Hawai`i Gun Owners – 5 Things You Need To Know
HAWAI’I Gun Owners
5 Things You Need To Know
There are few ways a person can get into
big trouble more quickly than to misuse a firearm.
The decision to keep and bear arms is a serious one. It is also a decision that necessarily comes with great responsibility. All gun owners are required to know and follow the law. As you have heard many times, ignorance of the law is no excuse. Especially in cases involving firearms, you would be well served to study the law, and to think about its application before carrying, or even owning, a firearm.
This information is no substitute for studying the law regarding firearms and self-defense. Reading this will not teach you everything you need to know about carrying or using a firearm; far from it. We recommend that all gun owners take an initial comprehensive gun safety class as well as a refresher class on a regular basis from a qualified instructor. Carrying a firearm is a huge responsibility. There is no room for error.
We urge you to be a responsible gun owner and to think carefully before you act. Your very freedom could well depend on it.
- Do Not Make Any Statements After A Shooting
Many people have an urge to explain what happened to the police. Don’t! Despite what the media likes to report, many shootings are actually justified. Many police officers are good people trying to do the right thing. Remain Silent!
If you are under investigation, you have a 5th Amendment Constitutional right to remain silent. No further explanation or justification is necessary to invoke it. The framers of our Constitution fought for that right. They wanted to preserve it for you so you could use it. You shouldn’t just give it away. However, we know from experience some people talk to the police because they believe exercising their right to remain silent will be used against them. In the non-justice system world, simply remaining silent can be used against the person who is reasonably expected to explain what happened. This is not how things work in the justice system.
The general rule in the justice system is that invoking your right to remain silent cannot be used against you. Remaining silent is not a reason to be arrested or to be charged with a crime. Indeed, at a jury trial, the fact that a defendant exercised his or her right to remain silent at the scene is not generally admissible. Said another way, the jury does not get to hear anything about a defendant exercising his or her right to remain silent. Generally speaking, if a prosecution witness or the prosecutor erroneously comments on a defendant’s exercise of his or her right to remain silent, a mistrial results. Even at a trial, if a defendant exercises his or her right not to testify, the jury is instructed not to hold this fact against the defendant. In short, there is no downside to simply remaining silent.
There are other valid reasons to remain silent. We have had several occasions to meet with and talk to people immediately after a shooting. This is a horrible time to offer a detailed, accurate and complete statement of what just occurred. The chances are high that any statement you make will not be complete. You are likely to recall details later upon further reflection. Later additions or modifications to any initial statement are likely to be treated by the prosecutor as convenient fabrications. Problems with accurate communication are common under the best of circumstances. These are close to the worst of circumstances.
Whatever statement you would offer is likely to be meticulously picked apart over many months by skilled prosecutors, detectives, and forensic experts and used against you many months later. The midst of an adrenaline filled shock is the worst time to offer an accurate and complete statement about what just happened. Don’t even think about offering a statement at this point!
Even imagining you could offer an accurate and complete statement about the shooting that just occurred, exactly what you say, or even the way you say it, may limit available legal theories for the defense. Said another way, there can be several possible and varied legal justifications for brandishing or discharging a weapon. Once you offer a detailed statement, the defense is likely locked into or out of a particular legal theory when others may have been available.
For example, the Hawai’i Penal Code, HI Rev Stat § 703-305, specifically offers a justification for using deadly physical force that may indeed apply, but simply saying, “I was in fear for my life” could render this section more difficult, or even impossible, to successfully invoke. Moreover, Hawai’i’s more generalized “Choice of Evils” defense codified at HI Rev Stat § 703-302 could be rendered inapplicable based on specific statements identifying an incompatible motivation.
Additionally, a failure to immediately verbalize an honest but reasonably mistaken belief of fact as part of an initial statement could render the protections afforded throughout Hawai’i’s Criminal Code more difficult to utilize. The case is often analyzed not based on the actual facts, but rather on what the defendant reasonably believed about those facts at the relevant time. All of these sections can be utilized even if the defendant mentions the facts that support them for the first time at trial.
