Young Amicus Brief of The Counties

(1 of 38)
Case: 12-17808, 09/24/2018, ID: 11023362, DktEntry: 157-1, Page 1 of 20
Case No. 12-17808
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
GEORGE K. YOUNG, JR.,

Plaintiff-Appellant,
v.
STATE OF HAWAI‘I, ET AL.,

Defendants-Appellees
On Appeal from the United States District Court

for the District of Hawai‘i, Case No. 1:12-cv-00336-HG-BMK
Honorable District Judge Helen Gillmor
BRIEF OF AMICI CURIAE CITY AND COUNTY OF

HONOLULU, COUNTY OF KAUA‘I, AND COUNTY OF MAUI
IN SUPPORT OF PETITION FOR REHEARING EN BANC
KEKER, VAN NEST & PETERS LLP

DAN JACKSON - #216091
Special Deputy Corporation Counsel
633 Battery Street
San Francisco, CA 94111-1809
Telephone: 415 391 5400
Facsimile: 415 397 7188
Attorneys for Amici Curiae

CITY AND COUNTY OF HONOLULU, COUNTY OF KAUA‘I, AND COUNTY OF MAUI
1303813.v1
(2 of 38)
TABLE OF CONTENTS
I. STATEMENT OF AMICI CURIAE PER RULE 29(a)(4)(D)-

(E) .............................................................................................................. 1
II. ARGUMENT ............................................................................................ 2
A. The Counties do not limit open (or concealed) carry to

security guards. ............................................................................... 2
B. The panel majority opinion, if it stands, will jeopardize

public safety. ................................................................................... 6
C. The panel majority erred in applying strict scrutiny. ................... 11
III. CONCLUSION ....................................................................................... 15
CERTIFICATE OF COMPLIANCE ................................................................... 15
i
1303813.v1
(3 of 38)
TABLE OF AUTHORITIES
Cases
District of Columbia v. Heller

554 U.S. 570 (2008) ................................................................................ 11, 12, 14
Drake v. Filko
724 F.3d 426 (3d Cir. 2013) ............................................................................... 13
Kachalsky v. Cty. of Westchester
701 F.3d 81 (2d Cir. 2012) ................................................................................. 13
Peruta v. County of San Diego
742 F.3d 1144 (9th Cir. 2016) .............................................................................. 2
Peruta v. County of San Diego
824 F.3d 919 (9th Cir. 2016) .......................................................................... 2, 12
Silvester v. Harris
843 F.3d 816 (9th Cir. 2016) .............................................................................. 13
Terminiello v. City of Chicago
337 U.S. 1 (1949) .................................................................................................. 2
Woollard v. Gallagher
712 F.3d 865 (4th Cir. 2013) .............................................................................. 13
Young v. Hawaii
896 F.3d 1044 (9th Cir. 2018) ..................................................................... passim
Statutes
Hawai‘i Revised Statutes § 134-9 ............................................................ 3, 4, 5, 6, 12

Hawai‘i Revised Statutes § 5-7.5 ............................................................................... 8
Hawai‘i Revised Statutes § 703-304(5)(b) .............................................................. 14
Rules
Federal Rule of Appellate Procedure 29(a)(4)(D)-(E) .............................................. 1

Ninth Circuit Rule 29-2(c)(2) .................................................................................. 15
ii
(4 of 38)
Other Authorities
State of Haw., Dep’t of the Att’y Gen., Opinion Letter No. 18-1,
Availability of Unconcealed-Carry Licenses (Sept. 11, 2018) ..................... 3, 4, 6
John J. Donohue, Abhay Aneja & Kyle D. Weber, Right-to-Carry
Laws and Violent Crime: A Comprehensive Assessment Using
Panel Data, the LASSO, and a State-Level Synthetic Controls
Analysis 4 (Nat’l Bureau of Econ. Research, Working Paper No.
23510, 2018) ......................................................................................................... 8
3 William Blackstone, Commentaries ..................................................................... 14
iii
(5 of 38)
I. STATEMENT OF AMICI CURIAE PER RULE 29(a)(4)(D)-(E)

