Honolulu police chief is pressed on handgun carry permits

The Honolulu Police Commission was mostly effusive in its praise of Police Chief Susan Ballard in the first-year review that was released recently, but key members are clearly troubled by the answers she’s given them on the Police Department’s policy regarding handgun carry permits.

They worry that Ballard and the department may be rejecting gun permit requests either without a legally defensible policy or any policy, and therefore may be violating the Second Amendment guaranteeing citizens the right to bear arms.

The concerns are detailed in a four-page memo written by Commissioner Steven Levinson and co-signed by Commission Chairwoman Loretta Sheehan.

In July a three-judge panel of the 9th Circuit Court of Appeals ruled Hawaii’s legal requirement for getting a license to carry a firearm in public violates the U.S. Constitution’s Second Amendment right to bear arms. That case is on hold pending a decision by the U.S. Supreme Court on a similar case.

On Friday the Hawaii Rifle Association filed a federal lawsuit against Ballard and state Attorney General Clare Connors challenging what it called “Hawaii’s de facto ban on all manner of (gun) carry by ordinary citizens.” State and city laws and policies violate the Second Amendment because they only grant permits to carry guns — concealed or openly — in urgent or exceptional cases and “do not consider the general need for self-defense to be urgent or exceptional,” the lawsuit said.

State firearm laws prohibit carrying a firearm in public except to transport it to and from places where it can be purchased and used legally, such as from a gun shop to your home or to the police department for registration. The firearm must be unloaded and in an enclosed container.

The chief of police of each county is responsible for handling firearm registrations and issuing firearm licenses. The law allows for the chief, in exceptional cases, to grant a license to carry a loaded revolver or pistol to an applicant who shows reason to fear injury to himself or his property. In practice few permits are granted unless the weapon is needed for one’s work.

Ballard has not told the Police Commission how many gun permits have been issued or what the policy is on issuing permits.

Levinson said, “Our attempts to obtain the information sought have been unsuccessful.”

Not only has the commission not been provided “written, formal, constitutionally defensible rules and regulations” for processing handgun carry laws, but it “has been given no statistics as to how many applications have been tendered to the Chief and how many applications for concealed and open carry the Chief has denied and how many the Chief has granted.”

Former Police Chief Lee Donohue, now director of security at Securitas Security Services, recalls from when he was chief that “very few apply (for gun carrying permits) and none get them.”

Levinson, a former Hawaii Supreme Court justice, and Sheehan, a former prosecuting attorney, made it clear they are not in favor of increasing gun carry permits, but they want HPD to have a clear policy.

“The United States Supreme Court could ultimately hold it is the law of the land that the Second Amendment generally guarantees a core, individual and fundamental right of open and concealed carry of handguns, a potential outcome that I regard as disastrous,” Levinson said.

The Honolulu Star-Advertiser asked HPD to respond to the commissioners’ concerns. Deputy Chief John McCarthy said the U.S. Supreme Court is hearing a case from Florida that is similar to the one from Hawaii.

Until that’s settled, “we’re in a holding pattern … and not doing anything different,” McCarthy said. “We respect everyone’s rights. We will continue to evaluate each application on its own merit before making a decision to issue a permit to carry a weapon.”

HPD spokeswoman Michelle Yu added, “The HPD appreciates the concerns of the Commission, and we are working with the Department of Corporation Counsel and Department of the Attorney General to address these issues,” Yu said. “Due to pending litigation, the department is declining further comment.”

The discord over the gun policy stands in stark contrast with the usually warm relationship Ballard has enjoyed with commissioners — and Sheehan and Levinson in particular.

Even in the memo voicing the concerns about the gun policy, Levinson began with, “I would like to make clear at the outset of this comment that I believe Chief Ballard has had an extraordinarily successful first year … and I have come to respect and value her highly both at the personal and professional levels.”

He added, “I have inserted this comment into her annual evaluation only because it pertains to an issue of profound significance to the City and County, the State, and the nation. For this reason, I feel compelled to make a record of my concern.”

Harvey Gerwig, Hawaii Rifle Association president, and Devin Sasai, owner of Bushido Arms and Ammunition, are among those who have applied for carry permits and been denied by multiple Honolulu chiefs, including Ballard.

Sasai said he believes Levinson and Sheehan “have a very good grasp” of the potential impacts of the city’s policies.

“The refusal of the respective chiefs of police to issue these (gun carry permits) for any reason really puts the city and the state in a very, very bad legal position,” Sasai said. “At some time it’s going to reach a tipping point.”

James Hochberg, Hawaii Rifle Association attorney, said permits will be issued only to those who can prove urgency and other circumstances that satisfy law enforcement. “And there’s no other constitutional right that that applies to,” he said. “Can you imagine — I don’t know, the right to vote — if you wanted to vote, you’d have to prove exceptional circumstances and urgency? That’s just not the way it goes.”

Donohue, the former police chief, said he supports the way HPD has handled gun carry permit applications now and in the past.

“We enjoy a very safe community here,” Donohue said. “We have one of the lowest number of homicides among the major cities in the United States, so I think our policy has been working as we intended it to.”

Permits are issued to those who can prove need, Donohue said, including about 200 Securitas airport security personnel designated by contract with the state as airport law enforcement officers.

Those who drive armored cars or otherwise transport money between banks and automatic teller machines also are able to obtain carry permits.

Gun enthusiasts argue, however, that being allowed to carry a firearm for a job is different from being able to do so as a private individual, which they believe is their constitutional right.