Fisher v. Kealoha et al
Filing
137
ORDER Granting Defendants' 115 Motion for Summary Judgment or, In The Alternative, Motion For Reconsideration. Signed by JUDGE ALAN C KAY on 7/18/14. (gab, )CERTIFICATE OF SERVICEParticipants registered to re ceive 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 GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, MOTION FOR RECONSIDERATION
PROCEDURAL BACKGROUND
On September 28, 2011, Plaintiff Kirk Fisher filed a
Complaint against Defendants Louis Kealoha, Paul Putzulu, the
City and County of Honolulu (“City”), and the Honolulu Police
Department (“HPD”). (Doc. No. 1.) Plaintiff asserted two claims
against Defendants for alleged violations of his Second, Fifth,
and Fourteenth Amendment rights regarding his firearms and
attempt to obtain a firearms permit. (Compl. ¶¶ 47-57.)
On December 9, 2011, and January 24, 2012,
respectively, the City and Kealoha filed motions for “partial”
dismissal of the Complaint. (Doc. Nos. 6 & 16.) On April 19,
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2012, the 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 HPD with prejudice; and (4)
dismissed Plaintiff’s Fifth Amendment claims with prejudice.
(Doc. No. 25.)
On June 14, 2012, Plaintiff filed the operative Amended
Complaint against Kealoha as an individual and in his official
capacity, Putzulu as an individual and in his official capacity,
and the City.1/ (Doc. No. 31.) 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
Amendment[] to the United States Constitution and 42 U.S.C. §
1983 Against All Defendants.” (Id.)
On March 19, 2012, Plaintiff filed a Motion for
Preliminary Injunction. (Doc. No. 18.) On June 29, 2012, the
Court issued an order granting Plaintiff’s Motion for Preliminary
Injunction (“2012 Preliminary Injunction Order”). (Doc. No. 35.)
1/
Defendant Putzulu has not been served with the Amended
Complaint or appeared in this action. (See Doc. No. 31-2 and Doc.
Nos. 31-135.) At the September 17, 2013 hearing for Plaintiff’s
Motion for Summary Judgment and Motion for Permanent Injunction,
Plaintiff’s counsel voluntarily dismissed Putzulu from this suit.
The Court notes, however, that Plaintiff has not filed a Notice
of Dismissal. Accordingly, the Court directs Plaintiff to file a
Notice of Dismissal, dismissing Putzulu from this action.
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The Court’s injunction directed Kealoha to “rescind the prior
denial of Plaintiff’s permit to acquire firearms and to issue a
permit authorizing Plaintiff to acquire firearms.” 2012
Preliminary Injunction Order at 36. Kealoha and the City
(collectively, “Defendants”) filed a Motion for Reconsideration,
which the Court subsequently denied. (Doc. Nos. 39 & 50.)
On February 25, 2013, Plaintiff filed a Motion for
Summary Judgment and a Motion for Permanent Injunction. (Doc.
Nos. 75 & 77.) On September 30, 2013, the Court issued an “Order
Granting in Part and Denying in Part Plaintiff’s Motion for
Summary Judgment and Denying Plaintiff’s Motion for Permanent
Injunction.” (Doc. No. 111 (“Sept. 30 Order”).) In the Sept. 30
Order, the Court granted 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), Haw. Rev. Stat. § 134-7(a),
and Haw. Rev. Stat. § 134-7(b); denied 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 denied Plaintiff’s Motion for Permanent Injunction.
Sept. 30 Order at 62-63.
On April 2, 2014, Defendants filed the instant Motion
for Summary Judgment or, in the Alternative, Motion for
Reconsideration (“Motion” or “Defs.’s Mot.”), along with a
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concise statement of facts. (Doc. Nos. 115 & 116.) On May 23,
2014, Plaintiff filed an Opposition to Defendants’ Motion
(“Opposition” or “Pl.’s Opp.”), along with a concise statement of
facts. (Doc. Nos. 124 & 125.) On June 2, 2014, Defendants filed a
Reply (“Reply” or “Defs.’s Reply”), along with a Separate and
Concise Statement of Facts in Support of Reply and Objections to
Plaintiff’s Concise Statement of Facts. (Doc. Nos. 127-128.) On
June 14, 2014, Plaintiff filed a Motion for Leave to File
Additional Exhibits to Supplement Plaintiff’s Concise Statement
of Facts. (Doc. No. 130.) Plaintiff attached two exhibits to his
Motion for Leave to File. (Doc. Nos. 130-2 & 130-3.)2/
Amicus curiae Hawaii Defense Foundation (“HDF”)
requested to file a brief regarding Defendants’ Motion. On April
6, 2014, HDF filed a Motion to File Supplemental Amicus Brief.