Amici curiae are the City and County of Honolulu, the County of Kaua‘i,
and the County of Maui (“the Counties”), which submit this brief in support of the
petition for rehearing en banc filed on September 14, 2018 (Dkt. No. 155).
The Counties have an interest in this case because, if the erroneous panel
majority opinion stands, the result will be the deadly proliferation of guns on the
Counties’ streets and in other public places. The Counties also have an interest in
explaining how they interpret and apply Hawai‘i laws regulating licenses to carry
firearms, including open-carry licenses. The panel majority misunderstood and
misstated County practices and procedures, which are explained below and in the
accompanying declarations of Susan Ballard, the Chief of the Honolulu Police
Department (“Ballard Decl.”); Michael M. Contrades, the Acting Chief of the
Kaua‘i Police Department (“Contrades Decl.”); and Tivoli Faaumu, the Chief of
the Maui Police Department (“Faaumu Decl.”).1
Increasing the number of people carrying guns in public without any
particular reason for doing so will needlessly endanger the lives of the Counties’
citizens, especially their police officers. The panel majority’s insistence that the
1
This brief was not authored, in whole or in part, by any party’s counsel. No
party, counsel, or other person—other than amici curiae and their counsel—
contributed money intended to fund the preparation or submission of this brief. All
parties have consented to the filing of this brief.
1
1303813.v1
(6 of 38)
Second Amendment somehow requires this deadly result—regardless of public
safety, the will of the people of Hawai‘i, the separation of powers, and principles
of federalism—calls to mind Justice Jackson’s warning against the rigid
assumption that “all local attempts to maintain order are impairments of the liberty
of the citizen.” Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J.,
dissenting). “The choice is not between order and liberty. It is between liberty
with order and anarchy without either. There is danger that, if the Court does not
temper its doctrinaire logic with a little practical wisdom, it will convert the
constitutional Bill of Rights into a suicide pact.” Id.
II. ARGUMENT
A. The Counties do not limit open (or concealed) carry to security guards.
Setting aside, for the moment, the first part of the panel majority’s opinion—
in which it picks cherries from the orchards of history to feed spurious notions this
Court already rejected, en banc, in Peruta v. County of San Diego, 824 F.3d 919
(9th Cir. 2016) (Peruta II)2—an essential premise of the majority opinion is that
2
As the dissent in this case noted, this Court’s en banc “opinion in Peruta II
contained a lengthy discussion of history relevant to the Second Amendment,
including the right to bear arms in old England, colonial America, and in the
United States following adoption of the Fourteenth Amendment. It is sufficient for
now to say that its assessment was different from that contained in” Judge
O’Scannlain’s opinion for the majority in Peruta v. County of San Diego, 742 F.3d
1144 (9th Cir. 2016) (Peruta I), which he largely repeated—despite Peruta II—in
his opinion for “the majority here.” Young v. Hawaii, 896 F.3d 1044, 1075 (9th
Cir. 2018) (Clifton, J., dissenting).
2
(7 of 38)
section 134-9 of the Hawai‘i Revised Statutes (HRS) restricts “open carry to those
whose job entails protecting life or property,” such as security guards. 896 F.3d at
1071. The majority’s premise is wrong, both as a matter of law, and of fact.
The Hawai‘i Attorney General has explained that, as a matter of law, HRS
section 134-9 does not “limit the issuance of unconcealed-carry licenses to private
security officers and other individuals whose jobs entail protecting life and
property.” State of Haw., Dep’t of the Att’y Gen., Opinion Letter No. 18-1,
Availability of Unconcealed-Carry Licenses (Sept. 11, 2018), available at
https://ag.hawaii.gov/wp-content/uploads/2018/09/AG-Opinion-No.-18-1.pdf, and
at Pet. Add. 77-86 (hereinafter Op. No. 18-1) at 2. On the contrary, HRS section
134-9 “authorizes the issuance of unconcealed-carry licenses to any qualified
individual who demonstrates a sufficient ‘urgency’ or ‘need’ to carry a firearm and
is ‘engaged in the protection of life and property.’” Id. Regardless of occupation,
an applicant may obtain an open-carry license if he or she (1) meets the objective
qualifications for possessing and carrying a firearm; (2) demonstrates a sufficient
need to carry a firearm for the purpose of protecting life and property; (3) is of
good moral character; and (4) presents no other reason justifying the discretionary
denial of a license. Id. “To satisfy these requirements, an applicant must
demonstrate, among other things, that he or she has a need for protection that
3
(8 of 38)
substantially exceeds that held by ordinary law-abiding citizens.” Id.; see
generally id. at 1-10.
As a matter of fact, the Attorney General’s interpretation of HRS section
134-9 comports with the Counties’ past and current practice. See Ballard Decl.
¶¶ 5-6; Contrades Decl. ¶¶ 3-10; Faaumu Decl. ¶ 8. As Chief Contrades of the
Kaua‘i Police Department explains, “law-abiding citizens with a legitimate need to
carry a handgun have been able to obtain a permit under the current system, which
strikes a proper balance between ensuring access to handgun permits for those who
need them while preventing a greater-than-necessary proliferation of handguns in
public places—which,” as discussed below, and as Chief Contrades further
explains, “increases risks to public safety.” Contrades Decl. ¶ 10; see also id.
¶¶ 11-17; Section B, infra. “If an applicant meets the express statutory
requirements set forth in section 134-9, the Department will issue a carry permit,
regardless of the applicant’s occupation, provided that no case-specific reason
warrants the exercise of discretion to deny a permit.” Contrades Decl. ¶ 8.
For example, in 2006 and 2013, the Kaua‘i Police Department issued
concealed-carry permits to citizens who were not security guards and whose jobs
did not entail protecting life or property. Id. ¶ 9. Those citizens “demonstrated,
through their applications, that they had an immediate, pressing and heightened
interest in carrying a firearm, and were accordingly issued concealed-carry
4
(9 of 38)
permits.” Id. Thus, the majority’s unfounded assertion that citizens of Hawai‘i are
“entirely foreclosed” from bearing arms for self-defense, 896 F.3d at 1071, is
factually incorrect. People other than security guards have been able to
demonstrate the need for, and thus obtain, permits to carry guns. Although those
permits were for concealed rather than open carry, the dissent rightly observed that
“firearm regulations which leave open alternative channels for self-defense are less
likely to place a severe burden on the Second Amendment right than those which
do not.” Id. at 1081 (Clifton, J., dissenting) (quoting Jackson v. City & Cty. of San
Francisco, 746 F.3d 953, 961 (9th Cir. 2014)).
In any event, if an applicant were to request a permit for open rather than
concealed carry, and if that applicant were to satisfy the statutory requirements for
an open-carry permit as discussed above and in the Attorney General’s opinion,
“such a permit would be issued” by the Kaua‘i Police Department, “regardless of
the applicant’s occupation, provided that no case-specific reason warrants the
exercise of discretion to deny a permit.” Contrades Decl. ¶ 9. Likewise, the
Honolulu Police Department “does not deny open carry permits solely on the basis
that the applicant is not a security guard or similarly employed in a job that entails
protecting life and property.” Ballard Decl. ¶ 5. On the contrary, as Chief Ballard
explains, the Honolulu Police Department “reviews each application individually
to determine whether, given the circumstances, a permit is warranted under Section
5
(10 of 38)
134-9 of the Hawaii Revised Statutes.” Id. In making that determination, the
Honolulu Police Department applies the same interpretation of the statute as set
forth in the Attorney General’s opinion. Id. ¶ 6; see also Op. No. 18-1. The same
is true of the Maui Police Department. See Faaumu Decl. ¶ 8.
B. The panel majority opinion, if it stands, will jeopardize public safety.
As the Chiefs of Police of Honolulu, Kaua‘i, and Maui explain in their
declarations, the panel majority’s decision “is of great concern” to Hawai‘i law
enforcement officials. Faaumu Decl. ¶ 9; see also Ballard Decl. ¶¶ 3, 7-11;
Contrades Decl. ¶¶ 3, 10-17. Hawai‘i’s gun-control measures have been highly
effective, whereas if Hawai‘i can no longer limit open-carry permits to individuals
with a good and substantial reason to have them, gun violence in Hawai‘i will
increase, and police officers’ jobs will harder to perform and more dangerous. See
Contrades Decl. ¶¶ 3, 10-17; Faaumu Decl. ¶¶ 9-12; Ballard Decl. ¶¶ 3, 7-11.
In 2016, the Centers for Disease Control and Prevention (“CDC”) ranked
Hawai‘i fourth lowest in the United States for firearm-related deaths, with a total
of 66 firearm-related deaths in that year, for a firearm death rate of 4.5 deaths per
100,000 total population. See Contrades Decl. ¶ 11;
https://www.cdc.gov/nchs/pressroom/sosmap/firearm_mortality/firearm.htm.
Massachusetts had the lowest firearm death rate (3.4 deaths per 100,000, 242
total), followed by Rhode Island (4.1, 49) and New York (4.4, 900). See id. The
6
(11 of 38)
states with the highest firearm death rates were Alaska (23.3, 177), Alabama (21.5,
1,046), Louisiana (21.3, 987), and Mississippi (19.9, 587). See id.; see also
Faaumu Decl. ¶ 10 (“Statistical information shows that Hawaii has one of the
lowest rates for deaths related to firearms in the country. This is especially true in
Maui County, where firearm related violence is uncommon.”).
Honolulu, in particular, “has a low rate of violent crime compared to other
big cities.” Ballard Decl. ¶ 7. As Chief Ballard notes, moreover, the “community
as a whole is satisfied with the current gun legislation and the way applications are
scrutinized, which strikes an appropriate balance between citizens’ Second
Amendment rights,” which Chief Ballard recognizes and respects, “and protecting
public safety by minimizing the proliferation of guns in public places.” Id. If, on
the other hand, the Honolulu Police Department were required to “issue open carry
permits to applicants who have no special need for such protection, police officers
will be likely to face greater danger because they will encounter more armed
individuals. An officer trying to issue a traffic citation, for example, has far more
to fear if the driver is armed.” Id. ¶ 8. In fact, “any time guns are a factor in an
interaction between officers and citizens, the risk of fatalities tends to increase.”
Id. ¶ 9. And the same is true of interactions between citizens. Id. The “presence
of one or more guns in any dispute increases the chances that dispute will become
deadly. Even when an armed individual is attempting to aid police, that fact may
7
(12 of 38)
not be immediately obvious to or verifiable by the officer, with potentially tragic
consequences.” Id. As Chief Ballard concludes, a “requirement to issue open
carry permits to people who have no special need for them is likely to make
citizens and police officers less safe and, at the very least, will make it much more
difficult for the HPD to carry out its mission of serving and protecting with aloha.”
Id. ¶ 11.3
Indeed, statistical analysis indicates that issuing carry permits to people who
have no special need for them results in “substantial increases in violent crime.”
John J. Donohue, Abhay Aneja & Kyle D. Weber, Right-to-Carry Laws and
Violent Crime: A Comprehensive Assessment Using Panel Data, the LASSO, and a
State-Level Synthetic Controls Analysis 4 (Nat’l Bureau of Econ. Research,
Working Paper No. 23510, 2018), http://www.nber.org/papers/w23510. And,
statistics aside, decades of experience in law enforcement tells Chief Contrades, for
example, that if the Kaua‘i Police Department could no longer limit open and
concealed-carry permits to individuals with a good and substantial reason to have
3
The official mission of the Honolulu Police Department is “[s]erving and
protecting with aloha.” http://www.honolulupd.org/department/index.php; see also
Ballard Decl. ¶ 3. As the Hawai‘i Legislature has explained, “aloha” is “more than
a word of greeting or farewell or a salutation,” but also “means mutual regard and
affection and extends warmth in caring with no obligation in return,” expressing
“the essence of relationships in which each person is important to every other
person for collective existence.” HRS § 5-7.5. Hawai‘i officials are statutorily
required to act with aloha in “exercising their power on behalf of the people and in
fulfillment of their responsibilities, obligations and service to the people.” Id.
8
(13 of 38)
them, gun violence would increase, and his “officers’ jobs would become harder
and more dangerous.” Contrades Decl. ¶ 12; see also Faaumu Decl. ¶¶ 9-12;
Ballard Decl. ¶¶ 8-11.
As Chief Contrades explains, increasing the number of handguns carried
publicly “would increase the availability of guns to criminals,” particularly because
the police “know from experience that these criminals often target people they
know have handguns precisely because they possess handguns, which criminals
cannot lawfully obtain.” Contrades Decl. ¶ 13. The police often investigate
homicides and robberies in which “one, if not the primary, goal of the attacker was
to deprive the victim of his handgun or other weapons. Obtaining handguns and
ammunition is also one of the main reasons why police officers’ homes and
vehicles have sometimes been targeted for robberies and break-ins.” Id.; see also
Ballard Decl. ¶ 10 (“[A]n increase in the number of guns that may be lawfully
carried in public is likely to result in an increase in the number of gun thefts, and
thus an increase in the number of guns in the hands of criminals.”).
Although many people believe that they will be able to maintain possession
of their handgun in a confrontation with a criminal attacker, “that is often not the
case, especially in instances of surprise attacks.” Contrades Decl. ¶ 14. Police
officers are trained “in maintaining possession and control of their firearms during
a confrontation,” and are also issued “specially designed holsters with latches that
9
(14 of 38)
prevent an attacker from removing the firearm from its holster.” Id. This “training
and special equipment is essential to the safe handling of guns,” whereas civilian
training “cannot adequately prepare most people to use and protect handguns in
tense situations such as being under attack by criminals. In surprise attacks, it is
highly unlikely that less-well-trained individuals would be able to successfully use
a handgun to defend themselves.” Id.
Furthermore, allowing guns “on the streets in the hands of people without
good and substantial reason to carry them would increase significantly the
likelihood that basic confrontations between individuals would turn deadly.” Id.
¶ 15. Most assaults in the County of Kaua‘i, for example, arise from “petty
disputes between otherwise law-abiding citizens. In the midst of these petty
disputes, tempers flare and violence can erupt even in the absence of lethal
weapons. The presence of a handgun in an altercation, however petty, greatly
increases the likelihood that it will escalate into potentially lethal violence.” Id.;
see also Faaumu Decl. ¶ 11; Ballard Decl. ¶ 9.
Even law-abiding citizens who intend to help police may, if armed, “hamper
police efforts in confrontations with criminals with potentially tragic
consequences.” Contrades Decl. ¶ 16. As Chief Contrades explains, in a
confrontation between a police officer and a criminal, “an additional person
bearing a gun might cause confusion as to which side of the confrontation the
10
(15 of 38)
person is on, which could lead to hesitation by the police officer and the potential
for innocent victims, including the permit holder, innocent bystanders, and police
officers.” Id. This kind of problem “already occurs with existing permit holders,
and would become far more common if permits were not limited to people with
good and substantial reason to carry a handgun in public.” Id. And “police
officers who spot someone carrying a handgun [must] choose between creating a
potential disturbance by unholstering their own weapon or potentially putting their
safety at risk by approaching the carrier without drawing their weapon.” Id. ¶ 17.
Finally, police officers “would also have a harder time identifying potential
security risks if more people without good and substantial reason to carry a
handgun were able to do so, making it more difficult to respond when necessary.”
Id.; see also Faaumu Decl. ¶ 12 (“In addition to creating a safety concern for the
public, additional firearms on the streets for people who have no special need for
that protection will also create a greater danger to our officers.”).
In short, the panel majority opinion, if allowed to stand, will needlessly
jeopardize public safety. This, standing alone, should compel en banc review.
C. The panel majority erred in applying strict scrutiny.

