Wе hold, in this interlocutory appeal from the denial of motions to dismiss, that Hawai'i Revised Statutes (HRS) § 852-1 (1993), which prohibits the obstruction of “ingress to or egress from any public or private place,” is not constitutionally vague on its face. Further, we cannot conclude, on the record *29 of the ease thus far, that as a matter of law HES § 852-1 was unconstitutionally applied to Defendants-Appellants John Guzman, Jr. (Guzman), Brian K. Kawahara, Walter H. Kupau, Andrew Mancao, Samuel I. Nakamu-ra, Michael George Spain, Jr. (Spain), Wallace Minoru Takushi, and Stephen D. Vas-eoneellos (Vasconcellos) (collectively referred to herein as Defendants), when they were arrested while picketing on May 31,1996 and subsequently charged with violating HRS § 852-1.
However, we further hold that on remand of this ease for trial, Defendants may, if they so choose, present evidence to demonstrate that the application of HRS § 852-1 under the circumstances of this case constituted “entrapment by estoppel,” violative of the due process clause of the Hawai'i Constitution, on the ground that Defendants reasonably relied on an agreement they had made with the Honolulu Police Department (the HPD or the police) regarding their pickеting procedures.
We hold, thirdly, that HRS § 852-1 is not preempted by the National Labor Relations Act (the NLRA).
Accordingly, we affirm the January 10, 1997 and January 24, 1997 orders 1 entered by the first circuit court (the court) denying Defendants’ motions to dismiss the HRS § 852-1 charges against them and remand this case to the court for trial.
I.
A.
The record indicates that on April 22,1996, security guards for St. Francis Hospital in Honolulu, Hawai'i began picketing at the entrance to the hospital after a discontinuation in labor negotiations between the security guards and the hospital. 2 A picket line was established at the Liliha Street entrance to the hospital and picketing usually occurred daily between the hours of 6:30 a.m. and 3:00 p.m.
Before the first day of picketing, certain picketers discussed a picketing procedure with certain members of the HPD. Under this procedure, the picketers would make “three revolutions across the driveway to the hospital,” then “break” the line to allow vehicles to enter and exit the driveway, and then repeat their revolutions. The picketers generally completed their revolutions in less than two minutes. It was agreed between the picketers and the HPD members that the picketers would immediately break the line “to allow ... emergеncy vehicle[s] to pass through without interference.”
Of the strike post notations which are in evidence, one on April 25,1996 indicates that “one doctor was upset over the delay to gain entry.” The picketers thereafter agreed to immediately break the line for unmarked emergency vehicles upon such vehicles flashing their lights and sounding their horns. On May 1, 1996, it was noted that a “[c]on-struction project by [the] Board of Water [Supply] on Liliha St. just makai of the St. Francis Hospital driveway caused additional traffic congestion due to one lane in each direction being closed.” Despite any delay or congestion occurring on these dates, no picketers were arrested for violating HRS § 852-1.
The first police officer to question this procedure, almost three weeks after .picketing began, was Officer S. Ono (Officer Ono), *30 who was assigned to the picket line on May 10,1996. Officer Ono informed the picketers that the procedure was “unacceptable” to him and that he would conduct the picket line however he thought best. However, upon request by the picketers, Officer Ono called Sergeant Jerrold Perreira (Sergeant Per-reira) to the picket line. Sergeant Perreira explained thе “practice and history” of the three-revolution procedure to Officer Ono, who subsequently followed it.
Thus, the record reveals that the three-revolution procedure was followed from the commencement of the picketing on April 22, 1996 without incident for nearly six weeks until May 31, 1996, when Officer Russell Maeshiro (Officer Maeshiro) was assigned to the picket line. Officer Maeshiro had started work at 10:30 p.m. the night before and his shift ended at 7:15 a.m. on May 31. He arrived at the strike post sometime before 6:30 a.m.
Officer Maeshiro testified that upon receiving his assignment, Sergeant Perreira had instructed him to “[go] by the [HPD’s] policy,” but Officer Maeshiro denied that he had been informed by Sergeant Perreira about or had prior knowledge of the three-revolution procedure.
Before taking his post at the picket line, Officer Maeshiro spent a “couple of minutes” reviewing the HPD’s Operations Manual: Labor-Management Disputes. 3 When Defendants arrived at about 6:28 a.m., Officer Maeshiro asked for the strike captain and Guzman was identified. Officer Maeshiro testified that he explained his procedure to Guzman as follows:
I explained to [Guzman] that I’ll be in charge of the strike post today and basically everybody’s gonna [sic] be walking the strike line and when I yell break, okay, everybody thаt’s [sic] in the driveway, within the prolongation of the driveway itself, can continue on to either side and the ones that [sic] are — that [sic] didn’t cross the prolongation of the driveway would stay on each side and the cars would go in and out. When I say proceed again they can continue walking the strike line.
