Two attorneys are hoping to change a Hawaii gun law after a Navy officer was forced to give up his personal firearms because he had sought psychological counseling after feeling depressed and homesick.

Attorneys Kevin O’Grady and Alan Beck filed a lawsuit in federal court on Sunday on behalf of Michael Santucci alleging that the Navy cryptologic warfare officer had to turn his firearms over to the Honolulu Police Department after indicating that he received medical care because he was feeling “depressed and homesick.”

The lawsuit focuses on a state law that prohibits Hawaii residents from owning a firearm if they have been diagnosed with “significant behavioral, emotional, or mental disorders.” The case also calls into question county police departments’ ability to access medical records to determine eligibility.

Attorneys representing Michael Santucci have filed a federal lawsuit they hope will remove language from Hawaii’s gun law that they claim is problematic and unconstitutional. Marina Riker/Civil Beat/2018

Santucci, who has top secret clearance with the Navy and firearms training, made the disclosure in July 2021 when he filled out documents provided to him by HPD in order to register his firearms, which he legally owned before moving to Hawaii in February 2021, according to the lawsuit.

The documents included a “firearm application questionnaire” that requires disclosure of treatment or counseling for drug addictions, acquittal of a crime on the grounds of a mental disorder or a diagnosis of a behavioral, emotional or mental disorder.

Santucci replied that he had been treated for depression at Tripler Army Medical Center in Honolulu but added that it was “not serious,” according to the lawsuit.

In mid-July, Santucci received a letter from the HPD that said it had been determined that he “may have received or (is) currently receiving treatment or counseling” for either an addiction, behavioral, emotional, or mental disorder, or an organic brain syndrome — a dated term used to refer to any of the conditions caused by the gradual decrease in the functioning of the brain.

Santucci was told to turn his firearms in to the HPD and that he would need a written certification from a doctor stating that he is “no longer adversely affected by the addiction, abuse, dependence, mental disease, disorder, or defect” in order to retrieve the weapons.

O’Grady and Beck claimed in the lawsuit that the state law that ultimately resulted in Santucci turning over his guns as well as HPD’s application of the law are problematic and unconstitutional because it violates the Second and 14th amendments.

The lawsuit noted that Santucci was never diagnosed with any “significant” behavioral, emotional or mental disorder because that is not a term used by psychiatrists and other medical doctors.

“Our experts say that the way the statute is written, that’s not the way psychiatrists speak so no diagnosis is going to be able to meet that,” O’Grady said in an interview.

Dennis Petrocelli, a board-certified psychiatrist who examined Santucci in January, agreed in testimony included with the complaint. He said the “Diagnostic and Statistical Manual of Mental Disorders” was not intended to be used in the way contemplated by Hawaii’s law.

Petrocelli also said that the term organic brain syndrome was replaced in 1994 and is no longer commonly used by medical providers so it “cannot possibly be helpful to them in making the determination requested” in regards to gun ownership in the state.

Santucci’s attorneys also claim that HPD’s application of the law goes beyond the scope of the statute because the department told Santucci to relinquish his firearms until a licensed doctor medically clears him to retrieve them.

Honolulu Police Department
Santucci was told to turn his firearms over to HPD in July 2021, according to the lawsuit. PF Bentley/Honolulu Civil Beat/2014

“They want him to get a medical evaluation and we believe that’s unconstitutional,” Beck said. “Additionally, we’re suing over the fact that the HPD is allowed to look through his medical files in order for him to purchase a firearm.”

Neither the state Attorney General’s Office nor the Honolulu Police Department — both named as defendants in the lawsuit — replied to requests for comment regarding the lawsuit.

The Hawaii Firearms Coalition, a nonprofit focused on state gun rights, came out in support of the allegations made in the complaint in a statement posted to Facebook.

“There are many reasons why this is unconstitutional, but to boil it down into basic terms, if HPD believes you have a mental health condition, you can’t own a firearm until you spend hundreds of dollars proving your eligibility,” the group wrote. “This policy has affected thousands of people who are not and have never been disqualified from legally owning a firearm.”

According to the state Attorney General’s Crime Prevention and Justice Assistance Division’s latest report on firearm registrations, more than 26,100 gun permits were filed statewide in 2020. Of those, 16,259 were filed in the City and County of Honolulu and 1.8% of them were denied.

The most common reasons firearms permits were denied are mental health issues, which were cited as a justification for denial in 37% of the 741 permit applications rejected throughout the state in 2020.

The attorney general’s office noted that at least one of the state’s major health care providers recommends denial for nearly any mental health issue or treatment and does not provide denied applicants the means to get clearance, forcing them to seek clearance from outside doctors — the same situation Santucci’s attorney’s say their client is now in.

“They now put the burden on the applicant because he marked off ‘Yes, I’ve been treated,’” O’Grady said.

The motion compels the federal court to look at whether Santucci’s rights were infringed upon in a bid to change the law.

Ultimately, O’Grady and Beck hope the state will remove the law altogether.

“What I would want is that it goes away, is struck down,” O’Grady said.

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