§711-1102 Failure to disperse. (1) When six or more persons are participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm, a law enforcement officer may order the participants and others in the immediate vicinity to disperse.

(2) A person commits the offense of failure to disperse if the person knowingly fails to comply with an order made pursuant to subsection (1).

(3) Failure to disperse is a misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993; am L 2001, c 91, §4]

COMMENTARY ON §711-1102

This section provides a procedure under which a peace officer can order a group of six or more persons participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance, or alarm to disperse. A similar order may be made to others in the immediate vicinity. Failure to obey such an order is a misdemeanor. The offense is thus an aggravated form of disorderly conduct which does not reach the point of riot or unlawful assembly.

Previous Hawaii law contained a somewhat similar section, allowing an order to disperse after "force or violence has been used disturbing the public peace."1

Case Notes

Double jeopardy did not bar retrial with regard to defendant's failure to disperse from the first floor of a shopping mall under this section, for which there was clearly sufficient evidence to support a conviction, where defendant was not expressly acquitted by the jury, defendant's conviction could not be assumed to include an implied acquittal on either of the acts offered by the prosecution to support the conviction, defendant was not convicted on a lesser included offense, and the jury did not refuse to convict defendant on the basis of either act on the first or second floor or choose between them. 124 H. 43, 237 P.3d 1109 (2010).

There was insufficient evidence that defendant violated this section by failing to disperse from the second floor of a shopping mall where officer did not testify concerning how long defendant remained on the second floor after officer ordered the crowd to disperse, other than observing that officer saw defendant again on the first floor at least twenty minutes later; defendant's presence on the first floor at least twenty minutes later indicated that defendant complied with the officer's order to disperse. 124 H. 43, 237 P.3d 1109 (2010).

There was sufficient evidence that defendant violated this section by failing to disperse from the first floor of a shopping mall where defendant was one of "six or more persons participating in a course of disorderly conduct" or that defendant was in the "immediate vicinity" of such a disturbance, officer ordered defendant to leave the area and had to tell the defendant "maybe ten more times", defendant would not leave, and thus failed to comply with the order. 124 H. 43, 237 P.3d 1109 (2010).

As this section's limit on freedom of association and movement is only within the immediate vicinity of the disorderly conduct and there is no "unlimited and indiscriminately sweeping infringement upon the freedom of movement and association", this section does not violate article I, §2 of the Hawaii constitution. 101 H. 153 (App.), 64 P.3d 282 (2003).

Section not unconstitutionally vague under article I, §5 of the Hawaii constitution as its language is specific and clear, it is narrowly tailored to a person's failure to disperse pursuant to a law enforcement order to leave the immediate vicinity of disorderly conduct, and citizens of this State should thus have no difficulty in understanding this section. 101 H. 153 (App.), 64 P.3d 282 (2003).

This section does not violate the right to privacy under article I, §2 of the Hawaii constitution as it is not a "sweeping infringement on the freedom of movement and privacy"; to prevent the substantial harm or serious inconvenience, annoyance or alarm to the public, it is reasonably necessary for law enforcement to order those participating in the disorderly conduct and those in the immediate vicinity to disperse until the disorderly conduct comes to an end. 101 H. 153 (App.), 64 P.3d 282 (2003).

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§711-1102 Commentary:

1. H.R.S. §764-3.