Let’s be clear: we all strive to be law-abiding citizens, we value our police officers who work to keep us safe — and none of us actually want to go to jail.

But let’s suppose you have inherited one or more hunting rifles or shotguns, passed down through one or more generations. They’ve simply always been in your family’s house; some of them don’t even work anymore. And let’s suppose a neighbor has it in for you and decides to call the police and ask for a TRO (temporary restraining order), after alleging ex parte (one-sided communication) that he or she is afraid of you. If a TRO is in effect, the police are allowed to ask if you have any weapons, and if you say yes, they can take them, immediately, until a judge sorts it all out a week — or a month — later.

Then let’s suppose you go to Court and the Judge finds no merit to the TRO, vacates it, and tells you that you can go to the police station and get your rifles back.

Hunting rifles

Flickr.com

Notwithstanding that you have no prior record, or outstanding charges, warrants or fines, here’s what might happen: the police can tell you that since your weapons — which have been in your possession for decades — are not legally registered to you, you can’t have them back.

And it gets worse: not only can’t you get your rifles back, you then find the police have filed multiple criminal charges against you, one for each shotgun, all alleged violations of HRS, Section 134-3(b), because you did not register your family heirlooms within five days of possessing them. Each violation is punishable by a $1,000 fine and/or 30 days in jail.

This is exactly what happened back in August 2014, to a Native Hawaiian subsistence hunter here on Lanai.

The police filed seven criminal complaints for “Acquiring a Firearm Without Registration” in October 2014, and our Lanai hunter made his preliminary appearance in Lanai’s District Court in November, at which time the Maui County Public Defender proposed a deal offered by the prosecution: if he pleaded guilty to four charges, the prosecutor would drop three. This, of course, was a no brainer. Our hunter declined.

(As an aside, Lanai has an historic courthouse in town, but it lies empty and unused; this “conversation” took place in a crowded hallway in the Dole Administration Building, within earshot of anyone and everyone who happened to be in the building).

In what can only be described as a collective brain-lapse, the Legislature passed a bill it really didn’t mean to pass.

So we did what we always do when a friend is in trouble: we called “ace” criminal defense attorney David Glenn Bettencourt. He entered his appearance, and the research began.

“You might like to blame the police officers or Maui’s county prosecutor, but the real culprit is the Legislature,” according to Attorney Bettencourt. “They have so mucked up the statute over the years that it’s virtually incomprehensible.”

He added, “The prosecutors and police would benefit greatly from legislative reexamination and simplification of the law, in light of the Second Amendment right-to-carry-arms cases now being litigated across the country. In fact, all parties would benefit from an immunity program to allow registration of long guns.”

A History Lesson

It all started in 1945 when attempts were made to rescind strict firearms statutes to recognize the rights of subsistence hunters in the state after the War. One of the first attempts, an Act to amend Chapter 135 “by eliminating therefrom the mandatory registration of rifles and shotguns and all types of ammunition,” as well as the mandatory registration requirements for permits to purchase ammunition, failed.

Firearms advocates did manage legislative reform in 1951 via amendments to then Sec. 7183 (R.L.H. 1945) that excluded permitting and registration of “rifle[s] or shotgun[s] having a barrel length of eighteen inches or over,” and permitting “possession and use of such rifles by licensed hunters and minors.”

Although amended and expanded over the years, these provisions were carried over into HRS section 134-4 and 135-5 in 1968, and the statutory exclusion from registration requirements continued until 1981.

Then, in what can only be described as a collective brain-lapse, the Legislature passed a bill it really didn’t mean to pass. (Sound familiar? Our Legislature did exactly the same thing with the GEMS program last year; please see “Ratepayers You’re Going to Pay”).

House Bill 293, as introduced, was not intended to eliminate the exclusion of requiring registration of “long guns” or rifles that had existed for thirty years. In fact, among the many extensive amendments and clarifications to Chapter 134, both houses recognized an intent to exempt permitting requirements to rifles and shotguns “which are currently exempt from the permit requirements.” (House Stand. Com. Rep. No. 727 (Judiciary) and House Journal 1981 at 1242). Even though the Senate further amended the Bill, it also sought to eliminate the permit requirement “for rifles with barrel lengths of sixteen inches and over, and shotguns with barrel lengths of eighteen inches and over.” (Senate Stand. Com. Rep. No. 847 (Judiciary) and Senate Journal 1981 at 1275).

But then they all apparently took a nap, and the final version of H.B. 293 reads thus:

• “Permits to Acquire; registration; penalty. No person shall acquire the ownership of a firearm of any description….until he has first procured from the Chief of Police…a permit to acquire as prescribed herein[.]”

The Legislature subsequently amended sections 134-2 & 134-3 as well, and the “duty to register” requirement, dating back to § 7183 (R.L.H. 1945) and carried over in § 134-3 (1968), now reads:

• 134-3 (b) “Every person who acquires a firearm pursuant to section 134-2 shall register the firearm in the manner prescribed by this section within five days of acquisition.”

And there it stands today, all you hunter people: you have five days to register your hunting rifle(s) — the same ones you’ve possessed for decades — or face a fine and/or jail time.

“How can you register a rifle within five days when it’s been in your possession for over 30 years?” — Attorney David Glenn Bettencourt

In the case of our hunter here on Lanai, after Attorney Bettencourt ably pointed out the impossibility of complying with this absurdly worded requirement, the prosecutor wisely exercised his discretion to seek dismissal of the charges, with prejudice, rather than pursue prosecution where no good reason existed to do so.

The Court dismissed the charges and our hunter got his rifles back. They are now all legally registered — but it took half a year and many attorney hours, multiple flights to Lanai to make court appearances, affidavits, notarized documents, production of birth and death certificates, and hours and hours of research, to do so.

“There are probably thousands of hunters out there who would love to register their rifles,” according to Bettencourt, “but they’re afraid to try. How can you register a rifle within five days when it’s been in your possession for over 30 years? I hope the police departments and prosecutors become proactive and encourage reforms to allow registration without threat of sanctions.”

So just in case you’ve got some firearms in the closet that you’d like to make legal? Call ahead and find out how your police officers will react. Because if you try to register that shotgun you got from Tutu, you could be charged with possessing an unregistered firearm — that shotgun you got from Tutu. Either that, or have your own ace criminal defense attorney standing by.

Or here’s a thought: call your legislative representative and tell them to fix the law.