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TITLE 6 - COUNTY ORGANIZATION AND ADMINISTRATION

Subtitle 1 - Provisions Common to All Counties

§46-1.5 - General powers and limitation of the counties

CHAPTER 128 - Civil Defense And Emergency Act

§128-6 - Civil defense powers, in general

CHAPTER 134 - Firearms, Ammunition And Dangerous Weapons

Cross References

§

§134 - (2014) Relief from federal firearms mental health prohibitor

1. Any person who is prohibited from shipping, transporting, possessing, or receiving any firearm or ammunition, pursuant to title 18 United States Code section 922(d)(4) or (g)(4), having been adjudicated as a mental defective or having been committed to a mental institution under the laws of this State, may petition the circuit court in the circuit where the adjudication or commitment was made, in a civil proceeding, for relief from the federal firearm prohibitor based on the adjudication or commitment. The attorney general shall represent the State; provided that the attorney general, with the prosecuting agency's consent, may designate the prosecuting attorney for the county in which the petitioner seeks relief to represent the State.
2. In the civil proceeding, the court shall consider:
   1. The circumstances regarding the adjudication or commitment from which relief is sought, including the court files of the adjudication or commitment;
   2. The petitioner's mental health and criminal history records, if any;
   3. The petitioner's reputation in the community, developed at a minimum through character witness statements, testimony, or other character evidence; and
   4. Changes in the petitioner's condition or circumstances since the disqualifying events relevant to the relief sought, including medical documentation that the petitioner is no longer adversely affected by the condition that resulted in the petitioner's adjudication or commitment and is not likely to act in a manner dangerous to public safety.
3. The court shall grant the petition for relief if the petitioner proves, by clear and convincing evidence, that the petitioner will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. The court shall make written findings of facts and conclusions of law on the issues before it and issue a final order.
4. When a court issues an order granting or denying a petition for relief, the court shall forward this information to the Hawaii criminal justice data center, which in turn shall forward this information to the Federal Bureau of Investigation, or its successor agency, for inclusion in the National Instant Criminal Background Check System database. The information shall also be maintained by the Hawaii criminal justice data center for disclosure to and use by law enforcement officials for the purpose of firearms permitting or registration pursuant to chapter 134.
5. A person may file a petition for relief under this section no less than two years after the adjudication or commitment from which the relief is sought, and no more frequently than once every three years thereafter.
6. For purposes of this section, the terms "adjudicated as a mental defective", "committed to a mental institution", and "mental institution" shall be construed in accordance with title 18 United States Code section 922, title 27 Code of Federal Regulations section 478.11, and judicial interpretations of those provisions.
7. Any relief granted pursuant to this section shall not constitute relief from any other federal prohibitors or from any state prohibition pursuant to chapter 134. The State, its officers, and its employees shall not be liable for any damages, attorneys' fees, or costs related to this relief process.
8. The petitioner may appeal a denial of relief, and the standard of review on appeal shall be de novo.

[L 2014, c 87, §2, eff. July 1, 2014.]

Part I - General Regulations

§134-1 - (2020) Definitions

1. As used in this chapter, unless the context indicates otherwise:
2. "Acquire" means gain ownership of.
3. "Antique pistol or revolver" means any pistol or revolver manufactured before 1899 and any replica thereof if it either is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition or is designed or redesigned to use rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.
4. "Assault pistol" means a semiautomatic pistol that accepts a detachable magazine and has two or more of the following characteristics:
   1. An ammunition magazine that attaches to the pistol outside of the pistol grip;
   2. A threaded barrel capable of accepting a barrel extender, flash suppressor, forward hand grip, or silencer;
   3. A shroud that is attached to or partially or completely encircles the barrel and which permits the shooter to hold the firearm with the second hand without being burned;
   4. A manufactured weight of fifty ounces or more when the pistol is unloaded;
   5. A centerfire pistol with an overall length of twelve inches or more; or
   6. It is a semiautomatic version of an automatic firearm; but does not include a firearm with a barrel sixteen or more inches in length, an antique pistol as defined in this section or a curio or relic as those terms are used in 18 United States Code section 921(a)(13) or 27 Code of Federal Regulations section 478.11.
5. "Assembly" means the fabrication of a firearm or the fitting together of component parts to construct a firearm.
6. "Firearm receiver" means the part of a firearm that provides housing for the firearm's internal components, including a hammer, bolt, breechblock, action, or firing mechanism. "Firearm receiver" includes any object or part that is not a firearm frame or receiver in finished form but that is designed or intended to be used for that purpose and may readily be made into a firearm frame or receiver through milling or other means."Automatic firearm" means any firearm that shoots, is designed to shoot, or can be readily modified to shoot automatically more than one shot, without a manual reloading, by a single function of the trigger.This term shall also include the frame or receiver of any such firearm, any part designed and intended solely and exclusively, or any combination of parts designed and intended, for use in converting a firearm into an automatic firearm, and any combination of parts from which an automatic firearm can be assembled if the parts are in the possession or under the control of a single person.
7. "Chief of police" means the chief of police of the counties of Hawaii, Maui, Kauai, or the city and county of Honolulu.
8. "Crime of violence" means any offense, as defined in title 37, that involves injury or threat of injury to the person of another, including sexual assault in the fourth degree under section 707-733 and harassment by stalking under section 711-1106.5.
9. "Electric gun" means any portable device that is electrically operated to project a missile or electromotive force.It does not include any electric livestock prod used in animal husbandry and any automatic external defibrillator used in emergency medical situations.
10. "Firearm" means any weapon, for which the operating force is an explosive, including but not limited to pistols, revolvers, rifles, shotguns, automatic firearms, noxious gas projectors, mortars, bombs, and cannon.
11. "Firearm loaded with ammunition" and "loaded firearm" means a firearm with ammunition present within the firing chamber, revolving cylinder, or within a magazine which is inserted in a firearm.
12. "Fugitive from justice" means any person (1) who has fled from any state, territory, the District of Columbia, or possession of the United States, to avoid prosecution for a felony or to avoid giving testimony in any criminal proceeding or (2) who has fled from any country other than the United States and is avoiding lawful extradition back to that country.
13. "Pistol" or "revolver" means any firearm of any shape with a barrel less than sixteen inches in length and capable of discharging loaded ammunition or any noxious gas.
14. "Public highway" shall have the same meaning as defined in section 264-1(a).
15. "Semiautomatic" means the mode of operation by which a firearm uses the energy of the explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh cartridge with each single pull of a trigger.

[L 1988, c 275, pt of §2 and am c 271, §2; am L 1989, c 263, §§2, 3; am L 1990, c 195, §1; am L 1992, c 286, §1; am L 1994, c 204, §2; am L 2001, c 252, §2 L 2016 Act 109 § 2; L 2016 Act 055 § 1; HB2744 § 4]

§134-2 - (2017) Permits to acquire

1. No person shall acquire the ownership of a firearm, whether usable or unusable, serviceable or unserviceable, modern or antique, registered under prior law or by a prior owner or unregistered, either by purchase, gift, inheritance, bequest, or in any other manner, whether procured in the State or imported by mail, express, freight, or otherwise, until the person has first procured from the chief of police of the county of the person's place of business or, if there is no place of business, the person's residence or, if there is neither place of business nor residence, the person's place of sojourn, a permit to acquire the ownership of a firearm as prescribed in this section.When title to any firearm is acquired by inheritance or bequest, the foregoing permit shall be obtained before taking possession of a firearm; provided that upon presentation of a copy of the death certificate of the owner making the bequest, any heir or legatee may transfer the inherited or bequested firearm directly to a dealer licensed under section 134-31 or licensed by the United States Department of Justice without complying with the requirements of this section.
2. The permit application form shall include the applicant's name, address, sex, height, weight, date of birth, place of birth, country of citizenship, social security number, alien or admission number, and information regarding the applicant's mental health history and shall require the fingerprinting and photographing of the applicant by the police department of the county of registration; provided that where fingerprints and photograph are already on file with the department, these may be waived.
3. An applicant for a permit shall sign a waiver at the time of application, allowing the chief of police of the county issuing the permit access to any records that have a bearing on the mental health of the applicant.The permit application form and the waiver form shall be prescribed by the attorney general and shall be uniform throughout the State.
4. The chief of police of the respective counties may issue permits to acquire firearms to citizens of the United States of the age of twenty-one years or more, or duly accredited official representatives of foreign nations, or duly commissioned law enforcement officers of the State who are aliens; provided that any law enforcement officer who is the owner of a firearm and who is an alien shall transfer ownership of the firearm within forty-eight hours after termination of employment from a law enforcement agency.The chief of police of each county may issue permits to aliens of the age of eighteen years or more for use of rifles and shotguns for a period not exceeding sixty days, upon a showing that the alien has first procured a hunting license under chapter 183D, part II.The chief of police of each county may issue permits to aliens of the age of twenty-one years or more for use of firearms for a period not exceeding six months, upon a showing that the alien is in training for a specific organized sport-shooting contest to be held within the permit period.The attorney general shall adopt rules, pursuant to chapter 91, as to what constitutes sufficient evidence that an alien is in training for a sport-shooting contest.Notwithstanding any provision of the law to the contrary and upon joint application, the chief of police may issue permits to acquire firearms jointly to spouses who otherwise qualify to obtain permits under this section.
5. The permit application form shall be signed by the applicant and by the issuing authority. One copy of the permit shall be retained by the issuing authority as a permanent official record. Except for sales to dealers licensed under section 134-31, or dealers licensed by the United States Department of Justice, or law enforcement officers, or where a license is granted under section 134-9, or where any firearm is registered pursuant to section 134-3(a), no permit shall be issued to an applicant earlier than fourteen calendar days after the date of the application; provided that a permit shall be issued or the application denied before the twentieth day from the date of application.Permits issued to acquire any pistol or revolver shall be void unless used within ten days after the date of issue.Permits to acquire a pistol or revolver shall require a separate application and permit for each transaction.Permits issued to acquire any rifle or shotgun shall entitle the permittee to make subsequent purchases of rifles or shotguns for a period of one year from the date of issue without a separate application and permit for each acquisition, subject to the disqualifications under section 134-7 and subject to revocation under section 134-13; provided that if a permittee is arrested for committing a felony or any crime of violence or for the illegal sale of any drug, the permit shall be impounded and shall be surrendered to the issuing authority.The issuing authority shall perform an inquiry on an applicant by using the International Justice and Public Safety Network, including the United States Immigration and Customs Enforcement query, the National Crime Information Center, and the National Instant Criminal Background Check System, pursuant to section 846-2.7 before any determination to issue a permit or to deny an application is made.
6. In all cases where a pistol or revolver is acquired from another person within the State, the permit shall be signed in ink by the person to whom title to the pistol or revolver is transferred and shall be delivered to the person who is transferring title to the firearm, who shall verify that the person to whom the firearm is to be transferred is the person named in the permit and enter on the permit in the space provided the following information:name of the person to whom the title to the firearm was transferred; names of the manufacturer and importer; model; type of action; caliber or gauge; and serial number as applicable.The person who is transferring title to the firearm shall sign the permit in ink and cause the permit to be delivered or sent by registered mail to the issuing authority within forty-eight hours after transferring the firearm.
   1. In all cases where receipt of a firearm is had by mail, express, freight, or otherwise from sources without the State, the person to whom the permit has been issued shall make the prescribed entries on the permit, sign the permit in ink, and cause the permit to be delivered or sent by registered mail to the issuing authority within forty-eight hours after taking possession of the firearm.
   2. In all cases where a rifle or shotgun is acquired from another person within the State, the person who is transferring title to the rifle or shotgun shall submit, within forty-eight hours after transferring the firearm, to the authority which issued the permit to acquire, the following information, in writing:name of the person who transferred the firearm, name of the person to whom the title to the firearm was transferred; names of the manufacturer and importer; model; type of action; caliber or gauge; and serial number as applicable.
7. Effective July 1, 1995, no person shall be issued a permit under this section for the acquisition of a pistol or revolver unless the person, at any time prior to the issuance of the permit, has completed:
   1. An approved hunter education course as authorized under section 183D-28;
   2. A firearms safety or training course or class available to the general public offered by a law enforcement agency of the State or of any county;
   3. A firearms safety or training course offered to law enforcement officers, security guards, investigators, deputy sheriffs, or any division or subdivision of law enforcement or security enforcement by a state or county law enforcement agency; or
   4. A firearms training or safety course or class conducted by a state certified or National Rifle Association certified firearms instructor or a certified military firearms instructor that provides, at a minimum, a total of at least two hours of firing training at a firing range and a total of at least four hours of classroom instruction, which may include a video, that focuses on:
      1. The safe use, handling, and storage of firearms and firearm safety in the home; and
      2. Education on the firearm laws of the State.
   5. An affidavit signed by the certified firearms instructor who conducted or taught the course, providing the name, address, and phone number of the instructor and attesting to the successful completion of the course by the applicant shall constitute evidence of certified successful completion under this paragraph.
8. No person shall sell, give, lend, or deliver into the possession of another any firearm except in accordance with this chapter.
9. No fee shall be charged for permits, or applications for permits, under this section, except for a single fee chargeable by and payable to the issuing county, for individuals applying for their first permit, in an amount equal to the fee actually charged by the Hawaii criminal justice data center pursuant to section 846-2.7. In the case of a joint application, the fee provided for in this section may be charged to each person to whom no previous permit has been issued.
10. In all cases where a permit application under this section is denied because an applicant is prohibited from owning, possessing, receiving, or controlling firearms under federal or state law, the chief of police of the applicable county shall, within ten business days from the date of denial, send written notice of the denial including the identity of the applicant and the reasons for the denial to the:
    1. Prosecuting attorney in the county where the permit was denied;
    2. Attorney general;
    3. United States Attorney for the District of Hawaii; and
    4. Director of public safety.

    If the permit to acquire was denied because the applicant is subject to an order described in section 134-7(f), the chief of police shall, within three business days from the date of denial, send written notice of the denial to the court that issued the order.

    When the director of public safety receives notice that an applicant has been denied a permit because of a prior criminal conviction, the director of public safety shall determine whether the applicant is currently serving a term of probation or parole, and if the applicant is serving such a term, send written notice of the denial to the applicant's probation or parole officer.

[L 1988, c 275, pt of §2; am L 1992, c 287, §2; am L 1994, c 204, §3; am L 1995, c 11, §1; am L 1996, c 200, §§2, 3; am L 1997, c 53, §2 and c 278, §1; am L 2006, c 27, §1; am L 2007, c 9, §6; am L 2017, c 63, §1;]

§134-2.5 - Permits for motion picture films or television program production

1. Upon a finding that public safety is not endangered, the chief of police of the appropriate county may issue permits, initially valid for a period of one year and renewable annually thereafter, for the possession, transportation, or use, with blank cartridges, of firearms or explosives solely as props for motion picture films or television program production upon a showing that good cause exists for the issuance of a permit to the applicant and upon sufficient proof of a federal firearms license and a state film permit required under section 201-3.No permit shall be issued to a person who is under twenty years of age or who is disqualified under section 134-7.
2. Applications for permits shall be in writing, signed by the individual applicant or by a member or officer qualified to sign if the applicant is a firm or corporation, and shall state the name, business in which engaged, business address, and a full description of the use to which the firearms or explosives are to be put, including the names of the persons who will actually use the props.The application shall also require the fingerprinting and photographing of the applicant.Applications and permits shall be uniform throughout the State on forms prescribed by the attorney general.
3. The attorney general shall establish rules pursuant to chapter 91 concerning security requirements for storing and transporting firearms or explosives for which permits are issued.Permits shall be issued only upon a showing of the applicant's ability to meet these security requirements.
4. A fee of $50 should be charged for each permit issued under this section.
5. Every applicant to whom a permit is issued shall keep it on the applicant's person or at the place where the firearms or explosives are stored.The permit, firearms and explosives, shall be available for inspection by any law enforcement officer or any other person designated by the respective chief of police.
6. Every firearm or explosive for which a permit is issued shall bear a unique identifying number.If the firearm or explosive does not bear a unique identifying number, the chief of police of the appropriate county shall assign a number that shall be stamped or placed thereon.
7. The chief of police of the respective county shall revoke permits issued under this section any time it appears that the holder of the permit has used the firearms or explosives for purposes other than those allowed by the permit or that the holder of the permit has not exercised great care in retaining custody of any firearms or explosive possessed under the permit.

