A Hilo judge on Monday dismissed three firearms-related charges against a 27-year-old Kurtistown man on the grounds that they violated his right to carry a firearm for self-defense under the Second Amendment of the U.S. Constitution.
In what is believed to be a precedent in East Hawaii courts, Hilo Circuit Judge Peter Kubota dismissed charges of carrying a revolver, carrying a loaded firearm on a public roadway, and illegally carrying ammunition against Dallys Mello.
The revolver and loaded firearm charges are Class B felonies carrying a potential of 10 years imprisonment. The ammunition charge is a misdemeanor.
“He was in fear of his life. That’s the reason he had the firearm,” Mello’s attorney, Deputy Public Defender Keith Shigetomi, said Thursday. “He didn’t use it in any illegal or improper manner. It was in his backpack. And the Supreme Court said he had the right to possess a firearm for self-defense purposes outside the home. And therefore, the case had to be dismissed.”
Shigetomi added that the prosecution “couldn’t show that the statutes didn’t violate the Second Amendment.”
Kubota dismissed the charges with prejudice, which means the state can’t refile them, although it can choose to appeal the ruling.
Mello, who has no prior criminal record, still faces a misdemeanor charge of second-degree assault on a law enforcement officer stemming from the same incident in September that resulted in the dismissed firearms charges.
According to court documents filed by police, Mello was arrested on Sept. 17 at Pikake and Orchid streets in Fern Acres subdivision on suspicion of second-degree terroristic threatening.
Mello’s girlfriend allegedly reported to police that he had sent her a text message threatening to kill her dogs and her parent’s dogs. The 24-year-old woman told police she believed Mello to be in possession of her Smith and Wesson .22 magnum revolver.
The woman reportedly told police she had given Mello permission in the past to carry the handgun, and that he usually had it in his backpack while riding his motorcycle.
Police accused Mello of resisting arrest. According to documents, during a struggle, Mello and two Puna patrol officers, Spencer Thomas and Cody Correia, stumbled to the pavement. Police allege that while they were down, Mello kneed Correia to the head, resulting in the assault charge. Officers obtained a search warrant and found a loaded .22 caliber Ruger revolver and two boxes of ammunition in his backpack.
Prosecutors didn’t file a terroristic threatening charge.
In his motion to dismiss the firearms charges, Shigetomi cited the 2022 U.S. Supreme Court decision in the case of New York State Rifle Association v. Bruen.
Shigetomi wrote in his motion seeking dismissal of the charges “the Supreme Court clarified that the right to ‘bear’ and ‘carry’ a handgun for self-defense purposes extends beyond the home.”
“The Supreme Court further held ‘nothing in the Second Amendment text draws a home/public distinction with the respect to the right to keep and bear arms,’” Shigetomi wrote.
Deputy Prosecutor Kimberly Angay argued in her opposing motion that Mello “did not acquire a license to carry a concealed or unconcealed firearm.”
She noted that after the Supreme Court decision, the Hawaii County Police Department — which had granted only six carry permits in the previous 21 years — “changed its permitting process to comply (with Bruen) and requires that applicants complete the application (and) pass and submit a firearms proficiency test,” among other requirements.
Angay argued that without the carry permit, Mello was subject to state laws that “require unloaded firearms and ammunition to be carried in an enclosed container” of rigid construction, such as a commercially manufactured gun case — and only in transit between certain defined, limited locations.
County Prosecutor Kelden Waltjen on Thursday said he “takes firearms cases seriously.”
“Unlicensed and unregulated persons in possession of firearms presents a public safety concern, especially when it involves an alleged threat of violence,” Waltjen said.
Asked about a possible appeal, Waltjen noted the court hasn’t yet filed its written order about the ruling.
“The order will contain the findings of facts and conclusions of law relied upon by the court in making its decision. We will determine our next course of action after reviewing the court’s final order,” he said.
Email John Burnett at jburnett@hawaiitribune-herald.com.
