What’s The Law: Carrying a firearm without a permit

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WHAT’S THE LAW?

BY DARRYL CHOY

Topic: Carrying a firearm without a permit

QUESTION: Where can I carry a firearm without a permit… house, backyard, private road, common area of condo, or carport?

ANSWER: Where you can lawfully carry a firearm loaded or unloaded is governed by Sec. 134-23 and 24 HRS “Place to keep.” As related to your question, those Sections require firearms to be confined to your “residence.” However, Chapter 134 HRS does not define “residence.” Residence has been generally defined as a house, home, dwelling, where you reside, or a place where you live. Clearly, this should include your house or apartment and attached covered balcony, patio, lanai, porch and garage. But does it include the back, front and side yards or driveway?

Carrying in the common areas of a condominium would not seem to be allowed, nor would a private road.

Safest bet is to confine carry to the inside of your home. Even bore sighting a rifle from your lanai would not be advised. You will risk getting busted by HPD. Gun owners have been subject to a 911 call when in their yard sanding just a wood rifle stock. No arrest, but the officer advised the owner to go in the back patio to do the work as not to alarm people

What’s the Law: Selling a Long Gun (2015)

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What’s the Law?

By Darryl Choy

TOPIC:  Selling a Long Gun (Revisited)

QUESTION:  I can’t remember. It has been a while. But what’s required when I sell a rifle or shotgun?

ANSWER:  This was the subject of a “What’s the Law” article 15 years ago; but this a good time to revisit it (see Page 3 of the February 2000 HHAA Newsletter).

Your buyer must have a current and valid “permit to acquire” issued by any of the 4 County Police Departments (Sec. 134-2 HRS*). Check the expiration date and keep a photocopy for your records. You should also keep a copy of the buyer’s driver’s license.

Inform the buyer that he must take the firearm (cased and unloaded) to the Police Department within five (5) calendar days for registration. Provide the buyer, in writing, your name, address, and phone number; the firearm’s make, model, type of action, caliber/gauge, and serial number. Optional for you to provide, if available, are the date and G number of your police registration paper (Sec. 134-3 (b) HRS**).

You must provide the Police Department with a Notice of Transfer within 48 hours of the sale, providing your name, the name of the buyer, plus the make, model, type of action, caliber/gauge, and serial number of the gun sold (Sec. 134-2 (f) HRS*).

*Violation is a full misdemeanor, 1 year jail, and a $2,000 fine.  **Violation is a petty misdemeanor, 30 days jail, and a $1,000 fine.

Strongly suggested is for you to keep (in a designated firearms folder) photocopies of the buyer’s long gun permit, driver’s license, and Notice of Transfer for each transaction. If, in the future, the firearm is used in a crime, the federal BATF and law enforcement may do a trace from the manufacturer to wholesaler to FFL dealer then to you. You will need to show BATF when and who you sold the gun to and that it was a lawful transfer.

Note that the transfer process applies even if the long gun was acquired by you before July 1, 1994, when long guns were required by law to be registered. Such pre-1994 guns are not “grandfathered.” Since you were in lawful possession prior to July 1, 1994, you are not required to register them. But all subsequent transfers must be registered under Hawaii law.

Caution: there have been reports that one neighbor island department is requiring that both seller and buyer appear at the Police Department for the transfer.

What’s the Law: Shipping firearms non-FFL to an out-of-State FFL — revisited

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WHAT’S THE LAW?

BY DARRYL CHOY

Topic: Shipping firearms non-FFL to an out-of-State FFL — revisited

Question: I read “What’s the Law” in the May 2013 HHAA Newsletter and sent my registered handgun to a mainland FFL when I sold it on an internet gun auction. I notified HPD of the transfer and got a call saying I violated the law by doing so. HPD said I have to transfer the handgun to a Hawaii FFL first and have that FFL send the handgun to the mainland FFL. They also said they can’t remove my registration unless I do that. HPD said that’s what ATF told them. However, they didn’t want me to do anything at this time.

Answer: There is nothing in federal or state law that requires you to ship a firearm to the mainland, FFL to FFL. Federal law allows you to ship a firearm to an out-of-State FFL. You do not need a FFL in Hawaii to ship. If you use a Hawaii FFL it has to be registered at HPD by the Hawaii dealer. So you will incur Hawaii FFL dealer fees. This can and should be avoided.

See BATF’s website’s (http://www.atf.gov/files/firearms/industry/0501-firearms-top-10-qas.pdf) Top 10 Most Frequently Asked Firearms Questions and Answers:

Question 7: “May I lawfully ship a firearm directly to an out-of-State licensee, or must I have a licensee in my State ship it to him?”

Answer: “Any person may ship firearms directly to a licensee in any State, with no requirement for another licensee to ship the firearm. However, handguns are not mailable through the United States Postal Service and must be shipped via common or contract carrier.(18 U.S.C. §§ 1715).”