[L 1988, c 272, §3]

§134-3 - (2020) Registration, mandatory, exceptions

f

1. Every resident or other person arriving in the State who brings or by any other manner causes to be brought into the State a firearm of any description, whether usable or unusable, serviceable or unserviceable, modern or antique, shall register the firearm within five days after arrival of the person or of the firearm, whichever arrives later, with the chief of police of the county of the person's place of business or, if there is no place of business, the person's residence or, if there is neither a place of business nor residence, the person's place of sojourn. A nonresident alien may bring firearms not otherwise prohibited by law into the State for a continuous period not to exceed ninety days; provided that the person meets the registration requirement of this section and the person possesses:
   1. A valid Hawaii hunting license procured under chapter 183D, part II, or a commercial or private shooting preserve permit issued pursuant to section 183D-34;
   2. A written document indicating the person has been invited to the State to shoot on private land; or
   3. Written notification from a firing range or target shooting business indicating that the person will actually engage in target shooting.
   4. The nonresident alien shall be limited to a nontransferable registration of not more than ten firearms for the purpose of the above activities.
   Every person registering a firearm under this subsection shall be fingerprinted and photographed by the police department of the county of registration; provided that this requirement shall be waived where fingerprints and photographs are already on file with the police department. The police department shall perform an inquiry on the person by using the International Justice and Public Safety Network, including the United States Immigration and Customs Enforcement query, the National Crime Information Center, and the National Instant Criminal Background Check System, pursuant to section 846-2.7 before any determination to register a firearm is made. Any person attempting to register a firearm, a firearm receiver, or the parts used to assemble a firearm, and who is found to be disqualified from ownership, possession, or control of firearms or ammunition under section 134-7, shall surrender or dispose of all firearms and ammunition pursuant to section 134-7.3.
2. 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. The registration of all firearms shall be on forms prescribed by the attorney general, which shall be uniform throughout the State, and shall include the following information: name of the manufacturer and importer; model; type of action; caliber or gauge; serial number; and source from which receipt was obtained, including the name and address of the prior registrant. If the firearm has been assembled from separate parts and an unfinished firearm receiver, the entity that registered the firearm receiver shall be recorded in the space provided for the name of the manufacturer and importer, and the phrase "assembled from parts" shall be recorded in the space provided for model. If the firearm has been assembled from parts created using a three-dimensional printer, the entity that registered the firearm receiver shall be recorded in the space provided for the name of the manufacturer and importer, and the phrase "3-D printer" shall be recorded in the space provided for model. If the firearm has no serial number, the registration number shall be entered in the space provided for the serial number, and the registration number shall be engraved upon the receiver portion of the firearm before registration. On firearms assembled from parts created using a three-dimensional printer, the serial number shall be engraved on stainless steel and permanently embedded to the firearm receiver during fabrication or construction. All registration data that would identify the individual registering the firearm by name or address shall be confidential and shall not be disclosed to anyone, except as may be required:
   1. For processing the registration
   2. For database management by the Hawaii criminal justice data center;
   3. By a law enforcement agency for the lawful performance of its duties;
   4. By order of a court.
3. Dealers licensed under section 134-31 or dealers licensed by the United States Department of Justice shall register firearms pursuant to this section on registration forms prescribed by the attorney general and shall not be required to have the firearms physically inspected by the chief of police at the time of registration. An authorized dealer, as provided in section 134-31, or a dealer licensed by the United States Department of Justice, who brings, assembles, or causes to be brought into the State by any other means, separate parts and an unfinished firearm receiver that when assembled create a firearm, or parts created by a three-dimensional printer that when assembled create a firearm, shall register the unfinished firearm receiver and receive a serial number before the assembly of the firearm or the sale or transfer of unassembled firearm parts or a receiver to a third party in accordance with subsection (b). Any sale or transfer of unfinished firearm receivers by an authorized dealer to a third party shall be conducted as if they were fully assembled firearms with a serial number engraved on the firearm receiver and in accordance with the firearms permitting process in section 134-2. All other firearms and firearm receivers registered under this section shall be physically inspected by the respective county chief of police or the chief's representative at the time of registration.
4. Registration shall not be required for:
   1. Any device that is designed to fire loose black powder or that is a firearm manufactured before 1899;
   2. Any device not designed to fire or made incapable of being readily restored to a firing condition; or
   3. All unserviceable firearms and destructive devices registered with the Bureau of Alcohol, Tobacco, Firearms, and Explosives of the United States Department of Justice pursuant to Title 27, Code of Federal Regulations.
5. Every person who permanently moves firearms out of the State shall contact and notify the county police department in the county where the firearms are registered about the removal of the firearms within five days of the removal from the State. Any person who fails to timely notify the appropriate police department shall be subject to a civil penalty of $100 per firearm.
6. No fee shall be charged for the registration of a firearm under this section, except for a fee chargeable by and payable to the registering county for persons registering a firearm under subsection (a), in an amount equal to the fee charged by the Hawaii criminal justice data center pursuant to section 846-2.7. In the case of a joint registration, the fee provided for in this section may be charged to each person.
7. No person less than twenty-one years of age shall bring or cause to be brought into the State any firearm.

[L 1988, c 275, pt of §2; am L 1994, c 204, §4; am L 1999, c 217, §2; am L 2007, c 9, §7; am L 2013, c 254, §2; am L 2016 Act 108 § 2; am L 2019, c. 257, §2 Amended 2020 HB2744 § 5, Amended 2020 SB3054 § 2]

§134-3.5 - Disclosure for firearm permit and registration purposes

A health care provider or public health authority shall disclose health information, including protected health care information, relating to an individual's mental health history, to the appropriate county chief of police in response to a request for the information from the chief of police; provided that:

1. The information shall be used only for the purpose of evaluating the individual's fitness to acquire or own a firearm; and
2. The individual has signed a waiver permitting release of the health information for that purpose.

[L 2001, c 252, §1]

§134-4 - Transfer, possession of firearms

1. No transfer of any rifle having a barrel length of sixteen inches or over or any shotgun having a barrel length of eighteen inches or over, whether usable or unusable, serviceable or unserviceable, modern or antique, registered under prior law or by a prior owner, or unregistered shall be made to any person under the age of eighteen years, except as provided by section 134-5.
2. No person shall possess any firearm that is owned by another, regardless of whether the owner has consented to possession of the firearm, without a permit from the chief of police of the appropriate county, except as provided in subsection (c) and section 134-5.
3. Any lawfully acquired rifle or shotgun may be lent to an adult for use within the State for a period not to exceed fifteen days without a permit; provided that where the rifle or shotgun is to be used outside of the State, the loan may be for a period not to exceed seventy-five days.
4. No person shall knowingly lend a firearm to any person who is prohibited from ownership or possession of a firearm under section 134-7.
5. After July 1, 1992, no person shall bring or cause to be brought into the State an assault pistol.No assault pistol may be sold or transferred on or after July 1, 1992, to anyone within the State other than to a dealer licensed under section 134-32 or the chief of police of any county except that any person who obtains title by bequest or intestate succession to an assault pistol registered within the State shall, within ninety days, render the weapon permanently inoperable, sell or transfer the weapon to a licensed dealer or the chief of police of any county, or remove the weapon from the State.

[L 1988, c 275, pt of §2; am L 1992, c 286, §2]

Case Notes

Where defendant's conviction and sentence under §708-840 was an included offense under §134-6(a) and defendant's convictions under both §708-840 and subsection (a) violated §701-109(1)(a), defendant's conviction and sentence under §708-840 reversed. 91 H. 33, 979 P.2d 1059.

§134-5 - Possession by licensed hunters and minors; target shooting; game hunting

1. Any person of the age of sixteen years, or over or any person under the age of sixteen years while accompanied by an adult, may carry and use any lawfully acquired rifle or shotgun and suitable ammunition while actually engaged in hunting or target shooting or while going to and from the place of hunting or target shooting; provided that the person has procured a hunting license under chapter 183D, part II.A hunting license shall not be required for persons engaged in target shooting.
2. A permit shall not be required when any lawfully acquired firearm is lent to a person, including a minor, upon a target range or similar facility for purposes of target shooting; provided that the period of the loan does not exceed the time in which the person actually engages in target shooting upon the premises.
3. A person may carry unconcealed and use a lawfully acquired pistol or revolver while actually engaged in hunting game mammals, if that pistol or revolver and its suitable ammunition are acceptable for hunting by rules adopted pursuant to section 183D-3 and if that person is licensed pursuant to part II of chapter 183D.The pistol or revolver may be transported in an enclosed container, as defined in section 134-25 in the course of going to and from the place of the hunt, notwithstanding section 134-26.

[L 1988, c 275, pt of §2; am L 1997, c 254, §§1, 4; am L 2000, c 96, §1; am L 2002, c 79, §1; am L 2006, c 66, §2]

Case Notes

As question of whether defendant possessed a hunting license under this section posed a fact peculiarly within defendant's knowledge, and lack of a hunting license is not a material element of §134-6, prosecution was not required to prove that defendant did not have a hunting license pursuant to this section.93 H. 87, 997 P.2d 13.

§134-6.5 - Relief from federal firearms mental health prohibitor

1. Any person who is prohibited from shipping, transporting, possessing, or receiving any firearm or ammunition, pursuant to title 18 United States Code section 922(d)(4) or (g)(4), having been adjudicated as a mental defective or having been committed to a mental institution under the laws of this State, may petition the circuit court in the circuit where the adjudication or commitment was made, in a civil proceeding, for relief from the federal firearm prohibitor based on the adjudication or commitment. The attorney general shall represent the State; provided that the attorney general, with the prosecuting agency's consent, may designate the prosecuting attorney for the county in which the petitioner seeks relief to represent the State.
2. In the civil proceeding, the court shall consider:
   1. The circumstances regarding the adjudication or commitment from which relief is sought, including the court files of the adjudication or commitment;
   2. The petitioner's mental health and criminal history records, if any;
   3. The petitioner's reputation in the community, developed at a minimum through character witness statements, testimony, or other character evidence; and
   4. Changes in the petitioner's condition or circumstances since the disqualifying events relevant to the relief sought, including medical documentation that the petitioner is no longer adversely affected by the condition that resulted in the petitioner's adjudication or commitment and is not likely to act in a manner dangerous to public safety.
3. The court shall grant the petition for relief if the petitioner proves, by clear and convincing evidence, that the petitioner will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. The court shall make written findings of facts and conclusions of law on the issues before it and issue a final order.
4. When a court issues an order granting or denying a petition for relief, the court shall forward this information to the Hawaii criminal justice data center, which in turn shall forward this information to the Federal Bureau of Investigation, or its successor agency, for inclusion in the National Instant Criminal Background Check System database. The information shall also be maintained by the Hawaii criminal justice data center for disclosure to and use by law enforcement officials for the purpose of firearms permitting or registration pursuant to chapter 134.
5. A person may file a petition for relief under this section no less than two years after the adjudication or commitment from which the relief is sought, and no more frequently than once every three years thereafter.
6. For purposes of this section, the terms "adjudicated as a mental defective", "committed to a mental institution", and "mental institution" shall be construed in accordance with title 18 United States Code section 922, title 27 Code of Federal Regulations section 478.11, and judicial interpretations of those provisions.
7. Any relief granted pursuant to this section shall not constitute relief from any other federal prohibitors or from any state prohibition pursuant to chapter 134. The State, its officers, and its employees shall not be liable for any damages, attorneys' fees, or costs related to this relief process.
8. The petitioner may appeal a denial of relief, and the standard of review on appeal shall be de novo.

[L 2014, c 87, §2]

§134-7 - (2019) Ownership or possession prohibited, when; penalty

1. No person who is a fugitive from justice or is a person prohibited from possessing firearms or ammunition under federal law shall own, possess, or control any firearm or ammunition therefor.
2. No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.
3. No person who:
   1. Is or has been under treatment or counseling for addiction to, abuse of, or dependence upon any dangerous, harmful, or detrimental drug, intoxicating compound as defined in section 712-1240, or intoxicating liquor;
   2. Has been acquitted of a crime on the grounds of mental disease, disorder, or defect pursuant to section 704-411; or
   3. Is or has been diagnosed as having a significant behavioral, emotional, or mental disorders as defined by the most current diagnostic manual of the American Psychiatric Association or for treatment for organic brain syndromes;

   shall own, possess, or control any firearm or ammunition therefor, unless the person has been medically documented to be no longer adversely affected by the addiction, abuse, dependence, mental disease, disorder, or defect.

4. No person who is less than twenty-five years old and has been adjudicated by the family court to have committed a felony, two or more crimes of violence, or an illegal sale of any drug shall own, possess or control any firearm or ammunition therefor.
5. No minor who:
   1. Is or has been under treatment for addiction to any dangerous, harmful, or detrimental drug, intoxicating compound as defined in section 712-1240, or intoxicating liquor;
   2. Is a fugitive from justice; or
   3. Has been determined not to have been responsible for a criminal act or has been committed to any institution on account of a mental disease, disorder, or defect;

   shall own, possess, or control any firearm or ammunition therefor, unless the minor has been medically documented to be no longer adversely affected by the addiction, mental disease, disorder, or defect.

   For the purposes of enforcing this section, and notwithstanding section 571-84 or any other law to the contrary, any agency within the State shall make its records relating to family court adjudications available to law enforcement officials.

6. No person who has been restrained pursuant to an order of any court, including a gun violence protective order issued pursuant to part, from contacting, threatening, or physically abusing any person, shall possess, control, or transfer ownership of any firearm or ammunition therefor, so long as the protective order, restraining order, or any extension is in effect, unless the order, for good cause shown, specifically permits the possession of a firearm and ammunition. The protective order or restraining order shall specifically include a statement that possession, control, or transfer of ownership of a firearm or ammunition by the person named in the order is prohibited. The person shall relinquish possession and control of any firearm and ammunition owned by that person to the police department of the appropriate county for safekeeping for the duration of the order or extension thereof. At the time of service of a protective order or restraining order involving firearms and ammunition issued by any court, a police officer may take custody of any and all firearms and ammunition in plain sight, those discovered pursuant to a consensual search, and those firearms surrendered by the person restrained. If the person restrained is the registered owner of a firearm and knows the location of the firearm, but refuses to surrender the firearm or refuses to disclose the location of the firearm, the person restrained shall be guilty of a misdemeanor. In any case, when a police officer is unable to locate the firearms and ammunition either registered under this chapter or known to the person granted protection by the court, the police officer shall apply to the court for a search warrant pursuant to chapter 803 for the limited purpose of seizing the firearm and ammunition.

   For the purposes of this subsection, good cause shall not be based solely upon the consideration that the person subject to restraint pursuant to an order of any court, is required to possess or carry firearms or ammunition during the course of the person's employment. Good cause consideration may include but not be limited to the protection and safety of the person to whom a restraining order is granted.

7. Any person disqualified from ownership, possession, control, or the right to transfer ownership of firearms and ammunition under this section shall surrender or dispose of all firearms and ammunition in compliance with section 134-7.3.
8. Any person violating subsection (a) or (b) shall be guilty of a class C felony; provided that any felon violating subsection (b) shall be guilty of a class B felony.Any person violating subsection (c), (d), (e), (f), or (g) shall be guilty of a misdemeanor.

[L 1988, c 275, pt of §2; am L 1990, c 191, §1; am L 1993, c 215, §1; am L 1994, c 204, §§6, 7; am L 1995, c 189, §§2, 26; am L 1998, c 133, §5; am L 1999, c 297, §1; am L 2000, c 127, §2; am L 2004, c 4, §1; am L 2006, c 27, §2; am L 2019, c 150, §3]

Law Journals and Reviews

Empowering Battered Women:Changes in Domestic Violence Laws in Hawaii.17 UH L. Rev. 575.

Case Notes

Felon convicted of possessing firearm properly sentenced under this section instead of §706-610.68 H. 622, 725 P.2d 799.

Defendant exercised control when defendant sold gun.70 H. 219, 768 P.2d 230.

Previously convicted felon must have intentionally, knowingly, or recklessly possessed or controlled the firearm.70 H. 509, 778 P.2d 704.

Defendant may not assert the invalidity of the prior conviction as a defense under this section.71 H. 101, 784 P.2d 872.

Convicted person may not assert the invalidity of the prior offense as a defense to this section.71 H. 111, 784 P.2d 873.

Subsection (b) applies to felons who are convicted through a nolo contendere plea.83 H. 507, 928 P.2d 1.

Where defendant's convictions were premised upon the use of "any firearm" and language of indictments and trial court's instructions "to wit, a semiautomatic pistol" did not alter the statutory elements of §§708-840, 134-6, or this section, trial court's error of not providing definition of "semiautomatic firearm" did not warrant reversal of convictions of first degree robbery, carrying or use of firearm in commission of separate felony, or felon in possession of firearm.91 H. 33, 979 P.2d 1059.

For the purposes of subsection (b), "possession" must be analyzed using a two-pronged analysis: (1) the voluntary act of "possession" of an object "itself" is, by way of §702-202, satisfied where an individual acts knowingly with respect to his or her conduct; and (2) the requisite state of mind with respect to the attendant circumstances--i.e., the particular qualities of the object that make it illegal to possess it--is, by way of §702-204, satisfied by a reckless state of mind.93 H. 87, 997 P.2d 13.

