HOUSE OF REPRESENTATIVES

H.B. NO.

2292

THIRTIETH LEGISLATURE, 2020

H.D. 1

STATE OF HAWAII

S.D. 2

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO ELECTRIC GUNS.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that the United States Supreme Court decision in Caetano v. Massachusetts, 136 S. Ct. 1027 (2016), which overruled a decision of the Massachusetts Supreme Judicial Court, has raised questions regarding the constitutionality of complete bans on electric guns, and may make amendments to Hawaii's law on electric guns advisable.

The purpose of this Act is to protect the health and safety of the public by regulating the sale and use of electric guns within constitutional limits.

SECTION 2. Chapter 134, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART    . ELECTRIC GUNS

134-A Definitions. As used in this part:

"Cartridge" means any device or object that is designed to be used with an electric gun to project a missile. "Cartridge" includes but is not limited to a taser cartridge.

"Electric gun" means any portable device that is designed to discharge electric energy, charge, voltage, or current into the body through direct contact or utilizing a projectile. "Electric gun" includes but is not limited to electric projectile guns and devices commonly referred to as stun guns. "Electric gun" does not include any automatic defibrillator used in emergency medical situations.

"Electric projectile gun" means any electric gun that is designed to discharge electric energy, charge, voltage, or current into the body through a projectile. "Electric projectile gun" includes but is not limited to a taser.

"Law enforcement agency" means any county police department, the department of public safety, department of the attorney general, department of transportation, division of conservation and resources enforcement of the department of land and natural resources, and any other state or county public body that employs law enforcement officers.

"Law enforcement officer" means a sheriff or deputy sheriff, police officer, employee appointed as a law enforcement officer by the director of transportation pursuant to section 266-24(a), enforcement officer within the division of conservation and resources enforcement of the department of land and natural resources, special agent of the department of the attorney general, and any other public servant vested by law with a duty to maintain public order, make arrests for offenses, or enforce criminal laws, whether that duty extends to all offenses or is limited to a specific class of offenses.

"Licensee" means a person licensed to sell, offer to sell, or otherwise transfer or distribute electric guns and cartridges pursuant to section 134-E.

"Person" means an individual, firm, corporation, partnership, association, or any form of business or legal entity.

"Transfer" means the granting of possession or ownership to another, and includes the granting of temporary possession to another.

134-B Restrictions on use, sale, and transfer of electric guns and cartridges. (a) It shall be unlawful for any person to knowingly or recklessly use an electric gun for any purpose except:

(1) Self-defense;

(2) Defense of another person; or

(3) Protection of property of the person or of another person.

(b) It shall be unlawful for any person to knowingly sell, offer for sale, distribute, or otherwise transfer an electric gun or cartridge without a license obtained pursuant to section 134-E.

It is an affirmative defense to prosecution pursuant to this subsection, that the person is an adult employee of a licensee acting within the scope of the person's employment.

(c) It shall be unlawful for a licensee or an employee of a licensee to knowingly sell, offer for sale, distribute, or otherwise transfer an electric gun or cartridge at a place other than the licensee's designated place of business.

(d) It shall be unlawful for any person to knowingly sell, offer for sale, distribute, or otherwise transfer an electric gun or cartridge to any person who is less than twenty-one years of age.

(e) It shall be unlawful for any person other than a licensee, a law enforcement agency, or the army or air national guard to knowingly or recklessly purchase, obtain, or otherwise receive an electric gun or cartridge from a person who does not have a license issued pursuant to section 134-E.

(f) Any person violating this section shall be guilty of a misdemeanor.

134-C Permits to acquire electric projectile gun. (a) No person shall acquire the ownership of an electric projectile gun, whether usable or unusable, serviceable or unserviceable, registered 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 a place of business nor residence, the person's place of sojourn, a permit to acquire the ownership of an electric projectile gun as prescribed in this section. When title to any electric projectile gun is acquired by inheritance or bequest, the foregoing permit shall be obtained before taking possession of an electric projectile gun; 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 electric projectile gun directly to a dealer licensed under section 134-E without complying with the requirements of this section.

(b) 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 a photograph are already on file with the department, these may be waived.

(c) 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 waiver form shall be prescribed by the attorney general and shall be uniform throughout the State.

(d) The chief of police of the respective counties may issue permits to acquire electric projectile guns to citizens or legal aliens of the United States who are of the age of twenty-one years or more.