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court
recognized that longstanding restrictions on carrying firearms may be
“presumptively lawful,” and certainly are not subject to strict scrutiny. Id. at 627
11
(16 of 38)
n.26. As the dissent in this case rightly concluded, HRS section 134-9 is “a
longstanding, presumptively lawful regulation under Heller. At a minimum, the
statute survives intermediate scrutiny, as the core of the Second Amendment does
not include a general right to publicly carry firearms and there is a reasonable fit
between the licensing scheme and Hawaii’s legitimate interest in promoting public
safety.” 896 F.3d at 1076 (Clifton, J., dissenting). That conclusion is further
supported by the declarations of Chiefs Ballard, Contrades, and Faaumu, which, as
discussed above, demonstrate in detail the reasonable fit between HRS section
134-9, as interpreted and applied by the Counties, and the Counties’ indisputably
valid interest in public safety. See Ballard Decl. ¶¶ 1-11; Contrades Decl. ¶¶ 1-17;
Faaumu Decl. ¶¶ 1-12.
The panel majority, however, insisted on strict scrutiny in its zeal to impose
its will on Hawai‘i without regard for the reasonableness of Hawai‘i’s proven
methods for promoting and preserving public safety. See 896 F.3d at 1068-71.
But the panel majority’s application of strict scrutiny cannot be reconciled with
this Court’s en banc opinion in Peruta II, which recognized that “[e]ven if we
assume that the Second Amendment applies” to restrictions on carrying firearms in
public, such restrictions are subject to “intermediate scrutiny,” and survive such
scrutiny if they promote “‘a substantial government interest that would be achieved
less effectively absent the regulation.’” 824 F.3d at 942 (emphasis added)
12
(17 of 38)
(quoting, and explicitly agreeing with, Judge Graber’s concurrence, which, in turn,
agreed with “[t]hree of our sister circuits [that] have upheld similar restrictions
under intermediate scrutiny,” id. (Graber, J., concurring)); see also, e.g., Silvester
v. Harris, 843 F.3d 816, 823 (9th Cir. 2016) (finding “near unanimity in the post-
Heller case law that when considering regulations that fall within the scope of the
Second Amendment, intermediate scrutiny is appropriate”); Drake v. Filko, 724
F.3d 426, 436 (3d Cir. 2013) (applying intermediate scrutiny because, if the
Second Amendment “protects the right to carry a handgun outside the home for
self-defense at all, that right is not part of the core of the Amendment”) (citation
omitted); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013) (holding that
“intermediate scrutiny applies ‘to laws that burden [any] right to keep and bear
arms outside of the home’”) (quoting United States v. Masciandaro, 638 F.3d 458,
471 (4th Cir. 2011)); Kachalsky v. Cty. of Westchester, 701 F.3d 81, 96 (2d Cir.
2012) (“Because our tradition so clearly indicates a substantial role for state
regulation of the carrying of firearms in public, we conclude that intermediate
scrutiny is appropriate in this case.”).
It is also worth noting that the panel majority only arrived at its decision to
apply strict scrutiny by presuming to “afford little weight to Heller’s emphasis on
the application of the Second Amendment to the home specifically.” 896 F.3d at
1069. There is no excuse, however, for affording such little weight to something
13
(18 of 38)
the Heller Court clearly assigned great weight. Under Heller, the Second
Amendment “surely elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 635.
The principle that the right of self-defense is far stronger inside the home than out
on the streets is ancient. Blackstone, for example, commented that “every man’s
home is looked upon by the law to be his castle of defense and asylum, wherein he
should suffer no violence.” 3 William Blackstone, Commentaries *288. That is
still true. In Hawai‘i, for example, a person under attack is “not obliged to retreat
from his dwelling or place of work, unless he was the initial aggressor or is
assailed in his place of work by another person whose place of work the actor
knows it to be.” HRS § 703-304(5)(b). In public, however, the use of deadly force
is not justifiable if the person “knows that he can avoid the necessity of using such
force with complete safety by retreating.” Id.
Consistent with this ancient principle that the right of self-defense is at its
zenith in the home—and consistent with other authorities too numerous to discuss
here—the dissent rightly concluded that “the core of the Second Amendment is
focused on self-defense in protection of hearth and home,” not on “a general right
to publicly carry firearms.” 896 F.3d at 1080 (Clifton, J., dissenting). Because the
majority’s decision necessarily relies on its erroneous conclusion to the contrary,
the Court should review that decision en banc, as it did in Peruta II.
14
(19 of 38)
III. CONCLUSION
Thus, the Court should grant the petition for rehearing en banc.
CERTIFICATE OF COMPLIANCE
This brief complies with the length limit of Ninth Circuit Rule 29-2(c)(2)
because it contains 3,807 words.
Dated: September 24, 2018 KEKER, VAN NEST & PETERS LLP
/s/ Dan Jackson

