Fisher v. Kealoha et al
Filing
111
ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND (2) DENYING PLAINTIFF'S MOTION FOR PERMANENT INJUNCTION re 75 ; 77 . Signed by JUDGE ALAN C KAY on 09/30/2013. (eps )C ERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff, )
)
)
vs.
)
LOUIS KEALOHA, as an individual )
and in his official capacity as )
Honolulu Chief of Police, PAUL )
PUTZULU, as an individual and in)
his official capacity as former )
acting Honolulu Chief of Police,)
and CITY AND COUNTY OF HONOLULU,)
)
Defendants. )
)
KIRK C. FISHER,
Civ. No. 11-00589 ACK-BMK
ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT AND (2) DENYING PLAINTIFF’S MOTION FOR
PERMANENT INJUNCTION
On September 28, 2011, Plaintiff Kirk C. Fisher
(“Plaintiff”) filed his Complaint against Defendants Louis
Kealoha, Paul Putzulu, the City and County of Honolulu (“City”),
the Honolulu Police Department (“HPD”), and Doe Defendants 1-50.
Plaintiff asserted two claims against Defendants for alleged
violations of his Second, Fifth, and Fourteenth Amendment rights
regarding his firearms and attempts to obtain a firearms permit.
Compl. ¶¶ 47-57, ECF No. 1.
The City and Kealoha filed motions for “partial”
dismissal of Plaintiff’s Complaint.
-1-
ECF Nos. 6 & 16-1.
After
receiving the briefs and conducting a hearing, this Court issued
an order that (1) dismissed the claims against the City without
prejudice, (2) dismissed part of Plaintiff’s claims against
Kealoha without prejudice, (3) dismissed all claims against the
HPD with prejudice, and (4) dismissed Plaintiff’s Fifth Amendment
claims with prejudice (“Order re Defendants’ Motions to
Dismiss”).
ECF No. 25.
Plaintiff subsequently filed an Amended Complaint
against Louis Kealoha as an individual and in his official
capacity, Paul Putzulu as an individual and in his official
capacity, and the City (collectively, “Defendants”).1/
31.
ECF No.
The Amended Complaint contains the following two counts:
“Count I - The Second and Fourteenth Amendments to the United
States Constitution and 42 U.S.C. § 1983 Against All Defendants,”
and “Count II - The Fourteenth Amendments [sic] to the United
States Constitution and 42 U.S.C. § 1983 Against All
Defendants.”2/
Id.
1/
The record indicates that Defendant Putzulu has not been
served with the Amended Complaint or appeared in this action.
See ECF No. 31-2 and ECF Nos. 31-108. At the hearing on
September 17, 2013, Plaintiff’s counsel voluntarily dismissed
Defendant Putzulu from this lawsuit.
2/
The Complaint also references the Fifth Amendment in its
Jurisdiction statement. Am. Compl. at 5 ¶ 11, ECF No. 31. The
Court previously dismissed Plaintiff’s Fifth Amendment claims
with prejudice in its Order re Defendants’ Motions to Dismiss.
ECF No. 25 at 40 (dismissing Fifth Amendment claims on the basis
that the Due Process Clause of the Fifth Amendment only applies
(continued...)
-2-
On March 19, 2012, Plaintiff filed a Motion for
Preliminary Injunction.
ECF No. 18.
After receiving the briefs
and holding a hearing, the Court issued its “Order Granting
Plaintiff Kirk C. Fisher’s Motion for a Preliminary Injunction”
on June 29, 2012 (“2012 Preliminary Injunction Order”).
35.
ECF No.
The Court issued an injunction to Defendant Kealoha to
“rescind the prior denial of Plaintiff’s permit to acquire
firearms and to issue a permit authorizing Plaintiff to acquire
firearms.”
Id. at 36.
Kealoha and the City (collectively, “City
Defendants”) filed a Motion for Reconsideration of the 2012
Preliminary Injunction Order (ECF No. 39), which the Court
subsequently denied in its “Order Denying Defendants’ Motion for
Reconsideration” (“Reconsideration Order re Plaintiff’s
Preliminary Injunction”).
ECF No. 50.
On February 25, 2013, Plaintiff filed a Motion for
Summary Judgment (“MSJ”) and a Motion for Permanent Injunction
(“MPI”).
ECF Nos. 75 & 77.
Plaintiff also filed a Concise
Statement of Facts in support of his MSJ.
ECF No. 78.
The City
Defendants filed their Memorandum in Opposition and Concise
Statement of Facts on July 22, 2013.
2/
ECF Nos. 89 & 90.
Included
(...continued)
to the actions of the federal government, not state or local
governments). At the hearing held on August 12, 2013,
Plaintiff’s counsel clarified that Plaintiff is not alleging a
Fifth Amendment claim in the Amended Complaint; the reference to
the Fifth Amendment in the Jurisdiction statement was a
typographical error.
-3-
on page three of the City Defendants’ Opposition is a brief
request that the Court grant summary judgment in favor of the
City Defendants under Local Rule 56.1(i).
ECF No. 89.
filed his Reply on July 29, 2013.
ECF No. 97.
hearing date for August 12, 2013.
Plaintiff
The Court set a
ECF No. 80.3/
There are also two amici who requested to file briefs
and to appear at the August 12, 2013 hearing regarding
Plaintiff’s MSJ and MPI.
On December 20, 2012, the Hawaii
Defense Foundation (“HDF”) filed a Motion for Leave to File
Amicus Curiae Brief, which was subsequently granted by the Court.
ECF Nos. 67, 69, 70, 72.4/
On July 12, 2013, the Brady Center to
Prevent Gun Violence (“Brady Center”) filed a Motion for Leave to
File Amicus Curiae Brief, which was also granted by the Court.
ECF Nos. 87 & 91.
HDF filed its brief on February 1, 2013.
The Brady Center filed a brief on July 23, 2013.
ECF No. 73.
ECF No. 93.
HDF also filed a Notice of Supplemental Authority on July 23,
2013.
ECF No. 92.
3/
A status conference was held with the magistrate judge
on January 25, 2013; the parties apparently agreed that the
hearing date for Plaintiff’s MSJ and MPI would be held over five
months later on July 8, 2013. ECF No. 72. However, the
undersigned was unavailable on the day chosen by the magistrate
judge and the parties, requiring a move of the hearing date to
August 12, 2013. ECF No. 80.
4/
Hawaii Defense Foundation filed amended motions which
were consolidated and granted in the same order. ECF No. 72.
-4-
On August 8, 2013, two business days before the
hearing, the City Defendants filed a Motion for Leave to File
Document Consisting of an Additional Exhibit.
ECF No. 99.
The
Exhibit submitted by the City Defendants was Plaintiff’s
deposition transcript from his April 17, 2013 deposition.
Id.
Plaintiff filed an Opposition to the City Defendants’ Motion for
Leave on August 9, 2013.
ECF No. 100.
On August 12, 2013, the Court held a hearing regarding
Plaintiff’s Motion for Summary Judgment, Motion for Permanent
Injunction, and the City Defendants’ Motion for Leave to File
Document Consisting of an Additional Exhibit.
ECF No. 101.
Because all parties failed in their briefs to address Descamps v.
United States, 133 S. Ct. 2276 (2013), a Supreme Court case the
Court found to be controlling regarding Plaintiff’s motions, the
Court ordered the parties to submit supplemental briefing.
No. 102.
ECF
As a result, the Court moved the hearing regarding
Plaintiff’s motions to September 17, 2013.
Id.
The Court also
granted the City Defendants’ Motion for Leave to File and allowed
them to submit Plaintiff’s deposition after finding that (1) the
document addressed several important matters before the Court and
(2) Plaintiff would have a chance to respond and suffered no
prejudice.
Id.
The Court denied the City Defendants’ request
that the Court grant summary judgment in their favor under Local
Rule 56.1(i) because the request had been made only three weeks
-5-
before the hearing and had not been sufficiently briefed, and
Plaintiff did not have sufficient notice to oppose the motion.
Id.
In compliance with this Court’s August 12, 2013 minute
order, Plaintiff, City Defendants, the Brady Center, and HDF
filed supplemental briefs.
ECF Nos. 105, 106, 104, and 103.
The
Court held another hearing regarding Plaintiff’s Motion for
Summary Judgment and Motion for Permanent Injunction on September
17, 2013.
ECF No. 109.
FACTUAL BACKGROUND
On November 5, 1997, Plaintiff was arrested for two
counts of harassment in violation of Hawai#i Revised Statutes
(“H.R.S.”) § 711-1106(1)(a).
No. 39-5.5/
Defs.’ Mtn. for Recon. Ex. B, ECF
The statute states, in relevant part:
§ 711-1106 Harassment.
(1) A person commits the offense of harassment if, with
intent to harass, annoy, or alarm any other person, that
person:
(a) Strikes, shoves, kicks, or otherwise touches
another person in an offensive manner or subjects the
other person to offensive physical contact . . . .
5/
Both parties reference exhibits filed with previous
motions that are part of the record in this case. The Court
likewise refers to these prior exhibits submitted by the parties.
-6-
H.R.S. § 711-1106(1)(a).6/
The state court complaint against Plaintiff alleges
that, on or about November 5, 1997, “[Plaintiff], with intent to
harass, annoy, or alarm Colette Fisher, did strike, shove, kick,
or otherwise touch Colette Fisher in an offensive manner, or
subject her to offensive physical contact, thereby committing the
petty misdemeanor offense of harassment in violation of Section
711-1106(1)(a) of the Hawaii Revised Statutes.”
State of
Hawaii#i v. Kirk C. Fisher, FC-CR No. 97-3233, Compl. p. 1.
At
the time of the 1997 incident to the present, Colette Fisher has
been Plaintiff’s wife.
Am. Compl. at 8, ¶ 24, ECF No. 31;
Deposition of Kirk C. Fisher at 9-10, ECF No. 99-2.
A second
count in the complaint contains the same allegations with respect
to Nicole Fisher, Plaintiff’s daughter.
Id.
On December 3, 1997, Plaintiff pled guilty to two
counts of harassment in the Family Court of the First Circuit,
State of Hawai#i and was sentenced to six months of probation.
Decl. of Kirk C. Fisher, ¶ 3, ECF No. 78-1.7/
As part of the
6/
The Commentary regarding H.R.S. § 711-1106(a) states
that “Subsection (1)(a) is a restatement of the common-law crime
of battery, which was committed by any slight touching of another
person in a manner which is known to be offensive to that
person.”
7/
As noted in the 2012 Preliminary Injunction Order, the
Court takes judicial notice of the December 3, 1997 judgment in
State of Hawai#i v. Kirk C. Fisher, FC-CR No. 97-3233, which
confirms that Plaintiff was convicted under H.R.S. § 711(continued...)
-7-
terms of his probation, the judge ordered Plaintiff “to attend
substance abuse assessment and . . . participate in counseling
and/or treatment until clinically discharged or as directed by
the probation officer.”
39-6.
Defs.’ Mtn. for Recon. Ex. C, ECF No.
Plaintiff evidently received a certificate of completion
stating that he completed a “Twelve Hour Drug and Alcohol
Education Course.”8/
Id. at Ex. E, ECF No. 39-8.
In connection with his conviction, Plaintiff was also
ordered to surrender all firearms, ammunition, permits, and
licenses to HPD.
Defs.’ Mtn. for Recon. Ex. D, ECF No. 39-7.
On
November 4, 1998, state judge Dan Kochi issued an “Order
Permitting Return of Firearms, Ammunition, Permits and Licenses,
With Condition.”
