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“Sensitive places” bill heads to Honolulu mayor as critics say lawsuits are coming

March 17, 2023 by Cam Edwards Leave a Comment

The 55 individuals who currently possess a valid concealed carry license in Honolulu (and the 800 others who are still waiting to be approved) could soon be barred from lawfully bearing arms in a wide variety of public settings after the city council approved a “sensitive places” law this week. Mayor Rick Blangardi proposed the ordinance in question, so there’s no doubt that he’ll put pen to paper as soon as possible, but Second Amendment activists are already warning that the new “gun-free zones” are going to lead to lawsuits.

Under Bill 57, concealed carry would be banned in 13 specific places, as well as on all private property by default, including:

city-owned or controlled buildings or properties (with limited exceptions)
schools, childcare facilities, and “places frequented by children,” including all public parks, museums, aquariums, and zoos.
public transportation
within 100 feet of where a government-permitted event is taking place
hospitals and other health care facilities
Any place used for performance, art, entertainment, gaming, or sporting events
restaurants and establishments that serve alcohol

Before the Honolulu City Council passed the bill on a 6-3 vote, they heard from some gun owners who did their best to warn them of the unintended consequences of their anti-gun actions.

One opponent to the bill, Andrew Namiki Roberts with the Hawaiʻi Firearms Coalition attended Wednesday’s hearing to testify against the bill for the fifth time.
“I came to the chambers today carrying an empty rifle case, it’s impossible to see what’s inside,” Roberts said, describing his experience at Honolulu Hale. “But the police department assumed I was carrying a firearm and they stopped me.”
Roberts said a search of the empty case would have been a violation of his rights, and that Bill 57 would lead to lawsuits.
“I can carry a firearm on my person, anywhere that I go and be free of searches,” Roberts said. “Criminals are not going to have licenses. They’re not going to follow these laws.”

I think the council is well aware of that, unfortunately. This is about restricting as much as possible where those legal gun owners who’ve managed to jump through every hoop and over every hurdle the city put between them and their carry license can now bear arms without fear of prosecution. The ordinance is written to trip up those concealed carry holders who might accidentally set foot with 100 feet of a permitted public gathering or otherwise makes an inadvertent foray into a gun-free zone by declaring the “presence of a person at any sensitive place is prima facie evidence that the person knows it is a sensitive place.” In other words, a violation doesn’t have to be willful to result in criminal charges.

While Roberts didn’t specifically say that the Hawaii Firearms Coalition was going to file suit against Bill 57 once the mayor signs the ordinance into law, there’s a slowly-growing number of Honolulu residents who are going to have standing to challenge the litany of “sensitive places” that it imposes. Of course, with Hawaii’s state legislature poised to pass its own sensitive places legislation, the pool of potential plaintiffs really stretches across the chain of islands. It may be that a challenge to the state law takes precedence over Honolulu’s ordinance given that the two are likely to be fairly similar in the places they deem off-limits to lawful carry, but one way or another the laundry list of sensitive places should get a court review as soon as there’s standing to sue.

Hundreds of gun owners stuck in limbo as Honolulu’s backlog of carry applications grows

March 15, 2023 by Cam Edwards Leave a Comment

It’s great to see that concealed carry licenses are now being issued given the fact that for decades it was virtually impossible for an average citizen to obtain one, but the city (and state of Hawaii) still have a long way to go before the Second Amendment rights of residents are truly recognized.

Honolulu police chief Joe Logan reports that 38 concealed carry licenses have now been issued, but there’s a backlog of more than 800 applications still outstanding. And three weeks ago, Logan told the city council that the HPD had approved 30 licenses. At the current rate, it would take more than five years for the department to get through the 800 applications that are pending, and any other resident who submits their application could face even longer delays.

While I’d like to think that the HPD is going to pick up the pace, there’s nothing to suggest that’s going to happen any time soon. In fact, Logan has been awfully vague about how long it takes to approve a typical permit. Back in December, when Logan announced that he’d approved eight carry licenses (while about 600 applications were still pending), he told reporters that he couldn’t give them a firm timeline on processing permit requests.