By: DAN JACKSON
Special Deputy Corporation Counsel
Attorneys for Amici Curiae
CITY AND COUNTY OF
HONOLULU, COUNTY OF
KAUA‘I, AND COUNTY OF MAUI
15
(20 of 38)
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing brief and accompanying declarations with
the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on September 24, 2018.
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
/s/ Dan Jackson

DAN JACKSON
1304443.01
(21 of 38)
Case No. 12-17808


v.


DECLARATION OF CHIEF SUSAN BALLARD IN SUPPORT

OF BRIEF OF AMICI CURIAE CITY AND COUNTY OF
HONOLULU, COUNTY OF KAUA‘I, AND COUNTY OF
MAUI, SUPPORTING PETITION FOR
REHEARING EN BANC
1304378.v1
(22 of 38)
I, SUSAN BALLARD, declare under penalty of perjury that:
1. I am the Chief of Police of the Honolulu Police Department (HPD)

and have been since November 2017. I have personal knowledge of, and am
competent to testify to, the matters set forth below.
2. I joined the HPD in 1985, and have held every position within the
HPD with the exception of the ranks of Assistant Chief and Deputy Chief. I have
worked in a wide range of field and administrative assignments, including the
Narcotics/Vice and the Downtown-Chinatown patrol district. As a commander, I
have led the Kaneohe and Kalihi patrol districts and the Finance, Training, and
Central Receiving divisions.
3. The HPD's Mission Statement provides that the HPD's official goal is
to serve and protect with "aloha," which-as stated in the Hawaii Revised
Statutes-"is more than a word of greeting or farewell or a salutation," but also
"means mutual regard and affection and extends warmth in caring with no
obligation in return," expressing "the essence of relationships in which each person
is important to every other person for collective existence." HRS § 5-7.5.
Accordingly, the HPD works together with the community to make Oahu safe for
its nearly one million residents and five times as many visitors.
4. The Firearms Section of the HPD's Records and Identification

