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

Don Petersen

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.


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