(Doc. No. 119.) HDF attached a twelve-page supplemental amicus
brief to its Motion to File. (Doc. No. 119-1.) On April 7, 2014,
HDF filed an Errata in order to attach a copy of an academic
study to its supplemental amicus brief. (Doc. No. 120.) On April
10, 2014, the Court issued a minute order granting the Motion to
File a supplemental amicus brief. (Doc. No. 121.) On April 10,
2014, after the Court issued its minute order, HDF filed a
second, sixteen-page supplemental amicus brief (“HDF’s April 10
2/
The Court GRANTS this motion and will consider the exhibits
attached thereto, notwithstanding the fact that the motion was
untimely filed.
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Supp. Brief”). (Doc. No. 122.) On April 23, 2014, HDF filed a
Notice of Supplemental Authority. (Doc. No. 123.)
The Court held a hearing regarding Defendants’ Motion
on June 16, 2014. At the hearing Plaintiff acknowledged that HDF
raised issues in its supplemental amicus brief, which Plaintiff
had not raised in his Amended Complaint, Opposition, or by way of
argument at the hearing. Several hours after the hearing
Plaintiff filed a Motion to Incorporate and Reference in its
Entirety HDF’s supplemental amicus brief. (Doc. No. 132.) At the
hearing Defendants requested that, if the Court were to consider
arguments raised only by HDF, Defendants be given an opportunity
to file a brief in response. Defendants noted in their Reply that
it was inappropriate for an amicus curiae to raise issues that
had not been raised by the parties. (Reply at 10 (citing
Artichoke Joe’s Cal. Grand Casino v. Norton, 353 F.3d 712, 719
(9th Cir. 2003)); see also Swan v. Peterson, 6 F.3d 1373, 1383
(9th Cir. 1993)).
In light of these circumstances, the Court determined
that it will sua sponte in its discretion consider issues raised
by HDF, and will allow Defendants to file a brief in response.
(Doc. No. 134 (“June 20, 2014 Minute Order”).) On the other hand,
the Court did not allow HDF and Plaintiff to file further
briefing since they had already taken the opportunity to raise
and address the subject issues. (Id.)
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On July 7, 2014, Defendants filed a supplemental brief
(“Defs.’s Supp. Brief”). (Doc. No. 136.)
FACTUAL BACKGROUND
On November 5, 1997, Plaintiff was arrested for two
counts of harassment in violation of H.R.S. § 711-1106(1)(a).
(Defs.’s CSF Ex. A.) That statute provides, 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. . .
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.” (Doc. 39-4
(“State of Hawaii v. Kirk C. Fisher, FC-CR No. 97-3233") at 1.)3/
At the time of the 1997 incident to the present, Colette Fisher
has been Plaintiff’s wife. (Am. Compl. ¶ 24; Doc. 99-2
3/
Both parties reference exhibits filed with previous motions
that are part of the record in this case. The Court likewise
refers to prior exhibits submitted by the parties.
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(“Deposition of Kirk C. Fisher”) at 9-10.) A second count in the
state court complaint contains the same allegations with respect
to Nicole Fisher, Plaintiff’s daughter. (Doc. 39-4 at 1-2.)
On December 3, 1997, Plaintiff pled guilty to two
counts of harassment in the Family Court of the First Circuit,
State of Hawaii, and was sentenced to six months of probation.
(Defs.’s CSF at 2, ¶ 2.) As part of the 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.”
(Id. Ex. C.) Around February 1998, Plaintiff completed a “Twelve
Hour Drug and Alcohol Education Course” presented by the “Hawaii
Alcohol and Drug Safety Action Program.” (Id. Ex. F.) While the
record does not indicate the substance underlying Plaintiff’s
probation requirement to attend the Drug and Alcohol Education
Course; this Court noted in its Sept. 30 Order that Plaintiff
admitted in his deposition that he had been drinking alcohol
(specifically a six-pack of beer) on the day of the alleged
domestic violence incident. Sept. 30 Order at 8 n. 8.
In connection with his convictions, Plaintiff was
ordered to surrender all firearms, ammunition, permits, and
licenses to HPD. (Defs.’s CSF Ex. D.) On November 4, 1998, state
judge Dan Kochi issued an “Order Permitting Return of Firearms,
Ammunition, Permits and Licenses, With Conditions.” (Id. Ex. E.)