I said one warning and one warning only, after that I’ll take action. To be fair, I explained, if I call break and they don’t obey orders, our procedures is [sic] we go back to the strike captain and he’s supposed to take care of the strikers.
Officer Maeshiro recounted that after he explained the procedure he intended to use, Guzman replied, “[N]ah, nah, [the picketers] know what they doing [sic].” Yasconeellos, who apparently heard Officer Maeshiro’s explanation to Guzman, also reportedly remarked, “[Y]eah, yeah, yeah, every time we get one new officer he makes threats.” At some point, according to affidavits submitted by Guzman and Spain, the picketers asked Officer Maeshiro “to speak with a sergeant about the previous picket line procedures [but] Officer Maeshiro refused.” 4
Officer Maeshiro reported he called for a break during the first set of threе revolutions “when cars started to back up ... half dozen or so on each direction[.]” On cross-examination, Officer Maeshiro indicated there may have been four to six cars. When the picketers did not respond to his call, Officer Mae-shiro repeated his call for a break “to make sure they heard [him,]” and again the picketers did not break. In his written report, he recounted that at that point, “various picketers stated, We know our rights as picketers[;] ... we have two minutes ... [.] We have an agreement with your department.’ ” Officer Maeshiro testified on cross-examina *31 tion that these statements “didn’t mean anything to [him].” 5
According to Officer Maeshiro, he “explained to [Guzman] that [the picketers were] not following directions and stuff and [Guzman] should go talk to them and that this was their first and last warning. After this [Officer Maeshiro said he would] take strict enforcement action.” Guzman responded to Officer Maeshiro that “they know what they’re doing.” The ears that had been “back[ed] up” on Liliha Street apparently passed through the hospital driveway before the second set of revolutions began.
At approximately 6:36 a.m., after the second set of revolutions began, Officer Maeshi-ro noticed several cars lining up on Liliha Street again, which concernеd him because “if the cars back up too far over there people coming around the curve might end up rear ending somebody.” He acknowledged that the cars did not “cause a problem ... at that time,” but believed they were “creating a hazard[.]” Officer Maeshiro thus called for another break, but “[n]obody responded” except for saying, “We know what we’re doing[;] we got [sic] couple minutes.”
Officer Maeshiro testified that he “called dispatch on my radio for a report number[,] ... figuring] if [the picketers] can hear me loud enough call for a report number maybe they’ll comply.” After this call, he called for a “blue and white.” At 6:45 a.m., approximately fifteen minutes after taking his post, he “approached the picketers to explain to them that they were gonna [sic] be placed under arrest for refusal to provide ingress and he [sic] egress” and then, with assistance from Officer A. Togami, placed Defendants under arrest. At the time of the arrest, Officer Maeshiro knew of no complaints by the hospital about the picketing, or of any emergency vehicles being impeded, and conceded that it was a peaceful “picket.”
After Defendants were “bailed out” that day, they returned tо the picket line and increased the number of revolutions from three to four. The strike post notations for the period of time after 7:00 a.m. on May 31, 1996 indicated the following: “No incidents on the Day Watch shift. The picketers were given a reasonable time to walk the picket line. Emergency vehicles were not hindered. Traffic was monitored by the officers.” The picketers used the four-revolution procedure without incident from May 31, 1996, after the arrests, until July 15,1996, some six-and-one-half weeks later when the strike ended.
B.
In the complaint against Defendants, filed June 26, 1996, the State of Hawai'i (the State) charged them with violating HRS § 852-1:
On or about the 31st day of May, 1996, in the City and County of Honolulu, State of [Hawai'i], [Defendants] obstructed ingress to or egress from any public or private place in such a manner as not to leave a free passageway for persons and vehicles lawfully seeking to enter or leave such place and [Defendants] did refuse or willfully fail to move as directed by any police or peace officer so as to provide and maintain a free and unobstructed passageway for persons and vehicles lawfully going into or out of a public or private place, thereby committing the offense of Refusal to Provide Ingress or Egress in violation of [HRS § 852-1 6 ].
On July 25, 1996, Defendants moved to dismiss the indictment or, alternatively, for a bill of particulars, pursuant to Hawai'i Rules of Penal Procedure Rules 7(g) and 47. 7 The *32 State filed a memorandum in opposition to this motion on August 8, 1996. The court orally denied this motion on September 13, 1996.
On October 14, 1996, Defendants filed two motions to dismiss the complaint. In the first of these motions, Defendants contended-that HRS § 852-1 was preempted by the NLRA. In the second, they argued that HRS § 852-1 was unconstitutional on its face and as applied to Defendants. Defendants later submitted a supplemental supporting memorandum to “further explain the principles governing ‘as applied’ review[.]”