“As a police chief, it’s not something I thought I would have to do when I applied for this position a year and a half ago,” said Logan.
He adds there is no definitive length of time for the permitting process and it largely varies on proficiency requirements.
“It could be one week, it could be two weeks, it could be a month,” Logan explained.
“We don’t have control over that. We’re asking for information, so we’re waiting for information to come back.”

It’s taking a lot longer than a month, based on current statistics. Logan issued the first concealed carry license back in late December, and nearly three months later the backlog has grown by hundreds of applicants. Logan might insist that his department has no control over how long it’s taking, but there’s no excuse for keeping applicants in limbo for months on end. I can’t help but wonder if the department is taking its sweet time in approving permits while the state legislature is working on a bill that would turn many publicly-accessible places into “gun-free zones.” SB 1230 has already cleared the state Senate and is pending in a House committee; one of four anti-gun measures that are still on track to get to the governor’s desk.

SB 1230 defines 18 “sensitive places” where concealed carry will be off limits, including public parks, public transportation, restaurants that serve alcohol, public gatherings, banks, and virtually all private property unless the property owner posts signs permitting it. That’s not the only problem with the bill either. It prohibits individuals who are deemed “unsuitable” by a police chief to obtain a carry license, which is precisely the kind of arbitrary abuse of authority the Supreme Court shot down in the Bruen case. Oh, and the license is only good for a year, so gun owners get to go through the bureaucratic nightmare of re-applying every year.

Is it too cynical to think that maybe the Honolulu police aren’t in any rush to approve carry applications because the powers that be want to limit the number of individuals exercising their right to bear arms in self-defense until the state steps in and makes it almost impossible to do so? Given the response to Bruen that we’ve seen in other states historically hostile to the Second Amendment, I don’t think so. And if the Honolulu PD doesn’t pick up the pace, I hope one or more of the hundreds of applicants who are waiting for their permission slip to exercise their fundamental right bring these delays before a judge. SB 1230 is already going to face a court challenge if it becomes law, but it’s far from the only abuse of the right to keep and bear arms happening in Hawaii these days.

Oral arguments in Hawaii permitting law appeal delivered

February 20, 2023 by John Petrolino Leave a Comment

Back in August of 2021, we covered a case out of Hawaii dealing with their unconstitutional permitting laws. Yukutake v. Connors was argued before the U.S. District Court for the District of Hawaii, and the court found for the plaintiffs. In that decision, the court found that Hawaii’s laws on pistol purchase permits expiring ten days after issuance and requiring citizens to have their firearms inspected by the police after procurement were unconstitutional. Hawaii, like many of the other strongholds of progressive anti-liberty leaders, who act like petulant children, naturally appealed this decision. The likes of Hawaii, California, New Jersey, etc. need to learn when to take a big “L”; and let well enough alone. The arguments in the appeal were heard by a three-judge panel in the 9th Circuit on February 14th, 2023.

The case is now known as Yukutake v. Lopez (formerly Yukutake v. Shikada), and arguing on behalf of the state was First Deputy Solicitor General Nakatsuji. Nakatsuji tried really hard to make the state’s case. He did. But sorry, Mr. Nakatsuji, you lost your credibility when you could not answer a simple question about the NICS system. A dialogue between Nakatsuji and Judge Daniel Paul Collins showed how ill-prepared the state was on this appeal [emphasis added]:

Collins: With the 10 day permit provision, what purposes does the permit serve apart from background checks? I assume background check is part of the permitting process. What other purposes are served by the permit other than the background check?
Nakatsuji: Well, Your Honor, the permit ensures that the person is in compliance with Hawaii law. So they pass a background check. You gave them this basic information about the person and…
Collins: The other two backgrounds, if they buy from an FFL, do they go through two? They go through one in the permit process? And then they take the permit to the FFL. And go through another one at the point of sale?
Nakatsuji: I am not entirely sure, Your Honor. But I believe the way it works is the in buying the gun the the permit is I believe the person goes to the firearms dealer, and then I think the firearms dealer checks with the local officials. And I think the local officials do the actual background check. I don’t know the details for sure, your Honor. But it happens during that process.