Accordingly, you can ship via USPS or common carrier (UPS, FedEx, Purolator, or DHL). However, USPS will not allow a non-FFL to ship a handgun. You must use UPS, FedEx, etc. Be aware that the neighborhood UPS stores may not accept firearms due to security concerns, so you have to take your package to the main UPS or FedEx Customer Service Centers on Lagoon Drive. UPS and FedEx are right next door to each other. Go early in the day. UPS opens at 8:30 am. They want to get your package on the airplane as quickly as possible and not left on their premises overnight.

When you go to the counter, you must make an oral declaration, “This package contains an UNLOADED firearm”. Bring a hard copy of the FFL of the receiving dealer and show the counter person that the “Deliver To” address on the package matches the “Licensed Premises Address” on the FFL. Staple the shipping receipts to the FFL copy and keep it in your permanent records; you need to be able to show law enforcement if they later ask about your firearm. You will have documents that you shipped it to a mainland FFL dealer. You can also send a notice to HPD that the firearm was shipped out of State. HPD will not “unregister” your firearm and even incorrectly claim you did an illegal act. But you will have proof of the transfer of ownership. Keep this record. Do not discard it since HPD may ask many years later. And AFT may even do a firearms trace that ends with you.!

Thanks to “Big AL” for the tip on how to ship!

What’s the Law: Hi cap mags for law enforcement

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WHAT’S THE LAW?

BY DARRYL CHOY

Topic: More than 10-round magazines/law enforcement revisited

Question: I see a number of gun dealers in Hawaii who have been stocking and selling more than 10-round magazines that will fit a pistol. A lot of AR-15 30-round magazines can be found displayed for sale. Can they legally sell them despite Hawaii’s ban?

Answer: People of Hawaii are prohibited from possessing any magazine that holds more than 10 rounds and fits a pistol (so-called hi-cap pistol magazines). Stores cannot lawfully sell them to civilians. That includes hi- cap AR-15 magazines. (See Section 134-8 (c) HRS)
However, Section 134-11 (a) (1) HRS exempts state and county law enforcement officers from the hi-cap pistol magazine ban. Law enforcement normally means police and sheriffs but also includes those within the Office of the State Attorney General; the County Prosecutors; and the Departments of Land & Natural Resources, and Transportation, and Public Safety. Some, but not all, are deemed “on duty 24/7.”

By contrast, Section 134-11 (a) (2) HRS exempts members of the armed forces from the hi-cap magazine ban while in the performance of their duties and only if those duties require them to be armed.

It would appear those “always on duty” law enforcement officers can purchase banned hi-cap magazines. But can a dealer sell such magazines to them? What must be considered is there is no statutory exemption for a dealer to possess such high capacity magazines even if only part of the store inventory. So a dealer who is selling the magazines to qualified law enforcement cannot legally possess them in the first place.

Will Hawaii’s hi-cap pistol magazine ban be enforced to the letter? That’s up to law enforcement. Complicated you say?

What’s the Law: How many days do I have to register my new gun at HPD?

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WHAT’S THE LAW?

BY DARRYL CHOY

Topic: How many days do I have to register my new gun at HPD?

Question: I know my long gun permit is good for one year, and a handgun permit is good for 10 days. But once I actually buy a gun, how much time do I have to get to HPD to register it?

Answer: For long guns, it’s easy. You have 5 days to get to HPD. And keep in mind these are calendar, not business, days. Weekends and holidays are NOT excluded. With handguns, it’s a bit more tricky. Sec. 134- 3(b) HRS states you have 5 days. But Sec. 134-2(f) HRS requires your seller to sign the handgun permit, verify the buyer, and transmit the permit to HPD within 48 hours, not 2 days (and weekends and holidays are not excluded). This is a very interesting problem because the custom and practice is for the buyer to go HPD with the completed permit and handgun. Under Sec. 134-3(b) HRS, the buyer can do this within 5 days. But if the buyer does so, after 48 hours the seller is in violation. Essentially, it would be the better practice for a buyer to register the handgun within 48 hours of purchase to keep everyone legal. But the 48 hour law is also problematic. Handgun purchases made late on a Friday may make a trip to HPD difficult and, if not possible, the 48 hours would expire on Sunday when HPD registration is closed.

Also note that a purchase must take place during the 10-day or one-year permit time. But the registration at HPD does not have to take place within that time. So you can buy a long gun on the last day of the permit and register it within 5 days even if the permit has expired by then. Same with a handgun. Buy the handgun on the 10th day but register it within 48 hours to keep your seller out of trouble. Also, with a handgun you must register it within 48 hours even if you have more time on your 10-day permit. For example, if you pick up your permit on November 1, it’s good until November 10. But if you buy the handgun on November 2, you must register it within 48 hours to keep you and your seller legal. You do not have until November 10.

Complicated you say?

What’s the Law: District Court TROs

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WHAT’S THE LAW?

BY DARRYL CHOY

Topic: District Court temporary restraining orders (TROs)

Question: Last month you mentioned a gun owner could lose his firearms if a Family Court restraining order is granted. But what if I get into a hassle with my neighbor or someone at work? Can a TRO be taken out on me and my guns confiscated by HPD?