Another way offering even a detailed, complete and accurate statement can hurt your case, is by trusting the officer to memorialize your statement accurately. Many officers do not record initial statements at the scene. They scribble notes down to be incorporated into a formal written police report at a later time. Don’t trust your freedom to the accuracy of even an officer acting in good faith. Honest mistakes occur.
The Attorneys For Freedom have represented clients in serious gun related felony criminal matters where police officers have erroneously written allegedly verbatim statements supposedly uttered by our clients at the scene. In cases where a contemporaneous recording was also made, we have been able to prove that the allegedly verbatim statement attributed to our client by the officer in the police report was actually completely wrong. We have represented people in many other cases where clients have adamantly denied making the statements reflected in the police report. When it is your word against the police officer, you will likely lose. As a final point here, whenever a client points out an erroneous statement contained in a police report, that statement is never helpful to the defense. It seems police officers never incorrectly include statements in police reports that are actually helpful to the defendant. The way to avoid this problem is to simply remain silent.
Some cops lie. It shouldn’t be a surprise to anyone that there are good and bad people in all groups. There are some police officers who believe only sworn police officers ought to have guns. Unless you personally know the police officer offering to take your statement, you have no idea who you are dealing with. Considering you may have decades of prison time hanging in the balance based on what other people believe occurred immediately before your shooting, be safe and assume the worst. You probably know nothing about the officer attempting to persuade you to give a statement. Bite your tongue if necessary.
Keep your mouth shut!
Read the following statement, included on the back of any Attorneys For Freedom business card, to the police anytime you determine you cannot resist the urge to talk to the police.
“I refuse to consent to any search whatsoever. As such, I do not consent to a search of my premises, my person, my immediate location or any vehicle or effects. I hereby exercise my rights as enumerated by the Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the United States Constitution. I demand to have my attorney present prior to and throughout any questioning at all. Additionally, I request to call my attorney right now for a private legal consultation.”
It is important to note that reading this statement will not prevent an officer from arresting you or a prosecutor from charging you with a crime. The decision to arrest or to charge is supposed to be based solely on the evidence and reasonable inferences from that evidence. However, reading this statement to an officer, at least, memorializes what you actually said to the officer.
If you ever forget the advice to remain silent, the police officer will likely remind you. In the justice system, we refer to this reminder as the Miranda warnings. Keep in mind the officer is only required to inform you of the Miranda warnings in the event two things are occurring at the same time:
- You are either under arrest or the officer has probable cause to arrest you, and
- You are being interrogated.
There are four general parts to the Miranda warnings:
- You have the right to remain silent;
- Anything you say will be used against you in court;
- You have the right to an attorney; and
- If you can’t afford an attorney, one will be provided to you for free.
If a police officer ever conveys these warnings to you, this should serve as a reminder to keep your mouth shut. In such an event, you are likely under arrest or will be very soon. Said another way, the officer has already determined that probable cause exists to believe you committed a crime. You are not likely to convince the officer otherwise in any event.
As you know, there are exceptions to every rule. Here they are:
Exception #1 – If you have been involved in a shooting, someone should call 911. Preferably, get someone other than yourself to immediately call 911 and convey a few simple things:
- There has been a shooting;
- Please send an ambulance;
- The address is….;
- (Hang up)
If you can’t find someone else to immediately call 911, you should do it yourself before making any other calls; even to your lawyer.
After 911 has been called, you should immediately prepare for the arrival of the police. At this point, your immediate plan should be not to get shot by the police. Secure your weapon before the police arrive and make sure nothing you do could possibly be construed as a threat to the police. Make sure the officers can clearly see your empty hands.
Exception #2 – Routine traffic stops. Although this information is specifically geared to gun-related matters, the advice to remain silent generally applies to all police investigations of any type. However, if you want to try to talk your way out of a speeding ticket, then you can opt to simply ignore the rule to remain silent. Although we recommend you cheerfully accept your ticket and move on with your life a tad bit less wealthy, feel free to respectfully interact with the officer at the side of the road with the purpose of trying to avoid the ticket and obtain a warning instead.