The state is in trouble if their star warrior, their Koa, if you will, does not even know the process Hawaiians must go through to purchase a firearm. All he’s able to argue is that the process is constitutional in his opinion, he thinks, and believes – for sure. Which it’s not.

Since the creation of the NICS system, the entire matter of permitting to purchase any firearms has become obsolete and moot. To argue otherwise is to advocate for setting up the law-abiding citizen for roadblocks and obstructing them from exercising a right. Nakatsuji argues that they just need that process because.

Other fun moments included why the permits are only good for ten days because an individual could become a disqualified person from the time they are given their permit and go and purchase their firearm. To which the proper remedy to the state’s issue with potentially disqualified persons buying a firearm falls on them, and their own failures to report to the NICS system. Sounds like the officials of the Aloha State need to step up their game if they’re worried about this. They shouldn’t put the burden on the law-abiding, just as it’s the state’s burden to prove their law is analogous to something from the time of our founding.

Concerning the requirement to have firearms inspected by the police, Nakatsuji argued that it’s an important part of the process to make sure that an individual’s purchases are in accordance with Hawaii’s law. The state flippantly made this statement as if gun stores and FFLs are known to be selling firearms that do not comport with the law. The State’s analog had to do with militia members being required to have their firearms inspected to insure they were proper. Very different things.

Representing the plaintiffs were the all-star duo of Alan Beck and Stephen Stamboulieh. Beck and Stamboulieh have seen to the overturn of many unconstitutional laws and partner up as a nearly unstoppable pair. Beck delivered arguments in support of Todd Yukutake and David Kikukawa.

Beck is a ferocious courtroom litigator and understands Second Amendment law like none other. In his retort to the state’s weak arguments, he dominated when questioned on the subject of permitting and background checks.

“What I’m suggesting is that we look and see if a modern day revelation has a comparable burden to something that 1791 achieved the same purpose. And, instantaneous background checks is what we’re dealing with right now. And said entertainers background check this course loaded to you right now…what’s the burden of going into a gun store, filling out your 4473? And having an instantaneous background check? I think that’s something that during the colonial era, you know, I don’t think anyone would have said, “you know, a very short 20 minute delay is a thing that’s really burdening my ability to pick up a firearm.” Here, this is much distinguishable because we have the system that is hindering your ability to actually acquire a firearm.” – Alan Beck

The entire hearing lasted about 40 minutes. The state, like many entities across the nation that also object to liberty, leaned on footnote #9 of NYSRPA v. Bruen. These defenders of unconstitutional law that invoke this footnote probably need to re-read it. The footnote in part reads [emphasis added]:

To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].” Drake v. Filko, 724 F. 3d 426, 442 (CA3 2013) (Hardiman, J., dissenting). Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, responsible citizens” from exercising their Second Amendment right to public carry. District of Columbia v. Heller, 554 U. S. 570, 635 (2008).

Everything about footnote #9 and the NYSRPA v. Bruen decision had to do with the carry of firearms. Yes, NYSRPA did give the lower courts a very important roadmap to follow in how to handle such cases, and it’s clear that those still safeguarding their controlling laws did not learn how to read that map.

For Hawaii or any other jurisdiction to keep bringing up this footnote when it comes to the purchase, procurement, and simple possession of firearms, they’re patently wrong. Buying a firearm is not the same as carrying one.

In reality, the permitting process for carry is also moot – which is another topic – as individuals are statutorily qualified to bear an arm if they qualify to buy one under the NICS system. Outside of jurisdictions that require training, if one can buy, one can carry. In short, a simple safety certificate and receipt showing that an individual purchased their firearm from an FFL are all that should be needed for an individual to carry a firearm – if we’re going to require anything at all.