Where one bag containing a gun was found on truck seat next to defendant and another bag with two guns was found on truck floor where defendant had been sitting, jury could have inferred from totality of circumstances that defendant had the state of mind requisite to commit possession of a firearm and/or ammunition by a person convicted of certain crimes.93 H. 87, 997 P.2d 13.

A person commits the offense of attempted prohibited possession of a firearm, pursuant to §705-500(1)(b) and (3), and subsection (b), if he or she intentionally engages in conduct that, under the circumstances as he or she believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his or her commission of the offense of prohibited possession of a firearm.93 H. 199, 998 P.2d 479.

As the offense of attempted prohibited possession of a firearm under this section does not include a result-of-conduct element and §705-500(2) does not therefore apply, trial court instruction erroneously defined the state of mind necessary to prove the offense of attempted prohibited possession of a firearm as something less than intentional, as required by §705-500(1)(b).93 H. 199, 998 P.2d 479.

Pursuant to §§701-109(4)(b), 705-500(1)(b) and (3), and subsection (b), attempted prohibited possession of a firearm is an included offense of prohibited possession of a firearm.93 H. 199, 998 P.2d 479.

Where defendant failed to carry defendant's burden of establishing that defendant's conduct--of possessing ammunition in violation of subsection (b), a class B felony involving conduct that had the potential for serious public safety consequences--was de minimis within the meaning of §702-236, appellate court's dismissal of trial court's granting of motion to dismiss charges as a de minimis infraction under §702-236 affirmed.123 H. 329, 235 P.3d 325.

Requisite state of mind for a violation of subsection (b) is that of acting intentionally, knowingly, or recklessly; failure to instruct jury on state of mind element, as required by §701-114(1)(b), was prejudicial and not harmless error.78 H. 422 (App.), 895 P.2d 173.

Where State failed to establish defendant's prior felony conviction and no lesser included offense of a felon in possession of a firearm or ammunition in chapter 134, defendant's convictions of being a felon in possession of a firearm and firearm ammunition under subsection (b) reversed. 82 H. 517 (App.), 923 P.2d 934.

Under subsection (b), multiple punishments are not authorized for violating the prohibition against possession of "any firearm or ammunition therefor"; thus, where defendant was already convicted of possessing a firearm, defendant could not be convicted for possession of ammunition loaded into that firearm.89 H. 59 (App.), 968 P.2d 1070.

Although evidence that defendant had previously been convicted of a felony was relevant for purposes of this section, evidence that defendant may have received ineffective assistance of counsel during that prior felony trial would not have any bearing on the validity of that felony conviction; thus, trial court did not err in precluding evidence that defendant may have received ineffective assistance during prior trial.90 H. 489 (App.), 979 P.2d 85.

Unless expressly permitted by the court, subsection (f) unqualifiedly prohibits a person subject to a chapter 586 order from possession and control of a firearm during the pendency of that order; this prohibition is effective irrespective of whether the respondent owned the firearms involved. 91 H. 438 (App.), 984 P.2d 1264.

Trial court erred in sentencing defendant to ten years of incarceration with a mandatory minimum term of ten years under §706-660.1(3)(c) as convicting defendant of being a felon in possession of a firearm pursuant to subsection (b) and sentencing defendant to a mandatory minimum term of imprisonment pursuant to §706-660.1(3)(c) essentially punished defendant twice for a single possession of a firearm; a rational interpretation of §706-660.1 is that the legislature did not intend its application for felonies where the entirety of the felonious conduct is the use or possession of a firearm.107 H. 273 (App.), 112 P.3d 759.

In a prosecution of a felon under subsection (b) for possession of firearm ammunition, the State must prove, whether by direct or circumstantial evidence, that the ammunition was "actually loaded"; given detective's authoritative identification of the bullets as ammunition, and in the absence of evidence that the ammunition was not loaded or otherwise incapable of being fired, was substantial evidence that the ammunition was actually loaded.108 H. 124 (App.), 117 P.3d 856.

Mentioned:9 H. App. 333, 839 P.2d 1186.

§134-7.2 - Prohibition against seizure of firearms or ammunition during emergency or disaster; suspension of permit or license

1. Notwithstanding any provision of chapter 128 or any other law to the contrary, no person or government entity shall seize or confiscate, under any civil defense, emergency, or disaster relief powers or functions conferred, or during any civil defense emergency period, as defined in section 128-2, or during any time of national emergency or crisis, as defined in section 134-34, any firearm or ammunition from any individual who is lawfully permitted to carry or possess the firearm or ammunition under part I of this chapter and who carries, possesses, or uses the firearm or ammunition in a lawful manner and in accordance with the criminal laws of this State.
2. Notwithstanding any provision of chapter 128 or any other law to the contrary, no person or government entity shall suspend, revoke, or limit, under any civil defense, emergency, or disaster relief powers or functions conferred, any lawfully acquired and maintained permit or license obtained under and in accordance with part I of this chapter.
3. For purposes of this section, "government entity" means any unit of government in this State, including the State and any county or combination of counties, department, agency, institution, board, commission, district, council, bureau, office, governing authority, or other instrumentality of state or county government, or corporation or other establishment owned, operated, or managed by or on behalf of this State or any county. [L 2010, c 96, §1]

§134-7.3 - (2019) Seizure of firearms upon disqualification

1. If any applicant is denied a permit, the chiefs of police of the respective counties shall send, by certified mail, a notice setting forth the reasons for the denial and may require that the applicant voluntarily surrender all firearms and ammunition to the chief of police where the applicant resides or dispose of all firearms and ammunition.If an applicant fails to voluntarily surrender or dispose of all firearms and ammunition within thirty days from the date notice was mailed, the chief of police may seize all firearms and ammunition.
2. Any person disqualified from ownership, possession, or control of firearms and ammunition under section 134-7 or part, within forty-eight hours of disqualification, shall voluntarily surrender all firearms and ammunition to the chief of police where the person resides or dispose of all firearms and ammunition.If any person fails to voluntarily surrender or dispose of all firearms and ammunition within forty-eight hours from the date of disqualification, the chief of police may seize all firearms and ammunition.
3. For any person disqualified from ownership, possession, or control of firearms and ammunition under section 134-7(c), or because the person has been admitted to a psychiatric facility, whether for emergency or involuntary hospitalization, pursuant to part IV of chapter 334, once the chief of police is notified that the person is disqualified, the chief of police shall promptly issue a notice to the disqualified person to immediately surrender all firearms and ammunition. The notice shall be in writing, shall set forth the reasons for the disqualification, and shall state the requirement that the person immediately surrender all firearms and ammunition to the chief of police. If any person fails to voluntarily surrender all firearms and ammunition upon receiving notice, the chief of police may seize all firearms and ammunition. The firearms and ammunition shall be held in police custody until the person has been medically documented to be no longer adversely affected as provided in section 134-7 or until transferred or sold by the owner. Nothing in this subsection shall be construed to limit the duties imposed by subsection (b).
4. For the purposes of this section, "dispose" means selling the firearms to a gun dealer licensed under section 134-31, transferring ownership of the firearms to any person who meets the requirements of section 134-2, or surrendering all firearms to the chief of police where the person resides for storage or disposal; provided that, for a person subject to section 134-7(f) or part, "dispose" shall not include transferring ownership of the firearms to any person who meets the requirements of section 134-2.
5. The chief of police of the respective counties shall adopt procedures to implement and administer the provisions of this section by December 31, 2001.

[L 2000, c 127, §1; am L 2004, c 4, §2; 2016 Act 110 § 1; am L 2018, c. 158, §1; am L 2019, c 150, §4]

§134-7.5 - Seizure of firearms in domestic abuse situations; requirements; return of

1. Any police officer who has reasonable grounds to believe that a person has recently assaulted or threatened to assault a family or household member may seize all firearms and ammunition that the police officer has reasonable grounds to believe were used or threatened to be used in the commission of the offense.The police officer may seize any firearms or ammunition that are in plain view of the officer or were discovered pursuant to a consensual search, as necessary for the protection of the officer or any family or household member.Firearms seized under this section shall be taken to the appropriate county police department for safekeeping or as evidence.
2. Upon taking possession of a firearm or ammunition, the officer shall give the owner or person who was in lawful possession of the firearm or ammunition a receipt identifying the firearm or ammunition and indicating where the firearm or ammunition can be recovered.
3. The officer taking possession of the firearm or ammunition shall notify the person against whom the alleged assault or threatened assault was inflicted of remedies and services available to victims of domestic violence, including the right to apply for a domestic abuse restraining order.
4. The firearm or ammunition shall be made available to the owner or person who was in lawful possession of the firearm or ammunition within seven working days after the seizure when:
   1. The firearm or ammunition are not retained for use as evidence;
   2. The firearm or ammunition are not retained because they are possessed illegally;
   3. The owner or person who has lawful possession of the firearm or ammunition is not restrained by an order of any court from possessing a firearm or ammunition; and
   4. No criminal charges are pending against the owner or person who has lawful possession of the firearm or ammunition when a restraining order has already issued.

[L 1996, c 201, §1]

§134-8 - (2018) Ownership, etc., of automatic firearms, silencers, etc., prohibited; penalties

1. The manufacture, possession, sale, barter, trade, gift, transfer, or acquisition of any of the following is prohibited:assault pistols, except as provided by section 134-4(e); automatic firearms; rifles with barrel lengths less than sixteen inches; shotguns with barrel lengths less than eighteen inches; cannons; mufflers, silencers, or devices for deadening or muffling the sound of discharged firearms; hand grenades, dynamite, blasting caps, bombs, or bombshells, or other explosives; or any type of ammunition or any projectile component thereof coated with teflon or any other similar coating designed primarily to enhance its capability to penetrate metal or pierce protective armor; and any type of ammunition or any projectile component thereof designed or intended to explode or segment upon impact with its target.
2. Any person who installs, removes, or alters a firearm part with the intent to convert the firearm to an automatic firearm shall be deemed to have manufactured an automatic firearm in violation of subsection (a).
3. The manufacture, possession, sale, barter, trade, gift, transfer, or acquisition of detachable ammunition magazines with a capacity in excess of ten rounds which are designed for or capable of use with a pistol is prohibited.This subsection shall not apply to magazines originally designed to accept more than ten rounds of ammunition which have been modified to accept no more than ten rounds and which are not capable of being readily restored to a capacity of more than ten rounds.
4. Any person violating subsection (a) or (b) shall be guilty of a class C felony and shall be imprisoned for a term of five years without probation.Any person violating subsection (c) shall be guilty of a misdemeanor except when a detachable magazine prohibited under this section is possessed while inserted into a pistol in which case the person shall be guilty of a class C felony.

[L 1988, c 275, pt of §2; am L 1989, c 261, §6 and c 263, §4; am L 1992, c 286, §§3, 4]

Case Notes

Trial court is mandated to sentence defendant to a term of imprisonment without any suspension of the sentence.69 H. 458, 746 P.2d 976.

Section not unconstitutionally vague or overbroad on its face or as applied to defendant for "possession of a bomb".87 H. 71, 951 P.2d 934.

§134-8.5 - (2018) Bump fire stock, multiburst trigger activator, or trigger crank; prohibition

1. Any person in this State who manufactures or causes to be manufactured, imports into the State, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any bump fire stock, multiburst trigger activator, or trigger crank shall be guilty of a class C felony.
2. As used in this section:

   "Bump fire stock" means a butt stock designed to be attached to a semiautomatic firearm and designed, made, or altered to increase the rate of fire achievable with such firearm by using energy from the recoil of the firearm to generate a reciprocating action that facilitates repeated activation of the trigger.

   "Multiburst trigger activator" means:

   1. A device that simulates automatic gunfire by allowing standard function of a semiautomatic firearm with a static positioned trigger finger or a device that fires multiple shots with the pull and release of the trigger; or
   2. A manual or power-driven trigger activating device constructed and designed so that when attached to a semiautomatic firearm it simulates automatic gunfire.

   "Trigger crank" means any device to be attached to a semiautomatic firearm that repeatedly activates the trigger of the firearm through the use of a lever or other part that is turned in a circular motion, but does not include any firearm initially designed and manufactured to fire through the use of a crank or lever.

[L 2018, c 157, §1]

§134-9 - Licenses to carry

1. In an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property, the chief of police of the appropriate county may grant a license to an applicant who is a citizen of the United States of the age of twenty-one years or more or to a duly accredited official representative of a foreign nation of the age of twenty-one years or more to carry a pistol or revolver and ammunition therefor concealed on the person within the county where the license is granted.Where the urgency or the need has been sufficiently indicated, the respective chief of police may grant to an applicant of good moral character who is a citizen of the United States of the age of twenty-one years or more, is engaged in the protection of life and property, and is not prohibited under section 134-7 from the ownership or possession of a firearm, a license to carry a pistol or revolver and ammunition therefor unconcealed on the person within the county where the license is granted.The chief of police of the appropriate county, or the chief's designated representative, shall perform an inquiry on an 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 determination to grant a license is made.Unless renewed, the license shall expire one year from the date of issue.
2. The chief of police of each county shall adopt procedures to require that any person granted a license to carry a concealed weapon on the person shall:
   1. Be qualified to use the firearm in a safe manner;
   2. Appear to be a suitable person to be so licensed;
   3. Not be prohibited under section 134-7 from the ownership or possession of a firearm; and
   4. Not have been adjudged insane or not appear to be mentally deranged.
3. No person shall carry concealed or unconcealed on the person a pistol or revolver without being licensed to do so under this section or in compliance with sections 134-5(c) or 134-25.
4. A fee of $10 shall be charged for each license and shall be deposited in the treasury of the county in which the license is granted.

[L 1988, c 275, pt of §2; am L 1994, c 204, §8; am L 1997, c 254, §§2, 4; am L 2000, c 96, §1; am L 2002, c 79, §1; am L 2006, c 27, §3 and c 66, §3; am L 2007, c 9, §8]

Case Notes

Where plaintiff asserted that §§134-6 and 134-9 violated rights guaranteed by Article I and the Second, Fifth, Ninth, and Fourteenth Amendments of the U.S. Constitution, defendants' motions to dismiss plaintiff's complaint granted; among other things, plaintiff did not have standing to challenge this chapter on the basis of an alleged deprivation of Second Amendment or Ninth Amendment rights, this chapter is not an impermissible bill of attainder with respect to plaintiff, and this chapter imposes no impairment of a contractual right possessed by plaintiff. 548 F. Supp. 2d 1151.

Mentioned: 74 H. 197, 840 P.2d 374.

§134-10 - Alteration of identification marks prohibited

No person shall wilfully alter, remove, or obliterate the name of the make, model, manufacturer's number, or other mark of identity of any firearm or ammunition.Possession of a firearm or ammunition upon which any mark of identity has been altered, removed, or obliterated shall be presumptive evidence that the possessor has altered, removed, or obliterated the mark of identity.

[L 1988, c 275, pt of §2]

§134-10.2 - Manufacturing, purchasing, or obtaining firearm parts to assemble a firearm having no serial number; penalty. (2020)

1. A person who is not licensed to manufacture a firearm under section 134-31, or who is not a dealer licensed by the United States Department of Justice, shall not, for the purpose of assembling a firearm, purchase, produce with a three-dimensional printer, or otherwise obtain separately, or as part of a kit:
   1. A firearm receiver that is not imprinted with a serial number registered with a federally licensed manufacturer;
   2. A firearm receiver that has not been provided a serial number that may be registered in accordance with section 134-3(c); or
   3. Any combination of parts from which a firearm having no serial number may be readily assembled; provided that the parts do not have the capacity to function as a firearm unless assembled.
2. Violation of this section is a class C felony.

(Enacted statutes of 2020, HB2744 § 3)

§134-10.5 - Storage of firearm; responsibility with respect to minors

No person shall store or keep any firearm on any premises under the person's control if the person knows or reasonably should know that a minor is likely to gain access to the firearm without the permission of the parent or guardian of the minor, unless the person:

1. Keeps the firearm in a securely locked box or other container or in a location that a reasonable person would believe to be secure; or
2. Carries the firearm on the person or within such close proximity thereto that the person readily can retrieve and use it as if it were carried on the person.

For purposes of this section, "minor" means any person under the age of sixteen years.

[L 1992, c 288, §1]

Cross References

Criminally negligent storage of firearm, see §707-714.5.

