Lawsuit Challenging Hawaii's Ban on Gun Ownership by Micronesians Who Aren't U.S. Citizens but Who Are Allowed to Live in the U.S. Long-Term

From the motion for preliminary injunction in Peter v. Lopez (D. Haw.), filed Wednesday:

Plaintiff is a long-term resident of Hawaii who legally lives in the United States pursuant to the Compact of Free Association (“COFA”) the United States has with various islands nations located in the Pacific. “The Compact grants [citizens of the Federated States of Micronesia] and citizens of other compact states [Palau and the Marshall Islands] liberal opportunities to work and reside in the United States.” COFA aliens “admitted to the United States under the Compacts may reside, work, and study in the United States. They do not have the status of lawful permanent residents (also known as Green Card holders) under the Immigration and Nationality Act (INA).”

Hawaii Revised Statutes § 134-2 generally bans gun ownership by non-citizens, with some exceptions, which covers COFA aliens among others:

In Fotoudis v. City & County of Honolulu (D. Haw. 2014), this Court enjoined H.R.S. § 134-2′s prohibition on noncitizen’s owning firearms as applied to permanent resident aliens i.e. green card holders. After the Fotoudis ruling, Hawaii maintained a ban on other noncitizen residents of Hawaii. This included U.S. Nationals from the U.S. Territory of America Samoa until a lawsuit was filed. Shortly after the filing of that lawsuit, the State entered into a stipulated injunction which compelled Hawaii to allow U.S. Nationals to own firearms. See Alanoa Nickel v. Connors (D. Haw. 2020) (stipulated injunction as to State of Hawaii’s ban on U.S. Nationals owning firearms). Since then, Hawaii has updated H.R.S. § 134-2 to include U.S. Nationals and green card holders as being among those authorized to own firearms. However, Hawaii maintains a flat ban on firearm ownership for other lawfully present aliens including COFA aliens.

Plaintiffs argue the Hawaii ban violates the Second Amendment, and violates the Equal Protection Clause, which generally forbids states (though not the federal government) from discriminating against noncitizens in various ways. An excerpt from the equal protection section:

Alienage, or the state of being an alien, i.e. a non-citizen of the United States, is a suspect class that triggers strict scrutiny in equal protection claims when dealing with state law. Graham v. Richardson (1971)….

Applying strict scrutiny, denying Plaintiff the opportunity to apply for (and to obtain) a permit merely because he is a COFA alien “is not a narrowly tailored means of achieving that goal.” See also Fletcher v. Haas (D. Mass. 2012) (“Although Massachusetts has an interest in regulating firearms to prevent dangerous persons from obtaining firearms … the statute here fails to distinguish between dangerous non-citizens and those non-citizens who would pose no particular threat if allowed to possess handguns.”); Say v. Adams (W.D. Ky. 2008) (granting an injunction against enforcing a Kentucky law limiting the issuance of a license to carry concealed weapons to U.S. citizens, reasoning in part that “[a] blanket prohibition discriminating against aliens is not precisely draw[n] to achieve the goal of facilitating firearms purchases when there exists a nondiscriminatory way to achieve the same goals”)….

Kevin O’Grady and Alan Beck represent plaintiff; Beck had also represented the plaintiff in Fotoudis (the green card holder case) and Nickel (the American Samoan case).

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