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The order stated that HPD should return Plaintiff’s firearms and
ammunition “provided that the provisions of H.R.S. Chapter 134
are satisfied and there are no. . . prohibitions under H.R.S.
Section 134-7 . . . or a conviction of a misdemeanor crime of
[domestic] violence under 18 U.S.C. section 922(g)(9).” (Id.) HPD
promptly returned Plaintiff’s firearms as a result of this order.
(Defs.’s CSF at 3, ¶ 6.)
In the fall of 2009, Plaintiff submitted an application
to HPD seeking to obtain a permit for additional firearms. (Id.
at 3-4, ¶ 11.) On October 1, 2009, HPD denied Plaintiff’s
application via letter on the grounds that Plaintiff was
disqualified under H.R.S. § 134-7. (Doc. No. 78-5.)4/ HPD then
ordered Plaintiff to surrender the firearms he possessed to the
police or otherwise lawfully dispose of his firearms and
ammunition within 30 days of October 1, 2009. (Id.) Plaintiff
subsequently transferred ownership and possession of all of his
firearms to his wife after she obtained the proper permits. (Am.
Compl. ¶ 24.)
Plaintiff asserts that HPD told him he was disqualified
from owning firearms under H.R.S. § 134-7(b). (Doc. No. 78-1
4/
The October 1, 2009 letter did not state which subsection
of H.R.S. § 134-7 formed the basis for the denial of Plaintiff’s
firearms permit. (See Doc. No. 78-5.) In his August 31, 2010
letter to Kealoha, Wilkerson (Plaintiff’s counsel) indicated that
HPD officers 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). (Pl.’s CSF Ex. 1.)
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(“Declaration of Kirk C. Fisher”) ¶ 12.) Defendants dispute this
fact and argue that HPD, as indicated in the October 1, 2009
letter, never stated which subsection of H.R.S. § 134-7 formed
the basis for the denial of Plaintiff’s firearms permit. (Defs.’s
Objs. to Pl.’s CSF at 3, ¶ 19.)
According to Defendants, HPD runs a background check on
individuals who apply for a firearms permit. (Defs.’s CSF Ex. H
(“Nitta Decl.”) ¶ 9.) If the applicant has been convicted of
harassment, HPD will attempt to determine if the particular
conviction involved violent behavior, specifically the use of
physical force, and whether such violence occurred within a
domestic relationship. (Id.) If HPD determines that an
applicant’s conviction for harassment includes physical force
against the victim, HPD will deny the application. (Id. ¶ 10.)
Regarding the specific procedure used to evaluate
Plaintiff’s application, HPD ran a background check and reviewed
police reports relating to the harassment convictions. (Id. ¶
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.” (Id.) As a
result, HPD denied Plaintiff’s application. (Id. ¶ 12.)
On August 31, 2010, Plaintiff through his counsel sent
a letter to Kealoha requesting that (1) HPD grant his application
for a permit to acquire firearms and (2) HPD rescind the prior
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order instructing Plaintiff to surrender or dispose of his
firearms. (Pl.’s CSF Ex. 1.) Kealoha responded to Plaintiff’s
request on September 29, 2010, and affirmed HPD’s prior denial of
Plaintiff’s firearms permit application. (Doc. No. 78-7.)
[Sentence deleted.]
On June 29, 2012, as discussed hereinbefore, the Court
issued an injunction directing Kealoha to issue a permit
authorizing Plaintiff to acquire firearms.5/ In his declaration,
Plaintiff states that sometime following the Court’s issuance of
the injunction, he submitted an application for a firearms permit
to HPD. (Pl.’s CSF Ex. 1 (“Fisher Decl.”) ¶ 3.) Plaintiff further
states that, as part of the application process, HPD contacted
his physician, Dr. Joseph Tsai, in order to “document
[Plaintiff’s] medical clearance.” (Id. ¶ 6.) According to
Plaintiff, Dr. Tsai provided medical documentation that he was
“not adversely affected by an addiction to, abuse of, or
dependence on any alcohol or drug” and that he did “not suffer
any mental disease, disorder, or defect.” (Id.) Plaintiff asserts
that he received a firearms permit because he satisfied all of
the conditions of H.R.S. § 134-7, including the “medical
clearance documentation” requirement of H.R.S. § 134-7(c).” (Id.