§134-11 - Exemptions

1. Sections 134-7 to 134-9 and 134-21 to 134-27, except section 134-7(f), shall not apply:
   1. To state and county law enforcement officers; provided that such persons are not convicted of an offense involving abuse of a family or household member under section 709-906;
   2. To members of the armed forces of the State and of the United States and mail carriers while in the performance of their respective duties if those duties require them to be armed;
   3. To regularly enrolled members of any organization duly authorized to purchase or receive the weapons from the United States or from the State; provided the members are either at, or going to or from, their places of assembly or target practice;
   4. To persons employed by the State, or subdivisions thereof, or the United States while in the performance of their respective duties or while going to and from their respective places of duty if those duties require them to be armed;
   5. To aliens employed by the State, or subdivisions thereof, or the United States while in the performance of their respective duties or while going to and from their respective places of duty if those duties require them to be armed; and
   6. To police officers on official assignment in Hawaii from any state which by compact permits police officers from Hawaii while on official assignment in that state to carry firearms without registration.The governor of the State or the governor's duly authorized representative may enter into compacts with other states to carry out this paragraph.
2. Sections 134-2 and 134-3 shall not apply to such firearms or ammunition that are a part of the official equipment of any federal agency.
3. Sections 134-8, 134-9, and 134-21 to 134-27, shall not apply to the possession, transportation, or use, with blank cartridges, of any firearm or explosive solely as props for motion picture film or television program production when authorized by the chief of police of the appropriate county pursuant to section 134-2.5 and not in violation of federal law.

[L 1988, c 275, pt of §2 and am c 272, §2; am L 1989, c 211, §10; am L 1990, c 281, §11; am L 1996, c 60, §§1, 2; am L 1999, c 202, §1 and c 297, §2; am L 2006, c 66, §4]

§134-12.5 - Forfeiture of firearms, ammunition, deadly or dangerous weapons, and switchblade knives; when

All firearms, ammunition, deadly or dangerous weapons, and switchblade knives possessed, used in violation of this chapter or the Hawaii Penal Code shall be forfeited to the State according to the provisions of chapter 712A and shall be destroyed or, if not destroyed, transferred to the chief of police of the county in which the violation took place for use by and under control of the police department.

[L 1991, c 166, §9]

§134-13 - Revocation of permits

All permits and licenses provided for under this part may be revoked, for good cause, by the issuing authority or by the judge of any court.

[L 1988, c 275, pt of §2]

§134-14 - Report

Within ten days after the last day of each month, each of the authorities authorized in this chapter to issue or revoke permits and licenses shall make a report to the department of the attorney general of all permits and licenses issued or revoked by the authority as of the last day of the preceding month.The report shall be in the manner and form as the attorney general may prescribe.

[L 1988, c 275, pt of §2]

§134-15 - Restriction of materials for manufacture of pistols or revolvers

1. It shall be unlawful for any person, including a licensed manufacturer, licensed importer, or licensed dealer, to possess, sell, or deliver any pistol or revolver the frame or receiver of which is a die casting of zinc alloy which has a melting temperature of less than 800 degrees Fahrenheit.
2. This section shall not apply to any pistol or revolver duly registered prior to July 1, 1975, pursuant to section 134-3 or to any antique pistol or revolver.

[L 1988, c 275, pt of §2]

§134-16 - (2019) Restriction on possession, sale, gift, or delivery of electric guns

1. It shall be unlawful for any person, including a licensed manufacturer, licensed importer, or licensed dealer, to possess, offer for sale, hold for sale, sell, give, lend, or deliver any electric gun.
2. Any electric gun possessed, offered for sale, held for sale, sold, given, lent, or delivered in violation of subsection (a) shall be confiscated and disposed of by the chief of police.
3. This section shall not apply to:
   1. Law enforcement officers of county police departments;
   2. Law enforcement officers of the department of public safety;
   3. Conservation and resources enforcement officers of the department of land and natural resources;
   4. Members of the army or air national guard when assisting civil authorities in disaster relief, civil defense, or law enforcement functions, subject to the requirements of section 121-34.5;
   5. Law enforcement officers appointed by the director of transportation pursuant to section 266-24; and
   6. Vendors providing electric guns to the individuals described in paragraphs (1) through (5);
   provided that electric guns shall at all times remain in the custody and control of the law enforcement officers of the county police departments, the law enforcement officers of the department of public safety, the conservation and resources enforcement officers of the department of land and natural resources, or the members of the army or air national guard, or law enforcement officers appointed by the director of transportation.
4. The county police departments of this State, the department of public safety, the department of land and natural resources, the army and air national guard, and the department of transportation shall maintain records regarding every electric gun in their custody and control.The records shall report every instance of usage of the electric guns; in particular, records shall be maintained in a similar manner as for those of discharging of firearms.The county police departments, the department of public safety, the department of land and natural resources, the army and air national guard, and the department of transportation shall annually report to the legislature regarding these records no later than twenty days before the beginning of each regular session of the legislature.
5. The department of land and natural resources, the department of public safety, and the department of transportation shall ensure that each of its conservation and resources enforcement officers and law enforcement officers who is authorized to use an electric gun and related equipment shall first receive training from the manufacturer or from a manufacturer-approved training program, as well as by manufacturer-certified or approved instructors in the use of electric guns prior to deployment of the electric guns and related equipment in public.Training for conservation and resources enforcement officers of the department of land and natural resources, law enforcement officers of the department of public safety, and law enforcement officers of the department of transportation may be done concurrently to ensure cost savings.
6. No later than June 30, 2018, the conservation and resources enforcement program of the department of land and natural resources shall meet the law enforcement accreditation or recognition standards of the Commission on Accreditation for Law Enforcement Agencies, Inc., in the use of electric guns.
7. No later than June 30, 2024, the law enforcement officers appointed by the director of transportation shall meet the law enforcement accreditation or recognition standards of the Commission on Accreditation for Law Enforcement Agencies, Inc., in the use of electric guns.

[L 1988, c 275, pt of §2; am L 2001, c 252, §3; am L 2002, c 16, §5; am L 2010, c 131, §1; am L 2011, c 144, §3; am L 2012, c 148, §1; am L 2019, c 187, §2]

§134-17 - Penalties

1. If any person gives false information or offers false evidence of the person's identity in complying with any of the requirements of this part, that person shall be guilty of a misdemeanor, provided, however that if any person intentionally gives false information or offers false evidence concerning their psychiatric or criminal history in complying with any of the requirements of this part, that person shall be guilty of a class C felony.
2. Any person who violates section 134-3(a) shall be guilty of a petty misdemeanor.
3. Any person who violates section 134-2, 134-4, 134-10, 134-15, or 134-16(a) shall be guilty of a misdemeanor.Any person who violates section 134-3(b) shall be guilty of a petty misdemeanor and the firearm shall be confiscated as contraband and disposed of, if the firearm is not registered within five days of the person receiving notice of the violation.

[L 1988, c 275, pt of §2; am L 1994, c 204, §9]

Cross References

Liability of firearm owners, see §663-9.5.

§134-18 - Qualified immunity for physicians, psychologists, or psychiatrists who provide information on permit applicants

There shall be no civil liability for any physician, psychologist, or psychiatrist who provides information or renders an opinion in response to an inquiry made for purposes of issuing a firearm permit under section 134-2 or for purposes of investigating the continuing mental health of the holder of a valid firearm permit provided that the physician, psychologist, or psychiatrist acted without malice.

[L 1992, c 287, §1; am L 1994, c 204, §10]

§134-21 - Carrying or use of firearm in the commission of a separate felony; penalty

1. It shall be unlawful for a person to knowingly carry on the person or have within the person's immediate control or intentionally use or threaten to use a firearm while engaged in the commission of a separate felony, whether the firearm was loaded or not, and whether operable or not; provided that a person shall not be prosecuted under this subsection when the separate felony is:
   1. A felony offense otherwise defined by this chapter;
   2. The felony offense of reckless endangering in the first degree under section 707-713;
   3. The felony offense of terroristic threatening in the first degree under section 707-716(1)(a), 707-716(1)(b), or [707-716(1)(e)]; or
   4. The felony offenses of criminal property damage in the first degree under section 708-820 or criminal property damage in the second degree under section 708-821 and the firearm is the instrument or means by which the property damage is caused.
2. A conviction and sentence under this section shall be in addition to and not in lieu of any conviction and sentence for the separate felony; provided that the sentence imposed under this section may run concurrently or consecutively with the sentence for the separate felony.
3. Any person violating this section shall be guilty of a class A felony.

[L 2006, c 66, pt of §1]

§134-22 - Possession of a firearm with intent to facilitate the commission of a felony drug offense; penalty

1. It shall be unlawful for a person to knowingly possess a firearm with the intent to facilitate the commission of a felony offense involving the distribution of a controlled substance, whether the firearm was loaded or not, and whether operable or not.
2. For the purposes of this section:
   1. "Controlled substance" shall have the same meaning as defined in section 329-1.
   2. "Distribution" means the selling, transferring, prescribing, giving or delivering to another, or the leaving, bartering, or exchanging with another, or the offering or agreeing to do the same.
3. A conviction and sentence under this section shall be in addition to and not in lieu of any conviction and sentence for the separate felony; provided that the sentence imposed under this section may run concurrently or consecutively with the sentence for the separate felony.
4. Any person violating this section shall be guilty of a class A felony.

[L 2006, c 66, pt of §1]

§134-23 - Place to keep loaded firearms other than pistols and revolvers; penalty

1. Except as provided in section 134-5, all firearms shall be confined to the possessor's place of business, residence, or sojourn; provided that it shall be lawful to carry unloaded firearms in an enclosed container from the place of purchase to the purchaser's place of business, residence, or sojourn, or between these places upon change of place of business, residence, or sojourn, or between these places and the following:
   1. A place of repair;
   2. A target range;
   3. A licensed dealer's place of business;
   4. An organized, scheduled firearms show or exhibit;
   5. A place of formal hunter or firearm use training or instruction; or
   6. A police station.
   7. "Enclosed container" means a rigidly constructed receptacle, or a commercially manufactured gun case, or the equivalent thereof that completely encloses the firearm.
2. Any person violating this section by carrying or possessing a loaded firearm other than a pistol or revolver shall be guilty of a class B felony.

[L 2006, c 66, pt of §1]

§134-24 - Place to keep unloaded firearms other than pistols and revolvers; penalty

1. Except as provided in section 134-5, all firearms shall be confined to the possessor's place of business, residence, or sojourn; provided that it shall be lawful to carry unloaded firearms in an enclosed container from the place of purchase to the purchaser's place of business, residence, or sojourn, or between these places upon change of place of business, residence, or sojourn, or between these places and the following:
   1. A place of repair;
   2. A target range;
   3. A licensed dealer's place of business;
   4. An organized, scheduled firearms show or exhibit;
   5. A place of formal hunter or firearm use training or instruction; or
   6. A police station.
   7. "Enclosed container" means a rigidly constructed receptacle, or a commercially manufactured gun case, or the equivalent thereof that completely encloses the firearm.
2. Any person violating this section by carrying or possessing an unloaded firearm other than a pistol or revolver shall be guilty of a class C felony.

[L 2006, c 66, pt of §1]

§134-25 - Place to keep pistol or revolver; penalty

1. Except as provided in sections 134-5 and 134-9, all firearms shall be confined to the possessor's place of business, residence, or sojourn; provided that it shall be lawful to carry unloaded firearms in an enclosed container from the place of purchase to the purchaser's place of business, residence, or sojourn, or between these places upon change of place of business, residence, or sojourn, or between these places and the following:
   1. A place of repair;
   2. A target range;
   3. A licensed dealer's place of business;
   4. An organized, scheduled firearms show or exhibit;
   5. A place of formal hunter or firearm use training or instruction; or
   6. A police station.
   7. "Enclosed container" means a rigidly constructed receptacle, or a commercially manufactured gun case, or the equivalent thereof that completely encloses the firearm.
2. Any person violating this section by carrying or possessing a loaded or unloaded pistol or revolver shall be guilty of a class B felony.

[L 2006, c 66, pt of §1]

§134-26 - Carrying or possessing a loaded firearm on a public highway; penalty.

1. It shall be unlawful for any person on any public highway to carry on the person, or to have in the person's possession, or to carry in a vehicle any firearm loaded with ammunition; provided that this section shall not apply to any person who has in the person's possession or carries a pistol or revolver in accordance with a license issued as provided in section 134-9.
2. Any vehicle used in the commission of an offense under this section shall be forfeited to the State, subject to the notice and hearing requirements of chapter 712A.
3. Any person violating this section shall be guilty of a class B felony.

[L 2006, c 66, pt of §1]

§134-27 - Place to keep ammunition; penalty

1. Except as provided in sections 134-5 and 134-9, all ammunition shall be confined to the possessor's place of business, residence, or sojourn; provided that it shall be lawful to carry ammunition in an enclosed container from the place of purchase to the purchaser's place of business, residence, or sojourn, or between these places upon change of place of business, residence, or sojourn, or between these places and the following:
   1. A place of repair;
   2. A target range;
   3. A licensed dealer's place of business;
   4. An organized, scheduled firearms show or exhibit;
   5. A place of formal hunter or firearm use training or instruction; or
   6. A police station.
   7. "Enclosed container" means a rigidly constructed receptacle, or a commercially manufactured gun case, or the equivalent thereof that completely encloses the ammunition.
2. Any person violating this section shall be guilty of a misdemeanor. [L 2006, c 66, pt of §1]

§134-28 - Explosive devices; prohibitions; penalty

1. It shall be unlawful for any person to knowingly or intentionally possess, construct, set off, ignite, discharge, or otherwise cause to explode any homemade explosive device.
2. Any person violating this section shall be guilty of a class C felony.
3. A violation of this section shall be construed as an offense distinct from an offense under section 134-8.
4. For the purposes of this section, "homemade explosive device" means a non-commercially manufactured device composed of a single ingredient, or mixture of ingredients, capable of instantaneously releasing a sufficient amount of energy to inflict substantial damage to persons or property.

[L 2011, c 222, §1]

§134- - (2019) Reporting lost, stolen, or destroyed firearms; penalties. (NEW SECTION)

1. Every person shall report the loss, theft, or destruction of a firearm that the person owns or possesses within twenty-four hours upon the discovery of such loss, theft, or destruction to:
   1. The police department of the county within which the person resides; and
   2. The police department of the county where the theft, loss, or destruction occurred.

   If a person is unable to comply with this subsection, the person's designee shall make the report.

2. The report of a lost, stolen, or destroyed firearm pursuant to subsection (a) shall include:
   1. The caliber of the firearm;
   2. The make of the firearm;
   3. The model of the firearm;
   4. The manufacturer of the firearm;
   5. The serial number of the firearm;
   6. Any other distinguishing number or identification mark on the firearm, if known by the person; and
   7. Any additional relevant information required by the county police department taking the report.
3. Upon receipt of a report of a lost, stolen, or destroyed firearm pursuant to subsection (a), a county police department shall enter the reported information into the National Crime Information Center database.
4. A person who intentionally or knowingly fails to report the loss, theft, or destruction of any firearm pursuant to this section shall:
   1. For the first offense, be guilty of a petty misdemeanor;
   2. For the second and each subsequent offense, be guilty of a misdemeanor; and
   3. For the third and each subsequent offense:
      1. Surrender all firearm registrations, ammunition, and firearms to the police department for the county within which the person resides within seven days of receiving a notice of violation of this section; and
      2. Be prohibited from registering, possessing, or owning a firearm.
5. If a person fails to surrender all firearm registrations, ammunition, and firearms as required in subsection (d), the chief of police of the county within which the person resides or within which any of the person's firearm registrations, ammunitions, or firearms are present shall seize all firearm registrations, firearm ammunition, and firearms registered to and in possession of the person.
6. For the purposes of this section, an incident involving multiple firearms arising in the same occurrence shall constitute a single offense.
7. No person shall report to any law enforcement agency that a firearm has been lost, stolen, or destroyed knowing the report to be false. If a person falsely reports a lost, stolen, or destroyed firearm, the person shall be in violation of this section and subject to the same penalties as provided in subsection (d).
8. A person shall not be in violation of this section if the failure to report is the result of:
   1. An act of God or act of war;
   2. The inability of a law enforcement agency to receive the report; or
   3. The person who is required to report being hospitalized, unconscious, incapacitated, or otherwise seriously physically or mentally impaired as to prevent the person from reporting.