(e) 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-E, 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 be denied, before the twentieth day from the date of application. Permits issued to acquire any electric projectile gun shall be void unless used within ten days after the date of issue. Permits to acquire an electric projectile gun shall require a separate application and permit for each transaction. The issuing authority shall perform a fingerprint-based background check pursuant to section 846-2.7, before any determination to issue a permit or to deny an application is made.

(f) In all cases where an electric projectile gun is acquired from another person within the State, the permit shall be signed in ink by the person to whom title to the electric projectile gun is transferred and shall be delivered to the person who is transferring title to the electric projectile gun, who shall verify that the person to whom the electric projectile gun is to be transferred is the person named in the permit and who shall enter on the permit in the space provided the following information:

(1) Name of the person to whom the title to the electric projectile gun was transferred;

(2) Names of the manufacturer and importer;

(3) Model; and

(4) Serial number, as applicable.

The person who is transferring title to the electric projectile gun 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 electric projectile gun.

In all cases where receipt of an electric projectile gun is had by mail, express, freight, or otherwise from sources outside 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 electric projectile gun.

(g) No person shall be issued a permit under this section unless the person, at any time prior to the issuance of the permit, has completed an electric projectile gun safety or training course, offered or approved by the county, that focuses on:

(1) The safe use and handling of electric projectile guns;

(2) Current information about the effects, dangers, risks, and limitations of electric projectile guns; and

(3) Education on existing state laws on electric projectile guns.

(h) No person shall sell, give, lend, or deliver into the possession of another any electric projectile gun except in accordance with this part.

(i) 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 charged by the Hawaii criminal justice data center pursuant to section 846-2.7.

(j) Any person, including any licensee, violating subsections (a), (f), or (h) shall be guilty of a misdemeanor.

134-D Registration. (a) Every person arriving in the State who brings or by any other manner causes to be brought into the State an electric gun of any description, whether usable or unusable, serviceable or unserviceable, shall register the electric gun within five days after arrival of the person or of the electric gun, 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.

Every person registering an electric gun 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 a fingerprint-based background check pursuant to section 846-2.7, before any determination to register an electric gun is made. If the electric gun has no serial number, an application for a permit pursuant to section 134-C shall be completed, but no permit shall be issued, and the permit number shall be entered in the space provided for the serial number, and the permit number shall be engraved upon the electric gun prior to registration.

(b) Every person who manufactures an electric gun shall register the electric gun in the manner prescribed by this section within five days of manufacture. A licensee shall not be required to have the electric guns physically inspected by the chief of police at the time of registration.

Every person registering an electric gun 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 a fingerprint-based background check pursuant to section 846-2.7, before any determination to register an electric gun is made. If the electric gun has no serial number, an application for a permit pursuant to section 134-C shall be completed and the permit number shall be entered in the space provided for the serial number, and the permit number shall be engraved upon the electric gun prior to registration.

(c) Every person who acquires an electric projectile gun pursuant to section 134-F shall register the electric projectile gun in the manner prescribed by this section within five days of acquisition. If the electric projectile gun has no serial number, the permit number shall be entered in the space provided for the serial number, and the permit number shall be engraved upon the electric projectile gun prior to registration.

(d) The registration 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; serial number; and source from which receipt was obtained, including the name and address of the prior registrant. All registration data that would identify the individual registering the electric gun 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; or

(4) By order of a court.

(e) A licensee shall register electric projectile guns pursuant to this section on registration forms prescribed by the attorney general and shall not be required to have the electric projectile guns physically inspected by the chief of police at the time of registration.

(f) No fee shall be charged for the registration of an electric gun under this section, except for a fee chargeable by and payable to the registering county for persons registering an electric gun under subsection (a) or (b), in an amount equal to the fee charged by the Hawaii criminal justice data center pursuant to section 846-2.7.

(g) The person registering an electric gun shall have the electric gun physically inspected by the chief of police at the time of registration except as provided in subsection (b). If the person registering an electric gun is prohibited from owning, possessing, or controlling an electric gun, the registration shall be denied and the electric gun shall be surrendered to the chief of police or the chief of police's designee for disposal as provided in section 134-G.

(h) For any non-projectile electric gun that is not required to be registered and has no serial number, an application for a permit pursuant to section 134-C shall be completed and a serial number shall be created but no permit shall be issued.

(i) Any person, including any licensee, violating this section shall be guilty of a misdemeanor.

