Hawaii gun laws challenged in federal court

According to this press release, Hawaii Defense Foundation founding director and president, Christopher Baker, has filed a lawsuit in the U.S. District Court for the District of Hawaii "against Honolulu Chief of Police Louis Kealoha, the Honolulu Police , the City and County of Honolulu, the State of Hawaii, and Governor Neil Abercrombie in connection with civil rights violations of the Second and Fourteenth Amendments of the United States Constitution."

The complaint (available via scribd here) specifically challenges HRS sections 134-9 (governing carry licenses), 134-16 (restricting electric guns), and 134-51 (prohibiting carrying weapons on the person or in a car).

It should be a fascinating case to watch. While the Supreme Court has issued a couple of decisions in recent years making such challenges viable, the court left open some fundamental questions about how decisions should be made.

In 2008, the U.S. Supreme Court held in District of Columbia v. Heller, 554 U.S. 570 (2008), that the Second Amendment protects an individual's right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. Last June, in McDonald v. Chicago, 561 U.S. ___, 130 S.Ct. 3020 (2010), the court held that the Fourteenth Amendment incorporates against the states the Second Amendment right to keep and bear arms for the purpose of self-defense.

In neither case did the court establish what standard of review should apply when gun restrictions are challenged, though the Heller court did reject application of rational basis review. (Under such review, to successfully defend a regulation, the government need only show that the regulation is rationally related to a legitimate government interest).

The McDonald court was silent on the issue except to add that the standard pertaining to review of state regulations under the 14th Amendment is the same as that which applies to federal regulations under the 2d Amendment. This leaves open the critical question of how lower courts are to review gun regulations.

And that is the landscape on which the present gun regulation fight will take place. It will be up to the District Court for the District of Hawaii to establish the standard as well as the constitutionality of Hawaii's gun laws.

We can nevertheless predict that regulations bestowing a great deal of discretion in the administration of gun laws will be the more vulnerable to challenge. And in this case, the complaint specifically singles out the near total discretion of county police chiefs in granting or denying carry licenses.

Hawaii Reporter has a report here.

KITV has a story here.

Meanwhile, a cert. petition currently under consideration by the U.S. Supreme Court asks the court to take up the question of

Whether peaceably carrying or transporting a registered handgun outside the home, without a carry permit that is unobtainable by ordinary, law-abiding citizens, is outside of the scope of "the right of the people to . . . bear arms" protected by the Second Amendment to the United States Constitution.

Breaking news...

The Hawaii Bar has an appellate section! My understanding is that Rebecca Copeland (at the link) has been instrumental.

"Today, on behalf of the Honolulu Star-Advertiser, we filed a complaint against Governor Neil Abercrombie"

...blogs Mark Murakami today in his blog, HawaiiOceanLaw, "seeking to compel the disclosure of the list of judicial nominees provided to him by the Judicial Selection Commission."

Follow the link to see the complaint.

The newspaper itself reports -

His refusal, the Circuit Court lawsuit said, violates the state Uniform Information Practices Act, which mandates that government records be open to the public.

The governor has maintained that the names fall under an exemption to the law because the release would have a "chilling effect" on potential applicants.

Discussing vested rights at the County Council

Léo Azambuja had an interesting piece in the Garden Island Saturday about the county's attempts at legislation to implement a 2008 charter amendment that would limit growth in transient accommodation units to 1.5% annually. At issue is "the fate of 4,650 units that have been permitted but not yet built." At bottom, the issue seems to be about vested rights. The article points out that Land Use Research Foundation Executive Director David Arakawa "said when there is a finding of vested rights, the law trumps any votes by the population on charter amendments."

The Planning Department floated a proposal addressing vested rights under which "existing resort projects qualifying for exemption from the 1.5 percent growth would have to have been approved prior to Dec. 5, 2008, and located in the zoning district designated prior to that date," and must have expended "at least 20 percent of the Real Property Assessment of the land value of a given project" on the project.

Whether the Planning Department's proposal encompasses all projects whose rights would properly be said to have vested is beyond the scope of his post, but a good place to gain some background in comprehending the issue is a 2004 University of Hawaii Law Review article by Kenneth R. Kupchak, Gregory W. Kugle, and Robert H. Thomas called Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawai‘i.

Vested rights analysis focuses on whether an owner has made irrevocable commitments which create a property right deserving constitutional protec- tion. In other words, whether the owner possesses constitutional “property rights which cannot be taken away by government regulation. The vested rights analysis turns on whether the property owner has gone so far down the development path that the government cannot change the law or its interpretation or application of the law. The key question as posed by the United States Supreme Court regarding the due process context in Board of Regents v. Roth, is whether the owner has “a legitimate claim of entitlement” to the right to continue. As Roth also held, this question is a matter for the states to decide.

Big Island blogger Damon Tucker blogs that he was arrested for taking pictures of police

He posts here and here and here.

Damon writes

I went to Pahoa Village Club to cover the concert that was happening there last night and ended up with a lot more then I bargained for!  I got arrested for taking pictures and videos of cops arresting people!

According to the Notice of Court Appearance he posted, Damon was charged with interference with government operations in violation of HRS §710-1010, which states in relevant part:

A person commits the offense of obstructing government operations if, by using or threatening to use violence, force, or physical interference or obstacle, the person intentionally obstructs, impairs, or hinders: 

(a) The performance of a governmental function by a public servant acting under color of the public servant's official authority; 

(b) The enforcement of the penal law or the preservation of the peace by a law enforcement officer acting under color of the law enforcement officer's official authority...

Interestingly, section 710-1010 "does not apply to: The obstruction, impairment, or hindrance of the making of an arrest[.]"

I'm sure Damon will continue to keep his readers updated, and I'm looking forward to learning more. In the meantime, here's an interesting recent article on photographers' rights that might be relevant. From the abstract:

Threats to national security and public safety, whether real or perceived, result in an atmosphere conducive to the abuse of civil liberties. History is littered with examples: The Alien and Sedition Acts of 1798, the suspension of habeas corpus during the Civil War, the Palmer Raids during World War I, and McCarthyism in the aftermath of World War II.Unfortunately, the post-9/11 world represents no departure from this age-old trend. Evidence of post-9/11 tension between national security and civil liberties is seen in the heightened regulation of photography; scholars have labeled it the "War on Photography" - a conflict between law enforcement officials and photographers over the right to take pictures in public places. A simple Google search reveals countless incidents of overzealous law enforcement officials detaining or arresting photographers and, in many cases, confiscating their cameras and memory cards, despite the fact that these individuals were in lawful places, at lawful times, partaking in lawful activities. 

This article examines the so-called War on Photography and the remedies available to those who have been unlawfully detained, arrested, or have had their property seized for taking pictures in public places or private places open to the public. It discusses recent incidents that highlight the growing infringement of photography rights and the magnitude of the harm that law enforcement officials have inflicted, paying particular attention to the themes these events have in common. It explores the existing legal framework surrounding photography rights and the federal and state remedies available to those whose rights have been violated. It examines the adequacy of each remedy including: (1) declaratory and injunctive relief, (2) Section 1983 and Bivens actions, and (3) state tort remedies. It discusses the obstacles associated with each remedy and the reasons why these obstacles are particularly hard to overcome in the context of photography. It then argues that most, if not all, of the remedies discussed are either inadequate or altogether impractical considering the costs of litigation. Lastly, this article will discuss the reasons why people should be concerned about the War on Photography and possible ways to reverse the erosion of photography rights.