Exception #3 – After a detailed consultation with an experienced attorney. Even in a gun related case, it may ultimately be in your best interest to make a formal statement. However, this can only be determined after spending some quality time with an experienced criminal defense attorney who fully understands the facts and circumstances of the situation.
Exception #4 – Hawai’i law requires a person who is detained for a violation of the traffic code to provide their name and address, and proof thereof, to the police officer upon request. See, HI Rev Stat § 291C-172.
- Understanding Self-Defense
Generally speaking, self-defense is all about one word – “reasonableness.” People often ask questions about the applicability of self-defense as a legal justification for various hypothetical situations. Often, the questions start with some version of the following, “So, I’m in my house sleeping. It’s the middle of the night, and I’m awakened by a suspicious noise. I wake up and grab my gun as a precaution. I see a stranger in my family room doing something. He turns to face me. Then, etc., etc., etc.” The question always concludes with, “So can I shoot him?”
This is how we hear these questions, “I would like you to predict for me with certainty what a random group of strangers in my community, who we know very little about, will think is reasonable under all the facts and circumstances.”
Before we can answer the hypothetical question, you need to understand that if the random group of strangers called the “jury” determines what you did was “reasonable” under the circumstances, you get to exit the courtroom and buy your criminal defense lawyer a nice dinner somewhere to celebrate. On the other hand, if the jury determines what you did was “unreasonable” under the circumstances you will likely immediately be carted away to live, possibly for many years, in a cage somewhere. It all boils down to what random people in the community determine to be “reasonable” or “unreasonable”.
In scenarios where we are asked to offer a prediction, we look at instances where the community has already predetermined some conclusions about “reasonableness”. For example, in Hawai’i, we have already determined that the threat against which you seek to use force to defend must be “immediately necessary.” Said another way, Hawai’i has predetermined that using force against a non-immediately necessary threat is unreasonable. A jury will be instructed about this predetermination of reasonableness. Hawai’i has also predetermined that using force to defend against mere words alone is unreasonable. Also, using deadly force to protect property is unreasonable. There are many other predetermined rules too. Knowing them in advance is especially helpful given that the judge will instruct the jury about these predetermined decisions about reasonableness.
Be very conservative when thinking about pulling out your gun
- Lawyers Argue About the Facts
Good lawyers always have long detailed initial meetings with their clients to understand the facts of what occurred. However, good lawyers also know from experience that the client’s version of the facts is just that; the client’s version of the facts. In almost all criminal cases, there are other different or even competing versions of the facts. It is always the case that there exists a truth about what actually occurred. However, it is obtaining that truth, and getting other people to accept that truth, that is often the problem. Sometimes people have different perceptions about what occurred. Also, some people lie about what happened.
For example, it is often the case that physical force or deadly physical force is used to defend against the coordinated and threatening efforts of a group of people. In these cases, there are always at least two vastly different versions of events. Usually, there are several different versions of events. A person shouldn’t be surprised when the person identified as the “victim” and all his or her friends have coordinated their versions of events to support an allegation of criminal conduct against the defendant.
When we start talking to the prosecutor in a criminal case, we always advocate for the best result for our client. This advocating normally focuses on the client’s version of the facts. However, prosecutors routinely disagree with the facts as we present them. They almost always focus on the facts as related by the person identified as the “victim” or people associated with and friendly to the victim. As is always the case, the differing versions of the facts always lead to vastly different potential results for our client.
We lawyers almost never argue about the law. If we have a disagreement about how the law applies, we can generally figure it out with a bit of legal research. Although you may invest lots of time learning about and studying the law, it is the facts we generally argue about; not the law. Indeed, this is the purpose of the jury. It is the jury that is charged with getting to the bottom of the facts of what occurred. They are given the law by the judge.
We often advise clients that their case isn’t about what actually happened. Their case is about what people will say happened as well as the physical evidence and reasonable inferences from that evidence. In many cases, the physical evidence does not resolve small but important or even conclusive details about what actually happened. It isn’t enough to act consistently with the law. To be safe from prosecution, the evidence of what actually happened must also be clear to a police officer or a prosecutor. Remember, there is no doubt that innocent people actually get convicted in our justice system.