134-E License to sell, offer to sell, distribute, or otherwise transfer electric guns or cartridges; fee. (a) Any person desiring to sell, offer for sale, distribute, or otherwise transfer electric guns or cartridges to a person in the State, either at wholesale or retail, shall annually file an application for a license to do so with the county in which the person desires to conduct business or within the county to which the person intends the electric guns or cartridges to be distributed, using forms prescribed by the county.

(b) If the applicant is an individual, the application and supporting documentation shall establish at least the following:

(1) The legal name, date of birth, and the last four digits of the social security number of the individual;

(2) The street address, telephone number, fax number, and electronic mail address of the individual;

(3) The name and location of the principal place of business of the individual and, if applicable, each additional designated place of business from which the individual desires to sell electric guns or cartridges;

(4) The individual's Hawaii tax identification number;

(5) The individual has no convictions for any felony offense;

(6) The applicant has completed an electric gun safety or training course, offered or approved by the county, that focuses on:

(A) The safe use and handling of electric guns;

(B) Current information about the effects, dangers, risks, and limitations of electric guns; and

(C) Education on existing state laws on electric guns; and

(7) Any other additional information the county may require.

(c) If the applicant is not an individual, the application and supporting documentation shall establish at least the following:

(1) The name of the applying entity and any other name under which the applying entity does business, if applicable;

(2) The street address, telephone number, fax number, and electronic mail address of the applying entity;

(3) The legal name, date of birth, and the last four digits of the social security number of each of the principals or members of the applying entity;

(4) The street address, telephone number, fax number, and electronic mail address of each of the principals or members of the applying entity;

(5) The name and location of the principal place of business of the applying entity and, if applicable, each additional designated place of business from which the applying entity desires to sell electric guns or cartridges;

(6) That the applying entity is registered to do business in the State;

(7) That the applying entity is composed only of principals or members who have had no convictions for any felony offense;

(8) That the applying entity has a Hawaii tax identification number;

(9) That the applying entity has a federal employer identification number;

(10) That at least one principal or member of the applying entity has completed an electric gun safety or training course, offered or approved by the county, that focuses on:

(A) The safe use and handling of electric guns;

(B) Current information about the effects, dangers, risks, and limitations of electric guns; and

(C) Education on existing state laws on electric guns; and

(11) Any other information that the county may require.

(d) The applicant shall certify that the applicant will comply at all times with all provisions of law relative to the acquisition, possession, storage, sale, distribution, and transfer of electric guns or cartridges, and shall also certify that it is responsible for compliance by its employees of all provisions of law relative to the acquisition, possession, storage, sale, distribution, and transfer of electric guns or cartridges.

(e) Upon receipt of the completed application form and the annual licensing fee of $50 payable to the county, the county shall review the application and may issue a license to the applicant if it determines that the applicant meets all the requirements of this section. If requested by the licensee, the county shall provide certified copies of the license to the licensee.

(f) A license issued hereunder shall expire on June 30 of the year following the date of issuance of the license unless sooner terminated. An application for renewal of a license shall be filed on or before July 1 of each year.

134-F Sale, distribution, or transfer of electric guns or cartridges. (a) A licensee shall post the license to sell, distribute, or otherwise transfer electric guns or cartridges, or a certified copy thereof, in a location readily visible to customers at each designated place of business. For internet sales by a licensee, the license number shall be prominently displayed and an electronic copy of the license shall be readily accessible to the customer.

(b) An individual licensee shall complete an electric gun safety or training course, offered or approved by the county, that focuses on:

(1) The safe use and handling of electric guns;

(2) Current information about the effects, dangers, risks, and limitations of electric guns; and

(3) Education on existing state laws on electric guns.

A licensee shall keep copies of the certificates of completion of these training courses in the licensee's business records.

(c) A licensee shall not allow an employee to participate in the sale, distribution, or transfer of electric guns or cartridges until the employee completes an electric gun safety or training course, offered or approved by the county, that focuses on:

(1) The safe use and handling of electric guns;

(2) Current information about the effects, dangers, risks, and limitations of electric guns; and

(3) Education on existing state laws on electric guns.

A licensee shall keep copies of the certificates of completion of these training courses for each of these employees in the licensee's business records.

(d) If there is no manufacturer serial number on an electric gun or cartridge received into inventory by a licensee, then the licensee shall engrave on the electric gun or cartridge a legible unique serial number that begins with the licensee's license number, followed by a hyphen and a unique identifying number.