Plntf.’s CSF Ex. 2, ECF No. 78-4.
The order
7/
(...continued)
1106(1)(a). ECF No. 35 at 6, n. 4.
8/
The record does not explicitly state the reason
Plaintiff was required to undergo a substance abuse assessment
that involved counseling or treatment. Plaintiff in his
deposition admits that he had been drinking alcohol (specifically
a six-pack of beer) on the day of the alleged domestic violence
incident with his wife. Deposition of Kirk C. Fisher at 26,
lines 14-21, ECF No. 99-2. Hawai#i statutes and case law appear
to indicate that “substance abuse” may refer to, inter alia, the
abuse of alcohol or drugs. See H.R.S. § 291E-61(a)-(b)
(mandating that a person convicted of driving a vehicle while
under the influence of alcohol or drugs must attend a “substance
abuse rehabilitation program”), § 321-191 (“Substance” means
alcohol, any drug on schedules I through IV of chapter 329, or
any substance which includes in its composition volatile organic
solvents.”), § 329B-2 (stating that “substance abuse test” refers
to testing procedures regarding, inter alia, drugs and alcohol),
and State v. Marshall, 114 Haw. 396, 402-03, 163 P.3d 199, 205-06
(Haw. App. 2007).
-8-
stated, in relevant part, that the HPD should return Plaintiff’s
firearms and ammunition “provided that the provisions of H.R.S.
Chapter 134 are satisfied and that there are no . . .
prohibitions under H.R.S. Section 134-7 . . . or a conviction of
a misdemeanor crime of violence under 18 U.S.C. section
922(g)(9).”
Id.
The HPD promptly returned Plaintiff’s firearms
as a result of this order.
Defs.’ Answer at ¶ 1, ECF No. 40, Am.
Compl. at 7, ¶ 19, ECF No. 31.
Prior to October of 2009, Plaintiff owned and possessed
firearms.
Decl. of Kirk C. Fisher, ¶ 8, ECF No. 78-1.
In the
fall of 2009, Plaintiff submitted an application to HPD in order
to obtain a permit for additional firearms.
Id.
On October 1,
2009, Acting Chief of Police Paul Putzulu, through subordinate
Major Kurt B. Kendro, denied Plaintiff’s application via letter
on the grounds that Plaintiff was disqualified under H.R.S. §
134-7.9/
Decl. of Kirk C. Fisher, ¶ 9, ECF No. 78-1; Plntf.’s
CSF Ex. 3.
HPD then ordered Plaintiff to surrender to the police
or otherwise lawfully dispose of his firearms and ammunition
within 30 days of October 1, 2009.
78-5.
Plntf.’s CSF Ex. 3, ECF No.
According to the October 1, 2009 letter, HPD indicated
9/
The City Defendants’ letter dated October 1, 2009 does
not state which section of H.R.S. § 134-7 formed the basis for
the denial of Plaintiff’s firearms permit. Plntf.’s CSF Ex. 3.
In Mr. Wilkerson’s letter to Defendant Kealoha, he indicates that
officers from the HPD stated that the application was denied
because Plaintiff had been convicted of a crime of violence,
which would fall under H.R.S. § 134-7(b).
-9-
that the chief of police would take action to seize Plaintiff‘s
firearms if he did not lawfully dispose of his firearms and
ammunition. Id.
However, Plaintiff states that HPD told him that
he would be arrested if he did not dispose of his firearms.
Decl. of Kirk C. Fisher, ¶ 10, ECF No. 78-1.
The parties do not
dispute that Plaintiff lawfully disposed of his firearms and
ammunition.
Id. at ¶ 11, Defs.’ CSF at 3, ¶ 8, ECF No. 90.
Plaintiff alleges that HPD told him he was disqualified
from owning firearms because of his harassment convictions and
that “it was their custom, practice and policy to review police
reports to determine whether or not a defendant’s alleged crime
was a crime of violence.”
78-1.
Decl. of Kirk C. Fisher, ¶ 12, ECF No.
Plaintiff also alleges that HPD told him that Putzulu’s
decision was final and that appellate remedies did not exist.
Id.
The City Defendants dispute these alleged facts and
argue that HPD told Plaintiff that he was disqualifed based upon
H.R.S. § 134-7, not solely based upon the harassment convictions.
Defs.’ CSF at 3, ¶ 10, Plntf.’s CSF Ex. 3, ECF No. 78-5.
The
City Defendants also dispute whether a HPD officer told Plaintiff
about a “custom, practice and policy” of reviewing police reports
because Plaintiff did not mention a specific person who told him
the alleged information.
Defs.’ CSF at 3, ¶ 11.
Furthermore,
the City Defendants argue that permit applicants are able to seek
-10-
reconsideration of a denial of their permit application.
Decl.
of Nitta at 4, ¶¶ 13-14, ECF No. 90-1.
According to the City Defendants, HPD runs a background
check on individuals who apply for a firearms permit.
Decl. of
Nitta at 3, ¶ 9, ECF No. 90-1. If the applicant was convicted of
a crime of violence, then HPD denies the application.
Id.
However, if the applicant was convicted for harassment, HPD
attempts to determine if the particular conviction involved
violent behavior, specifically, the use of physical force, and
whether the violence occurred within a domestic relationship.
Id.
If HPD determines that an applicant’s conviction for
harassment includes physical force against the victim or violent
behavior in a domestic relationship, HPD denies the application.
Id. at 10.
Regarding the specific procedure used for Plaintiff,
HPD ran a background check and reviewed police reports related to
the conviction.10/
Id. at ¶ 11.
Based upon the police reports,
HPD concluded that Plaintiff “engaged in conduct which included
violent behavior involving the use of physical force against his
wife and daughter.”
application.
Id.
As a result, HPD denied Plaintiff’s
Id. at ¶ 12.
10/
By the time Plaintiff applied for a permit in 2009, the
transcripts/audio recordings of Plaintiff’s guilty plea had been
destroyed. Plntf.’s CSF Ex. 4 at 2, ECF No. 78-6.
-11-
On August 31, 2010, Plaintiff through his counsel sent
a letter to HPD and requested that (1) HPD grant his application
for a permit to acquire firearms and (2) HPD rescind the prior
order instructing Plaintiff to surrender or dispose of his
firearms.
Plntf.’s CSF Ex. 4, ECF No. 78-6.
Defendant Kealoha
responded to Plaintiff’s request on September 29, 2010 and
affirmed HPD’s prior denial of Plaintiff’s permit application.
Plntf.’s CSF Ex. 5, ECF No. 78-7.
Plaintiff subsequently
transferred ownership and possession of all of his firearms to
his wife, Colette Fisher, after she obtained the proper permits.
Am. Compl. at 8, ¶ 24, ECF No. 31.
STANDARD
I. Motion for Summary Judgment Under FRCP 56
A party may move for summary judgment on any claim or
defense - or part of a claim or defense - under Federal Rule of
Civil Procedure (“Rule”) 56.
Summary judgment “should be granted
‘if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.’”
Maxwell v. Cnty. of San Diego, 697 F.3d 941, 947 (9th
Cir. 2012) (quoting Fed. R. Civ. P. 56(a)).
Under Rule 56, a
“party asserting that a fact cannot be or is genuinely disputed
must support the assertion,” either by “citing to particular
parts of materials in the record” or by “showing that the
materials cited do not establish the absence or presence of a
-12-
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
Fed. R. Civ. P.
56(c)(1).
The substantive law determines which facts are
material; “only disputes over facts that might affect the outcome
of the suit under the governing law properly preclude the entry
of summary judgment.”
Nat’l Ass’n of Optometrists & Opticians v.
Harris, 682 F.3d 1144, 1147 (9th Cir. 2012).
“The mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of
material fact.”
Scott v. Harris, 550 U.S. 372, 380 (2007)
(citation omitted).
A genuine issue of material fact exists if “a
reasonable jury could return a verdict for the nonmoving party.”
United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986)).
Conversely, “[w]here the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.”
Scott, 550 U.S. at
380.
The moving party has the burden of persuading the court
as to the absence of a genuine issue of material fact.
-13-
Avalos v.
Baca, 596 F.3d 583, 587 (9th Cir. 2010).11/
If the moving party
satisfies its burden, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts.”
Cir. 2010).
Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th
The nonmoving party must present evidence of a
“genuine issue for trial,” Fed. R. Civ. P. 56(e), that is
“significantly probative or more than merely colorable.”
LVRC
Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)
(citation omitted).
Summary judgment will be granted against a
party who fails to demonstrate facts sufficient to establish “an
element essential to that party’s case and on which that party
will bear the burden of proof at trial.”
Parth v. Pomona Valley
Hosp. Med. Ctr., 630 F.3d 794, 798-99 (9th Cir. 2010) (citation
omitted).
When evaluating a motion for summary judgment, the
court must “view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary judgment
motion.”
Scott v. Harris, 550 U.S. 372, 378 (2007).
The court
may not, however, weigh conflicting evidence or assess
11/
When the party moving for summary judgment would bear
the burden of proof at trial, the movant must present evidence
which would entitle it to a directed verdict if the evidence were
to go uncontroverted at trial. Miller v. Glenn Miller Prods., 454
F.3d 975, 987 (9th Cir. 2006) (citation omitted). In contrast,
when the nonmoving party would bear the burden of proof at trial,
the party moving for summary judgment may meet its burden by
pointing out the absence of evidence from the nonmoving party.
Id. (citation omitted).
-14-
credibility.
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008).12/
Accordingly, if “reasonable minds could differ as to the import
of the evidence,” summary judgment will be denied.
Anderson, 477
U.S. at 250–51.
II. Permanent Injunction
In order to obtain a permanent injunction, a plaintiff
must satisfy a four-factor test by demonstrating the following:
(1) the plaintiff “has suffered an irreparable injury;” (2)
“remedies available at law, such as monetary damages, are
inadequate to compensate for that injury;” (3) “considering the
balance of hardships between the plaintiff and defendant, a
remedy in equity is warranted;” and (4) that the public interest
would not be disserved by a permanent injunction.”
Monsanto Co.
v. Geertson Seed Farms, 130 S. Ct. 2743, 2756, 177 L. Ed. 2d 461
(2010).13/
12/
Nonetheless, a “conclusory, self-serving affidavit” that
lacks detailed facts and supporting evidence may not create a
genuine issue of material fact. F.T.C. v. Neovi, Inc., 604 F.3d
1150, 1159 (9th Cir. 2010). Moreover, “[w]hen opposing parties
tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott,
550 U.S. at 380. “The general rule in the Ninth Circuit is that a
party cannot create an issue of fact by an affidavit
contradicting his prior deposition testimony.” Yeager v. Bowlin,
693 F.3d 1076, 1080 (9th Cir. 2012).
13/
Although Plaintiff obtained a preliminary injunction via
this Court’s order dated June 29, 2012 (“2012 Preliminary
Injunction Order”); the Supreme Court has indicated that a
(continued...)
-15-
A plaintiff seeking a permanent injunction must prove
“by a preponderance of the evidence . . . the conditions and
circumstances upon which the plaintiff bases the right to and
necessity for injunctive relief.”
1032, 1048 (9th Cir. 1998).
Walters v. Reno, 145 F.3d
A court “must balance the competing
claims of injury and must consider the effect on each party of
the granting or withholding of the requested relief.”
Northern
Cheyenne Tribe v. Norton, 503 F.3d 836, 843 (9th Cir. 2007)
(citing Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542,
107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987)).