[L 2019, c 23, §2]

Part II - Firearms, Dealers' Licenses

§134-31 - License to sell and manufacture firearms; fee

Any person desiring to engage in the business to sell and manufacture firearms for sale in the State either at wholesale or retail, shall annually file an application for a license therefor with the director of finance of each county of the State.The annual fee for the issuance of such license shall be $10 and shall be payable to said director of finance. A license issued hereunder shall expire on June 30 next following the date of issuance of the license unless sooner terminated.Application for renewal of license shall be filed on or before June 30 of each year. [L 1921, c 13, pt of §1; RL 1925, §2033; RL 1935, §2554; RL 1945, §7195; am L 1953, c 155, §1(a); RL 1955, §157-30; HRS §134-31; am L 1972, c 30, §1]

§134-32 - License to sell and manufacture firearms; conditions

Every license issued pursuant to this part shall be issued and shall be regarded as having been accepted by the licensee subject to the following conditions:

1. That the licensee at all times shall comply with all provisions of law relative to the sale of firearms.
2. That the license during any time of national emergency or crisis, as defined in section 134-34, may be canceled or suspended.
3. That all firearms in the possession and control of any licensee at any time of national emergency or crisis, as defined in section 134-34, may be seized and held in possession or purchased by or on the order of the governor until such time as the national emergency or crisis has passed, or until such time as the licensee and the government of the United States or the government of the State may agree upon some other disposition of the same.
4. That all firearms in the possession and control of the licensee or registered pursuant to section 134-3(c) by the licensee shall be subject to physical inspection by the chief of police of each county during normal business hours at the licensee's place of business.
5. That the license may be revoked for a violation of any of the conditions of this section. [L 1921, c 13, pt of §1; RL 1925, §2034; RL 1935, §2555; RL 1945, §7196; am L 1953, c 155, §1(b); RL 1955, §157-31; HRS §134-32; am L 1988, c 275, §3; am L 1989, c 261, §7; am L 1994, c 204, §11]

§134-33 - Punishment for violations of section 134-32

Any person who manufactures or sells any firearms within the State without having a valid license so to do, or who being a holder of a license violates any of the terms or conditions of the same, shall be fined not less than $100 nor more than $1,000 or imprisoned not less than three months nor more than one year.

[L 1921, c 13, pt of §1; RL 1925, §2036; RL 1935, §2557; RL 1945, §7198; am L 1953, c 155, §1(c); am L 1955, c 54, §2; RL 1955, §157-33; HRS §134-33]

Cross References

Classification of offense and authorized punishment, see §§701-107, 706-640, 663.

§134-34 - National emergency, when

A national emergency or crisis shall be deemed to have arisen when the governor and the senior United States military commander headquartered in the State or, in the absence of the commander, a duly designated representative have, in the exercise of their discretion, so determined.

[L 1921, c 13, pt of §1; RL 1925, §2035; RL 1935, §2556; RL 1945, §7197; RL 1955, §157-32; HRS §134-34; am L 1989, c 215, §2]

Part III - Dangerous Weapons

§134-51 - Deadly weapons; prohibitions; penalty

1. Any 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 dirk, dagger, blackjack, slug shot, billy, metal knuckles, pistol, or other deadly or dangerous weapon shall be guilty of a misdemeanor and may be immediately arrested without warrant by any sheriff, police officer, or other officer or person.Any weapon, above enumerated, upon conviction of the one carrying or possessing it under this section, shall be summarily destroyed by the chief of police or sheriff.
2. Whoever knowingly possesses or intentionally uses or threatens to use a deadly or dangerous weapon while engaged in the commission of a crime shall be guilty of a class C felony.

[L 1937, c 123, §1; RL 1945, §11114; RL 1955, §267-25; HRS §727-25; ren L 1972, c 9, pt of §1; am L 1977, c 191, §2; am L 1983, c 267, §1; gen ch 1985; am L 1989, c 211, §10; am L 1990, c 195, §3 and c 281, §11; am L 1992, c 87, §4; am L 1993, c 226, §1; am L 1999, c 285, §2]

Case Notes

Probable cause for violation of section when police officer saw gun in vehicle stopped for speeding.430 F.2d 58.

License to carry weapon as justification.10 H. 585.

Weapons discovered in automobile lawfully stopped for traffic offense; legality of search and seizure considered.50 H. 461, 443 P.2d 149.

Mentioned in connection with arrest without warrant after seeing pistol in automobile.52 H. 497, 479 P.2d 800.

"Other deadly or dangerous weapon" is limited to instruments whose sole design and purpose is to inflict bodily injury or death.55 H. 531, 523 P.2d 299.

A "diver's knife" is neither a "dangerous weapon" nor a "dagger". "Deadly and dangerous weapon" is one designed primarily as a weapon or diverted from normal use and prepared for combat.56 H. 374, 537 P.2d 14.

Cane, butterfly and kitchen knives are not deadly or dangerous weapons.56 H. 642, 547 P.2d 587.

Sheathed sword-cane and wooden knuckles with shark's teeth were "deadly or dangerous weapons".58 H. 514, 572 P.2d 1222.

Statute does not require that weapons be "concealed" within the vehicle.58 H. 514, 572 P.2d 1222.

Vehicle stop being proper, seizure of weapons in plain view was authorized.58 H. 514, 572 P.2d 1222.

Shotgun is a deadly or dangerous weapon.61 H. 135, 597 P.2d 210.

A .22 caliber rifle is a "deadly or dangerous weapon".63 H. 147, 621 P.2d 384.

Nunchaku sticks are not per se deadly or dangerous weapons.64 H. 485, 643 P.2d 546.

The crime underlying a subsection (b) offense is, as a matter of law, an included offense of the subsection (b) offense, within the meaning of §701-109(4)(a), and defendant should not have been convicted of both the subsection (b) offense and the underlying second degree murder offense; thus, defendant's conviction of the subsection (b) offense reversed.88 H. 407, 967 P.2d 239.

"Billy" as used in this section refers to "policeman's club" or "truncheon"; a club-like implement designed for purpose of striking or killing fish is not a "billy"; section extends only to weapons deadly or dangerous to people.10 H. App. 404, 876 P.2d 1348.

Cited:43 H. 347, 367; 10 H. App. 584, 880 P.2d 213.

§134-52 - Switchblade knives; prohibitions; penalty

1. Whoever knowingly manufactures, sells, transfers, possesses, or transports in the State any switchblade knife, being any knife having a blade which opens automatically
   1. by hand pressure applied to a button or other device in the handle of the knife, or
   2. by operation of inertia, gravity, or both, shall be guilty of a misdemeanor.
2. Whoever knowingly possesses or intentionally uses or threatens to use a switchblade knife while engaged in the commission of a crime shall be guilty of a class C felony.

[L 1959, c 225, §1; Supp, §264-9; HRS §769-1; ren L 1972, c 9, pt of §1; am L 1990, c 195, §4]

Case Notes: A butterfly knife is not a switchblade knife. 73 H. 89, 828 P.2d 272.

§134-53 - Butterfly knives; prohibitions; penalty

1. Whoever knowingly manufactures, sells, transfers, possesses, or transports in the State any butterfly knife, being a knife having a blade encased in a split handle that manually unfolds with hand or wrist action with the assistance of inertia, gravity or both, shall be guilty of a misdemeanor.
2. Whoever knowingly possesses or intentionally uses or threatens to use a butterfly knife while engaged in the commission of a crime shall be guilty of a class C felony.

[L 1999, c 285, §1]

CHAPTER 663 - TORT ACTIONS

Part I - Liability; Survival of Actions

§663-9.5 - Liability of firearm owners

1. If a firearm discharges and the discharge of the firearm proximately causes either personal injury or property damage to any person, the owner of the firearm shall be absolutely liable for the damage.
2. It shall be an affirmative defense to the absolute liability that the firearm was not in the possession of the owner.
3. It shall be an affirmative defense to the absolute liability that:
   1. The firearm was taken from the owner's possession without the owner's permission; and
   2. The owner either:
      1. Reported the theft to the police prior to the discharge; or
      2. Despite the exercise of reasonable care:
         1. Had not discovered the theft prior to the discharge; or
         2. Was not reasonably able to report the theft to the police prior to the discharge.
4. This section shall not apply when the discharge of the firearm was legally justified.
5. The absolute liability under subsection (a) shall not apply to the State or counties for the use of a firearm owned by the State or county, as applicable, and used by a law enforcement officer employed by the State or county, outside of the course and scope of employment as a law enforcement officer; provided that this section shall not be construed to relieve the State and counties from any other tort liability that may be applicable to the State or counties.
6. The absolute liability under subsection (a) shall not apply to National Rifle Association certified firearms instructors during the course of providing firearms training or safety courses or classes at a firing range to persons seeking to acquire a permit for the acquisition of a pistol or revolver in accordance with section 134-2(g)(4); provided that this section shall not be construed to relieve a National Rifle Association certified firearms instructor from any other tort liability that may be applicable.

[L 1994, c 204, §1; am L 2008, c 129, §1; am L 2012, c 301, §1]

CHAPTER 703

§703-300 - Definitions relating to justification

In this chapter, unless a different meaning is plainly required:

"Believes" means reasonably believes.

"Deadly force" means force which the actor uses with the intent of causing or which the actor knows to create a substantial risk of causing death or serious bodily harm. Intentionally firing a firearm in the direction of another person or in the direction which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor's intent is limited to creating an apprehension that the actor will use deadly force if necessary, does not constitute deadly force.

"Dwelling" means any building or structure, though movable or temporary, or a portion thereof, which is for the time being a home or place of lodging.

"Force" means any bodily impact, restraint, or confinement, or the threat thereof.

"Unlawful force" means force which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or would constitute an offense except for a defense not amounting to a justification to use the force. Assent constitutes consent, within the meaning of this section, whether or not it otherwise is legally effective, except assent to the infliction of death or serious or substantial bodily injury. [L 1972, c 9, pt of §1; am L 1986, c 314, §5; gen ch 1993]

COMMENTARY ON §703-300

This section provides statutory definitions of terms used repeatedly in this chapter; a discussion of the definitions, when needed or appropriate, is found in the commentary on the section employing the defined terms.

SUPPLEMENTAL COMMENTARY ON §703-300

Chapter 703 provides for a defense based on the legal concept of justification. An extended definition of justification is provided in §§703-302 through 309. In most instances, the critical factor in determining whether an actor's conduct is justified is the actor's state of mind or belief respecting facts and circumstances. The Legislature changed §300 of the Proposed Draft by adding the definition of "believes". The definition adopts "the reasonable man standard with respect to justification for the use of force in self-protection, in the protection of property, and in the protection of others. It is your Committee's finding that the requirement that a person's belief be 'reasonable' for these defenses to be available will provide an objective basis by which to gauge whether or not the use of force was justified." Conference Committee Report No. 2 (1972).

Case Notes

Substantial evidence of record supported trial court's finding that defendant's use of the knife constituted deadly force. 77 H. 429 (App.), 886 P.2d 766.

Subsection (1) cited: 9 H. App. 115, 826 P.2d 884.

§703-301 - Justification a defense; civil remedies unaffected

1. In any prosecution for an offense, justification, as defined in sections 703-302 through 703-309, is a defense.
2. The fact that conduct is justifiable under this chapter does not abolish or impair any remedy for such conduct which is available in any civil action. [L 1972, c 9, pt of §1]

COMMENTARY ON §703-301

This section does not attempt to define the defense of justification. An extended definition is given in the sections which follow. Subsection (1) merely establishes that justification is a defense. This places the burden of producing some credible evidence of the existence of justification on the defendant. If the defendant produces such evidence, or if it appears as part of the prosecution's case, the defendant is entitled to have the defense considered by the jury. The prosecution, however, must prove beyond a reasonable doubt, facts which negative the defense.

Subsection (2) preserves civil remedies for conduct which may give rise to a defense of justification. Civil standards of conduct are higher than we propose for criminal liability. For example, unreasonable conduct on the part of the defendant might suffice for civil liability whereas criminal liability will turn on the defendant's own subjective mental state. It therefore seems desirable explicitly to preserve civil remedies.

Prior Hawaii statutory and case law recognized some of the defenses which the Code unites in this chapter under the defense of justification. Reference to such recognition will be made in the commentary under the sections which follow. There is some language in old Hawaii case law which indicates that the defense of justification is affirmative in nature;[1] to the extent that this language would be followed today, the Code represents a change.

Case Notes

Justification is not an affirmative defense and prosecution has burden of disproving it once evidence of justification has been adduced. 60 H. 259, 588 P.2d 438.

Defendant's claim of justification, in defense against prosecution for terroristic threatening, was established regardless of whether or not defendant used deadly force. 1 H. App. 167, 616 P.2d 229.

"Choice of evils" defense applies to violations. 9 H. App. 115, 826 P.2d 884.

§703-301 Commentary:

1. King v. Bridges, 5 Haw. 467, 472 (1885); Provisional Government v. Caecires, 9 Haw. 522, 533 (1894).

§703-302 - Choice of evils

1. Conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor or to another is justifiable provided that:
   1. The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and
   2. Neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
   3. A legislative purpose to exclude the justification claimed does not otherwise plainly appear.
2. When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for the actor's conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
3. In a prosecution for escape under section 710-1020 or 710-1021, the defense available under this section is limited to an affirmative defense consisting of the following elements:
   1. The actor receives a threat, express or implied, of death, substantial bodily injury, or forcible sexual attack;
   2. Complaint to the proper prison authorities is either impossible under the circumstances or there exists a history of futile complaints;
   3. Under the circumstances there is no time or opportunity to resort to the courts;
   4. No force or violence is used against prison personnel or other innocent persons; and
   5. The actor promptly reports to the proper authorities when the actor has attained a position of safety from the immediate threat.

[L 1972, c 9, pt of §1; am L 1986, c 314, §6; gen ch 1993]

COMMENTARY ON §703-302

This section defines what is often called the defense of "necessity." It permits the actor, in certain limited situations, to justify disobedience to criminal law if the harm the actor sought to avert by the actor's disobedience far outweighed the harm sought to be prevented by the law. Necessity has been accepted as a defense at common law in some cases, and has been given statutory recognition in a number of enacted codes.

The section may be used, first, to justify only slightly harmful acts which are necessary to avoid a far greater harm. For instance, a court would hardly wish to punish a person for driving at night without the proper lights when the person did so only to summon help to extinguish a fire. The section also provides a justification for more serious acts. For example, it could be used to justify the taking of life to avoid a far greater loss of life. In a classic case, a ship's crew threw certain passengers overboard to lighten an overloaded boat, which would otherwise have sunk with much greater loss of life. This section would justify the action if all of its conditions are met.

There are numerous reasons supporting the defense of necessity. First, because an individual will probably kill one person, or a few, to avoid the deaths of many others regardless of what the law may say, punishment in such situations would fail to attain its objective of deterrence and would not reflect widely held views about what would be the moral thing to do in such a situation. Second, the life of every individual is assumed to be of equal value, and therefore a numerical preponderance in lives saved over those sacrificed establishes an ethical and legal justification for the otherwise criminal act. Third, there are numerous safeguards built into §703-302. The danger causing the necessity of choosing between evils must be imminent. Moreover, subsection (2) provides that if the necessity of choosing between harms or evils results from the defendant's recklessness or negligence, the defense is not available in a prosecution of any offense for which recklessness or negligence, as the case may be, suffices for conviction.

It is no defense under this section that the defendant thought compliance with a statute immoral or unwise; the legislative decision to make particular conduct criminal is to be given great weight. However, this defense is probably in accord with normal legislative intentions, because blind obedience is unlikely to be required in the face of an emergency. The whole matter, with all of its ramifications is to be weighed by the court and the jury in the same manner as in any criminal proceeding. If the defendant's conduct was not necessary, if one evil was not greater than the other, if the defendant exceeded the reasonable bounds of intelligence and morality, the defendant may be convicted for the defendant's conduct notwithstanding the defendant's attempts to justify the defendant's actions.

Finally, many commentators have had difficulty with the concept of necessity because of the possibility of unforeseeable changes in the perilous situation. For instance, if a number of passengers are thrown overboard from a ship to save a much larger number of persons, there is really no way for the actors to foresee the exact moment when a rescue ship may arrive. There is always the chance that help will arrive in time to make the emergency action unnecessary. Such objections, however, fail to take account of the fact that other defenses which are predicated on a threat to person or property can take account only of the probability of harm. One can never guarantee that the uplifted knife will be plunged into the victim. "If necessity is not admitted where there is a high degree of probability of disastrous consequences if action is not taken, then it can never be admitted."[1] A person faced with such seeming necessity is and will remain in a personal moral quandary because of the person's uncertainty. Our only point is that the threat of criminal punishment is unneeded here.

There has been no previous statutory provision or case law development in Hawaii on the defense of necessity; this section represents a needed addition to the law.

SUPPLEMENTAL COMMENTARY ON §703-302

The Legislature accepted §302 of the Proposed Draft without modification. Subsection (2) provides that the defense of justification based on a choice of evils is unavailable where recklessness or negligence suffices to establish culpability when the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for the actor's conduct. However, in light of the Legislature's introduction of the "reasonable man standard" in §703-300, it appears that negligence on the actor's part in bringing about the situation or in appraising the necessity for the actor's conduct will be sufficient to eliminate the defense in cases which otherwise require intent, knowledge, or recklessness to establish culpability.

Case Notes

Defense of necessity is available to prisoners escaping from prison. 58 H. 252, 566 P.2d 1378.

The elements of the choice of evils defense are limited to those enumerated by the express language of this section and common law "considerations" have not been incorporated into the statutory formulation. 90 H. 58, 976 P.2d 372.

Choice of evils defense could not apply where defendant had dumped marijuana over lanai railing, thereby eliminating any threat of imminent harm to wife from marijuana use as required under subsection (1)(a); thus, no imminent harm was present to justify defendant's physical abuse of wife. 93 H. 63, 996 P.2d 268.