(e) A licensee shall keep records for all electric guns and cartridges received into inventory within the State, including:

(1) Information identifying the seller, distributor, or transferor of the electric gun or cartridge; and

(2) The transaction record for the electric gun or cartridge, including the date of receipt, a description of the electric gun or cartridge, the manufacturer's serial number or the unique identifying serial number engraved by the licensee, and if available, the manufacturer and the model number.

(f) Prior to completing a sale, distribution, or other transfer of an electric gun that does not require the purchaser to obtain a permit, the licensee or an employee of the licensee shall provide an informational briefing to the recipient that includes but is not limited to the following:

(1) The safe use and handling of electric guns;

(2) Current information about the effects, dangers, risks, and limitations of electric guns;

(3) Education on existing state laws on electric guns; and

(4) The proper disposal of electric guns.

(g) Upon completion of the informational briefing, the licensee shall provide a certification that includes the names of the recipient and the person who provided the informational briefing and the date of the briefing. The certificate shall be signed and dated by the recipient and the person who provided the briefing, acknowledging the completion of the briefing and that the recipient understood the briefing. The form of the certification shall be as provided by the county office that issued the license to the licensee.

(h) A licensee shall keep a record of the information provided to recipients during the informational briefings.

(i) A licensee shall keep records of all sales, distributions, and other transfers of electric guns and cartridges sold in the State or to a recipient in the State, including:

(1) The recipient's name, date of birth, address, and telephone number;

(2) A copy of the recipient's government-issued identification card or document;

(3) The transaction record for the electric gun or cartridge, including the date of the transaction, description of the electric gun or cartridge, name of the manufacturer, serial and model numbers, and if necessary, the unique serial number engraved on the electric gun or cartridge by the licensee;

(4) A copy of the certification required under subsection (g), signed and dated by the recipient and the person who provided the briefing;

(5) For sales of an electric projectile gun, a copy of the permit; and

(6) For sales of a cartridge, a copy of the registration for an electric projectile gun.

(j) A licensee shall keep a record of the licensee's current inventory of electric guns and cartridges.

(k) During normal business hours, a licensee shall allow the chief of police of the appropriate county or the chief's designee to inspect the licensee's books and records for all records required to be kept by the licensee under this section. At the discretion of the chief of police or the chief's designee, the inspection may be conducted via facsimile transmittal of the records.

(l) A licensee shall keep records required by this section for a minimum of ten years. If a licensee, as a result of death or dissolution, cannot maintain the records, the records shall be turned over to the chief of police of the appropriate county or the chief's designee.

(m) When displaying or storing electric guns or cartridges at designated places of business, a licensee shall display or store the electric guns and cartridges in a locked cabinet or area not accessible to the general public.

(n) During normal business hours, a licensee shall allow

the chief of police of the appropriate county or the chief's designee to physically inspect all electric guns and cartridges in the possession and control of the licensee wherever they may be located within the State.

(o) A licensee shall only sell, distribute, or transfer a cartridge to a person who presents an original registration for an electric projectile gun that is in the person's name.

(p) Any person, including any licensee, violating this section shall be guilty of a misdemeanor.

(q) A license may be suspended or revoked for a violation of any of the requirements of this section.

134-G Disposal of electric gun or cartridge. A person who is not a licensee pursuant to section 134-E may sell or otherwise transfer an electric gun or cartridge to a licensee or may surrender the electric gun or cartridge to the chief of police of the appropriate county or the chief's designee. The chief of police may either destroy the electric gun or cartridge, or utilize the electric gun or cartridge for educational purposes. The chief of police shall maintain records of all surrendered electric guns and cartridges, including their disposition.

134-H Ownership, possession, or control prohibited. (a) No person who is a fugitive from justice shall own, possess, or control an electric gun.

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

(c) No person who:

(1) Is or has been under treatment or counseling for addiction to, abuse of, or dependence upon any dangerous drugs, harmful drug, detrimental drug, intoxicating compounds, or intoxicating liquor, as defined in section 712-1240;

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

(3) Is or has been diagnosed as having a significant behavioral, emotional, or mental disorder as defined by the most current diagnostic and statistical manual of mental disorders published by the American Psychiatric Association; or

(4) Is or has been treated for organic brain syndrome;

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

(d) No person who is less than twenty-five years of age 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 an electric gun.

(e) No person who is less than twenty-one years of age shall own, possess, or control an electric gun.

(f) No person shall possess an electric gun that is owned by another, regardless of whether the owner has consented to possession of the electric gun.