In a dispute over the facts, most, if not all, prosecutors will afford the least credibility to the defendant. Remember, it is the defendant in a criminal case who usually has the most to lose and therefore the most invested in a particular version of events. As stated previously, the person with the shiny badge is usually afforded the most credibility by the prosecutor and the jury. The “victim” of the alleged crime is usually the next most credible to these people.
Whenever you think about pulling out your firearm, you need to consider both whether what you are doing will be considered reasonable by a random group of strangers as well as the real possibility that radically different versions of events may be presented to the police, the prosecutor and ultimately your jury.
- Mandatory Minimum Sentences
It used to be the case that sentencing judges had vast discretion in fashioning appropriate sentences based on the particular facts and circumstances of each case. This makes the most sense as judges are in a much better position than legislators are to fashion an appropriate sentence in a particular case with unique facts. In our ridiculously over criminalized society, the trend over the past several decades has been to drastically diminish the judge’s sentencing discretion in favor of more harsh, or even mandatory prison, “one size fits all” style sentences.
Mandatory minimum sentences are generally those sentences where prison is required. In Hawai’i, most felony crimes involving the mere possession of even an unloaded or inoperable firearm are mandatory prison offenses for those who are found guilty. See, HI Rev Stat § 706-660.1. As such, most gun related crimes carry the guarantee of prison time for those who are convicted; even for the first-time offender. There is no possibility of probation for those who are found guilty.
If you are ever prosecuted for a criminal charge resulting from a gun related incident, the odds are you are not going to trial. Regarding criminal cases generally, the vast majority are resolved with a plea bargain agreement rather than a jury trial. Depending on various factors, most estimates are over 95% of all criminal cases are resolved by plea instead of by jury trial.
In short, because the risk of rolling the dice at trial is so incredibly high, the overwhelming vast majority of people will opt instead for the relative certainty of a plea bargain agreement. This vast majority of people undoubtedly includes people who may have ultimately been acquitted after a jury trial had they risked it. The bottom line here is that the risk of a long mandatory prison sentence upon a conviction often serves to coerce people out of their right to a jury trial. Prosecutors are well aware of this reality.
At the Attorneys For Freedom we trying cases, and it is generally our personal preference to go to trial. However, the truth is nobody can accurately predict what a jury will decide. Indeed, different juries sometimes reach different conclusions on the same facts. Trial is always a risk. Given that we don’t have to personally suffer through the prison time if we lose, it isn’t our decision. Some criminal defense attorneys would say that some prosecutors intentionally overcharge cases knowing the risk of trial will simply scare the defendant into accepting a plea offer.
It is no secret that people who maintain their actual innocence sometimes plead guilty. Indeed, our United States Supreme Court specifically approved of the concept that there is no constitutional impediment to people who openly maintain their actual innocence from pleading guilty and accepting a plea offer for the purpose of limiting their risk. It happens in our criminal justice system.
If you think you will simply explain this concept to a jury at trial, you would be wrong. The existence of a mandatory prison sentence upon conviction is a fact that is intentionally withheld from the jury at a trial. As an example, a jury may reasonably conclude that a 19-year-old kid with no prior convictions who sold $10.00 of marijuana (the amount he paid for it) on two occasions to his 19-year-old marijuana-smoking buddy would be looking at probation upon conviction. However, these facts could result in a prison sentence in Hawai`i.
Most likely a jury would be much more concerned, and maybe even pay closer attention to the evidence or more rigidly hold the prosecutor to his or her burden of proof, if they knew the 19-year-old kid was likely to go to prison upon conviction rather than get a slap on the wrist with counseling as they may otherwise reasonably conclude. If you are charged with a gun related crime and plan to go to trial, you need to know the jury won’t be told about the likely prison sentence you will suffer if they find you guilty.
The case for being very conservative about pulling out your firearm is strong. The best way to avoid having to deal with the risk of a mandatory prison sentence is simply being smart enough to avoid doing the types of things which may give rise to criminal charges.
Don’t be an idiot with a gun!
