It’s been awhile since I’ve had to say aloha to new litigation in Hawaii. In our post NYSRPA v. Bruen world, there’s been all kinds of shenanigans that jurisdictions have been playing that keeps permitting systems “may issue.” There are also pre-Bruen standards that need to be revisited, as is the case here. Any subjective standard in an application scheme is de facto “may issue” criteria, and goes against Heller and NYSRPA v. Bruen. Resident of the Aloha State, Blake Day, was denied a permit to carry for allegedly being “not of ‘good moral character’ and/or ‘suitable.’”

Drawing details from the complaint that was filed on the 6th of December, 2023, Mr. Day’s alleged lack of “good moral character” and suitability arises from what the Hawaii County Chief of Police stated was “due to ‘recent violent conduct.’” The so-called “violent conduct” is in reference to an incident where Mr. Day was forced to defend himself – with non-lethal force – while executing his duties as a contractor for a bank. The conflict resulted in no criminal charges.

In January of 2023, the job Day was tasked with was cleaning up and securing a vacant property. “Mr. Day was led to believe (by his contact at Five Brothers) that the property had been foreclosed upon by Home Street Bank, the mortgagee identified on the Work Order.” The complaint states. It was further noted that Mr. Day believed the property was vacant based on the information he received from Five Brothers.

While Mr. Day was at the property, the owner of the property, Darren Rodrigues, Jr., who had in fact previously vacated the property, was alerted by a Ring doorbell camera that someone had entered the property.

Mr. Rodrigues called the police and then drove to the home.

Mr. Rodrigues aggressively entered the driveway at a high rate of speed. Mr. Rodrigues came to an abrupt stop directly behind Mr. Day’s vehicle which had also been parked in the driveway. Mr. Rodrigues’ vehicle blocked Mr. Day’s exit and Mr. Day could not leave.

Mr. Rodrigues quickly exited his vehicle and stood by the driver’s side door of the vehicle yelling obscenities and “what are you doing at my house?”

Mr. Rodrigues appeared to have something in his right hand and Mr. Day believed it was a weapon. Mr. Day used lawful non-lethal force, i.e., a pepper spray air gun, firing it several times in self-defense.

Mr. Rodrigues threw the object that was in his right hand, which Mr. Day learned to be a Coca-Cola can shortly after it struck Mr. Day in the face.

The complaint details that the police responded and “upon completion of the investigation, neither Mr. Day nor Mr.Rodrigues were arrested or booked. No charges were ever brought.”

In May of 2023, Day filed for a permit to carry through the County of Hawaii Police Department. In June, Day received a denial letter stating that he did not meet the suitability requirements in order to be issued a permit to carry. According to the complaint, Mr. Day suffers from no statutory state or federal disabilities which would create disqualifiers for him to own or carry a firearm.

This is the same issue we’ve been dealing with which Bruen struck down – subjectivity. While many will concede that jurisdictions that have “suitability” requirements like the County of Hawaii and New Jersey, they have been issuing permits to carry – mostly without issue. However there are also a whole slew of situations where they haven’t been, and the old guard needs to surrender their grip on civil liberties. Mr. Day unfortunately is being weighed against the subjective opinion of a government employee and not measured to an objective statutory standard.

From a memo in support of a preliminary injunction that was filed, the conflict is clearly outlined.

At issue here is the Hawai’i Police Department License to Carry (concealed and unconcealed) Application Processing Procedure Manual (“Manual”) which precludes an individual from obtaining a license when the Chief of Police uses his discretion to determine they lack good moral character and/or appear unsuitable. In Plaintiff Day’s case, he is being denied his Second Amendment rights solely because he used non-lethal self-defense.

…

The challenged provisions of the Manual are unconstitutional. Bruen commands that government officials cannot be given authority to use their subjective discretion to deny Second Amendment rights. It is also unconstitutional for the County to deny Second Amendment rights based on an encounter that did not lead to a judicial determination that a person is dangerous.

Attorney Alan Beck, along with attorney Richard L. Holcomb, filed Blake Day v. County of Hawai’i. They’re seeking preliminary and permanent relief in the form of restraining the County of Hawaii from enforcing any suitable person and or good moral character policies in the regulations.

I reached out to Beck to chat with him about the filing and the case. He seems optimistic about the outcome.

The County’s regulations are unconstitutional because it grants the Chief of Police unbridled discretion in the issuance of permits to carry. Bruen makes it clear it is impermissible to grant government officials discretion as to who is allowed to exercise their Second Amendment rights.

According to the Hawaii District Court’s calendar, there’s a telephonic hearing scheduled for February 5, 2024. I’m doubtful that this case will make it that far. Beck has an impeccable record of dicing up unconstitutional law in short order and I suspect the County will try to settle without litigating. We shall see.

We’ll be keeping a watchful eye on how this case fleshes out. Regardless of tactics and means to the end, provisions in law and policies, such as the County of Hawaii’s, need to be repealed and cast as an archaic relic of American history to join the likes of literacy tests in order to vote.