5/
In its 2012 Preliminary Injunction Order, the Court noted
that H.R.S. § 134-7(c) may preclude Plaintiff from possessing
firearms, and that neither party addressed § 134-7(c). See 2012
Preliminary Injunction Order at 18 n. 14.
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¶ 7.)6/
Defendants acknowledge that Plaintiff submitted an
application for a firearms permit after the Court’s 2012
Preliminary Injunction Order; however, they argue that he failed
to abide by HPD’s application procedures. (Defs.’s CSF in Support
of Reply at 2, ¶¶ 1-3.) Specifically, Defendants assert that once
a complete application is submitted, HPD requires a two-week
waiting period during which HPD reviews the application and
supporting documents. (Id. ¶ 2.) According to Defendants, after
the expiration of the two-week waiting period, there is a six-day
period within which the applicant may retrieve his application.
(Id.) Defendants assert that Plaintiff did not pick up his
application within the allotted period and, therefore, HPD voided
his application on August 1, 2012. (Id. ¶ 3.)7/ Defendants
further assert that HPD did not contact Dr. Tsai, and that
neither Plaintiff nor Dr. Tsai provided HPD with “medical
clearance documentation.” (Id. ¶ 4.)
At the hearing on June 16, 2014, Plaintiff submitted a
declaration from Dr. Tsai, dated June 14, 2014. (Doc. No. 130-2.)
Dr. Tsai states in his declaration that Plaintiff “is not
6/
Plaintiff has not provided the Court with any documentation
indicating that he received a firearms permit from HPD.
7/
The Court is troubled by HPD’s application procedures.
After the two-week review period, HPD should either approve or
deny the firearms permit application and then notify the
applicant as such.
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adversely affected by [] an addiction to, abuse of, or dependence
upon any dangerous drug, harmful drug, detrimental drug,
intoxicating compound, or intoxicating liquor.” (Dr. Tsai Decl. ¶
4.)
STANDARD
A.
Motion for Summary Judgment
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
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; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 248 (1986). “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)
(emphasis in original).
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, 477 U.S. at 247). 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. Avalos v.
Baca, 596 F.3d 583, 587 (9th Cir. 2010).8/ 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.” Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th
8/
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).
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Cir. 2010). 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 credibility.
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008).9/ Accordingly,
if “reasonable minds could differ as to the import of the
9/
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).
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evidence,” summary judgment will be denied. Anderson, 477 U.S. at
250–51.
B.
Motion for Reconsideration
A motion for reconsideration must (1) “demonstrate
reasons why the court should reconsider its prior decision” and
(2) “must set forth facts or law of a strongly convincing nature
to induce the court to reverse its prior decision.” Hele Ku KB,
LLC v. BAC Home Loans Servicing, LP, 873 F. Supp. 2d 1268, 1289
(D. Haw. 2012). The Ninth Circuit has held that reconsideration
is appropriate if (1) the district court is presented with “newly
discovered evidence,” (2) the district court “committed clear
error or the initial decision was manifestly unjust,” or (3) “if
there is an intervening change in controlling law.” Nunes v.
Ashcroft, 375 F.3d 805, 807 (9th Cir. 2004).
Mere disagreement with a previous order is an
insufficient basis for reconsideration. See Leong v. Hilton
Hotels Corp., 689 F. Supp. 1572 (D. Haw. 1988). “Whether or not
to grant reconsideration is committed to the sound discretion of
the court.” Navajo Nation v. Confederated Tribes and Bands of the
Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003)
(citation omitted).
DISCUSSION
I.
Whether Plaintiff Has Standing
Defendants argue that the Court should dismiss
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Plaintiff’s Amended Complaint in its entirety because Plaintiff
lacks standing to bring this lawsuit. Because standing is a
threshold requirement, without which a district court lacks
jurisdiction, the Court addresses this issue first. Cardenas v.
Anzai, 311 F.3d 929, 933 (9th Cir. 2002).
“To satisfy Article III standing, a plaintiff must
show: (1) [he] has suffered an ‘injury in fact’ that is ‘concrete
and particularized’ and ‘actual or imminent, not conjectural or
hypothetical’; (2) a ‘causal connection between the injury’ and
the challenged action of the defendant; and (3) that it is
‘likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.’” Multistar Industries,
Inc. v. U.S. Dep’t of Transp., 707 F.3d 1045, 1054 (9th Cir.
2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992) (internal quotation marks and alteration omitted)).