This is common sense. And it’s good common sense. To try to bend footnote #9 to mean something other than that states who have some safety requirements for carry permitting are presumed to be acting in a constitutional manner actually puts all permitting schemes in peril.

Beck is an artful lawyer, and he and Stamboulieh have been wrecking machines to unconstitutional provisions in the law. When the state of Hawaii, or any state for that matter, sees these two coming for them, they’d be best off conceding defeat and saving themselves some money.

We don’t know how the three judges of the 9th will view all this, but we can be assured someone’s going to be asking for a full en banc or appeal after there’s an opinion. If push comes to shove and it ends up being the state asking the high court to take a look-see, that’s pretty brazen considering what they said in NYSRPA. The judges that just heard the arguments really do seem to get it, though…how many background checks do people really need for the purchase of one firearm?

If you’d like to catch a rewind of the arguments, click HERE or check them out below in the embed:

Judge dismisses gun charges for man arrested for carrying without a permit

February 20, 2023 by Cam Edwards Leave a Comment

While Hawaii lawmakers are busy trying to craft a new law that would make it illegal for licensed concealed carry holders to bear arms almost anywhere in the state, a local judge has given a clear sign that the state’s current laws are constitutionally questionable.

Dallys Mello was facing charges of carrying a revolver, carrying a loaded firearm on a public roadway, and illegally carrying ammunition; offenses that could have landed him behind bars for a decade. Instead, Hilo Circuit Judge Peter Kubota dismissed those counts last week, apparently agreeing with Mello’s attorney that the statutes in question are likely to violate the Second Amendment.

“He was in fear of his life. That’s the reason he had the firearm,” Mello’s attorney, Deputy Public Defender Keith Shigetomi, said Thursday. “He didn’t use it in any illegal or improper manner. It was in his backpack. And the Supreme Court said he had the right to possess a firearm for self-defense purposes outside the home. And therefore, the case had to be dismissed.”
Shigetomi added that the prosecution “couldn’t show that the statutes didn’t violate the Second Amendment.”
Kubota dismissed the charges with prejudice, which means the state can’t refile them, although it can choose to appeal the ruling.

Mello still faces a misdemeanor charge of second-degree assault on a law enforcement officer in connection with the original incident, which took place back in September of last year.

According to court documents filed by police, Mello was arrested on Sept. 17 at Pikake and Orchid streets in Fern Acres subdivision on suspicion of second-degree terroristic threatening.
Mello’s girlfriend allegedly reported to police that he had sent her a text message threatening to kill her dogs and her parent’s dogs. The 24-year-old woman told police she believed Mello to be in possession of her Smith and Wesson .22 magnum revolver.
The woman reportedly told police she had given Mello permission in the past to carry the handgun, and that he usually had it in his backpack while riding his motorcycle.
Police accused Mello of resisting arrest. According to documents, during a struggle, Mello and two Puna patrol officers, Spencer Thomas and Cody Correia, stumbled to the pavement. Police allege that while they were down, Mello kneed Correia to the head, resulting in the assault charge.
Officers obtained a search warrant and found a loaded .22 caliber Ruger revolver and two boxes of ammunition in his backpack.
Prosecutors didn’t file a terroristic threatening charge.

While Mello is dealing with the remaining charge against him, the local prosecutor is vowing to still go after those carrying without a license… and presumably concealed carry holders who may bring their gun into a “sensitive place” where they’re banned by law.

Deputy Prosecutor Kimberly Angay argued in her opposing motion that Mello “did not acquire a license to carry a concealed or unconcealed firearm.”
She noted that after the Supreme Court decision, the Hawaii County Police Department — which had granted only six carry permits in the previous 21 years — “changed its permitting process to comply (with Bruen) and requires that applicants complete the application (and) pass and submit a firearms proficiency test,” among other requirements.
Angay argued that without the carry permit, Mello was subject to state laws that “require unloaded firearms and ammunition to be carried in an enclosed container” of rigid construction, such as a commercially manufactured gun case — and only in transit between certain defined, limited locations.
County Prosecutor Kelden Waltjen on Thursday said he “takes firearms cases seriously.”
“Unlicensed and unregulated persons in possession of firearms presents a public safety concern, especially when it involves an alleged threat of violence,” Waltjen said.