The exclusivity of the narrow choice of evils defense set forth in subsection (3) is limited to prosecutions for escape from correctional or detention facilities but not to prosecutions for escape from custody that does not implicate an incarcerational setting; the generic choice of evils defense set forth in subsection (1) is applicable in a prosecution for escape from non-incarcerational custody. 96 H. 83, 26 P.3d 572.

A dolphin is not "another" within the meaning of this section. 1 H. App. 19, 613 P.2d 1328.

"Necessity" or "choice of evils" defense discussed. 9 H. App. 115, 826 P.2d 884.

Harm committed by defendant resisting an order to stop a motor vehicle under §710-1027(1) by driving away after traffic stop not reasonably designed to actually avoid possible serious physical harm to defendant or passenger under subsection (1)(a). 81 H. 147 (App.), 913 P.2d 558.

Where case was covered by the defense of defense of others under §703-305 and, possibly, self-defense under §703-304, the choice of evils defense under this section did not apply. 90 H. 175 (App.), 977 P.2d 183.

Defendant was not entitled to a jury instruction on the "choice of evils" defense where, pursuant to subsection (1)(b), the Hawaii Penal Code provided a defense (self-defense) dealing with the specific situation involved. 91 H. 450 (App.), 984 P.2d 1276.

The choice of evils defense under this section and the duress defense under §702-231 are not, as a matter of statutory law, inconsistent. 93 H. 399 (App.), 4 P.3d 533.

The more specific choice of evils affirmative defense for prison escape situations under subsection (3) must be construed in conjunction with the more general choice of evils justification defense under subsection (1); thus, any escape on the part of a prisoner must be conduct which a prisoner believes to be necessary to avoid any imminent harm or evil to the prisoner. 93 H. 399 (App.), 4 P.3d 533.

Unborn children are not included within the definition of "another" or "person" for purposes of the Hawaii Penal Code; thus, defendant could not justify defendant's physical abuse of girlfriend on grounds that defendant was protecting "another" or a third person, specifically, defendant's unborn child. 101 H. 3 (App.), 61 P.3d 514.

Trial court erred when it gave its choice of evils instruction as evidence did not support a choice of evils instruction; however, there was no reasonable possibility that the error contributed to defendant's conviction. 105 H. 319 (App.), 97 P.3d 395.

Trial court did not err in denying defendant's request that in addition to the choice of evils defense under this section, jury be instructed on the justification defenses of use of force in the protection of self and others under §§703-304 and 703-305; defendant's theory of defense was fully and adequately covered by the choice of evils instruction which the trial court gave and under the circumstances of the case, there was no reasonable possibility that the jury, which rejected defendant's choice of evils defense, might have embraced defenses based on §§703-304 and 703-305. 114 H. 507 (App.), 164 P.3d 765.

§703-302 Commentary:

1. Smith & Hogan, Criminal Law 123 (1965).

§703-303 - Execution of public duty

1. Except as provided in subsection (2), conduct is justifiable when it is required or authorized by:
   1. The law defining the duties or functions of a public officer or the assistance to be rendered to a public officer in the performance of the public officer's duties; or
   2. The law governing the execution of legal process; or
   3. The judgment or order of a competent court or tribunal;
   4. The law governing the armed services or the lawful conduct of war; or
   5. Any other provision of law imposing a public duty.
2. The other sections of this chapter apply to:
   1. The use of force upon or toward the person of another for any of the purposes dealt with in those sections; and
   2. The use of deadly force for any purpose, unless the use of deadly force is otherwise expressly authorized by law or occurs in the lawful conduct of war.
3. The justification afforded by subsection (1) applies:
   1. When the actor believes the actor's conduct to be required or authorized by the judgment or direction of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; and
   2. When the actor believes the actor's conduct to be required or authorized to assist a public officer in the performance of the officer's duties, notwithstanding that the officer exceeded the officer's legal authority. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §703-303

This section broadly sets forth the circumstances in which conduct which would otherwise constitute an offense is justifiable because it is done in the course of public duty. Subsection (1) requires reference to other statutory provisions, as well as to judgments of courts, in order to ascertain what conduct is permissible. For example, if a statutory provision permits a door to be broken down in the execution of legal process, no offense is committed thereby.

Subsection (2) makes the other provisions of Chapter 703 applicable to the use of force against the person for any of the purposes dealt with in Chapter 703 and to any use of deadly force other than that expressly authorized by law or occurring in the lawful conduct of war. As will be seen, the sections on the use of force and deadly force against another's person have been worded so as to apply to any actor, including a public official. Subsection (2) therefore assures that this chapter will control such activity in preference to contrary provisions of other statutes.

Subsection (3) permits use of the defense in cases in which the actor believes the actor's conduct is required or authorized, despite some defect either in the authority which appears to demand or authorize it.

The section elaborates previous Hawaii law. Force necessary to acquire entry has previously been permitted by Hawaii law when a public officer was seeking to execute a court order to seize property,[1] to search under a search warrant,[2] or to enter to arrest.[3] As subsection (1)(a) and (b) point out, such prior statutes describe conduct which will be considered as justified under this section.

§703-303 Commentary:

1. H.R.S. §654-3.

2. Id. §803-37.

3. Id. §803-11; see Hubertson v. Cole, 1 Haw. 72, 73 (1849).

§703-304 - Use of force in self-protection

1. Subject to the provisions of this section and of section 703-308, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by the other person on the present occasion.
2. The use of deadly force is justifiable under this section if the actor believes that deadly force is necessary to protect himself against death, serious bodily injury, kidnapping, rape, or forcible sodomy.
3. Except as otherwise provided in subsections (4) and (5) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.
4. The use of force is not justifiable under this section:
   1. To resist an arrest which the actor knows is being made by a law enforcement officer, although the arrest is unlawful; or
   2. To resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
      1. The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest; or
      2. The actor believes that such force is necessary to protect himself against death or serious bodily injury.
5. The use of deadly force is not justifiable under this section if:
   1. The actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
   2. The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
      1. The actor 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; and
      2. A public officer justified in using force in the performance of his duties, or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape, is not obliged to desist from efforts to perform his duty, effect the arrest, or prevent the escape because of resistance or threatened resistance by or on behalf of the person against whom the action is directed.
6. The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime.

[L 1972, c 9, pt of §1; ree L 1975, c 163, §3; am L 2001, c 91, §4]

COMMENTARY ON §703-304

This section substantially adopts the Model Penal Code rules on justification of the use of force in self-protection. It has been rewritten and reorganized to make it more easily understandable.

Subsection (1) requires a belief by the actor that the use of protective force is actually necessary, and that unlawful force (defined in §703-300) is to be used by the assailant. He must believe, further, that immediate use of force is required, although the threatened harm to him need not be "imminent", as the rule was sometimes phrased at common law. It is enough that unlawful force is threatened on the present occasion by his assailant. The actor may make his defensive move without waiting for his assailant to load his gun or to summon reinforcements. Finally, the actor must believe that the particular degree of force used by him is necessary. This formulation is not meant to require a precise equation, but it will limit the defense to situations in which a particular scope and degree of retaliation is believed by the actor to be appropriate to the aggression.

Subsections (2) and (5) strictly limit the use of deadly force. Under the circumstances specified in subsection (2), the actor may use deadly force if he believes it is necessary to protect himself against death, serious bodily harm, kidnapping, rape, or forcible sodomy. This formulation has two implications: (a) the actor must believe that deadly force is the only viable means of preventing the specified harm, and (b) the actor must believe that one of the specified harms is threatened on the present occasion. "Deadly force" is defined in §703-300. Its use is further restricted by subsection (5). Deadly force may not be used if the actor provoked his assailant's use of force against himself in the same encounter with the purpose of causing death or serious bodily injury. Of course, if he intends only moderate harm and receives a deadly response, the initial aggressor may respond with deadly force. The use of deadly force is also denied when the actor can avoid using it with complete safety by retreating, by surrendering possession of a thing to a person asserting a claim of right to it, or by complying with a demand that he refrain from taking an action which he has no legal duty to take. In any of these cases, the Code may seem to be opting for cowardice. However, it should be the strong principle of any criminal code to prevent death wherever possible. To quote the Model Penal Code commentary,

It rests, of course, upon the view that protection of life has such a high place in a proper scheme of social values that the law cannot permit conduct which places life in jeopardy, when the necessity for doing so can be avoided by the sacrifice of the much smaller value that inheres in standing up to an aggression.[1]

However, a duty to retreat or take over evasive action is not imposed in two situations. Subsection (5), subparagraph (b)(i), states that the actor is not required to retreat from his dwelling or his place of work unless he was the initial aggressor or unless he is assailed in his place of work by another person whose place of work he knows it to be. We would not normally expect a man to abandon his home to an aggressor and would allow him to stand his ground, although an exception is made, consistent with paragraph (a), if the actor is the initial aggressor. The exception for an attack in a man's place of work is new with the Model Penal Code. The same principles which permit a man to remain in his home would, for example, permit a shopkeeper to defend himself in his place of business without abandoning it to attackers. Subparagraph (b)(ii), of the same subsection, relates to public officials or persons assisting them using force in the performance of duty. It would be against public interest to require a public officer to abandon his duty if he meets resistance. This Code follows the Model Penal Code in extending the justification to all arrests and performances of duty, even if they are technically unlawful. Throughout Chapter 703 the rule is that resistance to unlawful arrest is to be made in court rather than physically.

The Code also specifically requires surrendering possession of a thing when the attacker asserts a claim of right thereto. Where a person offers deadly force unless another surrenders property to him, and claims a right to the property, it is certainly sound policy to save life and litigate the disputed ownership in court. Naturally, however, this rule does not apply in cases of robbery, where the assailant can make no claim of right, and it is the purpose of the Code to permit deadly resistance to robbery if the conditions of subsection (2) are met. Finally, deadly force is impermissible if the actor can avoid using it by complying with a demand that he refrain from any action which he has no duty to take. Again, the policy of saving life seems more insistent than the right of the individual to complete freedom of action.

Subsection (3) states the generally applicable rule that the actor need not retreat or take any other evasive action before estimating the necessity for the use of force in self-protection.

Subsection (4) sets general limits on the use of self- protective force. Paragraph (a) follows the Model Penal Code in forbidding any use of force to resist an arrest which the actor knows is being made by a peace officer. Resistance to even an unlawful arrest should be made in court. No valid social policy is served by permitting physical resistance to peace officers who are known as such by the actor. If the law were to permit physical resistance, it would in effect be sanctioning unnecessary injury. However, only force for the purpose of resisting an arrest is proscribed. If the officer threatens to use unlawful force after the arrest, the normal self-protection rules would apply. In other words, the actor may resist a "peril greater than arrest."[2] Paragraph (b) is closely related to §703-306 (protection of property) which permits the use of force by the occupier or possessor of property to protect it. The actor may not use force to counter that permissible force, when it is directed at him under a claim of right to protect the property, unless he is a public officer or a person assisting him or a person making or assisting in a lawful arrest, or unless he believes that he must use force to protect himself against death or serious bodily harm. A third Model Penal Code exception, dealing with a right of re-entry or recaption, has been omitted. As explained in the commentary to §703-306, it does not seem wise to deal separately with these matters. This Code treats them under the more general rules relating to protection of property.

Subsection (6) recognizes that confinement may be used as protective force. Because of the continuing nature of confinement, however, the Code requires the actor to terminate the confinement as soon as he knows he can do so safely. He has no such duty if the person is arrested, simply because the legality of a confinement will then be tested by ordinary judicial processes.

Previous Hawaii case law required that the defendant's belief be reasonable.[3] Contrary to subsection (3) of the Code, under the Hawaii cases, the defendant must retreat before he uses any force, except in those circumstances where deadly force is the only way serious felonies against persons can be prevented.[4] In the latter situations, it appears that Hawaii case law, like the Code, would require retreat if it could be accomplished with complete safety.[5] To the extent that Hawaii cases demand "imminent" danger, in the common law sense,[6] the Code represents a change in the law. Finally, the subsection on confinement is an addition to Hawaii law.

Case Notes

Defendant entitled to instruction on self-defense whenever testimony fairly raises the issue, no matter how weak. 59 H. 148, 577 P.2d 793.

Defendant is entitled to jury instructions on self-defense where there is any evidence in the record to support jury consideration of the issue. 60 H. 504, 591 P.2d 615.

In self-defense to charge of homicide, admissibility of evidence of deceased's character for violence and aggression. 61 H. 328, 603 P.2d 151.

Where trial court conspicuously omitted from its self-defense instruction any reference to the use of "force", which was essential to defendant's defense at trial, insofar as defendant expressly disputed whether defendant's use of force constituted "deadly force", and instructed jury that, as a matter of law, defendant employed "deadly force" against victim because death in fact resulted from defendant's use of force, trial court's instruction was not harmless beyond a reasonable doubt. 101 H. 377, 69 P.3d 88.

Where defendant raised the issue of self-defense, trial court did not err in concluding that prosecution proved that defendant was not acting in self-defense when defendant shot victim. 107 H. 469, 115 P.3d 648.

Where trial court's jury instruction sufficiently tracked subsection (3) as it informed the jury that the reasonableness of defendant's belief must be viewed from defendant's perspective, appeals court properly determined that the instruction was consistent with the language of this section. 118 H. 452, 193 P.3d 368.

Jury instruction relating to the defense of the use of force for the protection of other persons pursuant to §703-305 was erroneous as it improperly included elements relating to the defense of the use of force in self-protection under this section; however, error was harmless because there was no evidence in the record to support a finding that, under the circumstances as a person would reasonably believe them to be, defendant was justified in using force in defense of others. 123 H. 205, 231 P.3d 478.

Defendant's claim of justification, in defense against prosecution for terroristic threatening, was established regardless of whether or not defendant used deadly force. 1 H. App. 167, 616 P.2d 229.

Evidence indicated defendant could have retreated safely; attack with baseball bat using sufficient force to break complainant's arm constituted deadly force. 2 H. App. 369, 633 P.2d 547.

Defendant did not reasonably believe that kicking person on floor was immediately necessary to protect self. 2 H. App. 577, 636 P.2d 1365.

State failed its burden of introducing substantial evidence disproving defendant's facts or proving facts negativing defendant's self-protection justification defense. 9 H. App. 435, 843 P.2d 1389.

There was substantial evidence to support trial court's conclusion that a reasonable person would not have believed that it was necessary to use deadly force on the particular occasion. 77 H. 429 (App.), 886 P.2d 766.

Trial court did not err in denying defendant's request that in addition to the choice of evils defense under §703-302, jury be instructed on the justification defenses of use of force in the protection of self and others under this section and §703-305; defendant's theory of defense was fully and adequately covered by the choice of evils instruction which the trial court gave and under the circumstances of the case, there was no reasonable possibility that the jury, which rejected defendant's choice of evils defense, might have embraced defenses based on this section and §703-305. 114 H. 507 (App.), 164 P.3d 765.

Prosecution's misstatement of law was not harmless error where (1) prosecution misstated the law concerning self-defense by incorrectly imputing a requirement that defendant must have intended to kill the victim in order for the defense of self-protection to apply, and (2) the trial court did not correct this misstatement by either sustaining defense counsel's objection or curing the misstatement in its jury instructions. Thus, if the jury believed this misstatement, it would have incorrectly concluded that the defense of self-protection was inapplicable since defendant clearly stated that defendant never intended to kill the victim. 120 H. 420 (App.), 209 P.3d 1234. State v. Kekona, No. 28634, 8-12-09

§703-304 Commentary:

1. M.P.C., Tentative Draft No. 8, comments at 24 (1958).
2. Id. at 19.
3. State v. Clyde, 47 Haw. 345, 388 P.2d 846 (1964).
4. King v. Bridges, 5 Haw. 467 (1885).
5. Id.
6. State v. Clyde, 47 Haw. 345, 388 P.2d 846, 852 (1964); Territory v. Yadao, 35 Haw. 198, 201 (1959).

§703-305 - Use of force for the protection of other persons

1. Subject to the provisions of this section and of section 703-310, the use of force upon or toward the person of another is justifiable to protect a third person when:
   1. Under the circumstances as the actor believes them to be, the person whom the actor seeks to protect would be justified in using such protective force; and
   2. The actor believes that the actor's intervention is necessary for the protection of the other person.
2. Notwithstanding subsection (1):
   1. When the actor would be obliged under section 703-304 to retreat, to surrender the possession of a thing, or to comply with a demand before using force in self- protection, the actor is not obliged to do so before using force for the protection of another person, unless the actor knows that the actor can thereby secure the complete safety of such other person; and
   2. When the person whom the actor seeks to protect would be obliged under section 703-304 to retreat, to surrender the possession of a thing or to comply with a demand if the person knew that the person could obtain complete safety by so doing, the actor is obliged to try to cause the person to do so before using force in the person's protection if the actor knows that the actor can obtain the other's complete safety in that way; and
   3. Neither the actor nor the person whom the actor seeks to protect is obliged to retreat when in the other's dwelling or place of work to any greater extent than in the actor's or the person's own.