Division is responsible for processing applications for open carry permits. Permit
applications are forwarded to me through my Deputy Chief of Administrative
Operations for consideration and approval.
5. The HPD does not deny open carry permits solely on the basis that the
applicant is not a security guard or similarly employed in a job that entails
1
1303813.01
(23 of 38)
protecting life and property. On the contrary, the HPD reviews each application
individually to determine whether, given the circumstances, a permit is warranted
under Section 134-9 of the Hawaii Revised Statutes.
6. I have reviewed Opinion Letter No. 18-1 of the Department of the

Attorney General of the State of Hawaii, and I agree with its interpretation of
Section 134-9. Indeed, the Attorney General's opinion comports with the HPD's
past and current practice. An applicant must satisfy four criteria to obtain an open
carry permit. He or she must (1) meet the objective qualifications for possessing
and carrying a firearm; (2) demonstrate a sufficient need to carry a firearm for the
purpose of protecting life and property; (3) be of good moral character; and (4)
present no other reason justifying the discretionary denial of a permit. To satisfy
these requirements, an applicant must demonstrate, among other things, that he or
she has a need for protection that substantially exceeds that held by ordinary law-
abiding citizens.
7. The City and County of Honolulu has a low rate of violent crime
compared to other big cities, and our community as a whole is satisfied with the
current gun legislation and the way applications are scrutinized, which strikes an
appropriate balance between citizens' Second Amendment rights-which I
recognize and respect-and protecting public safety by minimizing the
proliferation of guns in public places. This is evidenced by the passing of recent
laws by the State legislature these past few years which were more restrictive of
firearms - for example, statewide implementation of Rap Back; authorization for
immediate confiscation of firearms for those diagnosed with mental health issues;
and, most recently, the ban of trigger modification devices, including bump fire
stocks, multi-burst trigger activators, and trigger cranks.
2
(24 of 38)
8. If the HPD is required to issue open carry permits to applicants who

have no special need for such protection, police officers will be likely to face
greater danger because they will encounter more armed individuals. An officer
trying to issue a traffic citation, for example, has far more to fear if the driver is
armed.
9. Indeed, any time guns are a factor in an interaction between officers

and citizens, the risk of fatalities tends to increase. The same is true of interactions
between citizens: the presence of one or more guns in any dispute increases the
chances that dispute will become deadly. Even when an armed individual is
attempting to aid police, that fact may not be immediately obvious to or verifiable
by the officer, with potentially tragic consequences.
10. Moreover, an increase in the number of guns that may be lawfully

carried in public is likely to result in an increase in the number of gun thefts, and
thus an increase in the number of guns in the hands of criminals.
11. In sum, a requirement to issue open carry permits to people who have
no special need for them is likely to make citizens and police officers less safe and,
at the very least, will make it much more difficult for the HPD to carry out its
mission of serving and protecting with aloha.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on September 19, 2018, in Honolulu, Hawaii.
SUSAN BALLARD
3
(25 of 38)
Case No. 12-17808


v.


DECLARATION OF CHIEF MICHAEL M. CONTRADES IN

SUPPORT OF BRIEF OF AMICI CURIAE CITY AND
COUNTY OF HONOLULU, COUNTY OF KAUA‘I, AND
COUNTY OF MAUI, SUPPORTING PETITION FOR
REHEARING EN BANC
1304377.v1
(26 of 38)
I, MICHAEL M. CONTRADES, declare under penalty of perjury that:
1. I am the Acting Chief of Police for the Kaua 'i Police Department
("Department"), a position I have held since July 27, 2018. I have personal
knowledge of, and am competent to testify to, the matters set forth below.
2. I have been a member of the Department for over 24 years, having

joined in July of 1994. During my tenure, I served as a patrol officer in the LThu' e,
Kawaihau, and Koloa Districts; served one year as a narcotics investigator in the
Vice Section before being promoted to Sergeant; served nearly six years as a
Sergeant in patrol, as a property crimes Detective and Asset Forfeiture Sergeant in
the Vice Section; served three years as a Lieutenant and Commander of the
Hanalei District; served one year as a Captain of the Patrol Services Bureau; and
served six years as Deputy Chief of Police. During this period I was named and
received, Officer of the Year in 1999; Outstanding Instructor in 2000;
Humanitarian of the Year in 2009; Peace Maker Award in 2011, and Excellence in
Leadership Award from the FBI in 2012. I have been awarded the Department's
Drug Enforcement Star, the Department's highest award for service in the fight
against drugs. I am a graduate of the 77th Session of the Federal Bureau of
Investigation's ("FBI") Law Enforcement Executive Development Seminar; a
graduate of Bethel University in Tennessee, graduating Suma Cum Laude in 2014
with a Bachelor of Science in Criminal Justice; and a graduate of the 248th Session
of the FBI National Academy in 2012. I am also a member of the Police Executive
Research Forum; FBI National Academy Associates; Police Chiefs ofHawai'i
Association; and International Association of Chiefs of Police. During my career I
served in many auxiliary roles to include Defensive Tactics Instructor for over
10 years, holding several certifications that involved teaching the defense and
retaining of firearms in combative situations. I was also a member of the Special
1
1304003.vl
(27 of 38)
Response Team, more commonly known as "SWAT," where I received training in

the use of specialized tactics that included the use of various types of firearms.
3. Counsel informs me that two members of a three-judge panel of the

Ninth Circuit held that the limitation of the open carry of firearms to those engaged
in the protection of life and property in section 134-9 of the Hawai'i Revised
Statutes ("HRS") violates the Second Amendment and is void. If this decision is
allowed to stand, many individuals without a good and substantial reason to carry a
firearm will be allowed to do so in public. On the other hand, if the panel's
decision is overturned, law-abiding citizens who can demonstrate a particular need
to carry a firearm in order to protect life and property will be able to do so.
Contrary to the panel majority's assumption, such licenses are not limited to
security guards or others employed in jobs that entail protecting life and property.
I have reviewed Opinion Letter No. 18-1 of the Department of the Attorney
General of the State ofHawai'i, and I agree with its interpretation of section 134-9,
which comports with the Department's past and current practice.
4. The Department requires every applicant for an unconcealed-carry

license to meet three objective qualifications. Every applicant must (I) be "a
citizen of the United States," (2) be "of the age of twenty-one years or more," and
(3) not be "prohibited under section 134-7 from the ownership or possession of a
firearm." HRS§ 134-9 (a). Section 134-7, HRS, further provides that an
individual may not own, possess, or control a firearm if he or she is barred from
possessing a firearm by federal law, is a fugitive from justice, or fails to satisfy the
statute's other prerequisites. HRS § 134-7; see 18 U.S.C. § 922(g) (1)-(9), (n)
(listing federal requirements).
2
1304003 vi
(28 of 38)
5. An application for an unconcealed-carry license must therefore be

