Hawaii County has come to an agreement with the plaintiff in a federal lawsuit who argued the county’s requirement he sign a waiver of liability for a background check as part of the concealed-carry firearms permit application violates his constitutional right to privacy.
The Sept. 29 ruling by U.S. District Judge Jill Otake in favor of plaintiff James Grell is, in part, a permanent injunction, as well as a stipulated final judgment based on that agreement. The injunction requires the county, within 10 business days of the order, to begin the use of a new waiver form based on the one currently in use by the City and County of Honolulu.
J Yoshimoto, the county’s assistant corporation counsel, said Tuesday in an email the stipulated judgment “arises from a settlement which implements changes to county policy resulting from recent federal court rulings addressing the Second Amendment.”
Had the county and Grell not come to an agreement, the lawsuit was bound for a hearing on Nov. 3 before Otake.
Police chiefs in Hawaii have sole authority to issue firearm-carry permits, but historically have approved only a handful of applications. That changed after the U.S. Supreme Court’s ruling in June 2022 in the case of New York State Rifle &Pistol Assn. vs. Bruen, which lifted the majority of state restrictions on publicly carrying firearms.
Grell, a 51-year-old accountant from Waimea, was twice turned down this year for a permit to carry a Sig Sauer P365 9 mm semiautomatic pistol, despite National Rifle Association certification with Grell’s application that he had passed a proficiency test with the handgun.
Twice, the police department declined to process Grell’s application, citing in a certified letter his refusal to complete and notarize the county’s waiver of liability as its reason.
The waiver form specified the applicant for a firearm-carry permit promises “to hold harmless from any liability under any and all possible causes of legal action” anyone who furnishes “any information or opinions regarding applicant’s background, family, personal habits or reputation.”
The form also required the applicant to waive “any and all legal privileges I may have to maintain such information as confidential, included but not limited to the following privileges: attorney-client, clergyman-penitent, husband-wife, physician-patient, psychologist-client, creditor-customer, and accountant-client.”
In addition, by signing and the form, an applicant agreed to waive any claims against the Hawaii Police Department in connection with the concealed-carry application process.
“A lot of these policies just simply aren’t in line with the Supreme Court’s admonishment that all law-abiding (adult citizens) have the right to carry,” said Alan Beck, a San Diego attorney largely specializing in Second Amendment issues and Grell’s co-counsel. “So, the county, if they don’t want to have to deal with litigation, they should start looking at all their internal policies … and if they pass constitutional muster before there has to be a lawsuit.”
Hawaii County Police Chief Benjamin Moszkowicz said via email he’s “excited that we have found a mutually agreeable solution on this issue.”
“We have made changes to our application forms that limit the requirements for applicants to waive attorney-client, clergyman-penitent, and spousal privileges,” Moszkowicz said. “In so doing, I am confident that we will be able to more properly protect the constitutional rights of applicants while continue fulfilling our role in protecting the public.”
Grell, who was one of the plaintiffs in the recent 9th Circuit Court of Appeals decision in Teter vs. Connors that overruled the state’s ban on butterfly knives, argued the county’s previous waiver requirement violated his rights under the 14th Amendment to the U.S. Constitution, which says “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.”
Beck said he expects an increase in concealed-carry applicants in Hawaii County because of the Grell ruling.
“I think there were a lot of people who were afraid to apply because you not only waived away all your privileges, you indemnified the county in case of a release of information,” he said.
That expectation is not shared by Moszkowicz.
“I don’t expect a significant increase in the number of applications,” he said.
The ruling also directs the county to pay $30,500 to cover Grell’s attorneys’ fees and costs, subject to County Council approval.
Email John Burnett at jburnett@hawaiitribune-herald.com.