The court held a hearing on Defendants’ motions on November 4, 1996. That same day, the State filed its opposition memorandum, but the court refused to consider it. The court orally denied both of Defendants’ motions at the hearing. In doing so, it found that there was in “fact ... a[n] arrangement between the police and the picketers” but that it was an “agreement to refrain from ... strict enforcement in certain cases[.]”
On January 10, 1997, the court entered its written findings of fact, conclusions of law, and order denying Defendants’ motions to dismiss the complaint. 8 It concluded that HRS § 852-1 wаs not void for vagueness, not unconstitutional as applied, and not preempted by the NLRA.
At the conclusion of the hearing denying Defendants’ motions to dismiss, Defendants moved, pursuant to HRS § 641-17 (1993), for leave to file an interlocutory appeal of the court’s order denying the motions. The court orally granted this motion, 9 and entered a written order to that effect on February 3,1997.
On February 7, 1997, Defendants filed their notice of appeal from the interlocutory order denying their motions to dismiss.
II.
Defendants present on appeal the same arguments on which they based their motions to dismiss the complaint: (1) HRS § 852-1 is unconstitutional on its face because it is void for vagueness and “chills” the free expression of viewpoints; (2) the statute is unconstitutional as applied to Defendants, who were “peacefully]” picketing and adhering to an “appropriate” procedure agreed to by the HPD; and (3) the statute is preempted by the NLRA.
III.
We address, first, the issue of whether HRS § 852-1 violates the due process clauses of the United States and Hawaii Constitutions
10
because it is void for vagueness. The court’s ruling on the constitutionality of HRS § 852-1 is a question of law reviewed under the right/wrong standard.
See State v. Gaylord,
A.
*33 HRS chapter 852 (1993) 11 provides:
§ 852-1 Refusal to provide ingress or egress; penalty. Whenever ingress to or egress from any public or private place is obstructed by any person or persons in such manner as not to leave a free passageway for persons and vehicles lawfully seeking to enter or leave such place, any police or other peace officer shall direct such person or persons to move so as to provide and maintain a free and unobstructed passageway for persons and vehicles lawfully going into or out of such place. It shall be unlawful for any person to refuse or wilfully fail to move as directed by such officer.
§ 852-2 Penalty. Any person who refuses or wilfully fails to move as directed by such officer shall be fined not more than $200 or imprisoned not more than six months, or both.
In determining whether the statute is vague, we are guided by the following principle:
Due process of law requires that a penal statute state with reasonable clarity the act it proscribes and provide fixed standards for adjudging guilt, or the statute is void for vagueness. Statutes must give the person of ordinary intelligence a reasonable opportunity to know what сonduct is prohibited so that he or she may choose between lawful and unlawful conduct.
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[A] criminal statute is void for vagueness unless: it (1) gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he or she may act accordingly; and (2) provides explicit standards for those who apply the statute, in order to avoid arbitrary and discriminatory enforcement and the delegation of basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.
Gaylord,
B.
HRS § 852-1 satisfies the first prong of the above test because that part of the statute describing criminal liability states that it “shall be unlawful for any person to refuse or wilfully fail to move as directed by” the police. We conclude that this part of the statute is unambiguous and describes the offense of failing to move as directed in “narrow and specific terms.”
See Cox v. Louisiana,
We conclude, then, that a person of ordinary intelligence would have a reasonable opportunity to know that it is unlawful “to refuse or wilfully fail to move as directed by [a police or other peace] officer.” HRS § 852-1. Knowing this, such a person may then choose between the lawful conduct of “mov[ing] as directed” by the officer or the unlawful conduct of “refus[ing] or wilfully fail[ing] to move as directed.” Id. The first •prong of the test set forth in Gaylord, therefore, is satisfied.
C.
Whether the second prong of the
Gaylord
test is met presents a closer question, but we conclude that HRS § 852-1 does “provide[ ] [sufficiently] explicit standards for those who apply” it.
Gaylord,
1.
We find the U.S. Supreme Court’s treatment of a similar statute in
Cameron v. Johnson,
It shall be unlawful for any person, singly or in concert with others, to engage in picketing or mass demonstrations in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any public premises, State property, county or municipal courthouses, city halls, office buildings, jails, or other public buildings or property owned by the State of Mississippi, or any county or municipal government located therein, or with the transaction of public business or administration of justice therein or thereon conducted or so as to obstruct or unreasonably interfere with free use of public streets, sidewalks, or other public ways adjacent or contiguous thereto.
