Maui County prosecutors last week appealed a judge’s dismissal of firearm possession charges against a Maui man — a challenge that potentially could set new precedent for Hawaii’s gun laws.
Circuit Judge Kirstin Hamman dismissed firearm charges, citing the U.S. Supreme Court’s June ruling on the Second Amendment protecting the right to carry a gun outside of the home and calling into question permitting requirements like those in Hawaii, which are among the strictest in the country.
Maui County prosecutors appealed the dismissal to the Intermediate Court of Appeals, where the fate of how Hawaii’s gun laws are applied could be tested.
The Supreme Court’s ruling in New York State Rifle &Pistol Association Inc. v. Bruen found that requiring citizens to have “proper cause” for a license to carry a firearm in public was unconstitutional.
State law prohibits carrying a firearm in public except to transport it to and from places where it can be purchased and used legally, such as to a firing range, from a gun shop to your home, or to the police department for registration. In transit the firearm must be unloaded and in an enclosed container.
County police chiefs in Hawaii have the task of issuing permits to carry handguns in public.
Maui and Hawaii counties became the first two municipalities to revise their permit application form for a license to carry firearms after the ruling. The Honolulu Police Department plans to hold a public hearing Tuesday to discuss its policies for issuing permits.
While New York responded by creating gun-free zones, Hawaii has not issued any new legislation. Honolulu Mayor Rick Blangiardi announced Thursday that he proposed a draft ordinance to the City Council that would ban guns in schools, parks, government buildings, public transportation and voting locations.
In the Maui case appealed to the Intermediate Court of Appeals, police arrested Christopher L. Wilson, who was “hiking and gazing at the moon,” for trespassing on another man’s property near Maalaea in December 2017, court documents show. Wilson told police that he had a loaded .22 pistol in his waistband for self-defense purposes, documents show.
Wilson was charged with a felony for carrying a firearm in an improper place and a misdemeanor for carrying ammunition in an improper place. He was also charged with misdemeanors for criminal trespassing and failing to obtain a firearm permit.
Wilson’s public defender, Ben Lowenthal, cited the Supreme Court’s June decision when he moved in July to dismiss the first two charges.
In court Aug. 17, Hamman said she didn’t see how the two laws Wilson was charged with violating complied with the Bruen ruling, a court transcript shows. She said she would grant Lowenthal’s motion.
On Aug. 30, state Attorney General Holly T. Shikada requested permission to submit an amicus brief in support of the Maui prosecutors, saying Lowenthal’s motion to dismiss the charges “implicates a matter of significant importance to the Attorney General.”
Hamman’s ruling “would undermine state public carry licensing, impede ‘place to keep’ prosecutions across the state, and radically expand the scope of the Second Amendment far beyond anything the Supreme Court outlined in Bruen,” Shikada’s counsel Kalikoonalani D. Fernandes wrote.
Hamman filed an order dismissing the two charges.
Hamman ruled that charging Wilson on the first two counts “infringes on (his) constitutional right to bear and carry a firearm for self-defense purposes,” and added, citing the Supreme Court’s Bruen ruling, that “this right extends outside the home.”
Richard Rost, a deputy prosecuting attorney for Maui County, appealed the dismissal to the Intermediate Court of Appeals on Sept. 22.
“Just because Bruen has redefined what kind of requirements the state can impose on somebody getting a carry permit, that doesn’t mean that Hawaii’s entire carry licensing system is out the window,” Rost told the Honolulu Star-Advertiser.
Wilson lacked a permit, never applied for one, and his firearm was unregistered, Deputy Prosecutor Sally Tobin wrote in a memo opposing the motion to dismiss charges. “As a result of his failure to even apply for a permit, defendant lacks standing to raise the Second Amendment challenge in his motion,” Tobin wrote.
Because of this, Rost said, “This particular case we don’t think Bruen has anything to do with.”
In a court filing, Lowenthal argued that Wilson’s violation of “place-to-keep” laws are separate from his failure to acquire a permit, a charge he did not move to dismiss.
In a statement to the Star-Advertiser, Lowenthal said what the Bruen ruling touches is not yet clear, but the prosecutors’ appeal could have unintended results.
“Lawyers and judges across the country are still grappling with what the Supreme Court did in the Bruen decision. The government’s appeal is forcing us further into uncharted waters,” Lowenthal said.
“Mr. Wilson’s constitutional rights to keep and bear arms for self-defense extend beyond the home. The Maui prosecutors seem to be eager to explore and find out the contours of this right. They risk a flood of constitutional challenges around the state that could take down our gun laws and make us all less safe,” he said.
“An appellate court’s decision could establish precedent. If they come out with an opinion that becomes binding law for all lower courts, that could change the way prosecutions are done, the way gun laws are written,” Lowenthal added.
Neither Lowenthal nor Rost wanted to speculate on what effect the case might have on state law.
Jarrett Keohokalole, a state senator who is vice chair of the Judiciary Committee, said, “If prosecutors think it warrants legislative change, that’s something we may take up next year … but not until then.”
Honolulu Prosecutor Steve Alm said in a statement to the Star-Advertiser, “The Bruen ruling invalidated only one aspect of the public-carry permitting statute — the requirement that an applicant show reason to fear injury to the applicant’s person or property — but left all other permitting requirements in place.
“We have and will continue to charge individuals for unlawful possession of firearms in public if they do not have a valid concealed or open carry permit,” Alm said in the statement.
The Maui Police Department has issued 11 Concealed Carry Weapon licenses to nine people so far this year, according to MPD spokesperson Alana Pico. (Two people received two for separate firearms.) MPD distributed 358 permit applications and is processing 34, Pico wrote in an email.