A district court has “broad latitude in fashioning
equitable relief when necessary to remedy an established wrong.”
Northern Cheyenne Tribe v. Norton, 503 F.3d 836, 843 (9th Cir.
2007).
Accordingly, a court has discretion to issue a partial
injunction depending on the equities in a case.
Id.
DISCUSSION
The Court determines that Plaintiff’s MSJ should be
considered before his MPI because Plaintiff must first actually
13/
(...continued)
permanent injunction should not be issued merely because a
plaintiff obtained a preliminary injunction. Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 32, 129 S. Ct. 365, 381, 172
L. Ed. 2d 249 (2008). For a permanent injunction, Plaintiff must
demonstrate actual success on the merits of his claim, and even
if he does, the Court must examine the “balance of equities and
consideration of the public interest.” Id.
-16-
succeed on the merits before obtaining an injunction.
See
Winter, 555 U.S. at 32, 129 S. Ct. at 381.
I. Plaintiff’s Motion for Summary Judgment
A. The Second Amendment
The Second Amendment provides: “A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed.”
U.S. CONST. amend. II.
In Heller, the Supreme Court
recognized that the Second Amendment protects the rights of
individuals to keep and bear arms for self-defense.
(2008).
554 U.S. 570
The Supreme Court also suggested that the core purpose
of the right conferred by the Second Amendment was to permit
“law-abiding, responsible citizens to use arms in defense of
hearth and home.”
Id. at 635.
As a result of these conclusions,
the Supreme Court struck down a law in the District of Columbia
that banned the possession of handguns in the home.
30.
Id. at 629-
However, the Supreme Court also observed that its holding
should not be construed to “cast doubt on longstanding
prohibitions on the possession of firearms by felons and the
mentally ill.”
Id. at 626.
Two years later, the Supreme Court in McDonald v. City
of Chicago held that the Second Amendment right to keep and bear
arms applies to the states by way of the Fourteenth Amendment.
130 S. Ct. 3020 (2010).
In McDonald, the Supreme Court affirmed
-17-
the central holdings in Heller, including Heller’s discussion of
the limitations on Second Amendment rights.
Id. at 3047.
Plaintiff’s main contention in this case is that the
City Defendants violated his Second Amendment right to bear arms
for self-defense in the home when they denied him a firearms
permit.
However, the Court observes that Plaintiff does not
present a facial challenge to the Hawai#i restrictions at issue
in this lawsuit, namely Haw. Rev. Stat. § 134-7 or Haw. Rev.
Stat. § 134-2.14/
See Reply at 8 (acknowledging that the Court’s
grant of an injunction “would not extend to any applicants other
than Plaintiff”).
Instead, Plaintiff’s main argument is that he
qualifies under the statute to receive a firearms permit, and the
City Defendants’ failure to follow the statutes constitutes a
14/
At the hearing, Plaintiff’s counsel argued that
Plaintiff is statutorily qualified under both federal and state
law to obtain a permit for a firearm; Plaintiff did not argue
that the statutes themselves violated the Constitution. Amicus
Hawaii Defense Foundation raises a Fourteenth Amendment equal
protection challenge and various facial challenges to Hawai#i’s
firearms permit statutes. HDF Brief at 5-9, ECF No. 73.
However, the Court observes that Plaintiff has not alleged an
equal protection or facial challenge in his Complaint or
otherwise argued these theories in the briefs or at the hearing.
See generally, Am. Compl., ECF No. 31. The Court declines to
consider HDF’s arguments because they were raised by an amicus,
not an actual party to the case. See U.S. v. Gementera, 379 F.3d
596, 607-08 (9th Cir. 2004) (9th Circuit declined to consider
issues raised only by amicus and not an actual party) and
Intermountain Fair Housing Council v. Boise Rescue Mission
Ministries, 657 F.3d 988, 996 n. 6 (9th Cir. 2011) (declining to
consider amici’s establishment clause challenge to a program
because the plaintiffs did not raise, adopt, or endorse the
argument).
-18-
denial of Plaintiff’s Second Amendment rights.
17, ECF No. 31.
Am. Compl. at 10-
The City Defendants’ main argument in response
is that Plaintiff is in fact disqualified from firearms ownership
because of his previous convictions for harassment and the
existence of evidence of Plaintiff’s counseling for substance
abuse.
Defs.’ Opp. at 3, 13-14, ECF No. 89.
Accordingly, the Court will not address the
constitutionality of the permitting statutes under the Second
Amendment because both parties appear to agree that the
constitutional legitimacy of the statutes themselves do not form
the basis for Plaintiff’s claim.
See Heller, 554 U.S. at 631
(declining to address the constitutionality of the licensing
requirement because the respondent conceded that the licensing
law was permissible as long as it was not “enforced in an
arbitrary and capricious manner”).
Instead, the Court limits its
examination to the claims presented by Plaintiff - namely whether
he qualifies under Hawai#i law and Heller to exercise Second
Amendment rights.
The Court also examines if Plaintiff’s
Fourteenth Amendment due process claims were violated in
connection with his alleged Second Amendment rights.
Because Plaintiff’s Fourteenth Amendment claims are
related to his Second Amendment claims, this Court will first
examine Plaintiff’s Second Amendment rights before addressing his
Fourteenth Amendment procedural due process claim.
-19-
1. Whether Federal Law Precludes Plaintiff From
Obtaining a Firearms Permit
The City Defendants argue that Plaintiff is prohibited
from possessing firearms under federal law because of the
Lautenberg Amendment.
Def.’s Opp. at 4-6, ECF No. 89.15/
The Lautenberg Amendment prohibits firearm ownership by
any person who “has been convicted in any court of a misdemeanor
crime of domestic violence.” 18 U.S.C. § 922(g)(9) (2012).
A
“misdemeanor crime of violence” is defined as a crime that (1)
15/
Haw. Rev. Stat. § 134-7(a) allows the chief of police to
deny a firearms permit to persons who are “prohibited from
possessing firearms or ammunition under federal law.” The Court
notes that Haw. Rev. Stat. § 134-7(a)’s prohibition based on
federal law was added to the statutory scheme in 2006. 2006 Haw.
Sess. Laws 29. Neither party discusses whether the police chief
was entitled to retroactively apply this section to Plaintiff’s
convictions in 1997 for two counts of harassment; both parties’
arguments assume that the chief could apply the federal law
prohibition. Defs.’ Opp. at 4-5, ECF No. 89; Plntf.’s Reply at
4, ECF No. 97. The Court notes that the application of H.R.S. §
134-7(a) does not appear to have an impermissible retroactive
effect because the state law does not take away or impair rights
Plaintiff had before the law was enacted. See Landgraf v. USI
Film Products, 511 U.S. 244, 269-270 (1994) (holding that a court
examining if a law should be applied retroactively should
consider whether the “new provision attaches new legal
consequences to events completed before its enactment”). The
federal Lautenberg Amendment was enacted in 1996 and therefore
defined gun rights at the time Plaintiff was convicted in 1997.
Gun Ban for Individuals Convicted of a Misdemeanor Crime of
Domestic Violence, P.L. 104-208, 110 Stat. 3009 (1996) (codified
at 18 U.S.C. § 921(a)(33) and § 922(g)(9)). In any event,
because the Court concludes that federal law does not bar
Plaintiff from obtaining a firearms permit (see Section I.A.1,
infra at 32-33), the Court need not determine whether it is
improper for the police chief to apply § 134-7(a) to Plaintiff’s
convictions.
-20-
constitutes “a misdemeanor under Federal, State, or Tribal law,”
and (2) “has, as an element, the use or attempted use of physical
force, or the threatened use of a deadly weapon, committed by a
current or former spouse, parent, or guardian of the victim, by a
person with whom the victim shares a child in common, by a person
who is cohabiting with or has cohabited with the victim as a
spouse, parent, or guardian, or by a person similarly situated to
a spouse, parent, or guardian of the victim.”
18 U.S.C. §
921(a)(33)(A)(i) (emphasis added).
The Supreme Court has held that state crimes do not
need to include the element of a “domestic relationship” in order
to fall within Lautenberg’s firearms prohibition.
United States
v. Hayes, 555 U.S. 415 (2009) (affirming a conviction under §
922(g)(9) where the predicate offense was a misdemeanor assault
that did not include a domestic relationship as an element, but
did involve such a relationship factually).
The Supreme Court
reasoned that the “domestic relationship” was not actually an
element required by the statute.
Id. at 426.
Thus, the Supreme
Court concluded that the definition of “misdemeanor crime of
domestic violence” has two requirements - (1) “the crime must
have, ‘as an element the use or attempted use of physical force,
or the threatened use of a deadly weapon’ and (2) the crime “must
be ‘committed by’ a person who has a specified domestic
relationship with the victim.”
555 U.S. at 415.
-21-
Regarding the
second requirement of the existence of a domestic relationship,
Plaintiff admits in the Complaint and his deposition that Colette
Fisher is currently his wife and that they were married at the
time of the 1997 incident.
Am. Compl. at 8, ¶ 24, ECF No. 31;
Deposition of Kirk C. Fisher at 9-10, ECF No. 99-2.
However, with respect to the first requirement,
Plaintiff’s convictions for harassment do not qualify as a
misdemeanor crime of domestic violence under federal law.
In
order to determine whether a conviction for a state crime falls
within the federal definition of a particular act or crime, the
courts use the “categorical approach.”
Ct. 2276, 2281 (2013).
Descamps v. U.S., 133 S.
In this case, if the state crime of
harassment proscribes the same conduct as the misdemeanor crime
of domestic violence defined in the Lautenberg Amendment, then
federal law would bar Plaintiff from obtaining firearms.
at 2283.
See id.
The result would also be the same if the state statute
defines the crime “more narrowly, because anyone convicted under
that law is “necessarily . . . guilty of all the [federal
crime’s] elements.”
Id.
However, if the state statute prohibits
more conduct than the federal statute, then the conviction under
state law does not qualify under federal law, even if the state
offender actually committed the federal offense.
Id.
The
Supreme Court emphasizes that “[t]he key . . . is elements, not
facts.”
Id.
-22-
The Ninth Circuit has held that the “physical force”
element in the Lautenberg Amendment means “the violent use of
force against the body of another individual.”
338 F.3d 1063, 1068 (9th Cir. 2003).
U.S. v. Belless,
The Ninth Circuit also
indicated that the term “physical force” did not include “any
touching” in the “sense of Newtonian mechanics” and also held
that “de minimus” touching does not qualify under the statute.
Id. at 1067-68.16/
Plaintiff was convicted under H.R.S. § 711-1106(1)(a),
which states that a person “commits the offense of harassment if,
with intent to harass, annoy, or alarm any other person, that
person . . . [s]trikes, shoves, kicks, or otherwise touches
another person in an offensive manner or subjects the other
person to offensive physical contact.”
The Commentary on § 711-
1106 states that Section (1)(a) “is a restatement of the commonlaw crime of battery, which was committed by any slight touching
16/
The Courts of Appeals for the Fourth, Sixth, Seventh,
and Tenth Circuits have concluded that the “touching” element of
common law battery does not constitute “physical force” as
contemplated in 18 U.S.C. § 921(a)(33)(A). See United States v.
White, 606 F.3d 144 (4th Cir. 2010), U.S. v. Castleman, 695 F.3d
582 (6th Cir. 2012), Flores v. Ashcroft, 350 F.3d 666 (7th Cir.