(g) No person who has been restrained pursuant to an order of any court from contacting, threatening, or physically abusing any person or from possessing or owning a firearm, shall possess, control, or transfer of ownership of an electric gun, so long as the protective order or restraining order, including any extension, is in effect, unless the order, for good cause shown, specifically permits the possession, control, or transfer of ownership of an electric gun. The protective order or restraining order shall specifically include a statement that possession, control, or transfer of ownership of an electric gun by the person named in the order is prohibited. The person shall relinquish possession and control of any electric gun owned by that person to the police department of the appropriate county for safekeeping for the duration of the order or extension thereof.

In the case of an ex parte order that includes a restriction on the possession, control, or transfer of ownership of an electric gun, the affidavit or statement under oath that forms the basis for the order shall contain a statement of the facts that support a finding that the person to be restrained owns, intends to obtain or transfer, or possesses an electric gun, and that the electric gun may be used to threaten, injure, or abuse any person. The ex parte order shall be effective upon service pursuant to section 586-6.

At the time of service of a protective order or restraining order involving electric guns issued by any court, the police officer may take custody of any and all electric guns in plain sight, any electric guns discovered pursuant to a consensual search, and any electric guns surrendered by the person restrained.

For the purposes of this subsection, good cause shall not be based solely upon a consideration that the person subject to restraint pursuant to a court order, including an ex parte order as provided for in this subsection, is required to possess or carry an electric gun during the course of the person's employment.  Good cause may include but need not be limited to the protection and safety of the person to whom a restraining order is granted.

(h) Any person disqualified from ownership, possession, control, or the right to transfer ownership of an electric gun under this section shall surrender or dispose of all electric guns in compliance with section 134-G.

(i) 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.

(j) Any person violating subsection (a) or (b) shall be guilty of a class C felony. Any person violating subsection (c), (d), (e), (f), (g), or (h) shall be guilty of a misdemeanor.

134-I Exemptions. (a) Sections 134-B, 134-C, 134-D, and 134-H(f) shall not apply to:

(1) Law enforcement agencies and law enforcement officers acting within the course of their employment; and

(2) The army or air national guard and its members when they are assisting civil authorities in disaster relief, emergency management, or law enforcement functions, subject to the requirements of section 121‑34.5;

provided that the electric guns shall be acquired by the law enforcement agencies or the army or air national guard and not individual law enforcement officers or members of the army or air national guard, and shall remain in the custody and control of the applicable law enforcement agency, or the army or air national guard.

(b) Law enforcement agencies that authorize the use of electric guns by their law enforcement officers and the army or air national guard shall:

(1) Provide training in the use of electric guns from the manufacturer or a manufacturer-approved training program, using manufacturer-certified or manufacturer-approved instructors, prior to deployment of the electric guns and related equipment in public;

(2) Maintain records regarding every electric gun in their custody and control, including every instance of use of each electric gun, in a similar manner as records are maintained for the discharge of firearms; and

(3) Report to the legislature on the information in, and maintenance of, these records no later than twenty days prior to the convening of each regular session.

(c) The licensing requirement of sections 134-B(b) and 134-E shall not apply to the sale of electric guns and cartridges by electric gun manufacturers distributing directly to law enforcement agencies, or the army or air national guard.

134-J Storage of electric gun; responsibility with respect to minors. (a) No person shall store or keep any electric gun 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 electric gun, unless the person:

(1) Keeps the electric gun 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 electric gun on the person or within such close proximity thereto that the minor cannot gain access or control of the electric gun.

(b) Any person violating this section shall be guilty of a misdemeanor.

134-K Carrying or use of electric gun in the commission of a separate misdemeanor. (a) It shall be unlawful for a person to knowingly carry on the person, have within the person's immediate control, or intentionally use or threaten to use an electric gun, whether operable or not, while engaged in the commission of a separate misdemeanor; provided that a person shall not be prosecuted under this subsection when the separate misdemeanor is a misdemeanor defined by this chapter.

(b) A conviction and sentence under this section shall be in addition to and not in lieu of any conviction and sentence for the separate misdemeanor; provided that the sentence imposed under this section may run concurrently or consecutively with the sentence for the separate misdemeanor.

(c) Any person violating this section shall be guilty of a class C felony.

134-L Carrying or using an electric gun in the commission of a separate felony. (a) It shall be unlawful for a person to knowingly carry on the person, have within the person's immediate control, or intentionally use or threaten to use an electric gun, whether operable or not, while engaged in the commission of a separate felony; provided that a person shall not be prosecuted under this subsection when the separate felony is a felony defined by this chapter.