[L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §703-305

This section extends the defense of justification to include the use of physical force to protect another person on the same terms as the defense is available for the use of force in self- protection. The Code follows the Model Penal Code in allowing defense of others regardless of the relationship between the actor and the person being protected. It permits a person to use force to protect another person when the actor believes the other person would have been justified in using force to protect himself and he believes that his intervention is necessary to protect the other person. This formulation covers situations in which the other's infirmity, infancy, or other physical condition makes him especially unable to protect himself or susceptible to injury, even though the actor, in a similar predicament, might not himself have been justified in using force.

Subsection (2) provides certain exceptions and limitations. The actor need not retreat, surrender possession, or comply with a demand unless the actor knows the actor can thereby secure the complete safety of the other person. The actor must try to persuade the other person to retreat, surrender possession, or comply with a demand if the actor knows the actor can obtain the other's complete safety in that way. Finally, retreat is not required if the action takes place in the other's dwelling or place of business to any greater degree than is required in §703-304.

Hawaii case law shows only bare recognition of this type of justification.[1] The Code provides codification and elaboration.

Case Notes

Jury instruction relating to the defense of the use of force for the protection of other persons pursuant to this section was erroneous as it improperly included elements relating to the defense of the use of force in self-protection under §703-304; however, error was harmless because there was no evidence in the record to support a finding that, under the circumstances as a person would reasonably believe them to be, defendant was justified in using force in defense of others. 123 H. 205, 231 P.3d 478.

Defendant entitled to consideration of justification defense no matter how weak, unsatisfactory or inconclusive the evidence appeared. 81 H. 142 (App.), 913 P.2d 553.

Defendant not justified in using protective force against complaining witness where, under circumstances as defendant believed them to be, a reasonable person would not reasonably believe person sought to be protected would be justified in using protective force against complaining witness. 81 H. 142 (App.), 913 P.2d 553.

Unborn children are not included within the definition of "another" or "person" for purposes of the Hawaii Penal Code; thus, defendant could not justify defendant's physical abuse of girlfriend on grounds that defendant was protecting "another" or a third person, specifically, defendant's unborn child. 101 H. 3 (App.), 61 P.3d 514.

Trial court did not err in denying defendant's request that in addition to the choice of evils defense under §703-302, jury be instructed on the justification defenses of use of force in the protection of self and others under §703-304 and this section; defendant's theory of defense was fully and adequately covered by the choice of evils instruction which the trial court gave and under the circumstances of the case, there was no reasonable possibility that the jury, which rejected defendant's choice of evils defense, might have embraced defenses based on §703-304 and this section. 114 H. 507 (App.), 164 P.3d 765.

Although the justification provisions of subsection (2)(b), which addressed the defendant's obligation to attempt to cause the third party to retreat before the defendant uses force, was not discussed in the jury instructions, by not instructing the jury with regard to that qualification, the trial court effectively gave defendant the benefit of the justification even if defendant would otherwise not have been entitled to rely on it under subsection (2)(b); thus, the trial court's failure to instruct with regard to this section was harmless beyond a reasonable doubt. 120 H. 499 (App.), 210 P.3d 22.

§703-305 Commentary:

1. The King v. Bridges, 5 Haw. 467, 472 (1885); Territory v. Warren, 35 Haw. 232, 245 (1939); rehearing denied, 35 Haw. 252.

§703-306 - Use of force for the protection of property

1. The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary:
   1. To prevent the commission of criminal trespass or burglary in a building or upon real property in the actor's possession or in the possession of another person for whose protection the actor acts; or
   2. To prevent unlawful entry upon real property in the actor's possession or in the possession of another person for whose protection the actor acts; or
   3. To prevent theft, criminal mischief, or any trespassory taking of tangible, movable property in the actor's possession or in the possession of another person for whose protection the actor acts.
2. The actor may in the circumstances specified in subsection (1) use such force as the actor believes is necessary to protect the threatened property, provided that the actor first requests the person against whom force is used to desist from the person's interference with the property, unless the actor believes that:
   1. Such a request would be useless; or
   2. It would be dangerous to the actor or another person to make the request; or
   3. Substantial harm would be done to the physical condition of the property which is sought to be protected before the request could effectively be made.
3. The use of deadly force for the protection of property is justifiable only if:
   1. The person against whom the force is used is attempting to dispossess the actor of the actor's dwelling otherwise than under a claim of right to its possession; or
   2. The person against whom the deadly force is used is attempting to commit felonious property damage, burglary, robbery, or felonious theft and either:
      1. Has employed or threatened deadly force against or in the presence of the actor; or
      2. The use of force other than deadly force to prevent the commission of the crime would expose the actor or another person in the actor's presence to substantial danger of serious bodily injury.
4. The justification afforded by this section extends to the use of a device for the purpose of protecting property only if:
   1. The device is not designed to cause or known to create a substantial risk of causing death or serious bodily injury; and
   2. The use of the particular device to protect the property from entry or trespass is reasonable under the circumstances, as the defendant believes them to be; and
   3. The device is one customarily used for such a purpose or reasonable care is taken to make known to probable intruders the fact that it is used.
5. The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as the actor knows that the actor can do so with safety to the property, unless the person confined has been arrested on a charge of crime.

[L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §703-306

This section establishes the rules for the use of force upon or toward the person of another which has as its purpose the protection of property. The standard of justification is the actor's own belief in the necessity of using physical force to prevent certain specified kinds of harm. Force may be used to prevent criminal trespass and burglary, unlawful entry upon real property, theft, criminal mischief, and other trespassory taking of tangible, movable property, so long as in each case the property protected is in the possession of the actor or of one for whose protection the actor is acting. (Note that in any case in which the actor fears bodily injury to the actor or another, §§703-304, 305 would apply rather than §703-306. Thus, robbery may be covered by those sections rather than this, if the robber places the actor in fear of bodily injury or death.)

Subsection (2) permits the actor to use such force as the actor believes is necessary to protect the property, short of deadly force, after making a request to desist from interfering with the property. The request is required because of the high value to be placed upon prevention of human suffering. Infliction of physical force on another cannot be justified if the desired end can be achieved without the danger of injury. A request to desist does not, however, have to be made if the actor believes that it would be useless, dangerous to the actor, or likely to give the wrongdoer time to do substantial harm to the physical condition of the property.

Deadly force is ordinarily not permitted. It may be used if the assailant is attempting to dispossess the actor of the actor's dwelling otherwise than under a claim of right. This recognizes an important tradition in the common law which places a high value on the sanctity of the home and recognizes that a person will take extraordinary means to preserve it. Deadly force may also be used to prevent felonious property damage, burglary, robbery, or felonious theft, if: (1) the person against whom the force is used has employed or threatened deadly force against or in the presence of the actor, or (2) use of force short of deadly force would expose the actor or another person in the actor's presence to the danger of serious bodily injury. Both of these cases are covered, in any event, by the self-defense provisions of §§703-304, 305, but it seems wise to spell them out here in light of the general prohibition on use of deadly force.

Subsection (4) permits the use of certain property protection devices which may cause bodily discomfort or injury, subject to strict limitations. Subsection (5) mirrors a similar subsection in §703-304 and regulates the use of confinement as a protective force. As in §703-304, use of confinement is permitted, but it must be terminated as soon as possible consistent with safety to the property, unless the person confined has been arrested.

An attempt has been made to simplify the Model Penal Code scheme by omitting a few overly complicated concepts. In addition, the elaborate M.P.C. rules on recaption or re-entry are eliminated. This Code treats re-entry upon property and recaption of property under the same principles as other forms of property defense. As a matter of policy, it does not seem wise to encourage resort to self-help when property has been seized in any circumstances in which self-help would not have been permissible to protect the property from seizure. The M.P.C. rules have not generally been followed in other states.[1]

Hawaii case law is substantially in accord with the Code's position on the use of deadly force.[2] However, Hawaii has permitted the use of devices to accomplish what the defendant could do were the defendant present;[3] on this point the Code, clearly forbidding the use of deadly devices under any circumstances, represents a change from the prior law. Subsection (2), on request, is an important addition to Hawaii law. The subsection on confinement is also new.

§703-306 Commentary:

1. See e.g., N.Y.R.P.L. §§35.20-35.25.
2. Territory v. Warren, 35 Haw. 232, 245, rehearing denied, 35 Haw. 252 (1939).
3. Id.

§703-307 - Use of force in law enforcement

1. Subject to the provisions of this section and of section 703-310, the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.
2. The use of force is not justifiable under this section unless:
   1. The actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and
   2. When the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid.
3. The use of deadly force is not justifiable under this section unless:
   1. The arrest is for a felony; and
   2. The person effecting the arrest is authorized to act as a law enforcement officer or is assisting a person whom he believes to be authorized to act as a law enforcement officer; and
   3. The actor believes that the force employed creates no substantial risk of injury to innocent persons; and
   4. The actor believes that:
      1. The crimes for which the arrest is made involved conduct including the use or threatened use of deadly force; or
      2. There is a substantial risk that the person to be arrested will cause death or serious bodily injury if his apprehension is delayed.
4. The use of force to prevent the escape of an arrested person from custody is justifiable when the force could justifiably have been employed to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a law enforcement officer is justified in using force which he believes to be immediately necessary to prevent the escape from a detention facility.
5. A private person who is summoned by a law enforcement officer to assist in effecting an unlawful arrest is justified in using any force which he would be justified in using if the arrest were lawful, provided that he does not believe the arrest is unlawful. A private person who assists another private person in effecting an unlawful arrest, or who, not being summoned, assists a law enforcement officer in effecting an unlawful arrest, is justified in using any force which he would be justified in using if the arrest were lawful, provided that he believes the arrest is lawful, and the arrest would be lawful if the facts were as he believes them to be.

[L 1972, c 9, pt of §1; am L 2001, c 91, §4]

COMMENTARY ON §703-307

Subsection (1) covers all persons (not just peace officers) making an arrest. Force upon or toward the person of another is justifiable if the actor believes the amount of force the actor is using is immediately necessary to effect the arrest and if the actor believes that the arrest is lawful. It is immaterial that the arrest is unlawful if the actor believes it to be lawful. The justification also covers a person who is assisting in making an arrest.

Subsection (2) requires an announcement of the purpose of the arrest, unless the actor believes that the purpose is otherwise known (as in cases of hot pursuit) or cannot reasonably be made known. Further, the actor, if acting under a warrant, must either have a valid warrant or believe the warrant to be valid.

Subsection (3) restricts the use of deadly force to felony arrests by peace officers or persons who believe they are assisting peace officers. Even when these requirements are met, the actor must further believe that there is no substantial risk of injury to innocent persons and that the crime for which the arrest is made involved conduct including the use or threatened use of deadly force or that there is a substantial risk that the person to be arrested will cause death or serious bodily injury if the person's apprehension is delayed. It seems advisable to limit the situations in which deadly force can be used by a peace officer while at the same time recognizing that in some cases it is desirable to allow the peace officer to use deadly force in order to avert far greater harm. Note that the restrictions on deadly force to effect an arrest are supplemented by the general provisions on use of force in self-protection which would permit anyone to use deadly force if the person feared death or serious bodily harm to oneself or another. (See §§703-304, 305.)

Subsection (4) recognizes a justification for the use of force to prevent the escape of an arrested person from custody. Deadly force may be used to prevent escape from a jail, prison, or similar institution. When the subject is not incarcerated, the subject's escape may be prevented by force if force could justifiably have been employed to effect the arrest under which the subject is in custody. In addition, the Code contains a substantive crime of escape, and rights to use force to arrest for that crime will frequently arise. The distinction in permissible force is based on the greater social disruption and dismay which may arise from the escape of a person from a prison or a similar institution.

Subsection (5) gives protection to a private person who is assisting in an arrest. A person who assists a peace officer at the peace officer's command is justified, though the arrest be unlawful (and possibly even known by the officer to be unlawful), so long as the actor does not believe the arrest is unlawful. A higher standard is imposed when a private person assists another private person or volunteers aid to a peace officer. Here the person must believe the arrest to be lawful, and must believe in the existence of facts which would have made the arrest lawful if the facts were as the person believes them to be.

Previous Hawaii law recognized the defense provided by this section. The law required, like the Code, that the peace officer make known the peace officer's purpose to the arrestee, if it is possible to do so under the circumstances.[1] Prior law differs importantly from the Code, however, in that Hawaii statutory and case law permitted the arresting officer to use any force, including deadly force, necessary to effect any arrest.[2] No distinction was drawn between the arrest of a misdemeanant and a felon.[3] There was no requirement that the peace officer use deadly force only when acting in self-defense.[4] Nonetheless, under Hawaii case law, the peace officer could not use more force than was reasonably necessary to effect the arrest.[5] (As in all situations involving the defense of justification, Hawaii law used an objective test to determine the reasonableness of the defendant's belief.[6]) It is likely that a private person under Hawaii law also had the right to use any force necessary to effect the arrest of one who commits a crime in the person's presence.[7] However, there are apparently no Hawaii cases on this point.

It is the position of the Code that certain arrests will not warrant the use of deadly force and that the goal of proper law enforcement is best served by having the circumstances of such arrests clearly stated. The section provides a rational scale of the use of force based on the danger the arrestee represents to society and the immediate circumstances of the arrest, rather than on the simplistic concept that the police, in order to do a successful job, must always be given a carte blanche. Similar considerations are behind subsection (4) of the Code on escape; this subsection considerably narrows and clarifies the circumstances under which deadly force may be used.[8]

SUPPLEMENTAL COMMENTARY ON §703-307

Section 703-307(3) sets forth the very limited circumstances in which deadly force may be used to effect an arrest. Subsection (4) provides the general rule that, in dealing with an attempted escape, an officer may use the same force the officer could have used in effecting the arrest under which the person is or was in custody. As originally proposed, subsection (4) created an exception which provided that the law officer would be justified in using any force, including deadly force, which the officer believes to be immediately necessary to prevent the escape of a person charged with or convicted of a felony. The Legislature broadened the exception to allow the officer to use any force the officer believes to be necessary to prevent the escape of any person from a detention facility, whether charged or convicted of a felony, misdemeanor, or petty misdemeanor. The Conference Committee Report states that: "Your Committee finds that such a determination [whether the potential escapee was charged with or convicted of a felony as opposed to some lesser offense] by a guard or other person authorized to act as a peace officer would be difficult, if not impossible, in an escape situation." Conference Committee Report No. 2 (1972).

§703-307 Commentary:

1. H.R.S. §§803-6, 803-11; Provisional Government v. Caecires, 9 Haw. 522, 533 (1894).
2. "In all cases where the person arrested refuses to submit or attempts to escape, such degree of force may be used as is necessary to compel the person to submission." H.R.S. §803-7; Territory v. Machado, 30 Haw. 487 (1928).
3. Territory v. Machado, supra.
4. Id.
5. Leong Sam v. Keliihoomalu, 24 Haw. 477 (1918).
6. Cf. commentary on 304.
7. Cf. H.R.S. §803-3, 7; see note 2 supra.
8. H.R.S. §803-7, see note 2 supra.

§703-308 - Use of force to prevent suicide or the commission of a crime

1. The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary to prevent the other person from committing suicide, inflicting serious bodily harm upon oneself, committing or consummating the commission of a crime involving or threatening bodily injury, damage to or loss of property, or breach of the peace, except that:
   1. Any limitations imposed by the other provisions of this chapter on the justifiable use of force in self- protection, for the protection of others, the protection of property, the effectuation of an arrest, or the prevention of an escape from custody shall apply notwithstanding the criminality of the conduct against which such force is used; and
   2. The use of deadly force is not in any event justifiable under this section unless:
      1. The actor believes that there is a substantial risk that the person whom the actor seeks to prevent from committing a crime will cause death or serious bodily injury to another unless the commission or the consummation of the crime is prevented and that the use of such force presents no substantial risk of injury to innocent persons; or
      2. The actor believes that the use of such force is necessary to suppress a riot after the rioters have been ordered to disperse and warned, in any particular manner that the law may require, that deadly force will be used if they do not obey.
2. The justification afforded by this section extends to the use of confinement as preventive force only if the actor takes all reasonable measures to terminate the confinement as soon as the actor knows that the actor safely can, unless the person confined has been arrested on a charge of crime.