2003), United States v. Hays, 526 F.3d 674 (10th Cir. 2008). In
contrast, the Courts of Appeals for the First, Eighth, and
Eleventh Circuits have concluded that the “touching” element of
common law battery falls within the meaning of the term “physical
force” in the Lautenberg Amendment. See United States v. Nason,
269 F.3d 10 (1st Cir. 2001), United States v. Smith, 171 F.3d 617
(8th Cir. 1999), and United States v. Griffith, 455 F.3d 1339
(11th Cir. 2006).
-23-
of another person in a manner which is known to be offensive to
that person.”
Commentary on § 711-1106, H.R.S. § 711-1106(1)(a).
Accordingly, the Hawai#i definition of harassment in H.R.S. §
711-1106(1)(a) prohibits “de minimus” or “slight” touching, while
the federal misdemeanor crime of domestic violence does not
prohibit such conduct.
The Ninth Circuit in Belless provides an illustration
of how the federal definition of “misdemeanor crime of domestic
violence” covers less conduct than the Hawai#i harassment
statute.
In Belless, the Ninth Circuit gave the example of Vice
President Nixon angrily confronting the Soviet Premier and poking
the Premier in the chest with his finger while “expostulat[ing]
with his face inches away.”
Belless, 338 F.3d at 1068.
The
Court of Appeals noted that Nixon’s conduct could certainly be
characterized as “rude” (or “offensive”, as stated in the Hawai#i
statute), but the conduct would not fall within the Lautenberg
Amendment’s requirement of “the violent use of force against the
body of another individual.”
Id.
However, based upon the
wording in the Hawai#i statute, President Nixon’s “rude” poking
could meet the touching requirement for harassment under H.R.S. §
711-1106(1)(a).
Thus, the Hawai#i crime of harassment is defined
more broadly than the federal crime and does not categorically
qualify as a “misdemeanor crime of domestic violence.”
-24-
The City Defendants argue that the Court should apply
the modified categorical approach to “examine the facts of the
underlying prior conviction to determine whether it was a crime
of violence.”
Defs.’ Opp. at 8, ECF No. 89.
To support their
argument, the City Defendants refer to state court documents in
the record and also attach as exhibits the judicial determination
of probable cause, officer affidavits, and witness statement
forms that are part of police reports.17/
B, C, D, ECF No. 90.
Id.; Defs.’ CSF Ex. A,
The City Defendants also submit a
deposition of Plaintiff taken on April 17, 2013, in which
Plaintiff admits that he pushed his wife and she “fell backwards
on the ground.”
Deposition of Kirk C. Fisher at 33, lines 19-25,
and 34, lines 1-9, ECF No. 99-2.
The Supreme Court recently clarified the use of the
modified categorical approach, stating that it “helps effectuate
the categorical analysis when a divisible statute, listing
potential offense elements in the alternative, renders opaque
which element played a part in the offender’s conviction.”18/
17/
The witness statement forms contain signed statements
from Colette Fisher (Plaintiff’s wife), Nicole Fisher
(Plaintiff’s daughter), and Valerie Clough and Lisa Demarest, who
appear to have been neighbors of the Fishers at the time of the
1997 incident. Defs.’ CSF Ex. A, B, C, D, ECF No. 90.
18/
The quintessential example used by the Supreme Court to
illustrate the application of the categorical and modified
categorical approaches is the crime of burglary. Descamps, 133
S. Ct. at 2283. One of the basic elements of generic burglary
(continued...)
-25-
Descamps, 133 S. Ct. at 2283.
According to the Supreme Court,
“the key . . . is elements, not facts.”
Id.
Thus, to determine
the elements underlying the conviction, the Supreme Court held
that courts could examine reliable documents such as an
indictment or information, jury instructions, a transcript of the
plea colloquy or written plea agreement, or a record of findings
of fact adopted by the offender upon entering the plea.
See
Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143,
2160, 109 L. Ed. 2d 607 (1990) and Shepard v. United States, 544
U.S. 13, 16, 125 S. Ct. 1254, 1257, 161 L. Ed. 2d 205 (2005).
However, the courts are not allowed to examine facts to determine
whether the offender actually committed the generic crime, but
whether an offender was convicted of the generic crime.
Descamps, 133 S. Ct. at 2285-86.
18/
(...continued)
(for federal statutes) involves the unlawful entry into a
building or structure. Id. However, a state statute may define
burglary as, inter alia, the unlawful entry into a building or an
automobile. Id. at 2284. Thus, the state statute introduces an
alternative version of the crime that includes an element not
present in the federal crime - unlawful entry into an automobile.
Id. A person who is charged for unlawful entry into a building
or an automobile may be convicted for unlawful entry into a
building, or unlawful entry into an automobile. Id. at 2284. If
he is convicted for unlawful entry into a building, then he has
also committed a generic burglary as defined by federal law.
However, if he is convicted for unlawful entry into an
automobile, such a crime would not constitute generic burglary.
Accordingly, the courts use the modified categorical approach to
determine which version of the crime provided the basis for the
conviction. Id.
-26-
The elements of H.R.S. § 711-1106(1)(a) are listed in
the disjunctive:
A person may be convicted if he or she
“[s]trikes, shoves, kicks, or otherwise touches another person in
an offensive manner or subjects the other person to offensive
physical contact.”
Accordingly, the Court may apply the modified
categorical approach to determine which element “played a part in
[Plaintiff’s] conviction.”
See Descamps, 133 S. Ct. at 2283.
However, even if the Court applies the modified categorical
approach, Plaintiff’s conviction does not fall within the
Lautenberg Amendment.
With respect to the state court documents, Plaintiff’s
charging document includes the full definition found in H.R.S. §
711-1106(1)(a):
“Kirk C. Fisher, with intent to harass, annoy,
or alarm Colette Fisher, did strike, shove, kick, or otherwise
touch Colette Fisher in an offensive manner, or subject her to
offensive physical contact, thereby committing the petty
misdemeanor offense of harassment in violation of Section 7111106(1)(a) of the Hawaii Revised Statutes.”
State of Hawaii#i v.
Kirk C. Fisher, FC-CR No. 97-3233, Compl. p. 1 (emphasis added).
The elements of harassment are stated in the disjunctive Plaintiff could have been convicted of harassment if he did any
one of the acts listed above.
Id.
The judgment of the state
court also fails to indicate which element of H.R.S. § 7111106(1)(a) formed the basis for Plaintiff’s guilty plea.
-27-
Defs.’
Mtn. for Recon. Ex. C, ECF No. 39-6.
Instead, the judgment
merely states that “Defendant entered a plea of guilty as
charged.”
Id.
Because the charging document and the judgment
include the elements of harassment that allow for conviction on
the basis of de minimus touching, the modified categorical
approach requires a conclusion that Plaintiff’s conviction is not
covered by the Lautenberg Amendment.
See Descamps, 133 S. Ct. at
2283.
Regarding the police reports submitted by the City
Defendants, the Court is limited to examining reliable documents
that demonstrate the elements composing Plaintiff’s conviction.
The Supreme Court has specifically held that the courts are not
allowed to consider police reports when determining the elements
of the crime unless the offender in some way admits the truth of
the information contained in the report as part of his plea.
Shepard v. U.S., 544 U.S. 13, 17-19, 125 S. Ct. 1254, 1258-59
(2005).
In this case, the record does not indicate that
Plaintiff’s guilty pleas integrated the alleged facts from the
police reports.
As mentioned in this Court’s Reconsideration
Order re Plaintiff’s Preliminary Injunction, the City Defendants
have not presented the Court with a transcript of the plea
colloquy to demonstrate the specific facts that Plaintiff
stipulated to in connection with his pleas.
Reconsideration
Order re Plaintiff’s Preliminary Injunction at 13, ECF No. 50.
-28-
The same analysis is applicable to the officer
declarations and the probable cause statement - neither of these
sources isolate the elements or facts that Plaintiff admitted in
his plea.19/
Accordingly, the documents discussed above fail to
indicate that Plaintiff’s conviction was based on the elements of
harassment that might constitute “the violent use of force
against the body of another individual.”
1068.
Belless, 338 F.3d at
As a result, the Court cannot use these documents to
conclude that the elements forming the basis for Plaintiff’s
conviction are limited to the harassment elements involving a
violent use of force.
The City Defendants also submit witness statements from
Colette Fisher, Nicole Fisher, Valerie Clough, and Lisa Demarest
regarding the incident in 1997.
These witness statements appear
to be part of the police reports, which may not be considered for
the reasons discussed above.
Defs.’ CSF Ex. A, Ex. B, Ex. C, and
19/
The City Defendants’ citation to United States v.
Serrao, 301 F. Supp. 2d 1142 (D. Haw. 2004) and United States v.
Sweeten, 933 F.2d 765 (9th Cir. 1991) do not convince the Court
that it would be appropriate to consider the police reports,
police officer declarations, or the probable cause statement.
The courts in those cases stated that the documents were used to
determine the elements of the conviction; both courts
acknowledged that it would be improper to inquire into the facts
underlying the convictions of the offenders. See Sweeten, 933
F.2d at 769 (“we agree that it would have been error for the
district court to inquire into the facts underlying Sweeten’s
Texas conviction”) and Serrao, 301 F. Supp. 2d at 1146 (“This
court’s inquiry is limited to what Serrao pled guilty to, not
what acts he committed.”).
-29-
Ex. D, ECF No. 90.
Moreover, these victim or witness statements
also do not fall within the category of reliable documents to
determine the facts forming the basis of Plaintiff’s guilty plea.
See Shepard v. U.S., 544 U.S. 13, 20-21, 125 S. Ct. 1254, 1259-60
(2005); see also Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1036
(9th Cir. 2010) (noting that consideration of a victim’s
testimony involves the type of fact-finding that the modified
categorical approach attempts to avoid) and United States v.
Ventura-Perez, 666 F.3d 670, 677 (10th Cir. 2012) (noting that a
victim’s statement cannot be used under the modified categorical
approach).
The City Defendants also submit a deposition of
Plaintiff taken on April 17, 2013, in which Plaintiff describes
the November 1997 incident and admits that he pushed his wife and
she “fell backwards on the ground.”
Deposition of Kirk C. Fisher
at 33, lines 19-25, and 34, lines 1-9, ECF No. 99-2.
However,
the Ninth Circuit has held that statements or admissions by an
offender may not be used under the modified categorical approach
if they merely provide “bare facts” instead of indicating that an
offender’s guilty plea was based on that conduct.
Huerta-Guevara
v. Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003) (holding that
offender’s statements in her brief and judicial admissions could
not be used because the statements did not indicate if she had
actually pled guilty to the elements supported by those facts),
-30-
see also Perez-Mejia v. Holder, 663 F.3d 403, 410 (9th Cir. 2011)
(holding that admissions and statements made during immigration
removability proceedings may not be used in the modified
categorical approach to determine if alien’s state crime
conviction qualified under federal statute), U.S. v. RodriguezGuzman, 506 F.3d 738, 747 n. 9 (9th Cir. 2007) (noting that
admissions of facts underlying a crime made by an offender’s
counsel before a court that is not the convicting court may not
be used for the modified categorical approach because the
admissions are not “a record of the convicting court”).
Based on Ninth Circuit law, Plaintiff’s admissions in
his deposition do not qualify as a document that may be
considered under the modified categorical approach.
Plaintiff’s
admissions are a recollection from his point of view as to the
factual events that happened during the incident resulting in his
arrest.
Deposition of Kirk C. Fisher at 33, lines 19-25, and 34,
lines 1-9, ECF No. 99-2.