- What to Think About When You Are Thinking About Pulling it Out
Given that self-defense is all about what’s “reasonable,” and that the facts of most criminal cases are almost always hotly contested, and keeping in mind that you will likely be facing a mandatory prison sentence if convicted, avoiding being charged with a gun crime ought to be of the utmost importance to gun owners. You can see now why we advise people to be very conservative about pulling out their firearm. That said, there exists extraordinarily rare times when you must.
Iimagine that if you decide to pull out your firearm, you will certainly be prosecuted for a serious felony gun crime. To truly understand this possibility, you must have already been arrested, charged and prosecuted for such a crime. Given that, if you have already been through such an ordeal, the odds are that you are now a prohibited possessor and can’t possess firearms in any event. For those of you who haven’t been through such an ordeal, we recommend you actually spend some time thinking about and actually visualizing what it would be like to be prosecuted for a serious gun crime.
It usually starts with the arrest. The police will arrive and “escort you to the ground.” While it doesn’t sound too bad, it won’t be a gentle experience. Imagine the officer has already firmly concluded you are guilty of a serious gun crime. You will be treated accordingly as your new bracelets are harshly installed on your wrists. Hopefully, you will resist the strong urge to tell your version of events to the officer.
After a miserable ride to the horribly overcrowded jail, you are booked in as the newest member of the highest incarcerated population on Earth. You should expect the judge, who has already read the officer’s version of the case, the same officer who just cuffed and stuffed you, will set a very high bond to be posted in exchange for your release. You may even be subjected to a cash only bond; making it much more difficult to actually post the bond and thereby secure your release. You will soon learn who your real friends are as they hopefully scramble to secure your release as well as a good criminal defense attorney.
Although you are assured you are absolutely presumed innocent, you truly aren’t feeling it as you choke down the disgusting slop served to you for dinner with your new friends at the jail. Even if you can secure your release from jail, you recall points #2, #3, and #4 above as a lawyer explains the serious felony charges now brought against you.
After possibly a year of misery, constantly wondering whether your life is ruined, you will face the difficult choices described above in the section on mandatory minimum sentences. Expect to be charged with a crime carrying a long mandatory prison sentence.
Although you will feel strongly you withdrew your firearm consistently with the law, odds are you will eventually accept a plea offer; even if your lawyer enthusiastically wants to try the case before a jury. You won’t likely accept the substantial risks associated with a trial when you are offered the certainty of a much more lenient plea bargain. As a final parting gift resulting from your unplanned interaction with the state, you are now a prohibited possessor; probably forever.
We intentionally presented, far from a worst case, but a very bad scenario for you to consider. Be advised, this general example is not far-fetched at all. It happens all the time. However, not all firearm brandishings or discharges are prosecuted. Indeed, not all people who pull out their firearm are even arrested. We have witnessed good judgment by both the police and prosecutors. Sometimes, they are able to quickly sort out the good guys from the bad guys.
That said, we want you to envision this exact example when you are thinking about pulling it out. If you are not willing to endure the rigors of being prosecuted as described, maybe the situation you face is not serious enough to warrant pulling out your firearm. Said another way, if what is about to imminently happen if you fail to pull out your firearm is worse than being prosecuted act defensively. However, if being prosecuted is worse than what happens if you fail to pull it out, we advise you not to pull it out.
This information is not intended to act as a substitute for carefully studying the law relating to firearms. However, this guide should serve as a framework for better understanding the application of those laws in our criminal justice system. We hope you will be conservative about pulling out your firearm and do so only in extreme and very serious circumstances. You would also be well served to actually become and stay familiar and competent with whatever firearm you choose. Having a firearm is close to worthless unless you can competently use it if necessary.
There are countless people who regularly carry firearms safely and responsibly. Most of them will never have any problems at all relating to those firearms. Carrying a firearm ought to be boring. You should be comfortable with the fact that you will never likely have to pull it out. Like flood insurance, we hope to never need it. However, it is important to have in the event you actually need to use it.
FOR MORE INFORMATION CLICK HERE TO RECEIVE A COPY OF 5 THINGS EVERY RESPONSPOBILE GUN OWNER OUGHT TO KNOW
by Attorney Marc J. Victor