Wednesday, June 07, 2023

HI: More Fruit of Caetano and Bruen, Short Clubs are Protected by Second Amendment

On July 25, 2022, Todd Yuktake and Justin Solomon filed a federal lawsuit against the Attorney General of Hawaii, Holly T. Shikada, for infringement of the right to keep and bear arms, specifically, against the state of Hawaii's ban on "billies" or "batons" outside the home. Billies were likely chosen, in part, because no procedure exists in Hawaii to allow the carry of short clubs outside the home. Over the course of the case, the AG changed from Shikada to Lopez.  From the complaint:

6. The State of Hawai‘i generally bans the possession of “deadly or dangerous weapons” outside the possessor’s home without some prior authorization. Haw. Rev. Stat. § 134-51. The ban specifically includes “billies.”


9. Plaintiffs are not “authorized by law” to carry a baton and no known procedure exists that would allow Plaintiffs or other law-abiding citizens to achieve such authorization.

The ban on carry of billies or batons outside the home is directly contradicted by the Supreme Court decisions in Caetano in 2016 and in Bruen, 2022.

From Caetano:

The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v.Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

Downplayed as inconsequential or of limited use in 2016, Caetano has shown to be of great significance. Bans on the possession of stun guns have been removed from all state bodies of law. Bans on the carry of weapons other than firearms are of significance. They serve as a precedent for bans on the carry of firearms. In Hawaii, in a settlement before the federal district court, the State of Hawaii has admitted bans on the carry of "billies" or batons, or, basically, any short clubs, are unconstitutional.  On May 23, the United States District Court for the District of Hawai'i approved of a stipulated final judgement and permanent injunction. From the judgement and injunction:

4. Defendant ANNE E. LOPEZ, in her official capacity as Attorney General for the State of Hawai‘i (as well as her officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction) is hereby permanently enjoined from enforcing against Plaintiffs TODD YUKUTAKE and JUSTIN SOLOMON, and any and all other persons who are not otherwise legally prohibited from possession of a “billy”: 

a. the “billy” provision of HRS § 134-51(a) as currently written, which provides that “[a]ny person, not authorized by law, who carries concealed upon the person’s self or within any vehicle used or occupied by the person or who is found armed with any . . . billy . . . shall be guilty of a misdemeanor and may be immediately arrested without warrant by any sheriff, police officer, or other officer or person” and that “[a]ny [billy] upon conviction of the one carrying or possessing it under this section, shall be summarily destroyed by the chief of police or sheriff.”

5. The Parties agree that for purposes of this Stipulated Final Judgment and Permanent Injunction only, the instruments considered to comprise the term “billy” pursuant to HRS § 134-51 are defined as: instruments which are typically short clubs that are intended to be carried by a law enforcement officer, and include but are not limited to cudgels, truncheons, police batons, collapsible batons, billy clubs, or nightsticks, and includes the instrument that is the subject of this lawsuit as described in footnote 4 and paragraphs 50 and 62 of the Complaint.

The Attorney General was ordered to pay $50,000.00 dollars for attorneys' fees and costs, pending approval by the State of Hawai'i. If approval is not forthcoming, the agreement shall be null and void, and the case would continue.  This is ordinary. It is a statement telling the state if they do not follow the terms of the agreement, worse is likely.  If the AG thought they could win in court, they would not have agreed to the settlement

The Attorney General is required to inform all the members under her of this judgement and to inform all county governments and chiefs of police within the State of Hawai'i. While people in Hawai'i have had their right to carry short sticks, concealed or openly, for self-defense, something people have done since before written language existed, restored, the normal rules of defense of self and others still apply.


©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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