Id.
at 612 n. 1,
Defendants contend that the statute at issue in
Cameron
may be distinguished from HRS § 852-1 in three ways. First, Defendants point out that the Mississippi statute was limited to the obstruction or unreasonable interference with “any public premises,”
id.
at 612 n. 1,
Second, Defendants construe the Mississippi statute to prohibit only that conduct causing an “unreasonable interference” with access to certain public premises, not conduct causing “a temporary impediment.” This construction, however, appears counter to the plain language of the statute, which prohibits “picketing or mass demonstrations in such a manner as to obstruct
or
unreasonably interfere with free ingress or egress to and from any public premises!!]”
Cameron,
Finally, Defendants argue that because HRS § 852-1 makes it unlawful for a person “to refuse or wilfully fail to move as directed” by a police or other peace officer, the statute “invites and indeed requires the police officer to make a subjective
ad hoc
determination and impose[s] that on-the-spot interpretation of HRS [§ ] 852-1 on the pieketers.” However, we believe that the statute essentially “invites and indeed requires” police officers to determine if it is being violated; with respect to the statute at issue in
Cameron,
the police would have had to make the determination as to whether picketing was being conducted “in such a manner as to obstruct or unreasonably interfere with free ingress or egress to or from any public premises!]]”
Cameron,
2.
We observe that the holding in
Cameron
comports with the U.S. Supreme Court’s earlier decision in
Shuttlesworth v. City of Birmingham,
However, because the Alabama Court of Appeals had provided a limiting construction to the ordinance such that it “applie[d] only when a person who stands, loiters, or walks on a street or sidewalk
so as to obstruct free passage refuses to obey a request by an officer to move on[,T
the U.S. Supreme Court held that “[a]s so construed, we cannot say the ordinance is unconstitutional^]”
14
*36
Shuttlesworth,
D.
We cannot agree with Defendants’ contention that HRS § 852-1 must be struck down on the basis that it chills free expression. As was said in
Cox,
“[w]e deal in this case not with free speech alone, but with expression mixed with particular conduct.”
Cox,
[t]he constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection .... Governmental authorities have the duty and responsibility to keep their streets open and available for movement. ...
We emphatically reject the notion ... that the First and Fourteenth Amendments [of the U.S. Constitution] afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speеch.
Id. at 555, 85 S.Ct. 453.
HRS § 852-1 does not prohibit picketing or the communication of messages altogether; it is specifically aimed at conduct causing an obstruction of ingress to or egress from public or private places in a manner so as not to leave a free passageway for persons seeking ingress to or egress from those places. Individuals may continue to exercise rights guaranteed by the first amendment to the United States Constitution and section 4 to the Hawai'i Constitution, as long as they do not do so in a manner prohibited by HRS § 852-1.
[The statute in Cameron did] not prohibit picketing so intertwined [with free expression and association] unless engaged in in a manner which obstructs or unreasonably interferes with ingress or egress to or from the courthouse. Prohibition of conduct which has this effect does not abridge constitutional liberty since such activity bears no necessary relationship to the freedom to [. . .] distribute information or opinion.
Cameron, 390 U.S.
at 617,
IV.
In their motions to dismiss below, Defendants essentially claimed HRS § 852-1 was unconstitutionally applied because their right to free speech was infringed and they were subjected to selective enforcement of the statute.
On appeal, Defendants additionally contend that “Officer Maeshiro’s refusal to acknowledge and respect the agreement constitutes an [ijndefensible entrapment of [Defendants,] who were • conducting them *37 selves in accordance with what they were led to believe by [the HPD] was allowable picketing procedure.” Defendants further maintain that they, like the defendant in Cox, “relied on assurances from representatives of the [police] that their three-revolution picket procedure ... was not a violation of any law.”
In our view, these contentions raise what has become known as an entrapment by estoppel defense. We hold that an entrapment by estoppel defense is independently afforded by the due process clause of the Hawai'i Constitution. While we hold that the defense may be raised under the Hawai'i Constitution, we recognize that the defense originated in U.S. Supreme Court cases interpreting the due process clause of the U.S. Constitution. 15
A.
Two U.S. Supreme Court decisions,
Raley v. Ohio,
1.
In
Raley,
several witnesses before the Ohio Un-American Activities Commission invoked their constitutional privilege against self-incrimination when they refused to answer the commissioners’ questions, after being assured by the commissioners that such a privilege was available.
Raley,
The Court reversed the convictions, reasoning that “since the defendants were apprised by the commission at the time they were testifying that they had a right to refuse to answer questions that might incriminate them, they could not possibly in following the admonition of the commission be in contempt of it[.]”
Id.
at 426,
2.
In
Cox,
the defendant was convicted of,
inter alia,
picketing near a courthouse in violation of a state statute.
Cox,
The record showed that the police had given permission to the demonstrators, including the defendant, to hold their meeting at a certain distance from the courthouse.
