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Levinson: Ballard's Second Amendment Stance 'Could Precipitate Legal Catastrophe'
By Andrew Walden @ 2:55 AM :: 2545 Views :: Police, Second Amendment

The following statement by Police Commissioners Steven Levinson and Loretta Sheehan was read into the record of Chief Ballard’s annual evaluation. 

It was provided to Hawai'i Free Press by Second Amendment attorney Alan Beck who obtained it via an open records request.

  *   *   *   *   *

January 23, 2019

I would like to make clear at the outset of this comment that I believe that Chief Ballard has had an extraordinarily successful first year as the head of the Honolulu Police Department and that I have come to respect and value her highly both at the personal and professional levels. I have inserted this comment into her annual evaluation only because it pertains to an issue of profound significance to the City & County, the State, and the nation. For this reason, I feel compelled to make a record of my concern, which is shared by Chair Sheehan.

Section 6-1606 (a) of the Revised Charter of the City & County of Honolulu provides that "[t]he police commission shall ... review rules and regulations of the administration of the [police] department." Section 6-1606(h) provides that the police commission shall "[e]valuate at least annually the performance of duties by the chief of police."

Accordingly, the commission's Chief of Police Annual Performance Evaluation form notes that "[t]he Chief shall be accountable solely to the Commission as the appointing authority, except as may be otherwise provided by the Charter. To foster this accountability, the Chief shall: ... [m]aintain a cooperative relationship with the Commission in readily sharing information, concerns, and problems; [and] ... [p]rovide the Commission with any and all information and/or documentation necessary for the Commission to conduct the annual evaluation of the Chief’s performance ...."

During 2018, the Commission became aware of two developments, which are ultimately the reasons for this comment. First, Col. John R. Bates, USMC (ret.), has personally addressed and corresponded with the Commission (and met in person with the Chair and Vice Chair) regarding his unsuccessful thirteen-year effort to obtain, from a series of Honolulu Police Chiefs, including most recently Chief Ballard, a license to carry a concealed pistol or revolver on his person within the City & County of Honolulu. Col. Bates has also advised Chair Sheehan and me that he has repeatedly been entreated by the National Rifle Association to consent to being a plaintiff, represented at no cost by attorneys retained by the NRA, in a lawsuit to be filed in the United States District Court for the District of Hawaii against, among others, the City and County of Honolulu and Chief Ballard, challenging on Second Amendment grounds (1) the constitutionality of Hawai'i Revised Statutes (HRS) § 134-9, which governs the process of issuance of licenses to carry concealed and unconcealed weapons in the respective counties and (2) Chief Ballard's refusal to grant him a license for concealed carry. Second, on July 24, 2018, the United States Court of Appeals for the Ninth Circuit filed Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018), which held that Hawaii's limitation, as set forth in HRS § 134-9, on the open carry of firearms to those engaged in the protection of life and property, violated the core of the Second Amendment and was therefore void under any level of scrutiny.

HRS § 134-9(a) provides in relevant part:

In an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property, the chief of police of the appropriate county may grant a license to an applicant ... to carry a pistol or revolver ... concealed on the person within the county where the license is granted. Where the urgency of the need has been sufficiently indicated, the respective chief of police may grant to an applicant ... who… is engaged in the protection of Hfe and property ... a license to carry a pistol or revolver ... unconcealed on the person within the county where the license is granted. . . . Unless renewed, the license shall expire one year from the date of issue.

(Italicized and bolded emphases added.) By the statute's plain language, the decision to grant an application for a license to carry a firearm concealed or unconcealed on the applicant's person lies within the sole discretion of the chief of police. In other words, under the statute, the chief of police has a monopoly over the decision whether or not to grant licenses to carry concealed or unconcealed. It is apparent from her October 24, 2018 letter to Col. Bates that Chief Ballard does not fully apprehend the distinct statutory criteria for the granting or denial of licenses for concealed handguns, on the one hand, and unconcealed handguns, on the other, because she plainly conflates the two in her explanation of her denial of Col. Bates' application for a concealed carry license.

In Young, the Ninth Circuit accurately parsed HRS § 134·9 as follows:

Section 134-9 ... allows citizens to obtain a license to carry a loaded handgun in public, either concealed or openly, under certain circumstances. . . . Respecting concealed carry,section 134-9 provides that "[i]n an exceptional case when an applicant shows reason to fear injury to the applicant's person or property, the chief of police ... may grant a license to an applicant ... to carry a pistol or revolver and ammunition therefore concealed on the person." The chief of police may, under section 134-9, grant a license for the open carry of a loaded handgun only"[w]here the urgency or the need has been sufficiently indicated" and the applicant "is engaged in the protection of life and property."