Defendants assert that Plaintiff lacks standing to
bring this suit because he is precluded from obtaining firearms
under H.R.S. § 134-7 and, therefore, cannot establish a violation
of his Second Amendment rights. However, Defendants provide no
authority for the proposition that a plaintiff lacks Article III
standing if he cannot succeed on the merits of his claims.
Rather, cases from the Supreme Court, Ninth Circuit, and other
federal circuit courts of appeal suggest the opposite. See Davis
v. Passman, 442 U.S. 228, 239 n. 18 (1979) (noting that the
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question of whether a plaintiff has standing to bring suit, and
thus whether the court has jurisdiction to hear the controversy,
is separate from the question of whether a plaintiff has a
meritorious cause of action); Cardenas v. Anzai, 311 F.3d 929,
933-34 (9th Cir. 2002) (finding that medicaid recipients who
claimed that the state was obligated to distribute funds to them
from the settlement of claims against tobacco companies had
standing, even though their claims were defeated on the merits by
a federal statute); Hightower v. City of Boston, 693 F.3d 61, 65
& 70 (1st Cir. 2012) (finding that former police officer had
standing even though her Second Amendment as-applied and facial
attack claims failed).10/
Here, it is clear that HPD’s denial of Plaintiff’s
application for a firearms permit in 2009, subsequent order to
surrender the firearms he possessed, and September 29, 2010
letter affirming the denial of Plaintiff’s application,
constitute an “injury-in-fact” sufficient to meet the minimum
10/
Defendants further argue that because Plaintiff seeks
declaratory and injunctive relief, he is required to show a “very
significant possibility of future harm” in order to have
standing. (Defs.’s Mot. at 28 (citing Bras v. California Pub.
Util. Comm’n, 59 F.3d 869, 873 (9th Cir. 1995)).) In this case,
Plaintiff can show “future harm” in the form of HPD’s continued
denial of his firearms permit application. In any event, as
explained in the Court’s 2012 Preliminary Injunction Order,
Defendants’ alleged violation of the Second Amendment per se
constitutes irreparable harm. See 2012 Preliminary Injunction
Order at 29-31.
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requirements of Article III standing.11/ See Hightower, 693 F.3d
at 70 (finding that the Boston Police Department’s revocation of
former police officer’s firearms license satisfied the
requirements of Article III standing) (citing Parker v. District
of Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007) (“We have
consistently treated a license or permit denial pursuant to a
state or federal administrative scheme as an Article III
injury.”), aff’d sub nom. District of Columbia v. Heller, 554
U.S. 570 (2008).
Accordingly, Plaintiff has standing.
II.
Whether Federal or Hawaii Law Precludes Plaintiff From
Obtaining a Firearms Permit
The crux of the Amended Complaint is Plaintiff’s
contention that he is statutorily qualified under both federal
and Hawaii law to receive a firearms permit and Defendants’
failure to comply with federal and Hawaii law constitutes a
denial of his Second Amendment rights. See Sept. 30 Order at 1819; Am. Compl. 16-17.
In its Sept. 30 Order, the Court found that federal law
did not preclude Plaintiff from obtaining a firearms permit
because his harassment convictions under H.R.S. § 711-1106(1)(a)
did not qualify as “misdemeanor crime[s] of domestic violence”
under the Lautenberg Amendment, 18 U.S.C. § 922(g)(9). Sept. 30
11/
Defendants admit that Plaintiff has satisfied the other
elements of Article III standing. (See Defs.’s Mot. at 28.)
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Order at 22. Because the Court concluded that federal law did not
bar Plaintiff from obtaining a firearms permit, the Court did not
decide whether H.R.S. § 134-7(a) precluded Plaintiff from
acquiring a firearms permit. Id. at 20 n. 15. In addition, the
Court concluded that H.R.S. § 134-7(b) did not disqualify
Plaintiff from exercising his Second Amendment rights because his
harassment convictions did not constitute “crime[s] of violence.”
Id. at 54. Finally, the Court found that Plaintiff did not
establish that he was qualified under H.R.S. § 134-7(c) to
possess firearms. Id. at 61.
In the instant Motion, Defendants request that the
Court reconsider its Sept. 30 order in its entirety due to an
intervening change in law or, in the alternative, grant summary
judgment in their favor as to all claims because Plaintiff is
statutorily disqualified under both federal and Hawaii law from
acquiring a firearms permit. (Defs.’s Mot. at 1-2.) Defendants’
Motion is essentially based on the U.S. Supreme Court’s recent
2014 decision in U.S. v. Castleman, 134 S. Ct. 1405 (2014).
