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Hawaii County has reached a settlement in a federal lawsuit with the plaintiff who argued that the county’s requirement that he sign a background check waiver as part of the application for a concealed carry firearm permit violated his constitutional right to privacy.
U.S. District Judge Jill Otake’s September 29 ruling in favor of plaintiff James Grell is, in part, a permanent injunction and a stipulated final judgment based on this agreement. The injunction requires the county to begin using a new waiver form based on the form currently used by the City and County of Honolulu within 10 business days of the order.
J Yoshimoto, the county’s deputy general counsel, said in an email Tuesday that the stipulated ruling “arises from an agreement that implements changes to county policy resulting from recent federal court rulings on the Second Amendment.”
If the county and Grell had not reached an agreement, the lawsuit would have to be heard by Otake on Nov. 3.
Police chiefs in Hawaii have sole authority to issue permits to carry firearms, but have only approved a handful of applications in the past. That changed after the U.S. Supreme Court ruled in June 2022 in the New York State Rifle & Pistol Assn. v. Bruen, which lifted most state restrictions on the public carrying of firearms.
Grell, a 51-year-old accountant from Waimea, was denied permission to carry a Sig Sauer P365 9mm semi-automatic pistol twice this year, even though he had been certified by the National Rifle Association with Grell’s application to pass a fitness test the handgun had passed.
The police department twice refused to process Grell’s application, citing in a certified letter his refusal to complete and notarize the county’s liability waiver.
The waiver form states that the applicant for a permit to carry firearms will exempt “anyone who provides “information or opinions concerning the applicant’s background, family, personal habits, or reputation” from “any liability on any grounds whatsoever.” shall be held harmless from legal action.”
The form also asked the applicant to waive “any legal privileges I may have to keep such information confidential, including but not limited to the following privileges: attorney-client, clergyman-penitent, husband-wife, Doctor-patient, psychologist-customer, creditor-customer and accountant-customer.”
Additionally, by signing and completing the form, the applicant agreed to waive any claims against the Hawaii Police Department in connection with the concealed carry application process.
“Many of these policies are simply inconsistent with the Supreme Court’s admonition that all law-abiding (adult citizens) have the right to bear the law,” said Alan Beck, a San Diego attorney who focuses primarily on issues of the second Constitutional Amendment and Grell’s specialized co-advisor. “So if the county doesn’t want to deal with litigation, it should start by reviewing all of its internal policies … and whether they pass the constitutional requirements before a lawsuit has to take place.”
Hawaii County Police Chief Benjamin Moszkowicz said via email that he was “thrilled that we have reached a mutually acceptable resolution to this matter.”
“We have made changes to our application forms that limit the requirements for applicants to waive attorney-client, clergy-penitent and spousal privileges,” Moszkowicz said. “I am confident that this will allow us to better protect applicants’ constitutional rights while continuing to fulfill our role in protecting the public.”
Grell, who was one of the plaintiffs in the recent 9th Circuit Court of Appeals decision in Teter v. Connors that struck down the state’s ban on butterfly knives, argued that the county’s prior waiver requirement violated its rights under the 14th Amendment Violating the U.S. Constitution states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…nor deny to any person within its jurisdiction the equal protection of the laws.”
Beck said he expects an increase in concealed carry applicants in Hawaii County because of the Grell ruling.
“I think there were a lot of people who were afraid to apply because not only were you waiving all of your privileges, but you were also indemnifying the county in the event of any information disclosure,” he said.
Moszkowicz does not share this expectation.
“I don’t expect a significant increase in the number of applications,” he said.
The ruling also orders the county to pay $30,500 to cover Grell’s attorney fees and costs, pending county council approval"