Id.
at 569,
[U]nder all the circumstances of this case, after the public officials acted as they did, to sustain [the defendant’s] later conviction for demonstrating where they told him he could “would be to sanction an indefensible sort of entrapment by the State — convict ing a citizen for exercising a privilege which the State had clearly told him was available to him.” The Due Process Clause [of the U.S. Constitution] does not permit convictions to be obtained under such circumstances.
Id.
(quoting
Raley,
B.
The Supreme Court’s decisions in Raley and Cox were characterized as calling into doubt “[t]he solidly entrenched, though little discussed, judicial principle that the government cannot be estopped in criminal actions[.]” Applying Estoppel Principles in Criminal Cases, 78 Yale L.J. 1046, 1046 (1969). “The development of a full-blown defense of criminal estoppel[,]” it was then argued, “would bear two interrelated advantages for a rational system of criminal justice”: (1) “assuring] a decent standard of fairness for citizens who detrimentally rely on official misrepresentations^]” and (2) “providing] an adequate standard for judicial review of the broad executive discretion granted to the administrators of the criminal law.” Id. at 1073.
Of particular significance to the instant case, the commentator asserted that a criminal estoppel defense would effectively ameliorate problems caused by criminal statutes requiring administrative interpretation and by statutes aimed at maintaining “public order.” Id. at 1054, 1061-62. First, it was noted that “[[legislatures continually pass criminal statutes that require interpretation[,]” such as the picketing statute at issue in Cox. Id. at 1054. Consequently,
[a]n individual, confronted with the practices and views of the enforcement agency, has little means of discovering whether the prosecutor — much less the legislature— knows or agrees with how the law is being administered. In light of such state-sponsored confusion, government insistence that the citizen should know the true state of the law is at best unreasonable.
Id. Estoppel in a criminal case thus would serve to “protect[ ] ... those whom the government has confused as to the state of the law[.]” Id. at 1058. Second, in cases involving violations of “public order” statutes, *39 “[e]ntertaining an estoppel defense to charges like these would not only import more fairness into the criminal process, but would reduce undesirable chilling effects of the substantive law.” Id. at 1061-62.
C.
Citing the above article with approval, the U.S. Supreme Court applied the rationale of
Raley
and
Cox
to a claim of reliance on regulations promulgated by the Army Corps of Engineers, and again emphasized the need to uphold “traditional notions of fairness inherent in our system of criminal justice.”
United States v. Pennsylvania Indus. Chem. Corp.,
Of course, there can be no question that [the defendant] had a right to look to the Corps of Engineers’ regulations for guidance. The Corps is the responsible administrative agency under the [statute], and [its rulings, interpretations, and opinions] do constitute a body of experience and informed judgment to which ... litigants may properly resort for guidance. Moreover, although the regulations did not of themselves purport to create or define the statutory offense in question, it is certainly true that their designed purpose was to guide persons as to the meaning and requirements of the statute. Thus, to the extent that the regulations deprived [the defendant] of fair warning as to what conduct the Government intended to make criminal, we think there can be no doubt that traditional notions of fairness inherent in our system of criminal justice prevent the Government from proceeding with the prosecution.
Id.
at 674,
The Court indicated that a defendant claiming it had been affirmatively misled into believing that certain conduct was legal must demonstrate that it actually and reasonably relied on the affirmative misrepresentation. In arguing that the trial court properly barred the defendant from introducing evidence in support of its claim that the regulations were affirmatively misleading, the government maintained that a prior U.S. Supreme Court decision correctly construing the statute “precludefd] [the defendant] from asserting reliance on the Corps of Engineers’ regulations[.]”
Id.
at 674-75,
V.
Building on this U.S. Supreme Court case law, the federal courts of appeals have established a criminal estoppel defense termed “entrapment by estoppel.” 17 Al *40 though slightly different formulations of this defense have been put forth, certain common elements hаve emerged: (1) an affirmative representation that certain conduct is legal; 18 (2) by an authorized government official; (3) which the defendant actually believed and acted upon; (4) in reasonable reliance.
A.
An affirmative representation that certain conduct is legal is considered necessary by most circuit courts to support a claim of entrapment by estoppel.
Howell,
On the other hand, the U.S. Court of Appeals for the Second Circuit has indicated that it may be sufficient if an official “effectively communicates an assurance that the defendant is acting under authorization!!]”
United States v. Abcasis,
*41
It is apparent, however, that “simply failing] to enforce the law” cannot give rise to an entrapment by estoppel defense.
Hurst,
B.
The U.S. Court of Appeals for the Eighth Circuit has declared that “[i]t is the authority, whether apparent or actual, of the government official that is crucial to the entrapment by estoppel defense.”
Austin,
In
West Indies Transport,
the U.S. Court of Appeals for the Third Circuit did not explicitly require that the government official be authorized to give the interpretation or representation.