The Court will first address whether federal law
precludes Plaintiff from obtaining a firearms permit. The Court
will then address whether Hawaii law precludes Plaintiff from
obtaining a firearms permit.
A.
Federal Law
The Lautenberg Amendment, 18 U.S.C. § 922(g)(9),
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provides that any person “who has been convicted in any court of
a misdemeanor crime of domestic violence” may not “possess in or
affecting commerce any firearm or ammunition.” The statute
defines a “misdemeanor crime of domestic violence” as “an offense
that . . . (i) is a misdemeanor under Federal, State, or Tribal
law; and (ii) has, as an element, the use or attempted use of
physical force . . . committed by a current or former spouse [or]
parent.” Id. § 921(a)(33)(A).
Plaintiff was convicted of violating H.R.S. § 7111106(1)(a), which provides 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
this statute 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.”
As explained in the Sept. 30 Order, courts use the
“categorical approach” to determine whether a conviction for a
state crime falls within the federal definition of a particular
act or crime. Sept. 30 Order at 22 (citing Descamps v. U.S., 133
S. Ct. 2276, 2281 (2013)). Under the categorical approach,
federal law bars Plaintiff from possessing firearms if the state
-20-
crime of harassment proscribes the same conduct as the
misdemeanor crime of domestic violence defined in the Lautenberg
Amendment. Id. However, if H.R.S. § 711-1106(1)(a) prohibits more
conduct than 18 U.S.C. § 922(g)(9), then Plaintiff’s harassment
convictions do not qualify as misdemeanor crimes of domestic
violence under federal law. Id.
This Court further explained in the Sept. 30 Order that
the Supreme Court has approved a variant of the categorical
approach: the so-called “modified categorical approach.” Sept. 30
Order at 25. The modified categorical approach “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.” Id.
(quoting Descamps, 133 S. Ct. at 2283). According to the Supreme
Court, “the key . . . is elements, not facts.” Id. at 26. Thus,
to determine the elements underlying the conviction, the Supreme
Court has 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. Id. (citing Taylor v. U.S., 495 U.S. 575, 602 (1990);
Shepard v. U.S., 544 U.S. 13, 16 (2005)).
In its Sept. 30 Order, this Court concluded that, under
both the categorical and modified categorical approaches,
-21-
Plaintiff’s harassment convictions did not disqualify him under
Section 922(g)(9) from possessing firearms. Id. at 32-33.
Specifically, the Court, relying on the Ninth Circuit’s
interpretation of the Lautenberg Amendment in U.S. v. Belless,
338 F.3d 1063 (9th Cir. 2003), concluded that H.R.S. § 7111106(1)(a) prohibited more conduct than 18 U.S.C. § 922(g)(9).
Sept. 30 Order at 24. In Belless, the Ninth Circuit held that the
phrase “physical force” in the Lautenberg Amendment means “the
violent use of force against the body of another individual,”
and, therefore, does not include “de minimis” touching. Belless,
338 F.3d at 1068. Because H.R.S. § 711-1106(1)(a) prohibited “de
minimis” or “slight” touching and the Lautenberg Amendment (as
defined by Belless) did not prohibit such conduct, this Court
held that a conviction under the Hawaii statute did not
categorically qualify as a “misdemeanor crime of domestic
violence.” Sept. 30 Order at 24.
The Court further determined that it may apply the
modified categorical approach because the elements of H.R.S. §
711-1106(1)(a) are listed in the disjunctive. Id. at 27. Because
the charging document and the judgment (the only documents deemed
reliable by the Court) include the elements of harassment that
allow for conviction on the basis of offensive or de minimis
touching, the Court found that Plaintiff’s convictions were not
covered by the Lautenberg Amendment under the modified
-22-
categorical approach. Id. at 28.
In the Sept. 30 Order, the Court recognized a split
between those federal circuit courts of appeal holding that the
“touching” element of common law battery constitutes “physical
force” as contemplated by the Lautenberg Amendment and others,
such as the Ninth Circuit in Belless, holding that it does not.
Id. at 23 n. 16.
In U.S. v. Castleman, 134 S. Ct. 1405 (2014), a
decision issued after this Court’s Sept. 30 Order, the Supreme
Court overruled Belless and several other Circuit Courts of
Appeal by holding that § 922(g)(9)’s “physical force” requirement
is satisfied by the degree of force that supports a common-law
battery conviction - namely, offensive touching. Castleman, 134
S. Ct. at 1410.
Castleman distinguished Johnson v. U.S., 559 U.S. 133
(2010), where the Court considered whether a battery conviction
was a “violent felony” under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1). Similar to the Lautenberg
Amendment, ACCA defines a “violent felony” as one that “has as an
element the use. . . of physical force.” Id. 924(e)(2)(B)(i).