(b) 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.

(c) Any person violating this section shall be guilty of a class B felony."

SECTION 3. Section 121-34.5, Hawaii Revised Statutes, is amended to read as follows:

"121‑34.5 Use of electric guns. Members of the army or air national guard who have been qualified by training and are authorized by their commanders may use electric guns, as specifically provided in section [134-16(c) and (d),] 134-I, when assisting civil authorities in disaster relief, emergency management, or law enforcement functions; provided that "training" for the purposes of this section means a course of instruction or training in the use of any electric gun authorized pursuant to this section, that is provided or authorized by the manufacturer or is manufacturer-approved or is an electric gun training program approved by the army or air national guard, prior to deployment or issuance of electric guns and related equipment."

SECTION 4. Section 134-1, Hawaii Revised Statutes, is amended by deleting the definition of "electric gun":

[""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."]

SECTION 5. Section 134-3.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]134-3.5[]] Disclosure for firearm or electric gun 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[;] or electric gun; and

(2) The individual has signed a waiver permitting release of the health information for that purpose."

SECTION 6. Section 134-17, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) Any person who violates section 134-2, 134-4, 134-10, or 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."

SECTION 7. Section 266-24, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The director of transportation shall enforce this chapter and all rules thereunder, except for the rules relative to the control and management of the beaches encumbered with easements in favor of the public and ocean waters, which shall be enforced by the department of land and natural resources. For the purpose of the enforcement of this chapter and of all rules adopted pursuant to this chapter, the powers of police officers are conferred upon the director of transportation and any officer, employee, or representative of the department of transportation. Without limiting the generality of the foregoing, the director and any person appointed by the director hereunder may serve and execute warrants, arrest offenders, and serve notices and orders. The director of transportation and any employee, agent, or representative of the department of transportation appointed as enforcement officers by the director, and every state and county officer charged with the enforcement of any law, statute, rule, regulation, ordinance, or order, shall enforce and assist in the enforcement of this chapter and of all rules and orders issued pursuant thereto, and in carrying out the responsibilities hereunder, each shall be specifically authorized to:

(1) Conduct any enforcement action hereunder in any commercial harbor area and any area over which the department of transportation and the director of transportation has jurisdiction under this chapter;

(2) Inspect and examine at reasonable hours any premises, and the buildings and other structures thereon, where harbors or harbor facilities are situated, or where harbor-related activities are operated or conducted; and

(3) Subject to limitations as may be imposed by the director of transportation, serve and execute warrants, arrest offenders, and serve notices and orders.

Any employee appointed as a law enforcement officer by the director of transportation pursuant to this section who has been qualified by training may use electric guns, as specifically provided in section [134-16,] 134-I, when exercising powers of police officers and carrying out the responsibilities described herein; provided that training for the purposes of this section means a course of instruction or training in the use of any electric gun that is provided, authorized, or approved by the manufacturer of the electric gun prior to deployment or issuance of electric guns and related equipment.

For purposes of this subsection, the term "agents and representatives" includes persons performing services at harbors or harbor areas under contract with the department of transportation."

SECTION 8. Section 463-10.5, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:

"(e) Before beginning employment as a guard or in a guard capacity, in addition to the classroom instruction required by this section, guards and individuals acting in a guard capacity who carry a firearm or other weapon, including but not limited to an electric gun as defined in section [134-1,] 134-A, while on-duty in a guard capacity shall possess a valid permit to acquire the ownership of a firearm issued by county police pursuant to section 134-2 and shall satisfy the requirements of section 134-2(g)."

SECTION 9. Section 846-2.7, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Criminal history record checks may be conducted by:

(1) The department of health or its designee on operators of adult foster homes for individuals with developmental disabilities or developmental disabilities domiciliary homes and their employees, as provided by section 321-15.2;

(2) The department of health or its designee on prospective employees, persons seeking to serve as providers, or subcontractors in positions that place them in direct contact with clients when providing non-witnessed direct mental health or health care services as provided by section 321-171.5;

(3) The department of health or its designee on all applicants for licensure or certification for, operators for, prospective employees, adult volunteers, and all adults, except adults in care, at healthcare facilities as defined in section 321-15.2;

(4) The department of education on employees, prospective employees, and teacher trainees in any public school in positions that necessitate close proximity to children as provided by section 302A-601.5;

