Aloha: Federal court strikes down Hawaii’s ‘may issue’ practice

Judge Diarmuid O’Scannlain along with Judge Consuelo M. Callahan found the Honolulu Police Chief's policy on CCW permits, not consistent with "protected Second Amendment activity.” (Photo credit: The Recorder)

Judge Diarmuid O’Scannlain along with Judge Consuelo M. Callahan found the Honolulu Police Chief’s policy on CCW permits, not consistent with “protected Second Amendment activity.” (Photo credit: The Recorder)

In a decision released Thursday by the U.S. 9th Circuit Court of Appeals, in the case of Baker v. Kealoha, the court followed the lead of the recent Peruta case to declare Hawaii’s restrictions on firearms carry unconstitutional under the Second Amendment.

The case was heard by the same trio of judges who sat on the earlier Peruta and Richards cases in California, which challenged the state’s restrictive ‘may issue’ policies that required concealed carry permit applicants to show “good cause” to warrant a permit. The judges, Diarmuid O’Scannlain, Sidney Thomas and Consuelo Callahan, heard Baker in December 2013 and issued their findings Thursday.

“In Peruta, we concluded that the Second Amendment provides a responsible, law-abiding citizen with the right to carry an operable handgun outside the home for the purpose of self-defense,” wrote O’Scannlain for the two-judge majority decision in a memorandum.

“In light of our holding in Peruta, the district court made an error of law when it concluded that the Hawaii statutes did not implicate protected Second Amendment activity.”

Thomas, who also dissented on the Peruta case, chose to do so on the Baker decision as well, citing that the Hawaii case came to the 9th Circuit via a different procedural process than its predecessor. He also noted that, “there is simply no justification for a broadside interference with state law enforcement” by the court.

Hawaii has some of the strictest concealed carry laws in the country. In 2012, just four private citizens applied for a concealed carry license in the city and county of Honolulu, while one applied in Maui County, and all five were denied at the discretion of the respective county police chief.

This case is one of plaintiff Christopher Baker, a resident of Honolulu County who applied for and was denied a concealed carry permit by the Honolulu Police Chief without reason or explanation.

Baker then filed suit against Chief of Police Louis Kealoha for denial of his Second Amendment rights. The case was denied by a district court and then appealed to the 9th U.S. Circuit, who issued its findings Thursday. Baker was represented by Hawaii based attorneys Richard Holcomb and Alan Beck.

“I think it’s promising. Everything is dependent now upon making Peruta a filed decision,” said Chuck Michel, senior partner and CEO of Michel and Associates, the firm responsible for the win in the Peruta case earlier this year, to Guns.com.

Following that decision in February, county sheriffs across California started to reevaluate how they issue firearms permits and qualify “good cause.”

The decision in that case was used in a precedent in the later suit of Richards v. Prieto earlier this month.

“If Peruta stays in there, Hawaii will have to change its program,” explained Michel.

Even though Baker was an unpublished decision closed by memo, similar to how the Richards case was concluded, and cannot be cited in other cases, it is something of a validation of Peruta that improves the chances that California and now Hawaii could move to a ‘shall issue’ concealed carry standard for good.

“The most interesting part is that the Yolo County Sheriff, Prieto, has asked for en banc review in the Richards case,” advised Michel. “I expect that the defendant in the Hawaii case, the Honolulu Police Chief [Kealoha], that they are going to ask for en banc review too. At this point en banc review is inevitable because there is so many ways for it to happen.”

Others agree that the battle in Hawaii is still very much uphill.

“Hawaii’s Attorney General and law enforcement leaders will oppose shall issue as will our current liberal Legislature,” Dr. Max Cooper, president of the Hawaii Rifle Association told Guns.com Friday. “It is time for more people to apply for permits and another hearing on a shall issue bill in the 2015 Hawaii Legislature.”

“There is still politics in this, so people need to be pushing their issuing authorities to adopt the Peruta decision and start issuing permits and people should go on down and apply,” explained Michel.