§134-7 - Ownership or possession prohibited, when; penalty.

§134-7  Ownership or possession prohibited,when; penalty.  (a)  No person who is a fugitive from justice or is aperson prohibited from possessing firearms or ammunition under federal lawshall own, possess, or control any firearm or ammunition therefor.

(b)  No person who is under indictment for, orhas waived indictment for, or has been bound over to the circuit court for, orhas been convicted in this State or elsewhere of having committed a felony, orany crime of violence, or an illegal sale of any drug shall own, possess, orcontrol any firearm or ammunition therefor.

(c)  No person who:

(1)  Is or has been under treatment or counseling foraddiction to, abuse of, or dependence upon any dangerous, harmful, ordetrimental drug, intoxicating compound as defined in section 712-1240, orintoxicating liquor;

(2)  Has been acquitted of a crime on the grounds ofmental disease, disorder, or defect pursuant to section 704-411; or

(3)  Is or has been diagnosed as having a significantbehavioral, emotional, or mental disorders as defined by the most currentdiagnostic manual of the American Psychiatric Association or for treatment fororganic brain syndromes;

shall own, possess, or control any firearm orammunition therefor, unless the person has been medically documented to be nolonger adversely affected by the addiction, abuse, dependence, mental disease,disorder, or defect.

(d)  No person who is less than twenty-fiveyears old and has been adjudicated by the family court to have committed afelony, two or more crimes of violence, or an illegal sale of any drug shallown, possess or control any firearm or ammunition therefor.

(e)  No minor who:

(1)  Is or has been under treatment for addiction toany dangerous, harmful, or detrimental drug, intoxicating compound as definedin section 712-1240, or intoxicating liquor;

(2)  Is a fugitive from justice; or

(3)  Has been determined not to have been responsiblefor a criminal act or has been committed to any institution on account of amental disease, disorder, or defect;

shall own, possess, or control any firearm orammunition therefor, unless the minor has been medically documented to be nolonger adversely affected by the addiction, mental disease, disorder, ordefect.

For the purposes of enforcing this section, andnotwithstanding section 571-84 or any other law to the contrary, any agencywithin the State shall make its records relating to family court adjudicationsavailable to law enforcement officials.

(f)  No person who has been restrained pursuantto an order of any court, including an ex parte order as provided in thissubsection, from contacting, threatening, or physically abusing any person,shall possess, control, or transfer ownership of any firearm or ammunitiontherefor, so long as the protective order, restraining order, or any extensionis in effect, unless the order, for good cause shown, specifically permits thepossession of a firearm and ammunition.  The restraining order or order ofprotection shall specifically include a statement that possession, control, ortransfer of ownership of a firearm or ammunition by the person named in theorder is prohibited.  Such person shall relinquish possession and control ofany firearm and ammunition owned by that person to the police department of theappropriate county for safekeeping for the duration of the order or extensionthereof.  In the case of an ex parte order, the affidavit or statement underoath that forms the basis for the order shall contain a statement of the factsthat support a finding that the person to be restrained owns, intends to obtainor to transfer ownership of, or possesses a firearm, and that the firearm maybe used to threaten, injure, or abuse any person.  The ex parte order shall beeffective upon service pursuant to section 586-6.  At the time of service of arestraining order involving firearms and ammunition issued by any court, thepolice officer may take custody of any and all firearms and ammunition in plainsight, those discovered pursuant to a consensual search, and those firearmssurrendered by the person restrained.  If the person restrained is theregistered owner of a firearm and knows the location of the firearm, butrefuses to surrender the firearm or refuses to disclose the location of thefirearm, the person restrained shall be guilty of a misdemeanor.  In any case,when a police officer is unable to locate the firearms and ammunition eitherregistered under this chapter or known to the person granted protection by thecourt, the police officer shall apply to the court for a search warrantpursuant to chapter 803 for the limited purpose of seizing the firearm andammunition.

For the purposes of this subsection, good causeshall not be based solely upon the consideration that the person subject torestraint pursuant to an order of any court, including an ex parte order asprovided for in this subsection, is required to possess or carry firearms orammunition during the course of the person's employment.  Good causeconsideration may include but not be limited to the protection and safety ofthe person to whom a restraining order is granted.

(g)  Any person disqualified from ownership,possession, control, or the right to transfer ownership of firearms andammunition under this section shall surrender or dispose of all firearms andammunition in compliance with section 134-7.3.

(h)  Any person violating subsection (a) or (b)shall be guilty of a class C felony; provided that any felon violatingsubsection (b) shall be guilty of a class B felony.  Any person violatingsubsection (c), (d), (e), (f), or (g) shall be guilty of a misdemeanor. [L1988, c 275, pt of §2; am L 1990, c 191, §1; am L 1993, c 215, §1; am L 1994, c204, §§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]

Law Journals and Reviews

  Empowering Battered Women:  Changes in Domestic Violence Lawsin Hawai‘i.  17 UH L. Rev. 575.

Case Notes

  Felon convicted of possessing firearm properly sentencedunder 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, 778P.2d 704.

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

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

  Subsection (b) applies to felons who are convicted through anolo 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’sinstructions "to wit, a semiautomatic pistol" did not alter thestatutory elements of §§708-840, 134-6, or this section, trial court’s error ofnot providing definition of "semiautomatic firearm" did not warrantreversal of convictions of first degree robbery, carrying or use of firearm incommission 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 herconduct; and (2) the requisite state of mind with respect to the attendantcircumstances--i.e., the particular qualities of the object that make itillegal to possess it--is, by way of §702-204, satisfied by a reckless state ofmind.  93 H. 87, 997 P.2d 13.

  Where one bag containing a gun was found on truck seat nextto defendant and another bag with two guns was found on truck floor where defendanthad been sitting, jury could have inferred from totality of circumstances thatdefendant had the state of mind requisite to commit possession of a firearmand/or ammunition by a person convicted of certain crimes.  93 H. 87, 997 P.2d13.

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

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

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

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

  Where State failed to establish defendant's prior felonyconviction and no lesser included offense of a felon in possession of a firearmor ammunition in chapter 134, defendant's convictions of being a felon inpossession 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 authorizedfor violating the prohibition against possession of "any firearm orammunition therefor"; thus, where defendant was already convicted ofpossessing a firearm, defendant could not be convicted for possession ofammunition loaded into that firearm.  89 H. 59 (App.), 968 P.2d 1070.

  Although evidence that defendant had previously beenconvicted of a felony was relevant for purposes of this section, evidence thatdefendant may have received ineffective assistance of counsel during that priorfelony trial would not have any bearing on the validity of that felonyconviction; thus, trial court did not err in precluding evidence that defendantmay 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 possessionand control of a firearm during the pendency of that order; this prohibition iseffective 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 ofincarceration 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 tosubsection (b) and sentencing defendant to a mandatory minimum term ofimprisonment pursuant to §706-660.1(3)(c) essentially punished defendant twicefor a single possession of a firearm; a rational interpretation of §706-660.1is that the legislature did not intend its application for felonies where theentirety of the felonious conduct is the use or possession of a firearm.  107H. 273 (App.), 112 P.3d 759.

  In a prosecution of a felon under subsection (b) forpossession of firearm ammunition, the State must prove, whether by direct orcircumstantial 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 otherwiseincapable of being fired, was substantial evidence that the ammunition wasactually loaded.  108 H. 124 (App.), 117 P.3d 856.

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