(5) The counties on employees and prospective employees who may be in positions that place them in close proximity to children in recreation or child care programs and services;

(6) The county liquor commissions on applicants for liquor licenses as provided by section 281-53.5;

(7) The county liquor commissions on employees and prospective employees involved in liquor administration, law enforcement, and liquor control investigations;

(8) The department of human services on operators and employees of child caring institutions, child placing organizations, and foster boarding homes as provided by section 346-17;

(9) The department of human services on prospective adoptive parents as established under section 346‑19.7;

(10) The department of human services or its designee on applicants to operate child care facilities, household members of the applicant, prospective employees of the applicant, and new employees and household members of the provider after registration or licensure as provided by section 346-154, and persons subject to section 346-152.5;

(11) The department of human services on persons exempt pursuant to section 346-152 to be eligible to provide child care and receive child care subsidies as provided by section 346-152.5;

(12) The department of health on operators and employees of home and community-based case management agencies and operators and other adults, except for adults in care, residing in community care foster family homes as provided by section 321-15.2;

(13) The department of human services on staff members of the Hawaii youth correctional facility as provided by section 352-5.5;

(14) The department of human services on employees, prospective employees, and volunteers of contracted providers and subcontractors in positions that place them in close proximity to youth when providing services on behalf of the office or the Hawaii youth correctional facility as provided by section 352D-4.3;

(15) The judiciary on employees and applicants at detention and shelter facilities as provided by section 571-34;

(16) The department of public safety on employees and prospective employees who are directly involved with the treatment and care of persons committed to a correctional facility or who possess police powers including the power of arrest as provided by section 353C-5;

(17) The board of private detectives and guards on applicants for private detective or private guard licensure as provided by section 463-9;

(18) Private schools and designated organizations on employees and prospective employees who may be in positions that necessitate close proximity to children; provided that private schools and designated organizations receive only indications of the states from which the national criminal history record information was provided pursuant to section 302C-1;

(19) The public library system on employees and prospective employees whose positions place them in close proximity to children as provided by section 302A‑601.5;

(20) The State or any of its branches, political subdivisions, or agencies on applicants and employees holding a position that has the same type of contact with children, vulnerable adults, or persons committed to a correctional facility as other public employees who hold positions that are authorized by law to require criminal history record checks as a condition of employment as provided by section 78-2.7;

(21) The department of health on licensed adult day care center operators, employees, new employees, subcontracted service providers and their employees, and adult volunteers as provided by section 321-15.2;

(22) The department of human services on purchase of service contracted and subcontracted service providers and their employees serving clients of the adult protective and community services branch, as provided by section 346-97;

(23) The department of human services on foster grandparent program, senior companion program, and respite companion program participants as provided by section 346-97;

(24) The department of human services on contracted and subcontracted service providers and their current and prospective employees that provide home and community-based services under section 1915(c) of the Social Security Act, title 42 United States Code section 1396n(c), or under any other applicable section or sections of the Social Security Act for the purposes of providing home and community-based services, as provided by section 346-97;

(25) The department of commerce and consumer affairs on proposed directors and executive officers of a bank, savings bank, savings and loan association, trust company, and depository financial services loan company as provided by section 412:3-201;

(26) The department of commerce and consumer affairs on proposed directors and executive officers of a nondepository financial services loan company as provided by section 412:3-301;

(27) The department of commerce and consumer affairs on the original chartering applicants and proposed executive officers of a credit union as provided by section 412:10-103;

(28) The department of commerce and consumer affairs on:

(A) Each principal of every non-corporate applicant for a money transmitter license;

(B) Each person who upon approval of an application by a corporate applicant for a money transmitter license will be a principal of the licensee; and

(C) Each person who upon approval of an application requesting approval of a proposed change in control of licensee will be a principal of the licensee,

as provided by sections 489D-9 and 489D‑15;

(29) The department of commerce and consumer affairs on applicants for licensure and persons licensed under title 24;

(30) The Hawaii health systems corporation on:

(A) Employees;

(B) Applicants seeking employment;

(C) Current or prospective members of the corporation board or regional system board; or

(D) Current or prospective volunteers, providers, or contractors,

in any of the corporation's health facilities as provided by section 323F-5.5;

(31) The department of commerce and consumer affairs on:

(A) An applicant for a mortgage loan originator license, or license renewal; and

(B) Each control person, executive officer, director, general partner, and managing member of an applicant for a mortgage loan originator company license or license renewal,

as provided by chapter 454F;

