City prosecutors Friday dismissed the case against a couple facing charges of demonstrating in Waikiki last month without first getting a city permit.
In asking for the dismissal, city prosecutors cited concerns that the ordinance might be overly broad.
Jamie and Tess Meier, University of Hawaii students, were demonstrating bare-chested Aug. 21 on a Kalakaua Avenue sidewalk as part of a nationwide protest, National Go Topless Day.
They faced petty misdemeanors charges of failing to obtain a city Parks Department permit for a meeting or gathering of two or more persons.
The charge carries a fine of up to $500 and a jail term of up to 30 days.
"We’re very happy with the state’s decision," said Matthew Winter, the couple’s lawyer. "It’s the right decision because the citation was baseless. Tess and Jaime had every right to protest on that day."
Winter said he talked to Jamie Meier, who was "ecstatic."
"They felt like they were always within their rights to do this," the lawyer said.
Winter and the American Civil Liberties Union of Hawaii had contended the ordinance was unconstitutional, and had urged city Prosecutor Keith Kaneshiro to drop the case.
On Sept. 19 city Deputy Prosecutor Jeffrey Albert asked for a postponement of the couple’s arraignment for a month to study "important constitutional and factual issues" raised by the case.
On Friday city First Deputy Prosecutor Armina Ching said in the dismissal request that after consulting with the Honolulu Corporation Counsel’s Office and "learning of their concern over the possible over-breadth of the ordinance, it would serve the interest of justice" to drop the case.
Honolulu District Judge Russel Nagata approved the dismissal.
The couple’s protest advocated gender equality to support what they said is women’s constitutional right to go topless in public.
Although it is not illegal to go topless in Honolulu, Winter said the couple wanted to bring awareness to the issue as part of the national campaign.
The dismissals means the constitutionality of the ordinance won’t be tested in the couple’s case.
But Winter said the dismissal is "a big concession by the state that there’s a problem in applying this ordinance to a lawful purpose."