denied if the applicant fails to satisfy any of these objective criteria. And the
statute specifies, in part, the procedures the Kaua'i police chief or his designated
representative must follow prior to making that determination. In accordance with
the statute, the Department performs "an inquiry on [the] applicant by using the
National Instant Criminal Background Check System, to include a check of the
Immigration and Customs Enforcement databases where the applicant is not a
citizen of the United States, before any detennination to grant a license is made."
6. In accordance with section 134-9, HRS, the Department requires that

each applicant must "sufficiently indicate[]" that he or she has an "urgency" or
"need" to carry a firearm and is "engaged in the protection of life and property."
Typically, an applicant must demonstrate that he or she has an immediate,
pressing, and heightened interest in carrying a firearm. Fu11hermore, the applicant
must be "engaged in the protection of life and property," language that requires
that the individual be actively "tak[ing] part in" such protection, not merely exhibit
a generalized concern for safety.
7. In accordance with section 134-9, the Depm1ment also requires

applicants to be "of good moral character." The Department will not issue a
permit to carry, whether open or concealed, if the applicant has engaged in recent
acts of domestic violence; careless handling and storage of a firearm, alcohol or
drug abuse, or other recent violent conduct.
8. If an applicant meets the express statutory requirements set forth in

section 134-9, the Department will issue a carry permit, regardless of the
applicant's occupation, provided that no case-specific reason warrants the exercise
of discretion to deny a permit.
3
1304003.vl
(29 of 38)
9. For example, the Department issued concealed-cany permits in 2006

and 2013 to two citizens who were not security guards and whose jobs did not
entail protecting life or property. These individuals demonstrated, through their
applications, that they had an immediate, pressing and heightened interest in
carrying a firearm, and were accordingly issued concealed-cany permits.
Likewise, if an applicant were to apply and meet the statutory requirements for an
open-carry permit, as discussed above, such a permit would be issued, regardless
of the applicant's occupation, provided that no case-specific reason warrants the
exercise of discretion to deny a permit.
10. It has been the Department's experience that law-abiding citizens with
a legitimate need to carry a handgun have been able to obtain a permit under the
current system, which strikes a proper balance between ensuring access to handgun
permits for those who need them while preventing a greater-than-necessary
proliferation of handguns in public places- which, as described below, increases
risks to public safety.
11. According to the Centers for Disease Control and Prevention

("CDC"), in 2016, Hawai ' i ranked 4 th lowest in the United States for fireaim
related deaths with a firearm death rate of 4.5 deaths per l 00,000 total population
with a total of 66 firea1m related deaths during that year. New York (4.4, 900),
Rhode Island (4.1, 49) and Massachusetts, (3.4, 242) were Yd, 2 nd , and is• lowest
firearm death rates respectively. Conversely, according to the CDC, Mississippi
(19.9, 587), Louisiana (21.3, 987), Alabama (21.5, 1,046), and Alaska (23.3, 177)
have the highest firearm related deaths per 100,000 total population.
12. If Hawai'i could no longer limit open and concealed-carry permits to

individuals with a good and substantial reason to have them, based on my
4
1304003.vl
(30 of 38)
experience, gun violence in the County ofKaua'i would increase and my officers'
jobs would become harder and more dangerous.
13. Increasing the number of handguns carried publicly in the County of

Kaua'i would increase the availability of guns to criminals. We also know from
experience that these criminals often target people they know have handguns
precisely because they possess handguns, which criminals cannot lawfully obtain.
Kaua'i Police Department has frequently investigated homicides and robberies
where it appears that one, if not the primary, goal of the attacker was to deprive the
victim of his handgun or other weapons. Obtaining handguns and ammunition is
also one of the main reasons why police officers' homes and vehicles have
sometimes been targeted for robberies and break-ins.
14. Although many people believe that they will be able to maintain
possession of their handgun in a confrontation with a criminal attacker; that is
often not the case, especially in instances of surprise attacks. The Department
trains all of its officers in maintaining possession and control of their firearms
during a confrontation. The Department also issues specially designed holsters
with latches that prevent an attacker from removing the firearm from its holster.
The training and special equipment is essential to the safe handling of guns.
Civilian training cannot adequately prepare most people to use and protect
handguns in tense situations such as being under attack by criminals. In surprise
attacks, it is highly unlikely that less-well-trained individuals would be able to
successfully use a handgun to defend themselves.
15. In addition to the probability of more guns falling into the hands of
criminals, placing more handguns on the streets in the hands of people without
good and substantial reason to carry them would increase significantly the
5
1304003.vl
(31 of 38)
likelihood that basic confrontations between individuals would tum deadly. Most
assaults in the County ofKaua'i arise out of petty disputes between otherwise
law-abiding citizens. In the midst of these petty disputes, tempers flare and
violence can erupt even in the absence of lethal weapons. The presence of a
handgun in an altercation, however petty, greatly increases the likelihood that it
will escalate into potentially lethal violence.
16. Increasing the number of handguns on the streets in the hands of

people without good and substantial reason to carry them would also increase the
possibility that handguns in the hands of law-abiding citizens will hamper police
efforts in confrontations with criminals with potentially tragic consequences. In a
confrontation between a police officer and a criminal, an additional person bearing
a gun might cause confusion as to which side of the confrontation the person is on,
which could lead to hesitation by the police officer and the potential for innocent
victims, including the permit holder, innocent bystanders, and police officers. This
type of problem already occurs with existing permit holders, and would become far
more common if permits were not limited to people with good and substantial
reason to carry a handgun in public.
17. Having more legal carriers of handguns in the streets, without good
and substantial reason to carry a handgun, would also force police officers who
spot someone carrying a handgun to choose between creating a potential
disturbance by unholstering their own weapon or potentially putting their safety at
risk by approaching the carrier without drawing their weapon. Police officers
would also have a harder time identifying potential security risks if more people
without good and substantial reason to carry a handgun were able to do so, making
it more difficult to respond when necessary.
6
1304003.vl
(32 of 38)
I declare under penalty of perjury that the foregoing is true and correct.
Executed on September 24, 2018, in Lihu' e, Kaua'i, Hawai'i.
MICHAEL M. CONTRADES
7
1304003.vl
(33 of 38)
Case No. 12-17808


v.