His statements do not mention the
criminal proceedings or indicate that his guilty pleas were based
upon the elements of harassment that constitute a “crime of
violence.”
Even if Plaintiff factually pushed Colette Fisher and
admits to doing so now, such an admission more than ten years
after the state court proceedings does not indicate that he pled
guilty to “striking, shoving, or kicking” Colette Fisher as
opposed to the touching element of the crime of harassment.
-31-
As
indicated by the Supreme Court in Descamps, offenders may plead
guilty to a less serious version of a crime even if the admitted
facts would support conviction for a more serious crime because
of negotiated plea deals.
133 S. Ct. at 2289.
The Court
specifically noted that it would be unfair for a subsequent court
to rewrite an offender’s plea bargain.
Id.
Accordingly, the
Court may not consider the admissions in the modified categorical
approach.
The City Defendants argue that various courts of appeal
cases support their contention that this Court should “examine
the facts of the underlying prior conviction.”
Defs.’ Opp. at 8-
9, ECF No. 89 (citing United States v. Hays, 526 F.3d 674 (10th
Cir. 2008) and United States v. Nobriga, 474 F.3d 561, 564 (9th
Cir. 2006)).
However, these cases do not support the City
Defendants’ proposition because the courts conducted an elementsbased analysis; the courts did not conduct a factual inquiry.
Moreover, the Supreme Court’s decision in Descamps specifically
bars this Court from conducting the factual inquiry requested by
the City Defendants.
Descamps, 133 S. Ct. at 2283 (holding that
the focus of the modified categorical approach is on the
elements, not the facts of a crime).
As a result of the above
analysis, the Court concludes that, under both the categorical
and modified categorical approaches, Plaintiff’s convictions for
-32-
harassment do not disqualify him under 18 U.S.C. § 922(g)(9) from
possessing firearms.
2. Whether Hawai#i Law Precludes Plaintiff from
Obtaining a Firearms Permit
a. H.R.S. § 134-7(b)
The City Defendants also argue that Plaintiff is barred
from receiving a firearms permit under H.R.S. § 134-7(b), which
states as follows:
(b) No person who is under indictment for, or has
waived indictment for, or has been bound over to the
circuit court for, or has been convicted in this State
or elsewhere of having committed a felony, or any crime
of violence, or an illegal sale of any drug shall own,
possess, or control any firearm or ammunition therefor.
The statutory scheme defines a “crime of violence” as “any
offense, as defined in title 37,20/ that involves injury or threat
of injury to the person of another.”
H.R.S. § 134-1.
The
question, therefore, is whether Plaintiff’s convictions for
harassment qualify as a “crime of violence.”
The Hawai#i Supreme Court has stated that, when
conducting a statutory interpretation analysis, the court’s
“foremost obligation is to ascertain and give effect to the
intention of the legislature, which is to be obtained primarily
20/
Title 37 consists of Hawai#i’s Penal Code.
-33-
from the language contained in the statute itself.”
State v.
Cullen, 86 Haw. 1, 8-9, 946 P.2d 955, 962-63 (1997).
Additionally, the courts may look at extrinsic sources such as
legislative history in order to ascertain the legislature’s true
meaning.
Id.
The Court may also consider “the reason and spirit
of the law, and the cause which induced the legislature to enact
it.”
Id.
In the supplemental briefing submitted to this Court,
the Brady Center argues that the “plain language” of H.R.S. §§
134-7 and 134-1 requires “an examination of the underlying facts
to determine whether the offense actually involved injury or
threat of injury to the person of another.”
Brief at 1, ECF No. 104.
Brady Center Supp.
The Brady Center argues that the
interpretation of a Hawai#i statute should be conducted under
state-law principles, and that the Hawai#i state courts have
never applied the categorical or modified categorical approaches
in Hawai#i law.
Brady Center Supp. Brief at 1-2, ECF No. 104.
While the Court acknowledges that Hawai#i has not used
the categorical or modified categorical approaches to interpret
the “crime of violence” provision in H.R.S. § 134-7; the Court is
not convinced that the Hawai#i legislature intended a fact-based,
circumstantial inquiry instead of an inquiry based on the
elements underlying a conviction or guilty plea.
-34-
First, the plain language of the statute states as
follows:
“‘Crime of violence’ means any offense, as defined in
title 37, that involves injury or threat of injury to the person
of another.”
H.R.S. § 137-1 (emphasis added).
Title 37 lists
the specific elements constituting individual criminal offenses.
Thus, the plain language of H.R.S. § 134-1 indicates that the
“offense” is defined by the elements in the penal code.21/
Because the term “offense” is referred to in terms of its
elements under the Hawai#i penal code, it appears that the
legislature intended an elements-based analysis as opposed to a
factual inquiry.
Second, the Court observes that, from its inception in
1927 until 1968, H.R.S. § 134-1 defined “crime of violence” in
terms of specific crimes under the penal code, for example,
murder, manslaughter, rape, robbery, burglary, etc.
In the 1968
version of the statute, the legislature referenced specific
21/
At the hearing, Brady Center argued that the words “as
defined in Title 37" are the legislature’s attempt to limit the
crimes covered to a class of offenses involving crimes against
the person or property as opposed to traffic offenses like
“running a red light and causing an injury.” Besides the fact
that the legislative history does not indicate such intent, the
Court notes that Title 37 covers a broad range of crimes beyond
crimes against the person or property, including injury caused by
a person’s negligent operation of a motor vehicle (see H.R.S. §
707-706), computer crimes, offenses against the public
administration, etc. In light of Title 37's broad coverage, the
Court does not adopt Brady’s interpretation of H.R.S. § 134-1's
reference to Title 37.
-35-
sections of the penal code in defining “crime of violence.”
Haw.
Rev. Stat. § 134-1 (1968).
In 1975, the Hawai#i legislature eliminated the
reference to “crime of violence” in Sections 134-1 and 134-7 and
substituted the word “felony.”
(Haw. 1975).
H.R. 8-723, Reg. Sess., at 1309
In the House report, the legislature indicated that
the bill would expand the prohibition in 134-7 “to a broader
category of persons – that is, from persons convicted of the
foregoing “crimes of violence” to felons generally.”
Id.
In 1981, the legislature added “crime of violence” to
H.R.S. § 134-7 while keeping the felony prohibition;
additionally, the definition of “crime of violence” was changed
to the form seen in the current version of the statute.
Haw. Sess. 462.
Id.
1981
The legislature did not indicate that the
new form of the definition was intended to be a substantive
change from the elements-based definition used in prior years.
See H.R. 11-49, Reg. Sess., at 922 (Haw. 1981); S. 11-49, Reg.
Sess., at 929 (Haw. 1981).
By using the phrase “as defined by
Title 37" in the modern definition, it appears that the
legislature intended the term “crime of violence” to be defined
according to the elements of the penal code instead of creating a
broad factual inquiry.
Additionally, the 1981 Senate and House reports
regarding H.R.S. § 134-7 states that a person “indicted or
-36-
convicted” of a crime of violence is prohibited from owning or
possessing a firearm.
H.R. 11-49, Reg. Sess., at 922 (Haw.
1981); S. 11-49, Reg. Sess., at 929 (Haw. 1981).
As Plaintiff
argues in his supplemental brief, the statute covers indictment
or conviction, not the circumstances surrounding an arrest.
Plntf.’s Supp. Brief at 7.
In the absence of any intent to the
contrary, the Court concludes that it is appropriate to focus on
the conviction itself instead of the underlying conduct resulting
in arrest.
Because H.R.S. §§ 134-1 and 134-7 focus on whether the
elements of the crime involve injury or threat of injury, the
Court’s use of federal law as persuasive authority in employing
the modified categorical approach appears to be appropriate.
In
State v. Auwae, the Intermediate Court of Appeals examined
federal law interpreting 18 U.S.C. § 922(g) when resolving an
ambiguity with H.R.S. § 134-7(b).
89 Hawai#i 59, 66, 968 P.2d
1070, 1077 (Haw. App. 1998) (overruled on other grounds by State
v. Jenkins, 93 Haw. 87, 997 P.2d 13 (2000)).
The court of
appeals noted that the “objective and language [of 18 U.S.C.
§ 922(g)] are similar to that of H.R.S. § 134-7(b).”
Id.
While
Auwe dealt with an entirely different issue than the issues
before the Court, the Hawai#i Court of Appeals’ decision to use
federal gun control law as persuasive authority lends support to
-37-
this Court’s decision to use the categorical approach in this
case.22/
The Court also observes that other state courts have
adopted the federal categorical approach in situations requiring
a determination of whether a past conviction qualifies as a
certain type of crime under an ambiguous state statute.
See
Redeker v. Eighth Judicial District Court of the State of Nevada,
122 Nev. 164, 127 P.3d 520 (2006) (using the categorical approach
to determine whether a defendant’s previous crime qualified as an
aggravating circumstance under a sentencing statute); State v.
Lloyd, 132 Ohio St. 3d 135, 970 N.E.2d 870 (2012) (using a
version of the federal categorical approach to determine whether
a Texas conviction was equivalent to a conviction under Ohio
law).
Thus, while the Court acknowledges the Brady Center’s
argument that state law determines the interpretation of state
statutes, states may use federal law as persuasive authority in
determining how to interpret a state statute.
Based on the
analysis of Hawai#i law as explained above, the Court finds it
22/
The Court also notes that United States v. Nobriga, 474
F.3d 561 (9th Cir. 2006) and United States v. Spencer, 724 F.3d
1133 (9th Cir. 2013) involved federal courts using the
categorical approach to determine whether a state crime qualified
under a federal statute for sentencing enhancements. While these
cases involved federal sentencing cases, the Court observes that
Hawai#i criminal statutes have been examined using the
categorical approach.
-38-
appropriate to use the categorical approach to determine whether
Plaintiff’s conviction qualifies as a crime of violence.
In support of its argument, the Brady Center argues
that the Hawai#i Court of Appeals has interpreted the word
“involving” to require a “circumstance-specific,” fact-based
approach to determine whether an infraction triggers certain
consequences under a statute.
See Brady Center Supp. Brief at 2.
The case cited by the Brady Center, State v. Herbert, revolved
around the interpretation of H.R.S. § 706-625(7) (Supp. 2003),
which allows a court to continue a nonviolent substance abuser’s
probation instead of sending the substance abuser to jail for
violating a probation term.
App. 2006).
112 Haw. 208, 145 P.3d 751 (Haw.
H.R.S. § 706-625(7) states that a nonviolent
substance abuser may continue on probation even after “a first
violation of the terms and conditions of probation involving
possession or use . . . of any dangerous drug.”
The parties in
Herbert disagreed over what terms constituted drug-related
probation terms as opposed to non-drug-related probation terms.
112 Haw. at 212.
The plaintiff in Herbert had entered no contest pleas
to drug-related offenses in 2003.
Id. at 210.
The state later
claimed that Herbert had violated certain conditions of his
probation, namely “failing to report to his probation officer as
directed, failing to notify his probation officer of any change
-39-
in address, failing to submit to a drug/alcohol assessment as
directed, and failing to pay the crime victim compensation and
probation service fees.”
Id. at 215.
The court of appeals
determined that the “question before us is whether Herbert's
violation of his terms and conditions of probation involved
possession or use of drugs as meant under HRS § 706–625(7).”
Id.
The court then proceeded to examine California law as persuasive
authority on whether each probation term was drug-related or nondrug-related.
Id. at 217-218.