West Indies Transport,
C.
It is widely agreed that a defendant asserting an entrapment by estoppel defense must have actually believed and acted upon the official’s representation. This requirement is commonly stated in terms of the defendant actually relying upon and/or “believing” the representation.
See, e.g., id.
(requiring actual reliance);
Spires,
*42 D.
Finally, our research has not revealed any decision that does not require the defendant’s reliance to be
reasonable. See Howell,
The courts in
West Indies Transport
and
Abcasis
also stated that a defendant claiming entrapment by estoppel must have had a “mistaken but reasonable,
good faith
belief that he [or she] has in fact been authorized” to engage in the conduct.
Abcasis,
E.
We recognize that entrapment by estoppel “is a defense that is rarely applicable.”
Howell,
VI.
One Hawai'i case indicates that the doctrine of estoppel may not be used against the State in the enforcement of police measures, including laws “to promote the order, safety, health, morals, and general welfare of society”:
Apparently both court and counsel have overlooked the familiar principle of estop-pel that a sovereign state is not subject to an estoppel to the samе extent as an individual or a private corporation. The doctrine of estoppel is not applied to the extent of impairing sovereign powers of a state such as it exercises, for example, in the enactment and enforcement of police measures.... “Police measures” as used in the foregoing authority undoubtedly refers to that function of government more commonly referred to as police power. Police power has a very wide and varied meaning. A short, concise definition of that term is, “Police power is the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals, and general welfare of society.”
Godbold v. Manibog,
We are not aware of any case law in this jurisdiction that has applied the doctrine of estoppel in criminal cases. However, even if our case law has not specifically considered this, we interрret the due process clause of the Hawai'i Constitution as allowing the entrapment by estoppel defense to be raised. The due process clause in our state constitution, therefore, would be violated under facts establishing the defense of entrapment by estoppel. To that narrow extent, the State may be estopped from pursuing or obtaining a criminal conviction.
VII.
Although we accept the validity of an entrapment by estoppel defense against the State in criminal cases where the facts warrant, we cannot conclude on the record before us that this defense has been established as a matter of law so as to require that Defendants’ motion to dismiss be granted. The defense involves the resolution of factual questions such as “whether there was in fact reliance and, if so, whether that reliance was reasonable under the circumstances[.]”
Pennsylvania Indus. Chem. Corp.,
In their motions to dismiss, Defendants essentially argued that the statute “as applied” infringed on their free speech rights and was selectively enforced. Hence, while they raise the Cox case on appeal, Defendants have obviously not had the opportunity to fully develop and present a case based on entrapment by estoppel. Moreover, the specific defense of entrapment by estoppel, and as that defense is formulated herein, was not considered by the court on Defendants’ motions to dismiss. Accordingly, on remand, Defendants must be afforded the opportunity at trial to present evidence on this defense.
VIII.
As a final point, we conclude that the NLRA does not preempt HRS § 852-1. Defendants appear to advance two arguments in support of their contention that HRS § 852-1 is, as a general matter, preempted by the NLRA. We cannot concur in these arguments.
First, Defendants argue that statistics demonstrate HRS § 852-1 “has been used exclusively on picketers, and except for one incident, has been used exclusively on labor picketers[.]” Relying on
Vaca v. Sipes,
Second, Defendants assert that “it is arguable that HRS [§ ] 852-1 and the NLRA conflict on the same conduct” and that “where there are two potentially conflicting statutes brought to bear on precisely the same сonduct, preemption of state law is. appropriate.” In
Sears, Roebuck and Co. v. San Diego County Dist. Council of Carpenters,
The Court noted that Sears “asserted no claim that the picketing itself violated any state or federal law[;] instead, [i]t sought simply to remove the pickets from its property to the public walkways[.]”
Id.
at 185,
In
Sears,
the Court also addressed the issue of whether state court jurisdiction over the trespass action was preempted because the picketing was arguably protected by federal law. The Court concluded that “[b]e-cause the assertion of state jurisdiction in a case of this kind does not create a significant risk of prohibition of protected conduct, we are unwilling to presume that Congress intended the arguably protected character of the [defendants’] conduct to deprive the [state] courts of jurisdiction” over the trespass action.
Id.
at 207,
As in Sears, in the case before us, the prosecution by the State essentially focused on the location of the picketers. Accordingly, we believe federal law does not preempt state court jurisdiction.
IX.
For the foregoing reasons, the court’s January 10, 1997 and January 24, 1997 orders are affirmed, and the case is remanded for trial.
Notes
. The January 10, 1997 and January 24, 1997 orders are identical.