Answer: Yes. The District Court issues temporary restraining orders that are very similar to Family Court orders. The difference is that the party filing cannot be a current or former household member, be related, or have a child in common. The filing party is normally a neighbor, someone living nearby, or someone working with you or nearby. Just about anyone other than those covered in a Family Court order can file. You could be the subject of a District Court order by threatening or physically harassing anyone during a traffic incident, your neighbor over a barking dog dispute, a co-worker or someone working in your building, or even a customer or a friend.
You could be prohibited from contacting, telephoning, visiting, or entering the other party’s home, yard and garage, and even place of employment. Similar to Family Court TROs, you are entitled to your day in court. If you lose, the court may enter an “Order granting petition for injunction against harassment” against you.

Turning in your firearms and ammunition is also part of the restraining order. On the bright side, District Court orders are only for three years and, unlike the free Family Court TROs, the filing party must pay a nominal $15 filing fee.

What’s the Law: Temporary Restraining Orders (TROs) & firearms

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WHAT’S THE LAW?

BY DARRYL CHOY

Topic: Temporary Restraining Orders (TROs) & firearms

Question: A good friend’s wife recently filed a family court restraining order against him. He had to turn in all of his firearms and ammunition to HPD. He has a very large collection and, easily, a ton of ammunition. This seems extremely unfair.

Answer: Hawaii law allows a current or former spouse, household member (roommate, too), boyfriend or girlfriend to file for a family court restraining order. Additionally, a family member (blood relation) and those with a child in common can file. The requesting party must allege under oath, violence, threat of violence, extreme psychological abuse, or malicious property damage. This is done ex parte, that is, without any notice to the other party. There is no filing fee, and a judge must review the TRO application. Once granted, the police will serve the TRO, and the defendant must immediately turn in all firearms and ammunition to the police. The defendant cannot contact the requesting party and, in most cases, is court-ordered to vacate and stay away from the shared residence.

TROs are based upon sworn allegations of being struck, punched, kicked, grabbed and choked, pushed down, sexually assaulted, etc. Threats to hurt, kill, commit arson, and also to kill or harm other family members are also common. However, non-threatening words or conduct alone have to be consistently alarming or disturbing and cause a reasonable person to suffer extreme emotional distress.

Requesting parties have been known to make false allegations. That would be perjury and a crime.

A court hearing would be set in two weeks at the Kapolei courthouse where the defendant can contest the TRO. At that time the judge could dismiss or continue the TRO or enter an Order for Protection that could last for decades.

If you are having a difficult time with a family or household members, your bad conduct may imperil your firearms. Any physical violence, threat of violence, malicious property damage, and extreme physiological abuse can trigger a TRO and the temporary loss of firearms and ammunition and may become a very long term confiscation under an Order of Protection.

For more details, see Chapter 586 and Section 134-7 HRS.

How to get firearms turned in under a TRO released from HPD? See “What’s the Law,” May 2011 Newsletter A future “What’s the Law” topic: District court TROs (Hmmm… Is your co-worker or neighbor afraid of you?)

What’s the Law: Straw Buyer

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WHAT’S THE LAW?

BY DARRYL CHOY

Topic: Straw Buyer

Question: I attended the March Gun Show with a good friend. I had my long gun permit, but my friend’s permit had expired and he did not renew in time due to the long lines at HPD. At the Show, my friend saw a rifle he wanted. I offered to use my permit since he didn’t have one. But he decided not to buy the rifle. My question is: Did I risk violating the straw buyer law and being subject to jail time — even as a federal offense?

Answer: Perhaps. And it depends if the seller was a FFL dealer or an individual. A firearms straw buyer is a person who is legally qualified and does purchase a firearm but intends to turn over possession to a person who is not legally qualified. Without a permit, your friend isn’t qualified.

This would be unlawful if buying a firearm from a FFL dealer. Question #11a of the ATF Form 4473 (so called “yellow form” a buyer completes when purchasing a firearm from an FFL) states: “Are you the actual transferee/buyer of the firearm(s)…?” If you are buying the firearm for your friend, you may well be in violation of federal law by making a false statement to this question. This is a felony and carries with it a maximum penalty of 5 years in jail and a $250,000 fine.

The better way is for your friend is to give the FFL dealer a deposit or pay in full. Have the dealer hold the firearm while your friend obtains his permit.
If the seller is not a FFL dealer, the purchase by you may be lawful since there is no Form 4473 or statement required. Show the seller your long gun permit. Register the firearm in your name at HPD within 5 days. You must maintain actual possession of the firearm. When your friend obtains his permit, you can then transfer the firearm. But this is a hassle. Much easier just to give the seller a down payment and have your friend complete the sale and transfer after he gets his permit.

If you are a FFL, you cannot allow a straw buyer purchase. Best to have the buyer make a deposit and transfer the firearm after the 14-day requirement. If you are a private seller, it is still best to take deposit and wait out the 14 days. An interim private sale may not be illegal under Hawaii law, but your buyer must register the gun in his name within 5 days and you must send in the notice of transfer within 48 hours.

Added note: As a seller, it may be best to tell your buyer the deposit is non-refundable, since you will be taking the long gun off the gun show table and giving up opportunity to sell it to a qualified buyer if the sale falls through after the show.

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