After examining California law,
the court determined that certain probation terms were drugrelated while others were not.
Id. at 218.
While the Brady Center asserts that this case used a
“circumstance-specific” approach, the Hawai#i Court of Appeals
did not actually interpret the word “involving” to require a
circumstance-specific inquiry.
Instead, the Hawai#i court used
California precedent on drug-related probation terms in order to
reach its conclusion.23/
Herbert, 112 Haw. at 217-218.
23/
As a
The California cases relied upon by the Hawai#i Court of
Appeals in Herbert interpreted a California statute stating that
the courts should conduct hearings to determine whether an
offender’s probation should be revoked and required proof of the
alleged probation violation. See Cal. Penal Code § 1210.1
(West). The requirement of proof of the alleged probation
violation supports a circumstantial inquiry, but the California
statute is not similar to Hawai#i’s statutory drug-related
probation language. Compare id. to Haw. Rev. Stat. § 706-625.
Thus, it appears that Herbert’s use of a fact-based inquiry stems
from the California courts’ application of their statute, not
from an interpretation of the word “involving.”
-40-
result, Herbert does not appear to support the Brady Center’s
analysis that “involving” requires a fact-based inquiry.24/
The Brady Center also makes the argument that, if the
legislature intended to limit the firearms ban to “individuals
convicted of specific predicate offense statutes, Section 134
would have stated that the predicate offense must contain
specific elements.”
Brady Center Brief at 7, ECF No. 93.
The
Brady Center argues that the lack of the word “elements”
indicates that the legislature must have meant that the facts of
the actual crime should be evaluated.
Id.
However, the Court
observes that the categorical approach has been applied to
statutes that do not contain the word “element.”
See James v.
United States, 550 U.S. 192, 201-02, 127 S. Ct. 1586, 1593, 167
L. Ed. 2d 532 (2007).
In James, the Supreme Court used the
categorical approach for a statute that defined “violent felony”
as, inter alia, a crime that “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
James, 550 U.S. at 201-02 (citing U.S.C. § 924(e)(2)(B)(ii)).
24/
The Supreme Court has interpreted the phrase “involve
conduct that presents a serious potential risk of physical injury
to another” to require a categorical analysis of whether the
state crime contains elements of risk of physical injury to
another. James v. U.S., 550 U.S. 192, 202 (2007). However, the
language analyzed by the Supreme Court in James is from the
federal Armed Career Criminal Act.
-41-
Accordingly, the absence of the word “element” does not bar the
use of the categorical approach.
The Brady Center argues that Hayes provides a framework
of examining the factual circumstances of whether a crime meets
the definition of a “crime of violence.”
Brady Center Brief at
5-6, ECF No. 93 (citing United States v. Hayes, 555 U.S. 415
(2009)).
The Court notes that the Supreme Court in Hayes did not
abandon the categorical or modified categorical approaches, but
instead concluded that the term “domestic relationship” was not
an “element” for purposes of determining whether a state crime
qualified.
The Supreme Court examined the exact wording in the
statute and concluded, inter alia, that the term “element” was
listed in the singular and therefore only applied to the “use of
force” requirement, not the domestic relationship clause.
555 U.S. at 421-22.
Hayes,
The court observed that the use of force
requirement and the domestic relationship requirement were two
distinct concepts, so it was unlikely that Congress intended the
singular word “element” to refer to both concepts.
26.
Id. at 425-
The Hayes case is distinguishable because the wording of the
federal statute, which is different from H.R.S. § 134-1,
supported an interpretation for a fact-based approach for the
domestic relationship requirement.
For the reasons discussed
above, the Court concludes that the wording of H.R.S. § 134-1
supports a conclusion that the “injury or threat of injury”
-42-
requirement was intended to be examined in terms of the elements
of a conviction as opposed to a factual-based approach.
See
supra at 35-37.
The Brady Center also argues that Nijhawan v. Holder,
557 U.S. 29 (2009) uses a “circumstance-specific” approach to
determine whether a fraud offense qualified a non-citizen for
deportation.
Brady Center Supp. Brief at 1 n. 2.
The Nijhawan
case examined a statute regarding “an offense that . . . involves
fraud or deceit in which the loss to the victim or victims
exceeds $10,000."
Nijhawan v. Holder, 557 U.S. 29, 38, 129 S.
Ct. 2294, 2301, 174 L. Ed. 2d 22 (2009).
The Supreme Court noted
that the statutory language “in which the loss to the victim or
victims exceeds $10,000" referred to “specific circumstances,”
not generic crimes.
557 U.S. at 37.
The court found that the
words “in which” could refer to “the conduct involved “in” the
commission of the offense of conviction, rather than to the
elements of the offense.”
Id. at 39.
In this case, there is no
“in which” language in H.R.S. § 134-1 that refers to “specific
circumstances.”
Instead, the language in H.R.S. § 134-1 refers
to generic crimes by defining “offense” according to the general
provisions of the Hawai#i penal code.
See supra at 35.
Accordingly, Nijhawan does not support using a circumstantial
approach for H.R.S. § 134-1.
-43-
The Brady Center presents another argument that the
modified categorical approach should not be used because the
rationales behind the approach do not apply to Haw. Rev. Stat. §
137 and § 134-1.
The Brady Center argues that the Supreme Court
stated in Descamps that the use of the modified categorical
approach was appropriate because (1) the ACCA’s text and history
supported using the approach, (2) the approach would avoid the
Sixth Amendment concerns that could arise from “courts making
findings of fact that properly belong to juries,” and (3) that
the approach would avert “the practical difficulties and
potential unfairness of a factual approach.”
Brady Center Supp.
Brief at 2 (citing Descamps v. U.S., 133 S. Ct. 2276, 2287
(2013)).
The Brady Center argues that these rationales behind
the modified categorical approach do not apply to the present
case because this case is a civil case involving a Hawai#i
statute instead of the ACCA.
Id.
The Court first observes that the modified categorical
approach has not been restricted only to cases involving the ACCA
or the Sixth Amendment.
The federal courts have applied the
modified categorical approach to civil proceedings, namely
deportation proceedings that do not involve the ACCA.
See
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (using the modified
categorical approach to determine whether a state crime qualified
-44-
for deportation of a noncitizen).25/
The Courts have also applied
the modified categorical approach in immigration cases that do
not involve potential violations of the Sixth Amendment.
See
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013); Espinoza-Gonzalez
v. Holder, 2013 WL 3815149 at *2 (9th Cir. July 24, 2013)
(unpublished decision) (noting that federal courts can apply
modified categorical approach cases involving the ACCA to
immigration cases).
While the modified categorical approach may
be in alignment with the purposes and text of the ACCA and help
avoid potential Sixth Amendment violations; it does not logically
follow that the approach can only be used in cases analyzing the
ACCA and potential Sixth Amendment issues.
In Moncrieffe, the Supreme Court stated that the
categorical approach “serves practical purposes:
It promotes
judicial and administrative efficiency by precluding the
relitigation of past convictions in minitrials conducted long
after the fact.”
133 S. Ct. at 1690.
This rationale given by
the Supreme Court is certainly applicable to the present case Plaintiff pled guilty to the crime of harassment over fifteen
years ago in 1997.26/
Under the Brady Center and the City
25/
The Supreme Court noted in Nijhawan v. Holder that a
deportation proceeding is a civil proceeding. 557 U.S. at 42.
26/
The Court observes that Plaintiff in his deposition
states that he pushed Colette Fisher away because she kicked him
and struck him with her fist. Deposition of Kirk C. Fisher at
(continued...)
-45-
Defendants’ interpretation of H.R.S. § 134-7 and 134-1, this
Court would be required to evaluate evidence regarding
Plaintiff’s conduct on November 5, 1997, including hearing
testimony from any witnesses called by the parties to testify to
the events of that night.
Additionally, under the Brady Center and the City
Defendants’ approach, two persons, each convicted of the same
offense, might receive different treatment based upon whether or
not they can produce evidence years after their conviction.
As
mentioned in Moncrieffe, the modified categorical approach
prevents this type of “potential unfairness.”
133 S. Ct. at
1690.
The Supreme Court in Descamps, when rejecting the Ninth
Circuit’s application of the categorical approach to an
indivisible statute, illustrated other difficulties that may
arise from a fact-based approach regarding past convictions.
In case after case, sentencing courts following
Aguila–Montes would have to expend resources examining
(often aged) documents for evidence that a defendant
26/
(...continued)
33, lines 6-24, ECF No. 99-2. Therefore, it seems highly likely
that a “minitrial” would be needed to determine whether the shove
was actually the underlying fact he pled guilty to for
harassment, or whether the “shove” was in self-defense and
Plaintiff pled guilty to some other act. Plaintiff in his
deposition also states that any touching of Nicole Fisher
involved gesturing for her to move away from him and Colette as
opposed to contact constituting a threat of injury, necessitating
a minitrial of the events involving Nicole Fisher. Deposition of
Kirk C. Fisher at 33, lines 6-24, ECF No. 99-2.
-46-
admitted in a plea colloquy, or a prosecutor showed at
trial, facts that, although unnecessary to the crime of
conviction, satisfy an element of the relevant generic
offense. The meaning of those documents will often be
uncertain. And the statements of fact in them may be
downright wrong. A defendant, after all, often has
little incentive to contest facts that are not elements
of the charged offense—and may have good reason not to.
At trial, extraneous facts and arguments may confuse
the jury. (Indeed, the court may prohibit them for that
reason.) And during plea hearings, the defendant may
not wish to irk the prosecutor or court by squabbling
about superfluous factual allegations. . . . Still
worse, the Aguila–Montes approach will deprive some
defendants of the benefits of their negotiated plea
deals. Assume (as happens every day) that a defendant
surrenders his right to trial in exchange for the
government's agreement that he plead guilty to a less
serious crime, whose elements do not match an ACCA
offense. Under the Ninth Circuit's view, a later
sentencing court could still treat the defendant as
though he had pleaded to an ACCA predicate, based on
legally extraneous statements found in the old record.
Taylor recognized the problem: “[I]f a guilty plea to a
lesser, nonburglary offense was the result of a plea
bargain,” the Court stated, “it would seem unfair to
impose a sentence enhancement as if the defendant had
pleaded guilty” to generic burglary. 495 U.S., at
601–602, 110 S.Ct. 2143. That way of proceeding, on top
of everything else, would allow a later sentencing
court to rewrite the parties' bargain.
While Descamps is not directly applicable to the
present case, its reasoning regarding the problem of searching
old documents and potentially depriving a defendant of the
benefit of his plea illustrates problems with adopting a factbased approach for H.R.S. § 134-1.
The City Defendants and the Brady Center also argue
that, in the event the Court uses the categorical and modified
categorical approaches, Plaintiff would be barred from obtaining
-47-
a firearm because harassment is categorically a crime of
violence.
According to the City Defendants, harassment
encompasses offenses that involve “threat of injury to the person
of another.”
Brady Center Brief at 10-12.
However, the Court
disagrees that the element of “threat of injury” is necessarily
part of the crime of harassment.
Based upon the plain language
of the statute, the terms “injury” and “threat of injury” are not
elements of harassment as it is defined in H.R.S. § 7111106(1)(a).
Compare H.R.S. § 134-1 with H.R.S. § 711-1106(1)(a).
The Court reiterates that the Commentary on § 711-1106
states that Section (1)(a) essentially codifies the common-law
crime of battery, which includes any slight touching of another
person.27/
Commentary on § 711-1106, H.R.S. § 711-1106(1)(a).