The alleged threat of violence is a public safety concern, not any and all exercise of the right to keep and bear arms in self-defense.

We’ll see if the state’s appellate court agrees with Kubota’s ruling, but I wouldn’t treat Hawaii as a Constitutional Carry state yet. The judge’s opinion applies only to Mello, not to every Hawaii resident, and the state is almost certain to appeal Kubota’s decision in the very near future. While the case may not be precedent statewide, it is a blow to the state’s restrictive gun control regime, and more may be on the way, as Bearing Arms contributor John Petrolino will detail later today.

Butterfly knives might soon be free to fly in Hawaii

February 17, 2023 by John Petrolino Leave a Comment

On Valentine’s day 2023 we didn’t have just regular expressions of love. Not at all. The 14th was a big day for attorney Alan Beck, with him showing his love for the Second Amendment during oral arguments in a case known as Teter v. Lopez (formerly Teter v. Shikada and Andrew Teter, et al v. Clare Connors, et al). Teter is a challenge to Hawaii’s complete prohibition on the possession and ownership of butterfly knives.

The case is on appeal with the plaintiffs seeking the overturn of the lower court’s opinion. Litigating on behalf of Attorney General Lopez was Robert T. Nakatsuji, First Deputy Solicitor General of Hawaii. The arguments were heard before a three judge panel of the Ninth Circuit Court of Appeals consisting of Justices: Carlos T. Bea, Daniel Paul Collins, and Kenneth Kiyul Lee. As for the makeup of the panel, Bea is a Bush appointee, and Collins and Lee both Trump appointees.

Beck, argued for the plaintiffs and made short order of the state’s former arguments. In his opening remarks he divided up his arguments into three points. One, butterfly knives, like all knives, are protected arms. Two, there’s no historical basis for banning butterfly knives. Three, the analogues the state used are inappropriate, as Heller states that the Second Amendment applies prima facie to all bearable arms.

Looking at these arms strictly through Heller, arguments not utilizing NYSRPA v. Bruen do hold water. During examination, Judge Collins queried about the approximate number of such knives that were or are in private hands. Beck referenced an amicus brief from Knife Rights. The brief states that during a five year period in the 1980’s, several hundred thousand were sold to citizens. Judge Lee asked about the “dangerous and unusual” classification of arms, to which Beck noted the arm can’t be unusual if it’s borne for lawful purpose.

Beck continued with pointing out that the state has been, and further is, unable to provide an actual analogue where such arms would be completely prohibited. The matter of bowie knives being banned during certain instances of concealed carry was brought up, however it’s important to note that there was no blanket restriction on an entire class of bladed weapon at the time of our founding. To that restriction, we can attribute to the NYSRPA v. Bruen “time, place, and manner” restrictions, such as not allowing firearms in Times Square on New Year’s Eve, versus at all times.

First Deputy Solicitor General Nakatsuji had his work cut out for him. Listening to him argue was similar to listening to Barbara D. Underwood, the Solicitor General of New York when arguing in NYSRPA v. Bruen. Both Nakatsuji and Underwood gave arguments in their respective cases which were akin to a highschool aged teen giving a presentation that they clearly did not prepare for. Restatement of the same old and tired arguments is what one would be delighted with when tuning in to a rewind, as well as circular references.

Nakatsuji did at first ask the panel to remand the case so that proper historical analogues may be presented and argued. The judges did not seem willing to grant that request.

Judge Bea inquired, “I’m having trouble following you. What facts, as opposed to legal research into other laws do you propose could be developed by a remand?” In an attempt to answer, Nakatsuji started his argument, “Well, Your Honor, I think the historical facts, I think could be just historical facts. Your Honor, I think we could obtain analyses from expert…,” and was then cut off by Bea. “Historical facts are part of the legal analysis right? Under Buren. And those were available to you before,” retorted Judge Bea.