. The record before us consists of, inter alia, the following documents: the arrest report for Defendants-Appellants John Guzman, Jr. (Guzman), Brian K. Kawahara, Walter H. Kupau, Andrew Mancao, Samuel I. Nakamura, Michael George Spain, Jr. (Spain), Wallace Minoru Taku-shi, and Stephen D. Vasconcellos (collectively referred to herein as Defendants); a list of arrests and convictions under Hawai'i Revised Statutes (HRS) § 852-1 (1993); reports of the Honolulu Police Department (the HPD) relating-to arrests and violations of HRS § 852-1; the HPD’s Operations Manual: Labor-Management Disputes (the manual); "strike post notations” taken by the HPD officers on duty at the picketing site on April 23 through 25, May 1, 2, and 31, and June 6, 7, 12 through 14, and 28, 1996; and affidavits submitted by Guzman and Spain. These exhibits were stipulated into evidence by Plaintiff-Appellee State of Hawai'i (the State) and Defendants. The record also includes the transcript of the November 4, 1996 hearing held by the first circuit court (the court) on Defendants’ motions to dismiss the complaint.
. The manual’s purposes are to (1) "explain the [HPDJ’s policy in policing Iabor[-]management disputes”; (2) "specify the responsibilities of particular departmental elements and personnel in these disputes”; and (3) "provide officers with basic guidelines to follow in dealing with disputes." The manual includes the statutes considered to be "most apposite” to labor-management disputes, including HRS § 8S2-1, concerning "[r]efusal to provide ingress or egress.”
. In orally ruling on Defendants' motions, the court observed, in apparent reference to Officer Russell Maeshiro (Officer. Maeshiro), that “[o]n the surface it looks like we’ve got somebody who’s tired and not too sharp coming off of the job and saying it’s my way or the highway and arresting everybody.” We express no opinion about this statement by the court. However, while Officer Maeshiro did not expressly admit that he was asked to contact a sergeant, he did not dispute this assertion.
. The following exchange occurred during the cross-examination of Officer Maeshiro:
[DEFENDANTS' COUNSEL:] ... [S]o you've led us to believe that the only references [sic] [the picketers] made was we got two minutes and that meant nothing to you, correct?
[OFFICER MAESHIRO:] It still didn’t mean anything to me.
[DEFENDANTS' COUNSEL:] The fact they said we have an agreement with your department meant nothing to you, isn't that correct? [OFFICER MAESHIRO:] Yes.
(Emphases added!)
. See infra part III.A.
. Defendants moved to dismiss the complaint "for its failure to allege each material element and fail[ure] to describe the offense charged with specificity sufficient to enable Defendants to prepare defenses and to protect against future jeopardy.” Alternatively, Defendants requested a bill of particulars, specifying
*32 (1) where the alleged obstruction occurred;
(2) whether the alleged obstruction was a public or private place; (3) the definition of "free passageway”; (4) whether "persons” or "vehicles” or "persons and vehicles” were prevented from having a “free passageway”; (5) the definition of "obstruction”; (6) whether the alleged obstruction was for an ingress or egress, all as set forth in the complaint; (7) which specific police or peace officer directed Defendants to move; (8) what the specific directed [sic] was; and (9) whether Defendants either “refused” or "willfully fail[ed] to move[.]”
.The same findings of fact, conclusions of law, and order denying Defendants’ motions to dismiss the complaint were filed again on January 24, 1997. There is no explanation in the record as to why they were filed twice.
. Although it objected to Defendants' motion for leave to file an interlocutory appeal, the State apparently did not respond to the court's questioning as to the basis for the objection. On appeal, the State does not challenge the interlocutory nature of the appeal.
. Article 1, section 5 of the Hawaii Constitution states, in relevant part: "No person shall be deprived of life, liberty or property without due process of law....”
Defendants apparently relied on both the U.S. Constitution and the Hawaii Constitution in one of their October 14, 1996 motions to dismiss the indictments.
. The 1993 codification of HRS chapter 852 has not been amended, and thus was in effect when Defendants were arrested оn May 31, 1996.
. In that case, the U.S. Supreme Court addressed a defendant’s appeals from convictions of disturbing the peace, obstructing public passages, and picketing near a courthouse; the majority opinion addressing the appeal of the disturbing the peace and obstructing public passages convictions is set forth in
Cox v. Louisiana,
Cox
is persuasive authority in interpreting the Hawai'i Constitution because the due process clause of the Hawai'i Constitution is similar to the fourteenth amendment to the United States Constitution. We observe, however, that “the due process protection under our state constitution is not necessarily limited to that provided by the United States Constitution.”