As
illustrated in Belless, offensive touching does not necessarily
mean that the “threat of injury” exists.
338 F.3d at 1068.
Thus, the touching or contact need not create a “threat of
injury” to fall within the definition of battery and harassment.
While the Hawai#i courts have not confronted the exact
issue before this court, a Hawai#i court of appeals case provides
some guidance as to whether harassment categorically includes
“threat of injury to the person of another” as an element.
27/
In
The Hawai#i Supreme Court acknowledges that, while the
Commentary is not indicative of legislative intent, it is an “aid
in understanding the section.” State v. Hopkins, 60 Haw. 540,
543 n. 2 (1979).
-48-
State v. Pesentheiner, the Hawai#i Court of Appeals held that
“offensive physical contact” may occur if the offender contacts
“an item physically appurtenant to the body.”
296 (Haw. App. 2001).
95 Hawai#i 290,
The court ruled that knocking a hat off of
someone’s head could constitute harassment, and included other
examples of offensive contact that would qualify including
“tugging at a person’s shirt-tails, knocking off his eyeglasses,
grabbing her necktie or pulling on his necklace.” (correctly
stated)
Id.
Under the Hawai#i Court of Appeal’s interpretation,
“threat of injury to the person of another” is not required for a
conviction for harassment because an offender may intend to
offend or annoy by contacting items physically appurtenant to the
person.28/
Id.
The legislative history of H.R.S. § 134-1 as explained
above provides little guidance as to whether or not the
legislature intended the crime of harassment to categorically
fall within the definition of “crime of violence.”
35-37.
See supra at
The Court observes that, in 1975, the legislature
28/
The U.S. v. Mohr case cited by amicus Brady Center does
not persuade the Court to interpret harassment as a categorical
crime of violence. 554 F.3d 604 (5th Cir. 2009). The Fifth
Circuit in Mohr found that the state statute prohibited “words or
conduct” that created a fear of serious crimes (death, assault,
bodily injury, etc.) that were analogous to the violent crimes in
the federal statute (burglary, arson, extortion, etc.). 554 F.3d
at 609-10. In this case, Hawai#i cases such as Pesentheiner
support a conclusion that harassment prohibits non-violent
conduct because a “threat of injury” need not result for the
contact to be offensive. 95 Hawai#i at 296.
-49-
eliminated the “crime of violence” prohibition entirely and
substituted the term “felony.”
(Haw. 1975).
H.R. 8-723, Reg. Sess., at 1309
At the time the legislature made the change, the
crime of harassment was considered a petty misdemeanor and
therefore did not fall within H.R.S. § 134-7's firearms
prohibition.
H.R.S. § 711-1106(a) (1975).
When the legislature
added the “crime of violence” prohibition with the modern form of
the definition in 1981, the legislature did not indicate whether
or not harassment categorically qualified as a “crime of
violence.”
See 1981 Haw. Sess. 462, H.R. 11-49, Reg. Sess., at
922 (Haw. 1981); S. 11-49, Reg. Sess., at 929 (Haw. 1981).
The Court does note, however, that when the legislature
first enacted the penal code in 1972 and added the crime of
harassment, the legislature specifically stated in the committee
reports that it is the “intent of the Committee that the
definitions of crimes are to be strictly construed.”
Reg. Sess., at 1035 (Haw. 1972).
H.R. 6-1
The Court would be violating
the wishes of the legislature by construing harassment to include
an element that is not necessary for the commission of the crime
as stated in the statute.
As a result of the above observations,
the Court finds that the legislative history does not indicate an
intent to categorically include harassment as a crime of
violence.
-50-
Moreover, Hawai#i courts also observe the rule of
lenity when construing statutes.
State v. Auwae, 89 Haw. 59,
69-70, 968 P.2d 1070, 1080-81 (1998), overruled on other grounds
by State v. Jenkins, 93 Haw. 87, 997 P.2d 13 (2000) (applying
rule of lenity when deciding whether H.R.S. § 134-7(b) applied to
defendant’s felony conviction).
The rule of lenity in Hawai#i
has been described as follows:
In the absence of any guidance regarding the
legislature's intent, we are required to construe a
[penal statute] in favor of the defendant. See Busic v.
United States, 446 U.S. 398, 406 [100 S.Ct. 1747, 64
L.Ed.2d 381] (1980). ‘Ambiguity concerning the ambit of
criminal statutes should be resolved in favor of
lenity.’ Id. (citations omitted). ‘This policy of
lenity means that the [c]ourt will not interpret a
[state] criminal statute so as to increase the penalty
that it places on an individual when such an
interpretation can be based on no more than a guess as
to what the [legislature] intended.’
Id.
In addition to the above finding that the legislative
history does not indicate that harassment categorically
constitutes a crime of violence under H.R.S. § 137(b), the Court
also construes H.R.S. § 134-1 in favor of Plaintiff pursuant to
the doctrine of lenity.29/
29/
The Hawai#i Court of Appeals has held that harassment
under H.R.S. § 711-1106(1)(b) does not constitute a conviction
that disqualifies a person from obtaining a firearms permit.
State v. Char, 80 Hawai#i 262, 269, 909 P.2d 590, 597 (Haw. App.
1995). Section 711-1106(1)(b) imposes liability if the offender
“insults, taunts, or challenges another person” to the point
where the victim may violently respond, the victim believes that
(continued...)
-51-
Lastly, the Court concludes that holding that
harassment is categorically a crime of violence would not align
with the reason and spirit of the law.
See State v. Cullen, 86
Haw. 1, 8-9, 946 P.2d 955, 962-63 (1997).
As the Hawai#i Court
of Appeals explained in Pesentheiner, the harassment statute’s
overall purpose is to preserve the peace by “proscribing conduct
that offends one’s psyche and mental well-being.”
296.
95 Hawai#i at
This Court declines to interpret § 711-1106(1)(a) in a
manner that shifts the focus to whether the conduct causes a
“threat of injury” as opposed to deterring conduct that offends a
person’s “psyche and mental well-being” even if there is no
“threat of injury.”
Accordingly, for the reasons stated above,
the Court concludes that the H.R.S. § 711-1106(1)(a) is not
categorically a crime of violence.30/
29/
(...continued)
the offender “intends to cause bodily injury” to the victim or
another, or the offender intends to cause damage to the victim’s
or another’s property. The Court acknowledges that the Char case
is distinguishable because it involves conduct under § 7111106(1)(b), whereas Plaintiff pled guilty under § 711-1106(1)(a).
30/
As noted in a prior order, numerous courts have held
that harassment is not a categorical crime of violence. See,
e.g., Singh v. Ashcroft, 386 F.3d 1228, 1234 (9th Cir. 2004)
(“harassment” under Oregon statute was not categorical
crime of violence because it may be violated simply by “‘causing
spittle to land on the person’ of another”) (citations omitted);
United States v. Maldonado-Lopez, 517 F.3d 1207 (10th Cir. 2008)
(Colorado harassment statute was not a crime of violence, because
the language of the statute was broad enough to cover non-violent
crimes such as spitting on a person); United States v.
Insaulgarat, 378 F.3d 456, 471 (5th Cir. 2004) (because there are
(continued...)
-52-
However, the Court’s conclusion does not end the
inquiry, because the City Defendants correctly point out that
certain elements under the H.R.S. § 711-1106(1)(a) may constitute
a crime of violence even if others do not.
Defs.’ Opp. at 5, ECF
No. 89.
As noted previously regarding the modified categorical
approach, the Court may examine reliable documents such as an
indictment or information, jury instructions, a transcript of the
plea colloquy or written plea agreement, or a record of findings
of fact adopted by the offender upon entering the plea.
See
Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143,
2160, 109 L. Ed. 2d 607 (1990) and Shepard v. United States, 544
U.S. 13, 16, 125 S. Ct. 1254, 1257, 161 L. Ed. 2d 205 (2005).
However, as discussed in Section I.A.1 (supra at 27-33),
Plaintiff’s charging document lists the elements of harassment in
30/
(...continued)
forms of harassment that do not by their nature involve conduct
that presents serious risk of physical harm, violation of
aggravated stalking statute cannot categorically be a crime of
violence); Archuleta v. Wagner, 523 F.3d 1278 (10th Cir. 2008)
(violation of municipal ordinance that prohibits when a person
“strikes, shoves, kicks, or otherwise touches a person or
subjects him to physical contact” “with intent to harass, annoy,
or alarm another person” was not a crime of violence); SzuczToldy v. Gonzales, 400 F.3d 978 (7th Cir. 2005) (district court
erred in concluding that harassment by telephone was a crime of
violence). The Court does recognize, as it did previously, that
most of the above cases involved the propriety of sentencing
enhancements. Additionally, the Court acknowledges that these
cases do not directly address the Hawai#i definition of “crime of
violence” or Hawai#i’s harassment statute.
-53-
the disjunctive and does not indicate whether he pled guilty to
elements involving “injury or threat of injury to the person of
another.”
See Defs.’ Mtn. for Recon. Ex. A, ECF No. 39-4, and
H.R.S. § 134-1.
Nor does the judgment containing Plaintiff’s
guilty plea provide any further guidance because it states that
Plaintiff pled guilty as charged.
A, ECF No. 39-6.
See Defs.’ Mtn. for Recon. Ex.
The Court must conclude as it did for the
federal claims that these documents do not reveal that
Plaintiff’s conviction was based on an element involving “injury
or threat of injury.”
With respect to the witness statements, police reports,
police officer declarations, probable cause statement, and
Plaintiff’s deposition, the Court has likewise addressed why
these documents may not be used for the modified categorical
approach.
See Section I.A.1., supra at 27-33.
As a result, the
Court concludes that H.R.S. § 134-7(b) does not disqualify
Plaintiff from exercising his Second Amendment rights because the
Court cannot conclude that his convictions for harassment
constitute a crime of violence.
b. H.R.S. § 134-7(c)
Independent of H.R.S. § 134-7(b)’s prohibition based
upon the commission of a “crime of violence,” the City Defendants
also argue that Plaintiff does not qualify for a permit because
of H.R.S. § 134-7(c), which states, inter alia, as follows:
-54-
(c) No person who:
(1) Is or has been under treatment or counseling for
addiction to, abuse of, or dependence upon any
dangerous, harmful, or detrimental drug,
intoxicating compound as defined in section 7121240,31/ or intoxicating liquor . . . shall own,
possess, or control any firearm or ammunition
therefor, unless the person has been medically
documented to be no longer adversely affected by the
addiction, abuse, dependence, mental disease,
disorder, or defect.
The City Defendants set forth documents in the record
that raise a genuine issue of material fact as to whether
Plaintiff has been under treatment or counseling for substance
abuse in the past.
In the terms of Plaintiff’s probation that
were signed by Judge Murakami, Plaintiff was required to “attend
SUBSTANCE ABUSE ASSESSMENT and shall participate in counseling
and/or treatment until clinically discharged or as directed by
the probation officer.”32/
39-6.
Defs.’ Mtn. for Recon. Ex. C, ECF No.
The City Defendants also submit Plaintiff’s
“Acknowledgment of Receipt of Conditions of Probation/DAGP/DANCP
31/
Intoxicating Compound is defined as follows: “any
compound, liquid or chemical containing toluol, hexane,
trichloroethylene, acetone, toluene, ethyl acetate, methyl ethyl
ketone, trichloroethane, isopropanol, methyl isobutyl ketone,
methyl cellosolve acetate, cyclohexanone, or any other substance
for the purpose of inducing a condition of intoxication,
stupefaction, depression, giddiness, paralysis or irrational
behavior, or in any manner changing, distorting or disturbing the
auditory, visual or mental processes.” Haw. Rev. Stat. § 7121240.