896 F.3d at 1048 (italicized and bolded emphases added). The Young court noted that "[t]he County of Hawaii has promulgated regulations to clarify that open carry is proper only when the license-holder is 'in the actual performance of his duties or within the area of his assignment' Police Dep't of Cty. of Haw., Rules and Regulations Governing the Issuance of Licenses 10 (Oct 22, 1997)." jg. (Emphasis in original.) It is possible that the Honolulu Police Department has promulgated and implemented no such formal Rules and Regulations.

Young's argument on appeal, the Ninth Circuit observed, was "straightforward: he asserts that the County has violated the Second Amendment by enforcing against him the State's limitations in section 134-9 on the open carry of firearms to those 'engaged in the protection of life and property' and on the concealed carry of firearms to those who can demonstrate an exceptional case."' 896 F.3d at I 049-50 (footnotes omitted). Expressly regarding Young's "straightforward" argument that HRS § 134-9 is in violation of the Second Amendment by virtue of its limitation of the right of concealed carry "to those who can demonstrate an ‘exceptional case,"' the Ninth Circuit had the following to say:

While the County's police chief reportedly awaits an "exceptional case" to grant a concealed carry license, section 134-9 is effectively a ban on the concealed carry of firearms. As counsel for the County openly admitted at oral argument, not a single concealed carry license has ever been granted by the County. Nor have concealed carry applicants in other counties fared much better: Hawaii counties appear to have issued only four concealed carry licenses in the past eighteen years. . . . And there is no dearth of applicants.... Thus, ... section does not offer a realistic opportunity for a concealed carry license.

896 F.3d at 1071 n.21 (emphasis in original) (citations omitted). Holding that "Young has indeed stated a claim that section 134-9's limitations on the issuance of open carry licensed violate the Second Amendment," the Ninth Circuit declared that, "for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense. We would thus flout the Constitution if we were to hold that, 'in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion."' !d. at 1074 (footnote omitted) (brackets in original).

In light of the foregoing, the Commission's Chair (a former Deputy Prosecuting Attorney for the City & County of Honolulu and Assistant United States Attorney for the District of Hawaii) and I (a former Hawaii Supreme Court Justice and First Circuit Court Judge), the Commission's Vice Chair, are convinced that the manner in which Chief Ballard is administering her statutory authority to process applications for concealed and open carry licenses in the City & County of Honolulu, if not constitutionally defensible, could potentially precipitate one of the greatest legal catastrophes that the City & County, the State of Hawaii, and the nation have ever experienced. Accordingly, we have undertaken, in multiple open sessions of the Commission, to ascertain in detail how Chief Ballard is administering HRS § 134-9, and, in particular, whether HPD has promulgated written, formal, and constitutionally defensible rules and regulations by which the Chief’s statutory authority to pass on applications for concealed and open carry of handguns can be exercised in a manner that is not arbitrary or capricious. Our attempts to obtain the information sought have been unsuccessful. To this day, we do not know what the answers to our questions are. Most notably, we do not know whether there are written, formal, constitutionally defensible rules and regulations in place pursuant to which the Chief is processing HRS § 134-9 applications. Moreover, the Commission has been given no statistics as to how many applications have been tendered to the Chief and how many applications for concealed and open carry the Chief has denied and how many the Chief has granted.

I wish to re-emphasize that what is at stake with respect to the subject of this comment is the risk that, by virtue of the manner in which Chief Ballard may be administering HRS § 134-9, the United States Supreme Court could ultimately hold that it is the law of the land that the Second Amendment generally guarantees a core, individual, and fundamental right of open and concealed carry of handguns, a potential outcome that I regard as disastrous. I sincerely hope that the Chief understands the direct relationship between the decisions that she and she alone is making now and the future legal landscape of the City & County of Honolulu, the State of Hawaii, and the nation regarding rational gun control.

-- Steven H. Levinson

Vice Chair, Honolulu Police Commission

-- Loretta A. Sheehan

Chair, Honolulu Police Commission

PDF: Statement 

SA Editorial April 6, 2019: Clarity on Hawaii’s gun-carry rules

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