(32) The state public charter school commission or public charter schools on employees, teacher trainees, prospective employees, and prospective teacher trainees in any public charter school for any position that places them in close proximity to children, as provided in section 302D-33;

(33) The counties on prospective employees who work with children, vulnerable adults, or senior citizens in community-based programs;

(34) The counties on prospective employees for fire department positions [which] that involve contact with children or vulnerable adults;

(35) The counties on prospective employees for emergency medical services positions [which] that involve contact with children or vulnerable adults;

(36) The counties on prospective employees for emergency management positions and community volunteers whose responsibilities involve planning and executing homeland security measures including viewing, handling, and engaging in law enforcement or classified meetings and assisting vulnerable citizens during emergencies or crises;

(37) The State and counties on employees, prospective employees, volunteers, and contractors whose position responsibilities require unescorted access to secured areas and equipment related to a traffic management center;

(38) The State and counties on employees and prospective employees whose positions involve the handling or use of firearms for other than law enforcement purposes;

(39) The State and counties on current and prospective systems analysts and others involved in an agency's information technology operation whose position responsibilities provide them with access to proprietary, confidential, or sensitive information;

(40) The department of commerce and consumer affairs on:

(A) Applicants for real estate appraiser licensure or certification as provided by chapter 466K;

(B) Each person who owns more than ten per cent of an appraisal management company who is applying for registration as an appraisal management company, as provided by section 466L-7; and

(C) Each of the controlling persons of an applicant for registration as an appraisal management company, as provided by section 466L-7;

(41) The department of health or its designee on all license applicants, licensees, employees, contractors, and prospective employees of medical cannabis dispensaries, and individuals permitted to enter and remain in medical cannabis dispensary facilities as provided under sections 329D-15(a)(4) and 329D‑16(a)(3);

(42) The department of commerce and consumer affairs on applicants for nurse licensure or license renewal, reactivation, or restoration as provided by sections 457-7, 457-8, 457-8.5, and 457-9;

(43) The county police departments on applicants for permits to acquire firearms pursuant to section 134-2 and electric projectile guns pursuant to section 134-C and on individuals registering their firearms pursuant to section 134-3[;] and electric guns pursuant to section 134-D;

(44) The department of commerce and consumer affairs on:

(A) Each of the controlling persons of the applicant for licensure as an escrow depository, and each of the officers, directors, and principals who will be in charge of the escrow depository's activities upon licensure; and

(B) Each of the controlling persons of an applicant for proposed change in control of an escrow depository licensee, and each of the officers, directors, and principals who will be in charge of the licensee's activities upon approval of such application,

as provided by chapter 449;

(45) The department of taxation on current or prospective employees or contractors who have access to federal tax information in order to comply with requirements of federal law, regulation, or procedure, as provided by section 231-1.6;

(46) The department of labor and industrial relations on current or prospective employees or contractors who have access to federal tax information in order to comply with requirements of federal law, regulation, or procedure, as provided by section 383-110;

(47) The department of human services on current or prospective employees or contractors who have access to federal tax information in order to comply with requirements of federal law, regulation, or procedure, as provided by section 346-2.5;

(48) The child support enforcement agency on current or prospective employees, or contractors who have access to federal tax information in order to comply with federal law, regulation, or procedure, as provided by section 576D-11.5; and

(49) Any other organization, entity, or the State, its branches, political subdivisions, or agencies as may be authorized by state law."

SECTION 10. Section 134-16, Hawaii Revised Statutes, is repealed.

["134-16 Restriction on possession, sale, gift, or delivery of electric guns. (a) 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.

(b) 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.

(c) 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, emergency management, 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, the members of the Army or Air National Guard, or law enforcement officers appointed by the director of transportation.

(d) 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.

(e) 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.

(f) 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.

(g) 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."]

SECTION 11. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before the effective date of this Act.

SECTION 12. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 14. This Act shall take effect upon its approval.


 


 

Report Title:

Electric Guns; Electric Projectile Guns; Permit; Registration

 

Description:

Repeals the existing law that bans electric guns, and replaces it with a law that restricts the ownership, use, storage, and disposal of electric guns, regulates the sale, distribution, and transfer of electric guns, requires training and education on electric guns, prohibits certain individuals from the possession and use of electric guns, and prohibits the carrying or use of electric guns in the commission of crimes. Establishes permitting requirement to acquire electric projectile guns and registration requirements. (SD2)

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.