32/
As mentioned previously, Hawai#i statutes and case law
indicate that the term “substance abuse” may refer to, inter
alia, alcohol or drugs. Supra at 8 n. 8.
-55-
Supervision,” which states that he was required to “undergo a
substance abuse assessment and immediately undergo and complete
any recommended treatment.”
Defs.’ Mtn. for Recon. Ex. C, ECF
No. 39-7.
While the record does not indicate the substance
underlying Plaintiff’s probation requirement to attend the Drug
and Alcohol Education Course; the Court notes that Plaintiff
admits in his deposition that he had been drinking alcohol
(specifically a six-pack of beer) on the day of the alleged
domestic violence incident.
lines 14-21, ECF No. 99-2.33/
Deposition of Kirk C. Fisher at 26,
The record also reflects that
Plaintiff attended and completed a Twelve Hour Drug and Alcohol
Education Course around February of 1998.
Ex. C, ECF No. 39-7.34/
Defs.’ Mtn. for Recon.
However, the record does not contain any
33/
The Court may not consider Plaintiff’s deposition for
the modified categorical approach in analyzing his past
conviction, but the deposition may be considered regarding H.R.S.
§ 134-7(c)(1). The substance abuse prohibition does not require
the examination of a past crime. See H.R.S. § 134-7(c)(1).
Instead, the statutory language indicates that the Court may
examine facts as to whether an applicant has been under treatment
or counseling for substance abuse, addiction, or dependence.
34/
The City Defendants also allege that Plaintiff was found
guilty of driving under the influence of intoxicating liquor
(H.R.S. § 291-0004) in Honolulu District Court on August 1, 1986.
Defs.’ Opp. at 14, n. 8, ECF No. 89. However, the City
Defendants fail to attach any documentation regarding the alleged
incident.
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“medical” documentation that Plaintiff is no longer “adversely
affected” by drugs or alcohol.35/
Plaintiff does not respond to this argument in his
Reply.
See generally, Plntf.’s Reply, ECF No. 97.
Plaintiff’s
only evidence that addresses this matter is his declaration, in
which he states “I do not abuse and am not addicted to or
dependent on alcohol or drugs.
I have never been diagnosed as
suffering from any addiction to, dependency upon, or abuse of
alcohol or drugs.
I have never been treated for addiction,
dependency or abuse of alcohol or drugs.”
Fisher, ¶ 6, ECF No. 78-1.
Decl. of Kirk C.
Based upon the record before the
Court, the City Defendants raise a genuine issue of material fact
as to whether Plaintiff participated in “treatment or
counseling”36/ for substance abuse, and whether Plaintiff has
35/
At the hearing, both Plaintiff’s counsel and the City
Defendants’ counsel stated that there is no “medical
documentation” indicating that Plaintiff is “no longer adversely
affected” by drugs or alcohol.
36/
H.R.S. § 134-7 does not define “counseling.” In the
Definitions Section regarding regulations for mental health
counselors, the legislature has defined the term “Practice of
mental health counseling” as “the rendering of professional
counseling services based on specialized education, training, and
experience to individuals, families, or groups for compensation,
monetary or otherwise.” Haw. Rev. Stat. § 453D-1. The
definition also states that the practice of mental health
counseling includes, inter alia, “The assessment, diagnoses, and
treatment of, and counseling for, substance abuse.” While the
Hawai#i definition in §453D-1 is not directly on point, it
provides some guidance as to what may constitute “counseling” in
the context of H.R.S. § 134-7(c).
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“medical” documentation that he is no longer “adversely affected”
by substances.
As a result, the Court also concludes that Plaintiff
has not established that he qualifies as an individual who may
keep and bear arms under the Second Amendment.
In U.S. v. Dugan,
the Ninth Circuit held that habitual drug users may be prohibited
from possessing firearms without violating the Second Amendment.
657 F.3d 998, 999 (9th Cir. 2011); see also United States v.
Yancey, 621 F.3d 681, 687 (7th Cir. 2010) (holding that Second
Amendment does not protect the right to have firearms while a
person abuses drugs), United States v. Seay, 620 F.3d 919, 925
(8th Cir. 2010) (cert. denied, – U.S. –, 131 S. Ct. 1027, 178 L.
Ed. 2d 849 (2011) (same), cf. U.S. v. Carter, 669 F.3d 411, 418
(4th Cir. 2012).
The Ninth Circuit reasoned that habitual drug
users, “like career criminals and the mentally ill, more likely
will have difficulty exercising self-control, particularly when
they are under the influence of controlled substances.”
Id.
The
Ninth Circuit also observed that the restriction at issue in
Dugan was “less onerous” than the lifetime ban for the mentally
ill or convicted felons in Heller because drug users may regain
the right to possess a firearm by ending their substance abuse.
Id., see also Carter, 669 F.3d at 419 (holding that a temporal
restriction that may be lifted is “less intrusive than other
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statutes that impose a permanent prohibition on the possession of
firearms”).
Under Dugan, the City Defendants may prohibit Plaintiff
from possessing a firearm under H.R.S. § 134-7(c)(1) if he
received treatment or counseling for substance abuse.
Moreover,
the restrictions under § 134-7(c)(1) are “less onerous” than the
restrictions discussed in Heller because Plaintiff, in the event
that he lost his firearms rights, may regain them by providing
medical documentation that he is no longer adversely affected by
any addiction or abuse.
While the Court acknowledges that the statutory
prohibition in Dugan did not refer to liquor, the reasoning in
Dugan applies to people who are dependent upon, addicted to, or
abuse intoxicating liquor.
Such persons are more likely to “have
difficulty exercising self-control,” particularly when they are
under the influence of intoxicating liquor.
See People v.
Deroche, 299 Mich. App. 301, 307-08, 829 N.W.2d 891, 895 (2013)
(“Like the restrictions preventing felons, the mentally ill, or
illegal drug users from possessing firearms because they are
viewed as at-risk people in society who should not bear arms,
individuals under the influence of alcoholic liquor may also pose
a serious danger to society if permitted to possess or carry
firearms because those individuals will have “difficulty
exercising self-control, making it dangerous for them to possess
-59-
deadly firearms.”); State v. Freysinger, 311 N.J. Super. 536,
540, 710 A.2d 596, 598 (1997) (“Certainly people unable to
control themselves because of excess drinking have the potential
to be dangerous.”); State v. Richard, 298 S.W.3d 529, 532 (Mo.
2009) (“Possession of a loaded firearm by an intoxicated
individual poses a demonstrated threat to public safety.”); S.
17-498 Reg. Sess. at 987-988 (Haw. 1993) (noting that the medical
documentation provision was adjusted to allow firearm possession
once a recovering addict “no longer presents an unreasonable
danger to the individual or society”).
Additionally, as noted above, the restriction regarding
liquor is a temporal restriction that is less intrusive than a
permanent ban.
at 419.
See Dugan, 657 F.3d at 999 and Carter, 669 F.3d
Thus, the Court concludes that H.R.S. § 134-7(c)’s
prohibition of firearm possession by persons who depend upon,
abuse, or have an addiction to intoxicating liquor does not
violate the Second Amendment.37/
37/
The Court acknowledges that the Ninth Circuit in Dugan
did not articulate the standard of scrutiny to evaluate firearm
restrictions like H.R.S. § 134-7(c). However, it appears that
some of the cases relied upon by the Ninth Circuit employed some
form of intermediate scrutiny. See United States v. Yancey, 621
F.3d 681, 687 (7th Cir. 2010). The Court concludes that H.R.S. §
134-7(c) would survive this level of scrutiny because the
government has an important government interest in “protecting
the community from crime by keeping guns out of the hands of
dangerous persons.” See U.S. v. Carter, 669 F.3d 411, 418 (4th
Cir. 2012), see H.R. 11-727, Reg. Sess. 1241-1242 (Haw. 1981).
Additionally, the government interest is “substantially served”
(continued...)
-60-
Accordingly, the Court DENIES Plaintiff’s Motion for
Summary Judgment because there is a genuine issue of material
fact regarding (1) whether Plaintiff has been under counseling
for addiction to, abuse of, or dependence upon a drug or
intoxicating liquor, and (2) whether Plaintiff has been
“medically documented to be no longer adversely affected” by
drugs or intoxicating liquor.
As a result, Plaintiff has not
established a Second Amendment right to possess firearms.
B. Fourteenth Amendment Procedural Due Process
The Ninth Circuit has provided a two-step analysis to
analyze procedural due process claims.
First, the court must
determine “whether a liberty or property interest exists
entitling an individual to due process protections.”
Grabicki, 794 F.2d 1373, 1380 (9th Cir. 1986).
Hewitt v.
Second, “if a
constitutionally protected interest is established, a balancing
test is to be employed to determine what process is due.”
Id.
(citing Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893,
902-03, 47 L.Ed.2d 18 (1976)).
In this case, Plaintiff has not established that he has
a liberty or property interest under the Second Amendment because
37/
(...continued)
by enforcing H.R.S. § 134-7(c) because firearms are kept out of
the hands of people who may use them in an unsafe manner as
discussed above. The limitation on the prohibition, i.e., that a
person may possess firearms after submitting medical
documentation, demonstrates that the restriction is somewhat
tailored to cover the government interest.
-61-
there is a genuine issue of material fact regarding his alleged
treatment or counseling for substance abuse.
Accordingly, the
Court DENIES his motion for summary judgment for his Fourteenth
Amendment procedural due process claim because Plaintiff has not
established that he has a liberty or property interest that would
trigger due process protection.
See Hewitt, 794 F.2d at 1380
(affirming grant of summary judgment denying a due process claim
because critical comments in a personnel file did not infringe a
liberty interest).
II. Plaintiff’s Motion for a Permanent Injunction
As mentioned previously, a plaintiff must actually
succeed on the merits in order to obtain a permanent injunction.
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 32, 129 S.
Ct. 365, 381, 172 L. Ed. 2d 249 (2008).
Because Plaintiff has
not established that he is qualified to bear firearms under the
Second Amendment, the Court concludes that he has not succeeded
on the merits to obtain a permanent injunction mandating that
the City Defendants issue him a firearms permit.
Accordingly,
the Court DENIES Plaintiff’s Motion for a Permanent Injunction.
CONCLUSION
For the foregoing reasons, the Court (1) GRANTS in part
Plaintiff’s Motion for Summary Judgment regarding whether
Plaintiff’s prior harassment convictions prohibit him from
acquiring a firearms permit pursuant to 18 U.S.C. § 922(g)(9),
-62-
Haw. Rev. Stat. § 134-7(a), and Haw. Rev. Stat. § 134-7(b), (2)
DENIES in part Plaintiff’s Motion for Summary Judgment regarding
whether Plaintiff is prohibited from acquiring a firearms permit
pursuant to Haw. Rev. Stat. § 134-7(c) and (3) DENIES Plaintiff’s
Motion for Permanent Injunction.
IT IS SO ORDERED.
DATED:
Honolulu, Hawai#i, September 30, 2013.
________________________________
Alan C. Kay
Sr. United States District Judge
Fisher v. Kealoha et al., Civ. No. 11-00589 ACK-BMK: ORDER (1) GRANTING IN
PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND (2)
DENYING PLAINTIFF’S MOTION FOR PERMANENT INJUNCTION.
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