2022 DLNR Receives a Second Defeat in Court

Justice, when cited for Nudity at Little Beach under the archaic State Park rules, is expensive.  It can cost you close to $10,000 in legal fees just to cover your Motion to Dismiss (unless you qualify for the public defender).  You risk a permanent criminal record if you plead Not Guilty and lose.  Most folks who have been cited, cannot afford justice and cut a deal.  In return for a No Contest plea, they paid the Guilty fine of $100 + $30 fees, and have their criminal record expunged after 6 months.

Talk to Naturists at Little Beach and tell them that the DLNR is issuing citations for Nudity at this world-renowned Naturist destination, and their jaw drops.  Who would be so stupid, they say.  Most of the folks who have been cited were shocked to receive a citation.  This is the story of 4 Naturists who were so offended that they pleaded Not Guilty regardless of the risk and the cost and the stress.

Back in October 2020 the DLNR received its first defeat in Court: 
After 33 years of no Nudity citations and no Nudity warnings, the DLNR flipped and cited Jamel Strom for Nudity.  There was no offended or affronted complainant - and none are required under the State Park rule.  Mr Strom pleaded Not Guilty and, through attorney David Pullman, filed a Motion to Dismiss.  The Motion claimed violation of due process under Hawaii law and the US 14th Amendment on the principle of Desuetude - meaning law rendered obsolete because of disuse.  The motion further asserted that the Park Nudity rule is malum prohibitum - meaning the act is unlawful only by virtue of the rule, not because it is harmful.  The judge granted the Motion to Dismiss on Desuetude.  Case closed.

The court procedure had 27 recorded events involving 19 named court participants, not counting the defendant and defense and prosecution witnesses.  The judge held court 5 times with the defendant required to be present.  If the Motion had been denied the case would have continued.  All this for a petty-misdemeanor criminal offense with a $100 fine.

What a waste of tax-payer money - but the DLNR did not care.  In order to rehabilitate its Desuetude Park rule, the DLNR management erected garish red No Nudity signs around Little Beach and ordered its officers to issue another 20 Nudity citations within 5 months in 2021.  This then required their witnesses to lie in court, saying that in 1987-2020 it was not policy to tolerate Nudity and in 2021 officers were not ordered to give Nudity citations.

In January 2022, the DLNR received its second defeat in Court:
In May 2021 Dr John Musser was cited for Nudity, then in July David and Colleen Replogle were cited.  Both parties pleaded Not Guilty and, through their respective attorneys Hayden Aluli and David Pullman, filed a Motion to Dismiss.  Their cases continued independently until they were consolidated in September.  [pic] [pic?]  The Motion to Dismiss listed 4 criteria:

• Desuetude - law rendered obsolete because of disuse.
• Equal Protection - sex discrimination by prohibiting only female breast exposure.
• Void for Vagueness - inadequate definition of “female” and “post-pubertal.”
• De Minimis - act did not cause or threaten the harm the Nudity rule was intended to prevent.

The judge denied the Motion on the first 3 criteria.  The judge granted the Motion to Dismiss on De Minimis, concluding that the defendants did cause or threaten the harm the Nudity rule sought to prevent but to an extent too trivial to warrant the condemnation of a conviction.  Case closed.  However, the judge made it clear that the State Park Nudity rule still stands and each case will be considered on its merits.

Defendant Dr John Musser

John Musser commented:  “I am grateful to the court for this vindication.  I was shocked to be confronted by a DLNR police officer for doing nothing, well nothing different than I have done at Little Beach since 1988.  I asked for a warning as opposed to a citation, but the officer told me he could not give a warning because his orders were to give citations for Nudity.  Later, under oath in court, he lied to match the DLNR management’s story and stated that he never said that to me when I asked to be ‘warned.’  I am troubled that the Park nudity rule remains on the books where it can be arbitrarily enforced at the whims of Park management.”

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David and Colleen Replogle commented:  “Our experience with the citation at little beach was extremely disheartening.  Little Beach is an isolated beach, that is not easy to get to and we have been going there for 15 years and never saw any DLNR officer issue a Nudity citation or a warning.  The DLNR patrol officer told us that he had been instructed to issue citations and could not give warnings.  It feels to us like this officer has a vendetta against folks at Little Beach.   We have always believed in the philosophical practice of “ALOHA SPIRIT,” propagated by the Hawaiian diverse and multicultural population.  We are now very disillusioned about that “ALOHA SPIRIT” seeming to be no longer evident.  We find that to be truly sad.”

The court procedures had 71 recorded events involving 17 named court participants, not counting the defendant and defense and prosecution witnesses.  The judges held court 9 times, with the Dr Musser present 6 times and the Replogles present 4 times (via Zoom).  If the Motion had been denied the case would have continued.  Again, all this for a petty-misdemeanor criminal act with a $100 fine - no different than hundreds of people have done daily for over 33 years with the complete acquiescence of the DLNR.

Public defender David Pullman stated:  “The DLNR gets to write their own laws and enforce them with virtually no oversight.  This has resulted in very poorly drafted rules and the elevation of what should be minor infractions to full-blown criminal offenses, causing an enormous waste of court resources.  Instead of helping people understand and protect natural resources, their enforcement culture is focused on criminalizing people who have no intent to cause any harm.”

Impact on Little Beach Nudity:
The verdict in a District Court case does not create a precedent that must be applied to future cases.  No two judges are the same.  A Motion to Dismiss denied by a judge in one case can be a granted by a different judge in another case - or the Appeals Court.  e.g. Although this last judge denied the Desuetude Motion it remains a strong argument with the DLNR repeatedly sending its representatives to lie in court - stating that from 1987 to 2020 the Nudity rule was enforced, when we have tens of thousands of people that know it was not. 
More relevant - has this affected the DLNR policy?  Arriving at Little Beach on Feb 5 2022, DOCARE Lieutenant Yamamoto confirmed to FoLB that if he sees anyone Nude, he will issue a citation.