DECLARATION OF CHIEF TIVOLI FAAUMU IN SUPPORT

OF BRIEF OF AMICI CURIAE CITY AND COUNTY OF
HONOLULU, COUNTY OF KAUA‘I, AND COUNTY OF
MAUI, SUPPORTING PETITION FOR
REHEARING EN BANC
(34 of 38)
DECLARATION OF TIVOLI FAAUMU
TIVOLI FAAUMU does hereby declare:
1. I make this declaration upon personal knowledge and am competent to
testify to the matters stated herein.
2. I am the Chief of Police for the Maui Police Department ("MPD"). I
have held this position since September 2014. A copy of my resume is attached
for my educational and employment background.
3. In very brief summary, I have worked at MPD for over 32 years.
During my tenure, I have served in many positions, including: Patrol, Vice
(narcotics, gambling and morals), Sergeant in Patrol, Vice Narcotics, Homicide,
White Collar and Property Crimes. As a Lieutenant, I served as the Commander in
the following sections: Planning, Training, Research & Development Section,
Communications Section, Community Relations Section, District of Lanai, and
Team Leader of the Crisis Negotiation Team. I also assisted with creating the
Special Emergency Enforcement Detail team.
4. I have a Masters in Arts degree with a major in Homeland Security
and a Bachelor's in Science degree.
5. I have received a number of awards for my work as a police officer
and from the military, which are included in my resume.
6. The County of Maui consists of three inhabited islands. The total

(35 of 38)
current population of Maui County is approximately 166,260. Our county is the
third largest populated in the State of Hawaii.
7. There are a total of six patrol districts in our county, which is staffed
by approximately 232 sworn officers. There are additional specialized sections
that are staffed by an additional 100 sworn officers. A number of civilian
employees work as support staff.
8. Our Records and Identification Section handles all firearm
applications. All applications to MPD for open carry permits and concealed carry
permits are reviewed by me, regardless of the individual's employment. We have
never denied an individual an open, or concealed, carry permit based solely on
their employment. Instead, we make that determination based on Hawaii Revised
Statutes section 134-9. If the criteria in Hawaii Revised Statutes section 134-9 are
met, the permit would be issued unless there are case-specific reasons to warrant
the exercise of discretion to deny a permit. The Attorney General's Opinion, No.
18 - 1 details the criteria utilized in MPD's review of open, and concealed, carry
permits.
9. The Ninth Circuit Court of Appeals' ruling that Hawaii Revised
Statutes§ 134-9 violates the Second Amendment is of great concern. If Hawaii
could no longer limit open carry permits to individuals with a good and substantial
reason to have them, based on my experience, handgun violence in Maui County
2
(36 of 38)
would increase and my officers' jobs would become harder to perform and more
dangerous.
10. Statistical information shows that Hawaii has one of the lowest rates
for deaths related to firearms in the country. This is especially true in Maui
County, where firearm related violence is uncommon.
11. IfMPD is required to place more handguns on the streets in the hands
of people without good and substantial reason to carry them, it would significantly
increase the likelihood of more deadly encounters. The presence of a handgun in
an altercation, however petty, greatly increases the likelihood that it will escalate
into potentially lethal violence.
12. In addition to creating a safety concern for the public, additional
firearms on the streets for people who have no special need for that protection will
also create a greater danger to our officers.
I hereby declare under penalty of perjury that the above is true and correct.
DATED: Wailuku, Maui, Hawaii, September 21, 2018.
3
(37 of 38)
TIVOLI SIAIFOI FAAUMU

Tivoli.Faaumu@mpd.net
ACADEMIC QUALIFICATIONS
American Military University, West Virgina Degree Received 2/2014
Master’s in Arts Degree – major in Homeland Security G.P.A. 3.67
 Member of Alpha Phi Sigma, National Criminal Justice Honor Society 5/2013
Federal Bureau of Investigation (FBI) National Academy, Quantico Certificate Received 6/2010
Certificate of Completion in Law Enforcement Officer General Course of Instruction
Bellevue University, Nebraska Degree Received 8/2009

Bachelor’s in Science Degree - Business Management G.P.A. 3.40
 Honors: Certificate of Academic Achievement, Dean’s Scholars List 12/2009
Maui Community College, Kahului, Maui Degree Received 5/1993

Associate in Applied Science Degree – Administration of Justice
MILITARY PROMOTIONAL TRAINING (E8 – retired) 4/1983 - 4/2014

Progressive training received through classes below due to rank and promotions.
1) Military Police Academy Training
2) Battle Staff Noncommissioned Officer Course
3) Advanced Noncommissioned Officer Course
4) Basic Noncommissioned Officer Course
5) Basic Noncommissioned Officer Course Phase I
6) Warrior Leadership Course
PROFESSIONAL POLICE WORK EXPERIENCE 8/1985 - Present

Police Chief 9/2014 – Present
Served as the Chief for Maui County Police Department.
Police Captain – District Commander 1/2011 – 9/2014
 Served as the District Commander for the Kihei District and involved and participated in the construction of the
new Police Station.
Police Lieutenant – District/Section Commander 4/2004 – 1/2011
 Served as the Commander of the Planning, Training, and Research & Development Section.
 Served as the Commander of the Community Relations Section, and Public Information Officer.
 Served as the Commander of the Communications Section which included the Maui County Emergency
9-1-1 and Central Detention Center.
 Served as the Commander of the District of Lanai and was involved with the completion and opening of the
police station.
 Budgeting, training, supervising, analyzing statistical data, & deployment of personnel.
 Member of the National Incident Management System – Incident Command System (NIMS – ICS) All-Hazard
Incident Team for Maui County.
 Team Leader of the Department’s Crisis Negotiation Team.
 Served as the Commander and helped to create the Special Emergency Enforcement Detail (SPEED) team.
Police Sergeant – Supervisor/Detective 6/1992 – 4/2004
 Sergeant, Field Supervisor - Lahaina patrol, Vice Narcotics, Wailuku Patrol.
 Homicide, White Collar and Property Crime Detective - Lahaina District
Police Officer – 1 and 2 8/1985 – 6/1992
 Plans and training Police Academy
 Lahaina Patrol
 Vice, gambling and morals
 Vice, narcotics
PROFESSIONAL MILITARY WORK EXPERIENCE 4/1983 – 4/2014

Master Sergeant – Operation NCO (Non Commission Officer) Military Police 8/2009 – 4/2014
(38 of 38)
United States Army Reserve-303rd Maneuver Enhancement Brigade, Fort Shafter Flats, Honolulu
 Served as the Operation Sergeant for a Combat Support Military Police Brigade Section.
 Supervising/training of Military Police Officers, and responsible for logistic support, movement, and security of
the area of operation.
 Coordinate tasking and support requirement for supported Battalion.
 Served as the Civilian Law Enforcement Liaison Officer, Contingency planning and critical incident mitigation.
 Served as the Senior Human Resources Sergeant, directing, and supervising actions relating to Unit Personnel
Management – to include reassignments, promotions, reductions, retentions and reenlistments, medical
readiness, personnel and strength reporting, personnel information and essential personnel services.
 Assigned to the Provost Marshall Office and responsible for Anti-Terrorism and Physical Security of US Army
Reserve Bases in the Pacific which include Hawaii, Alaska, American Samoa, Guam, and Saipan.
POLICE AWARDS
 1990 – 40th Recruit Class, Outstanding Instructor
 1993 – American Legion Wailuku Post, Kualii Award Service For God & Country
 2002 – Top Cop Award (Nominated by the Maui Police Department)
 2013 – Top Cop Award (Nominated by the Maui County Hotel Security Association)
US MILITARY DECORATIONS AWARDS

