawaii state law says that it is illegal for children under 16 to be out of their homes after 10 p.m. and before 4 a.m. without a parent or guardian. The penalty is counseling.
But Maui County will fine parents up to $500 for violations. However, Phillips said that in most instances, the curfew violation is dropped by county prosecutors, and the child is charged for more serious offenses, such as drug dealing, vandalism or even sexual assault.
"The (Maui County) Public Defender's Office argued that we just use curfew violations to catch juveniles committing other crimes," Phillips said. "Of course we do. That's police work. . . . The ACLU doesn't want any curfew. They want kids to be able to make their own decisions from the testimony that I saw."
The ACLU first contacted the county by letter on April 25, noting that its law violates a child's First Amendment constitutional right to freedom of speech, religion and to assemble, said county Deputy Corporation Counsel Adrianne Heely. If the county did not take substantial steps to amend the law within 30 days, the ACLU said it would sue.
The County Council's Policy Committee held public hearings on the issue in May and June and took testimony from the police, prosecutors, criminal defense attorneys and the ACLU. Out of negotiations between the legal-rights nonprofit and corporation counsel came revised Maui County version of the city of San Diego's "post-Nunez" curfew law.
Council Member Mike Victorino, a former youth coach and athletic league official, on Tuesday said he supported the amendments, although begrudgingly.
Over the years, Victorino said he's seen a lot of poor behavior with juveniles because of "youthful exuberance," but really the curfew law is in place to protect minors from adult predators.
Council Member Jo Anne Johnson thanked the ACLU for its interest.
"I don't believe this is something that should be of any grave concern," she said.