[L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §703-308

The purpose of this section is to provide a justification for the use of force to prevent suicide, serious bodily injury, or the commission of a crime. It gives a right to use such force as the actor believes is immediately necessary to prevent suicide or serious bodily injury, or to prevent a crime involving or threatening bodily harm, damage to or loss of property, or a breach of the peace. The right to use force in crime prevention is a concomitant of the right to use force to make an arrest spelled out in §703-307. It is, however, limited by all of the limitations expressed in the preceding sections. Deadly force may not be used except for the purpose of preventing a crime which will cause death or serious bodily injury, under circumstances in which there is no substantial risk of injury to innocent persons. Deadly force may also be used if the actor believes such force is necessary to suppress a riot, following an appropriate warning.

Subsection (2) contains a rule about the use of confinement as preventive force, similar to the rules on the same subject in §§703-304 to 306.

Previous Hawaii case law did not distinguish the defense presented in this section from that in §703-307, on the use of force in law enforcement.[1] The Code provides clarification on the issue.

§703-308 Commentary:

1. Provisional Government v. Caecires, 9 Haw. 522, 533 (1894).

§703-309 - Use of force by persons with special responsibility for care, discipline, or safety of others

The use of force upon or toward the person of another is justifiable under the following circumstances:

1. The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor, or a person acting at the request of the parent, guardian, or other responsible person, and:
   1. The force is employed with due regard for the age and size of the minor and is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and
   2. The force used is not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.
2. The actor is a principal, the principal's agent, a teacher, or a person otherwise entrusted with the care or supervision for a special purpose of a minor, and:
   1. The actor believes that the force used is necessary to further that special purpose, including maintenance of reasonable discipline in a school, class, other group, or at activities supervised by the department of education held on or off school property and that the use of force is consistent with the welfare of the minor; and
   2. The degree of force, if it had been used by the parent or guardian of the minor, would not be unjustifiable under paragraph (1)(b).
3. The actor is the guardian or other person similarly responsible for the general care and supervision of an incompetent person, and:
   1. The force is employed with due regard for the age and size of the incompetent person and is reasonably related to the purpose of safeguarding or promoting the welfare of the incompetent person, including the prevention of the incompetent person's misconduct, or, when such incompetent person is in a hospital or other institution for the incompetent person's care and custody, for the maintenance of reasonable discipline in the institution; and
   2. The force used is not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.
4. The actor is a doctor or other therapist or a person assisting the doctor or therapist at the doctor's or therapist's direction, and:
   1. The force is used for the purpose of administering a recognized form of treatment which the actor believes to be adapted to promoting the physical or mental health of the patient; and
   2. The treatment is administered with the consent of the patient, or, if the patient is a minor or an incompetent person, with the consent of the minor's or incompetent person's parent or guardian or other person legally competent to consent in the minor's or incompetent person's behalf, or the treatment is administered in an emergency when the actor believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.
5. The actor is a warden or other authorized official of a correctional institution, and:
   1. The actor believes that the force used is necessary for the purpose of enforcing the lawful rules or procedures of the institution; and
   2. The nature or degree of force used is not forbidden by other provisions of the law governing the conduct of correctional institutions; and
   3. If deadly force is used, its use is otherwise justifiable under this chapter.
6. The actor is a person responsible for the safety of a vessel or an aircraft or a person acting at the direction of the person responsible for the safety of a vessel or an aircraft, and:
   1. The actor believes that the force used is necessary to prevent interference with the operation of the vessel or aircraft or obstruction of the execution of a lawful order, unless the actor's belief in the lawfulness of the order is erroneous and the actor's error is due to ignorance or mistake as to the law defining authority; and
   2. If deadly force is used, its use is otherwise justifiable under this chapter.
7. The actor is a person who is authorized or required by law to maintain order or decorum in a vehicle, train, or other carrier, or in a place where others are assembled, and:
   1. The actor believes that the force used is necessary for that purpose; and
   2. The force used is not designed to cause or known to create a substantial risk of causing death, bodily injury or extreme mental distress.

[L 1972, c 9, pt of §1; am L 1992, c 210, §1; am L 2001, c 94, §1]

COMMENTARY ON §703-309

Subsection (1) justifies the use of force against minors by a parent or other person in loco parentis, subject to two limitations: (1) the force must be employed for safeguarding or promoting the welfare of the minor, and (2) it must not be designed to cause or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain or mental distress, or gross degradation. Thus the subsection sets a fairly simple and unexceptionable standard; the right of parents to use force to discipline their children is recognized, subject to clear requirements not to cause permanent injury.

Subsection (2) permits a teacher or other person entrusted with care for a special purpose (e.g., a camp counsellor) to use such force as believed necessary to further that purpose, including the maintenance of discipline, subject to the limitations of subsection (1) relating to death and injury. This subsection recognizes that a teacher will not ordinarily need to have the full scope of parental authority, but will have certain special needs, such as maintenance of class discipline, which are peculiar to the teaching situation. The intent of the Code in allowing this limited justification is not however, to encourage corporal punishment.

Subsection (3) justifies the use of force by a guardian responsible for the care and supervision of an incompetent person, but only to promote the welfare of the incompetent or to maintain discipline. Force may not, therefore, be used as punishment, as distinct from prevention of misconduct, except for the maintenance of institutional discipline. Force may not cause death, serious bodily injury, or the like, nor may it cause humiliation--a lesser amount of harm than countenanced for children in subsection (1).

Subsection (4) permits the use of force by a doctor or other therapist to administer a recognized form of treatment which the doctor or other therapist believes to be adapted to promoting the physical or mental health of the patient. Ordinarily such treatment would be administered with consent, but it may be administered without consent in an emergency. Under the wording of the section, if consent is in fact denied by the patient or a person competent to give consent, the use of force would no longer be justified.

Subsection (5) justifies force used by a warden or other authorized prison official to enforce prison rules and discipline. The force used must not be in excess of that permitted by statutes relating to prisons, and deadly force may be used only when justified under other sections of this Code.

Subsection (6) permits the use of force by a person responsible for the safety of a vessel or airplane to prevent interference with its operation or obstruction of the execution of a lawful order (unless the person is erroneous in the person's belief in the lawfulness of the order). Deadly force may be used if justified under this Code.

Subsection (7) permits force by a person authorized by law to maintain public order in public conveyances and public places. The person may not use force creating a substantial risk of death, bodily injury, or extreme mental distress.

The section is substantially in accord with preexisting Hawaii law. Hawaii law permits parents "to chastise [their children] moderately for their good."[1] Under prior law, any corporal punishment was permitted if reasonable.[2] To the extent that Hawaii case law suggests that the parents have uncontrolled discretion to discipline their children,[3] the Code represents a change. Similarly, teachers have had authority under Hawaii case and statutory law to use force to maintain discipline in the schools.[4] The punishment must have been reasonable,[5] and the teachers' discretion was considered less extensive than that of parents.[6] Prison officials under prior Hawaii law were permitted to use force to maintain discipline in the prisons;[7] and ship captains had the right to employ force to keep order on their vessels.[8] In all the above situations, the Code states with greater clarity than existing law when, for what purposes, and to what extent force may be used by persons with special responsibility for the care, discipline, or safety of others. Also, subsections (3), (4), and (7) represent additions to Hawaii law.

SUPPLEMENTAL COMMENTARY ON §703-309

Act 210, Session Laws 1992, amended this section to clarify the permitted level of force that a person responsible for the care of a minor, or an incompetent person, may use. In determining whether the level of force used is permitted, a court must consider the age and size of the recipient and whether a reasonable relationship exists between the force used and a legitimate purpose as specified in the statute. Conference Committee Report No. 103.

Act 94, Session Laws 2001, amended this section to clarify that the use of force upon another person is justified when the actor is a principal or principal's agent, when necessary, during school events or at a departmentally supervised function on or off school property. Current law allowed the use of force by teachers or other persons entrusted with the care or supervision for a special purpose of a minor, if the teacher or person believed the force used was necessary to further the special purpose, including maintenance of reasonable discipline. The legislature found it necessary that school personnel be authorized to take reasonable, appropriate, and expeditious action when confronted with potentially dangerous situations or serious disciplinary situations, on campus and off-campus at authorized school functions. School officials must be allowed to take immediate action to preserve order and discipline without having to wait for the police to arrive. Senate Standing Committee Report No. 1400.

Case Notes

Parent did not inflict serious pain when hitting child with belt. 72 H. 241, 813 P.2d 1382.

Force used by defendant not reasonably related to protecting minor's welfare where, according to testimony, spanking caused minor to be unable to sit while in school classes. 81 H. 5, 911 P.2d 725.

Injuries inflicted by defendant designed to cause or known to create a risk of substantial bodily injury, extreme pain or mental distress where, according to testimony, minor was in extreme pain for days and unable to sit without pain for weeks after spanking. 81 H. 5, 911 P.2d 725.

Trial court's finding that defendant parent's "slap across the face" was not "reasonably proportional" to child's refusal to come to defendant when repeatedly directed to do so was not supported by substantial evidence. 90 H. 85, 976 P.2d 399.

Where defendant, a non-custodial parent, was acting within the defendant's court-prescribed unsupervised visitation time, defendant retained, as a "residual parental right," within the meaning of §571-2, the authority to discipline defendant's child with respect to that child's conduct during the visitation period; thus, defendant was a "parent" for purposes of subsection (1). 90 H. 85, 976 P.2d 399.

Prosecution failed to prove beyond a reasonable doubt that mother's conduct did not come within the scope of parental discipline as prescribed in paragraph (1) where, considering the totality of the facts and circumstances, the force employed by mother was reasonably proportionate to daughter's defiant behavior towards mother, was reasonably believed to be necessary to discipline daughter, and the force used was "not designed to cause or known to create substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage". 115 H. 149, 166 P.3d 322.

Considering the totality of facts and circumstances, the force employed by mother's boyfriend (1) was reasonably proportionate to minor's defiant behavior towards boyfriend, (2) was reasonably believed to be necessary to discipline minor for minor's defiant attitude and demeanor, and the degree of force used was "not designed to cause or known to create a substantial risk of causing bodily injury"; thus, boyfriend's discipline was not excessive in light of minor's age, misconduct, and the comparatively mild physical force used, and the prosecution failed to disprove boyfriend's parental discipline defense beyond a reasonable doubt. 119 H. 468, 199 P.3d 57.

Appellate court erred in determining that respondent was precluded from having the jury instructed on the parental discipline defense because the force used against complainant resulted in substantial bodily injury; the plain language of subsection (1)(b) specifically ties the defense to criminal liability to the nature of the force used as opposed to the result of such use of force. 125 H. 78, 253 P.3d 639.

Where there was some evidence indicating that under the circumstances, the force used was not designed to cause or known to create a risk of substantial bodily injury, defendant was entitled to have the parental discipline defense instruction given to the jury for it to make that determination. 125 H. 78, 253 P.3d 639.

Where, with respect to subsection (1)(a), defendant did adduce some evidence that the force "was employed with due regard for the age and size of the minor and was reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct", the defendant was entitled to instruction on this defense, no matter how weak, unsatisfactory, or inconclusive the evidence might have appeared to the court; where a defendant asserts the parental discipline defense in a jury trial, it is for the jury to decide whether such a defense has merit. 125 H. 78, 253 P.3d 639.

Where parent struck child, evidence insufficient to support finding that force used by parent exceeded protection provided by paragraph (1)(b) (1985). 9 H. App. 345, 841 P.2d 1076.

Trial court erred when it concluded that "reasonably related" standard in paragraph (1)(a) precludes altogether the use of disciplinary force simply because prior non-physical alternatives failed to prevent minor's continuing misconduct. 82 H. 373 (App.), 922 P.2d 986.

The "physical harm" encompassed in the definition of family violence in §571-2 would not preclude a parent's right to use force to discipline a child as permitted by paragraph (1), and duty to discipline a child under §577-7(a). 88 H. 200 (App.), 965 P.2d 133.

The term "family violence" in §571-46(9) (1993) does not extend to the type of physical discipline of a child by his or her parent that is expressly permitted in paragraph (1); the limits on the use of physical force as a disciplinary measure in paragraph (1) adequately served to guide the family court's application of §571-46(9) (1993) in determining the best interests of the child when awarding custody or visitation. 88 H. 200 (App.), 965 P.2d 133.

There was substantial evidence adduced to negate the "parental discipline" justification defense under paragraph (1) where what uncle levied upon nephew was a wanton beating that (1) was not reasonably related to the purpose of safeguarding or promoting the welfare of the nephew, including the prevention or punishment of the nephew's misconduct, nor reasonably proportional to the misconduct being punished and reasonably believed necessary to protect the welfare of the nephew, and (2) directly or by its common sequelae is "known to create a risk of substantial bodily injury". 105 H. 394 (App.), 98 P.3d 265.

Defendant's conviction of harassment under §711-1106 reversed where trial court erroneously concluded that father's actions could not be seen as reasonably necessary to protect the welfare of the recipient, and the State failed its burden of disproving beyond a reasonable doubt the justification evidence that was adduced, or proving beyond a reasonable doubt facts negativing the justification defense under this section. 106 H. 252 (App.), 103 P.3d 412.

Family court addressed father's permissible discipline argument under subsection (1) and did not err in failing to apply this parental discipline defense when it concluded that even if the defense were available, father's use of force was not reasonably related to safeguarding or promoting minor's welfare. 125 H. 330 (App.), 260 P.3d 1148.

Although father's punches were forceful enough to cause bruising, they were not forceful enough to rise to the level of viciousness in which the level of attack "severed any relationship between the use of force and the welfare" of the complaining witness that "might be considered reasonable"; it was at most a "gray area" in which some in the community would find that father's extent of punishment was inappropriate; however, such gray areas are not resolved by criminalizing such parental discipline; therefore, there was insufficient evidence to disprove father's parental discipline defense under subsection (1)(a). 125 H. 406 (App.), 263 P.3d 116.

Where there was no substantial evidence and nothing in the record to indicate that father's punching son twice on son's left leg was designed to cause or was known to create the risk of causing extreme mental distress, the State did not disprove beyond a reasonable doubt father's parental discipline defense under subsection (1)(b). 125 H. 406 (App.), 263 P.3d 116.

§703-309 Commentary:

1. H.R.S. §577-7.
2. Id. §577-12.
3. Territory v. Cox, 24 Haw. 461, 463 (1918).
4. H.R.S. §298-16; Kahula v. Austin, 8 Haw. 54 (1890); Territory v. Cox, supra.
5. Territory v. Cox, supra (whipping considered reasonable punishment); Kahula v. Austin, supra (haircutting considered unreasonable punishment). It appears that judgments as to reasonableness in this area are likely to change to reflect more contemporary standards.
6. Territory v. Cox, supra at 463; Kahula v. Austin, supra.
7. H.R.S. §§353-91, 353-94; King v. Sherman, 1 Haw. 150 (1883); In re Candido, 31 Haw. 982 (1931).
8. United States v. Gisaburo, 1 U.S. Dist. Ct. Haw. 323 (1902).

§703-310 - Provisions generally applicable to justification

1. When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under sections 703-303 to 703-309 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of the actor's use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
2. When the actor is justified under sections 703-303 to 703-309 in using force upon or toward the person of another but the actor recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for such recklessness or negligence toward innocent persons.

[L 1972, c 9, pt of §1; gen ch 1993]

Cross References

Definitions of negligence and recklessness, see §702-206.

COMMENTARY ON §703-310

[The Proposed Draft of the Penal Code employed a subjective standard for justification. As mentioned previously and in the Supplemental Commentary hereafter, the Legislature introduced an objective or "reasonable man" standard. The following commentary is based on the Proposed Draft. The Supplemental Commentary indicates that §703-310 may be contrary to the Legislature's actual intent.]

Subsection (1) states that, where the actor is reckless or negligent in forming a belief about the existence of facts which would establish a justification for the actor's conduct, the actor does not have a defense of justification for any crime as to which recklessness or negligence suffices to establish culpability. This rule seems to be required in light of the Code's subjective standards of justification, which have led to the omission of the requirement that the actor's belief be reasonable.

Subsection (2) denies the defense of justification in cases in which the actor negligently or recklessly injures or creates a risk of injury to innocent persons. In such cases the actor may be prosecuted for a crime involving negligence or recklessness, as the case may be.

SUPPLEMENTAL COMMENTARY ON §703-310

As mentioned in the Supplemental Commentary on §§703-300 and 302, the Legislature introduced the "reasonable man standard" or objective standard in making a determination of whether a defense of justification is available. This being the case, it would appear that, where the defendant has been negligent in believing the use of force to be necessary, the defendant loses the defense of justification for all related crimes, including those which require intent, knowledge, and recklessness, as well as negligence, to establish culpability. Thus, §703-310, which was consistent with the principles of Chapter 703 as originally set forth in the Proposed Draft, now appears contrary to the Legislature's intent in this area.

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AL Bill Number: HB23

Title: Firearms, to require permit to carry assault weapons in vehicles or on one's person or to acquire such.

Description: Firearms, to require permit to carry assault weapons in vehicles or on one's person or to acquire such.

Last Action: Pending House Judiciary

Last Action Date: Feb 4, 2025

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