The back and forth continued, with Nakatsuji thinking somehow the history changed in the time period between Heller and NYSRPA v. Bruen. Bea did put the matter to bed when referencing NYSRPA:

It [Bruen] says “look at the history,” right? But maybe you can tell me what impediments that there were to you doing the research as to historical analogues in the law which prohibited the use of butterfly knives that you now have overcome, so that you can go back and do some further historical research. That’s what I’m having trouble with.

The historical analogues and text, history and tradition that Nakatsuji came up with were laughable.

The state argued butterfly knives are used by criminals with criminal intent, thus they are “dangerous and unusual.” The judges were not having that, pointing out that handguns are regularly, if not the favored weapon uswd to terrorize the people with, and even still they are protected under the Second Amendment. When trying to discuss the difference between handguns and knives, Nakatsuji gave Second Amendment supporters a complete golden egg that everyone needs to jot down:

And I think there’s a fundamental difference between a weapon like a handgun, which ordinary people do need to have access to, you know, it makes sense to have some form of public carry if ordinary people are going to be using them. But if you’re talking about a weapon that’s associated…very closely associated with criminals and criminal activity, the idea is to get the arsenal out of the hands of the criminal. So that’s why you need a more restrictive ban on these kinds of weapons and butterfly knives fall into that second category. [emphasis added]

The other analoge regarded bringing up bowie knives again. The narrow prohibition on bowie knife possession when concealed, the state tried to argue, is analogous to a complete ban on butterfly knives. On what grounds?

… butterfly knives, they’re simply the latest form of this kind of problem. And, you know, they they became a problem in the 1990s. And they are now part of this tradition, which is to restrict weapons that are popular among criminals and used for criminal activity.

In short, he stated that some youth gang members possessed butterfly knives in the 90’s, they became a problem, and that’s the history, text, and tradition he’s quoting.

The formerly referenced amicus brief, on page 25, by Knife Rights cuts up the state’s paranoia on these weapons.

However, as stated above, the testimony offered in the legislative history fails to show that butterfly knives are used in crimes. The testimony offered by the Honolulu Police Department does not provide any evidence of criminal misuse of butterfly knives. It merely states that prior to the ban on butterfly knives, these knives were commonly found on individuals. ER083-ER087. Moreover, the record is entirely devoid of any showing that butterfly knives have ever been used in a crime. Thus, Appellees have failed to make any showing that butterfly knives were or are associated with criminal or gang activity.

In Beck’s final rebuttals, he points something out that should embarrass Nakatsuji:

…there wasn’t actually any evidence of anyone committing crimes. What was happening is that the local high school students would be caught with them, not because they’re engaged in some type of crime, but for simply completely unassociated “X.” And they just happen to have those on their person. That doesn’t mean that because they had…let’s say because we said they have wallets on them and keychains, that doesn’t mean that wallets and keychains are associated with crime. So they actually produced absolutely no evidence that butterfly knives are actually engaged or used for crime at all.

Beck is a masterful litigator. I reached out to him about the arguments and congratulated him on what seemed like a job very well done. I asked him about the case and he said of the conflict, “Heller is clear that the government cannot prohibit the mere possession of a protected arm and Hawaii was unable to point to any historical tradition of prohibiting knives. Thus, I am confident that we will prevail.”

What will come of the case and what the three judge panel will decide is up in the air. Looking at the questions the judges asked, one might find them to be leading towards a reversal of the lower court’s opinion. We don’t know.

If the panel finds for the plaintiffs, is Hawaii going to ask for an en banc hearing? Will the case continue to get appealed? Could the citizens of the Aloha State finally be liberated from the complete prohibition on these bearable arms? What can be said for sure is that we’ll be following the progress of this case and others, giving updates as they arise. On the fly, this does seem very cut and dry.

Want to tune into the arguments on rewind? They can be viewed HERE or in the embed below.