Chipping Away At Hawaii's Unconstitutional Gun Laws

Photo Courtesy of the National Shooting Sports Foundation

Slowly and surely unconstitutional practices, laws, and polices in the state of Hawaii are being taken down. Over the summer I reported on a case involving two plaintiffs that were denied the right to purchase firearms due to former disorderly conduct charges. The convoluted nature of Hawaii law really plays into this situation. That case,  Roa, et al v. City and County of Honolulu, was eventually settled via a signed stipulation with Honolulu conceding defeat, and them agreeing to not contort Hawaii law. On September 14, 2021, a new lawsuit was launched, this time in the County of Hawaii, and it too involved disorderly conduct. The case, Choda v. County of Hawaii, involves a little more than the Roa case over in Honolulu. From the complaint:

Pursuant to H.R.S. §134-7, no one in the State of Hawaii who has been convicted of a crime of violence may own, acquire, or possess a firearm. §134-7 Ownership or possession prohibited, when; penalty. (a) No person who is a fugitive from justice or is a person prohibited from possessing firearms or ammunition under federal law shall own, possess, or control  any firearm or ammunition therefor. (b) No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.

On December 19, 2020, Choda started his vehicle’s engine at night. Choda’s neighbor yelled at him to be quiet. Choda yelled at his neighbor. Profanity was used. Choda and his neighbor  yelled at each other. Police were called. While police were present Choda yelled at his neighbor using profanity. Choda and his neighbor were on their own properties separated by a fence. No threats were made. No physical contact occurred between Choda and his neighbor. Choda was arrested for disorderly conduct; Case 1:21-cv-00384 Document 1 Filed 09/14/21

On January 21, 2021, in the Third District Court of the State of Hawaii, in matter 3DCW21-0000081, Choda was charged with a violation of Harassment and Disorderly Conduct.

On January 21, 2021, in the Third District Court of the State of Hawaii, in matter 3DCW21-0000081, Choda, pled no contest and was found guilty of Harassment under H.R.S. § 711-1106(1) and pled no contest and was found guilty of Disorderly Conduct under H.R.S. §711-1101(1)(a)(b)(c)(3).

Okay, so there was a “situation.” And, we can all be sure the details of whatever heated exchange that transpired was good and juicy. Two presumably adults yelling at another in the middle of the night, with the argument resulting in an arrest. How “disorderly” Choda was, who knows. But is a yelling match something fit for what he dealt with thereafter? From the complaint:

On April 8 or April 9, 2021, Choda applied for a permit to get another firearm;

On August 11, 2021, COUNTY delivered a letter to Choda informing him that the police department had denied his permit to acquire firearms and informing him that he had until  September 15, 2021, to dispose of all firearms and ammunition within thirty days.

Specifically, the August 11, 2021, COUNTY letter, attached as Exhibit E states;

“Your application for a Permit to Acquire a firearm has been denied based on Section 134-7(b) of the Hawaii Revised Statutes which precludes you from possessing any firearms due to a crime of violence conviction in Hawaii.

Any person disqualified from ownership, possession or control of firearms and ammunition under Section 134-7 must dispose of all firearms and ammunition within thirty days from the date of disqualification.

Firearms and ammunition may be disposed of by sale to a gun dealer licensed under Section 134-31, transfer of ownership to any person who meets the requirements of Section 134-2, or surrender to the police chief or his representative for storage or disposal.

Should you elect to surrender the firearm(s) and ammunition to the police, first contact Lieutenant Tuckloy D. Aurelio of our Records and Identification Section at 961-2232 and then surrender the items to the nearest police station. It will be your responsibility to provide updated mailing addresses and contact phone numbers if the disqualification is not permanent. All firearms and ammunition surrendered to the police without updated contact information or due to permanent disqualification will be destroyed.

Any firearms and ammunition presently in your possession must be disposed of by September 15, 2021. Failure to do so may result in seizure of the firearms and ammunition and criminal prosecution under Chapter 134 of the Hawaii Revised Statutes”;

So, in the County of Hawaii, the way they interpreted the law, a yelling match bars you from being able to exercise a constitutional right. That is, until October 8th rolled around and stipulation was signed between council for the County of Hawaii, and councils for Choda, Alan Beck and Kevin O’Grady. From an announcement via Facebook on October 8, 2021 from the Hawaii Firearms Coalition:

Today after a mere 24 days, the county of Hawaii entered into a stipulation with Hawaii Firearms Coalition member Lance Choda and his Attorney Alan Beck and Kevin O’Grady. The stipulation is a big win for the second amendment in Hawaii and reads in part “it is stipulated that County is permanently enjoined from denying an applicant’s permit to acquire a firearm due to being convicted of a crime of violence under H .R. S. § 134- 7(b), unless the conviction meets the definition of “crime of violence” under H.R.S. §134-1 .”

This means the county can no longer use a blanket denial process for those with harassment or disorderly conduct convictions but MUST show that the charge actually included a “crime of violence” as defined in HRS134-1. HRS134-1 reads, “Crime of violence” means any offense, as defined in title 37, that involves injury or threat of injury to the person of another, including sexual assault in the fourth degree under section 707-733 and harassment by stalking under section 711-1106.5.”

This narrowly tailored definition is designed to only remove arms and the right to bear them for those that possess the most risk to society. It is not to deny those that merely use harsh words with a neighbor, as it was in Mr. Chodas case. This makes 2 counties in recent months that have been caught violating the rights of their Citizens. Honolulu had a similar lawsuit earlier this year which was settled after mere days of filing. We hope the remaining two counties take note and make a conscious effort to not make the same mistakes.

Lance and HIFICO would like to thank the attorneys in this case. Attorney Alan Beck and Kevin O’Grady are once again standing up against the powers that be in Hawaii, defending the second amendment from the constant infringement by both the state and county governments.

Directly from the stipulation, the following order was written:

Therefore, it is stipulated that County is permanently enjoined from denying an applicant’s permit to acquire a firearm due to being convicted of a crime of violence under H.R.S. § 134-7(b), unless the conviction meets the definition of “crime of violence” under H.R.S. §134-1.

This stipulation and permanent injunction resolve all claims set forth in Choda’s Verified Complaint for Declaratory and Injunctive Relief (“Complaint”), with the exception of Choda’s claims for damages, which are nominal ($1.00), and attorney’s fees and costs. Choda is the prevailing party and has achieved all relief sought in his action for purposes of attorney’s fees.

This is a huge victory for all gun owners in the County of Hawaii. For any constitutional right to be stripped from someone over a “yelling match” is absolutely absurd. When divvying up what disqualifiers should be in place versus which ones shouldn’t, it’s safe to say yelling at someone does not fit the rubric to strip one of the right to keep and bear arms. Disqualifiers, as whole, is another subject perhaps for another day. But yelling? Nah, that does pass muster. Thankfully Choda was able to get the relief he was seeking without actually having to take the case to trial. As noted in Hawaii Firearms Coalition’s announcement, this is the second case within the last few months that attorney Alan Beck was able to have settled via stipulation. Bit by bit the bad laws are falling in the Aloha State and freedom is being restored to the island state. Can’t wait to see what’s next to be upended in Hawaii. Maybe Young will make some waves?