Johnson declined to read the common-law meaning of “force,” which
includes slight offensive touching, into ACCA’s definition of
“violent felony” because it would be a “comical misfit with the
defined term.” Johnson, 599 U.S. at 145. In defining a “violent
-23-
felony” for purposes of ACCA, the Johnson Court held that the
phrase “physical force” must “mea[n] violent force.” Id. at 140
(emphasis in original).
In contrast, Castleman held that the common-law
meaning of force “fits perfectly” within § 922(g)(9)’s definition
of a misdemeanor crime of domestic violence. Castleman, 134 S.
Ct. 1410. Specifically, the Court found that “because
perpetrators of domestic violence are routinely prosecuted under
generally applicable assault or battery laws, it makes sense for
Congress to have classified as a misdemeanor crime of domestic
violence the type of conduct that supports a common-law battery
conviction.” Id. at 1411 (internal quotation marks and citation
omitted). The Court also found that the term “domestic violence”
is a “term of art encompassing acts that one might not
characterize as ‘violent’ in a nondomestic context.” Id. The
Court’s holding was further bolstered by the status of state laws
when Congress enacted § 922(g)(9): if offensive touching did not
constitute “force,” § 922(g)(9) would not have applied in ten
states which make up thirty percent of the nation’s population.
Id. at 1413. As such, the Supreme Court in Castleman concluded
that “Congress incorporated the common-law meaning of ‘force’ namely, offensive touching - in § 921(a)(33)(A)’s definition of a
‘misdemeanor crime of domestic violence.’” Id. at 1410.
Pursuant to Castleman, this Court finds that, under
-24-
the categorical approach, Plaintiff’s harassment convictions
qualify as misdemeanor crimes of domestic violence under federal
law. As indicated above, H.R.S. § 711-1106(1)(a) prohibits
“offensive touching” or “offensive physical contact” as well as
“striking, shoving, and kicking.” The Commentary on this statute
provides 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.” Accordingly, the federal “misdemeanor crime of domestic
violence,” as defined by the Supreme Court in Castleman,
proscribes the same conduct as H.R.S. § 711-1106(1)(a). That is,
every element of the Hawaii offense satisfies the Supreme Court’s
definition of “physical force” under § 922(g)(9). This Court
therefore holds that Plaintiff is prohibited under federal law
from possessing firearms.12/
Plaintiff argues “that Castleman must be narrowly
construed to apply only to misdemeanor crimes of domestic
violence.” (Pl.’s Opp. at 8) (emphasis in original.) According to
Plaintiff, his H.R.S. § 711-1106(1)(a) harassment convictions are
12/
As discussed above, the Court in its Sept. 30 Order
employed the modified categorical approach and found that,
because the charging document and the judgment include the
elements of harassment that allow for conviction on the basis of
de minimis touching, Plaintiff’s convictions were not covered by
Section 922(g)(9). Now, in light of Castleman, a conviction on
the basis of offensive touching is covered by the Lautenberg
Amendment. Consequently, federal law disqualifies Plaintiff from
obtaining firearms even under the modified categorical approach.
-25-
not “misdemeanor crime[s] of domestic violence” because a
domestic relationship is not a required element of the Hawaii
offense. (Id. at 9.)
As explained in the Sept. 30 Order, state crimes do not
need to include the element of a “domestic relationship” in order
to fall within Lautenberg’s firearms prohibition, pursuant to the
Supreme Court’s decision in U.S. v. Hayes, 555 U.S. 415 (2009).
Sept. 30 Order at 21. In Hayes, the Supreme Court stated that a
“misdemeanor crime of domestic violence” must have “as an
element, the use or attempted use of physical force, or the
threatened use of a deadly weapon,” and must be “committed by a
person who has a specified domestic relationship with the
victim.” Hayes, 555 U.S. at 421.