 Army Achievement Medals (with 2 Bronze Oak Leaf Cluster)
 Army Reserve Achievement Medals (with 1 Silver Oak Leaf Cluster)
 National Defense Service Medals (with 1 Bronze Star)
 Armed Forces Reserve Medals (with Silver Hourglass)
 NCO Professional Development Ribbons (with 3 Bronze Arabic numeral)
 Army Ribbon Service
 Army Reserve Components Overseas Training Ribbons (with 7 Bronze Arabic numeral)
 Global War on Terrorism Service Medal
PROFESSIONAL/PERSONAL INTERESTS AND COMMUNITY INVOLVEMENT

 President of the FBI National Academy Associate (FBI NAA) Maui Chapter (4 year term)
 Vice President for the FBI NAA - State of Hawaii Chapter that includes American Samoa, Guam and Saipan.
 Maui Boys and Girls Club – Executive member
 Boy Scouts of America – Advisory Board
 Maui County America Red Cross – Advisory Board member
 High Intensity Drug Traffic Area – Executive Board member. 2015 – 2016 Chairman
 Joint Terrorism Task Force – Executive Board Member
 Private Detective and Security State Board – Board Member
Kalama Park Action Team – meets on the 1st Wednesday of the month, listen to community members concerns and
creatively work with staff to identify possible solutions to resolve these issues.
Member of the Maui County Hotel & Resort Security Association and Visitor’s Bureau Emergency Preparedness
Plan.

Young Amicus Brief of The Counties

Diunggah oleh

Informasi Dokumen

Judul Asli

Hak Cipta

Format Tersedia

Bagikan dokumen Ini

Bagikan atau Tanam Dokumen

Opsi Berbagi

Apakah menurut Anda dokumen ini bermanfaat?

Apakah konten ini tidak pantas?

Hak Cipta:

Format Tersedia

Young Amicus Brief of The Counties

Diunggah oleh

Hak Cipta:

Format Tersedia

(1 of 38)

Case: 12-17808, 09/24/2018, ID: 11023362, DktEntry: 157-1, Page 1 of 20

Case No. 12-17808

UNITED STATES COURT OF APPEALS

GEORGE K. YOUNG, JR.,

STATE OF HAWAI‘I, ET AL.,

On Appeal from the United States District Court

BRIEF OF AMICI CURIAE CITY AND COUNTY OF

KEKER, VAN NEST & PETERS LLP

Attorneys for Amici Curiae

I. STATEMENT OF AMICI CURIAE PER RULE 29(a)(4)(D)-

II. ARGUMENT ............................................................................................ 2

A. The Counties do not limit open (or concealed) carry to

B. The panel majority opinion, if it stands, will jeopardize

C. The panel majority erred in applying strict scrutiny. ................... 11

III. CONCLUSION ....................................................................................... 15

CERTIFICATE OF COMPLIANCE ................................................................... 15

District of Columbia v. Heller

Hawai‘i Revised Statutes § 134-9 ............................................................ 3, 4, 5, 6, 12

Federal Rule of Appellate Procedure 29(a)(4)(D)-(E) .............................................. 1

I. STATEMENT OF AMICI CURIAE PER RULE 29(a)(4)(D)-(E)

firearms, including open-carry licenses. The panel majority misunderstood and

accompanying declarations of Susan Ballard, the Chief of the Honolulu Police

Department (“Ballard Decl.”); Michael M. Contrades, the Acting Chief of the

the Maui Police Department (“Faaumu Decl.”).1

Increasing the number of people carrying guns in public without any

Second Amendment somehow requires this deadly result—regardless of public

of federalism—calls to mind Justice Jackson’s warning against the rigid

constitutional Bill of Rights into a suicide pact.” Id.

Availability of Unconcealed-Carry Licenses (Sept. 11, 2018), available at

134-9 “authorizes the issuance of unconcealed-carry licenses to any qualified

individual who demonstrates a sufficient ‘urgency’ or ‘need’ to carry a firearm and

is ‘engaged in the protection of life and property.’” Id. Regardless of occupation,

qualifications for possessing and carrying a firearm; (2) demonstrates a sufficient

denial of a license. Id. “To satisfy these requirements, an applicant must

substantially exceeds that held by ordinary law-abiding citizens.” Id.; see

generally id. at 1-10.

As a matter of fact, the Attorney General’s interpretation of HRS section

¶¶ 5-6; Contrades Decl. ¶¶ 3-10; Faaumu Decl. ¶ 8. As Chief Contrades of the

Kaua‘i Police Department explains, “law-abiding citizens with a legitimate need to

need them while preventing a greater-than-necessary proliferation of handguns in

public places—which,” as discussed below, and as Chief Contrades further

¶¶ 11-17; Section B, infra. “If an applicant meets the express statutory

regardless of the applicant’s occupation, provided that no case-specific reason

warrants the exercise of discretion to deny a permit.” Contrades Decl. ¶ 8.

interest in carrying a firearm, and were accordingly issued concealed-carry

Francisco, 746 F.3d 953, 961 (9th Cir. 2014)).

an open-carry permit as discussed above and in the Attorney General’s opinion,

“such a permit would be issued” by the Kaua‘i Police Department, “regardless of

the applicant’s occupation, provided that no case-specific reason warrants the

exercise of discretion to deny a permit.” Contrades Decl. ¶ 9. Likewise, the

explains, the Honolulu Police Department “reviews each application individually

to determine whether, given the circumstances, a permit is warranted under Section

is true of the Maui Police Department. See Faaumu Decl. ¶ 8.

B. The panel majority opinion, if it stands, will jeopardize public safety.

As the Chiefs of Police of Honolulu, Kaua‘i, and Maui explain in their

enforcement officials. Faaumu Decl. ¶ 9; see also Ballard Decl. ¶¶ 3, 7-11;

Contrades Decl. ¶¶ 3, 10-17. Hawai‘i’s gun-control measures have been highly

effective, whereas if Hawai‘i can no longer limit open-carry permits to individuals

Contrades Decl. ¶¶ 3, 10-17; Faaumu Decl. ¶¶ 9-12; Ballard Decl. ¶¶ 3, 7-11.

100,000 total population. See Contrades Decl. ¶ 11;

Maui County, where firearm related violence is uncommon.”).

Honolulu, in particular, “has a low rate of violent crime compared to other