State v. Bowe,
. In addition to citing
Cameron v. Johnson,
[I]t is clear that the statute, with respect to the determination of how near the courthouse a particular demonstration can be, foresees a degree of on-the-spot administrative interpretation by officials charged with responsibility for administering and enforcing it. ... This administrative discretion to construe the term "near” concerns a limited control of the streets and other areas in the immediate vicinity of the courthouse and is the type of narrow discretion which this Court has recognized as the proper role of responsible officials in making determinations concerning time, place, duration, and manner of demonstrations. It is not the type of unbridled discretion which would allow an official to pick and choose among expressions of view the ones he will permit to use the streets and other public facilities....
Id.
at 568,
. We note that the Court then observed that “it requires no great feat of the imagination to envisage situations in which such an ordinance must be unconstitutionally applied.”
Shuttlesworth v.
*36
City of Birmingham,
. "[I]t is well-established that ... we [must] afford defendants the minimum protection required by the federal constitution^]”
State v. Lopez,
. We express no opinion as to whether the term "near” would satisfy due process standards under the Hawaii Constitution.
.
See, e.g., United States v. West Indies Transport,
. Although courts discussing the elements of entrapment by estoppel have referred to this element as an "affirmative
mis
representation” or "affirmatively
mis
leading," we believe that the term "affirmative
representation
” is more inclusive of the potential situations in which the entrapment by estoppel defense may be raised. In many entrapment by estoppel cases, it is true that a representation of law by an authorized official will be a misrepresentation, as in a case involving a federal firearm offense where the representation as to the defendant’s ability under federal law to own a firearm was clearly mistaken.
See, e.g., United States v. Tallmadge,
However, as
Cox
illustrates, sometimes the representation of law is not necessarily a mistaken or false interpretation. In
Cox,
the U.S. Supreme Court characterized the official's grant of permission to hold a demonstration at a certain distance away from the courthouse as an "on-the-spot administrative interpretation” of the term "near” by an official "charged with the responsibility for administering and enforcing” a statute prohibiting demonstrations "near” a courthouse.
Cox,
This rationale also underlies our belief that the affirmative defense contained in HRS § 702-220 (1993), while similar to the due process defense of entrapment by estoppel, does not replace or subsume the latter defense:
§ 702-220 Ignorаnce or mistake of law; belief that conduct not legally prohibited. In any prosecution, it shall be an affirmative defense that the defendant engaged in the conduct or caused the result alleged under the belief that the conduct or result was not legally prohibited when the defendant acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in:
(1) A statute or other enactment;
(2) A judicial decision, opinion, or judgment;
(3) An administrative order or administrative grant of permission; or
(4) An official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the offense.
(Second emphasis added.) As with the term "affirmative misrepresentation,” the statute's requirement that the official statement of law be “invalid or erroneous” would not include a situation such as the one presented in Cox.
. While the state of mind of a defendant raising the entrapment by estoppel defense is relevant insofar as the defendant must have actually believed and acted in reliance on an official representation, several courts have held that the defendant’s state of mind is
not
relevant in another sense. These courts have emphasized that the entrapment by estoppel defеnse "rests upon principles of fairness rather than the defendant’s mental state and thus it may be raised even in strict liability offense cases.”
Hedges,
In other words, even if absence of criminal intent is not a defense to a charge, a defendant may raise the defense of entrapment by estoppel.
See Abcasis,
. The statement quoted from Applying Estoppel Principles in Criminal Cases, 78 Yale L.J. 1046, 1052 (1969), was made by the commentator in discussing the separation of powers rationale for rejecting estoppel in criminal cases. The commentator observed that "[t]he interests embodied in the criminal law are public interests of the greatest weight. No official or agency of government has the authority to waive the public interest, and none — save the legislature — can define the limits of the criminal law.” Id. at 1051-52 (emphasis in original). Nevertheless, it was argued that the effective "alter[ation] or suspension of] the statutory penal law” by an official interpreting the law should be permitted in certain circumstances:
Justifying the rule against estopping the government in terms of separation of powers, however, is only a formal expression of the belief that the criminal law is too serious a matter to allow law enforcement officials to make mistakes as to what it covers. If the individual is unsure where the boundary of lawful conduct lies, he [or she] should steer wide of the unlawful zone rather than seek official advice as to how far he [or she] might legally go. This makes a great deal of sense where the prohibited conduct threatens grave injury to persons or property or a serious disruption of the economy, but the no-estoppel rule has traditionally been applied without regard to the gravity of the offense and its probable consequences. The criminal law has become extensively used as an instrument of social control with a complex, sometimes labryinthian administrative structure. Where an individual has relied upon the enforcement agency’s interpretation of a highly technical law, or obeyed the reasonable order of someone with apparent authority to give it, allowing the government to disclaim the action of its agent seems not only unjust, but unnecessaiy to the proper functioning of the criminal process and to any rational theory of the allocation of power between different branches of government.
Id. at 1052-53 (internal quotation marks and footnotes omitted) (emphasis added).