Thus, while Castleman focused on its ruling that
“Congress incorporated the common-law meaning of ‘force’ namely, offensive touching - in § 921(a)(33)(A)’s definition of a
‘misdemeanor crime of domestic violence’”; Hayes (which Plaintiff
does not even mention in his Opposition) addressed the issue of
domestic relationship and held that the Lautenberg Amendment does
not require that the predicate state offense include, as a
discrete element, the existence of a domestic relationship
between the offender and victim. Id. at 421. Rather, it suffices
that “a prior conviction [] was, in fact, for ‘an offense . . .
committed by’ the defendant against a spouse or other domestic
-26-
victim.” Id. Here, Plaintiff admits in his Amended Complaint and
deposition that Colette Fisher is currently his wife and that
they were married at the time of the 1997 incident. (Am. Compl. ¶
24; Doc. No. 99-2 (“Deposition of Kirk C. Fisher”) at 9-10.)13/14/
Having employed the categorical approach and concluded
that Plaintiff’s harassment convictions qualify as “misdemeanor
crime[s] of domestic violence” pursuant to Castleman, this Court
need not apply the modified categorical approach. Nevertheless,
in an abundance of caution, this Court will address the following
assertion by Plaintiff.
Plaintiff asserts that, under the modified categorical
approach, the Court cannot consider Plaintiff’s admission in his
Amended Complaint and deposition that he was married to Colette
13/
This Court also previously addressed Plaintiff’s argument
in its 2012 Preliminary Injunction Order. In that Order, this
Court, in discussing U.S. v. Hayes, 555 U.S. 415 (2009), found
that Lautenberg’s “domestic relationship” requirement was
satisfied because “the Complaint establishe[d] that Plaintiff’s
crime was committed against family members.” 2012 Preliminary
Injunction Order at 20-21 n. 17 (citing original Compl. ¶ 16).
14/
The dissent in Hayes argued that “[u]nder the majority’s
approach . . . it will often be necessary to go beyond the fact
of conviction and ‘engage in an elaborate factfinding process
regarding the defendant’s prior offens[e],’ Taylor v. U.S., 495
U.S. 575, 601 (1990), to determine whether it happened to involve
domestic violence.” Hayes, 555 U.S. at 436. According to the
Hayes dissent, such an approach runs contrary to its prior
decision in Taylor where the Court adopted a categorical approach
to predicate offenses under the Armed Career Criminal Act, 18
U.S.C. § 924(e)(1), “looking only to the statutory definitions of
the prior offenses, and not to the particular facts underlying
those convictions.” Id. (quoting Taylor, 495 U.S. at 600).
-27-
Fisher at the time of the 1997 incident. (Pl.’s Opp. at 9-10.)
As discussed above, the modified categorical approach
permits courts to examine a limited set of reliable documents,
such as an indictment or plea agreement, to ascertain the
specific element that a defendant was convicted of violating when
a statute contains multiple, alternative elements. Descamps, 133
S. Ct. at 2285. 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 demonstrating that an offender’s guilty plea was based on that
conduct. Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir.
2003). It therefore appears that this Court cannot consider
Plaintiff’s admission in his Amended Complaint and deposition
that he was married to Colette Fisher at the time of the 1997
incident under the modified categorical approach.
Hayes indicates, however, that it is unnecessary to
examine the elements of the predicate offense when analyzing
whether that offense was “committed by a person who has a
specified domestic relationship with the victim.” Rather, courts
may look at the facts underlying the conviction to determine
whether the “domestic relationship” requirement is satisfied. See
Hayes, 555 U.S. at 421 (holding that it suffices that “a prior
conviction [] was, in fact, for ‘an offense . . . committed by’
the defendant against a spouse or other domestic victim”)
-28-
(emphasis added). Under Hayes, the question of “whether a crime
is one of ‘domestic violence’ depends on the identity of the
victim rather than the elements of the offense.” U.S. v. Skoien,
614 F.3d 638, 642 (7th Cir. 2010); see also U.S. v. White, 593
F.3d 1199, 1204-05 (11th Cir. 2010) (holding that a domestic
relationship must exist as part of the facts giving rise to the
predicate offense, but it need not be an element of the prior
offense); U.S. v. Griffith, 455 F.3d 1339, 1346 (11th Cir. 2006)
(same).
The Hayes dissent and Skoien, a subsequent Seventh
Circuit decision interpreting Hayes, confirm that the Supreme
Court intended a fact-based inquiry into whether the predicate
state offense was committed by a person who has a “specified
domestic relationship” with the victim instead of an inquiry
based on the elements of the offense. See Hayes, 555 U.S. at 436
(“Under the majority’s approach . . . it will often be necessary
to go beyond the fact of conviction and engage in an elaborate
factfinding process regarding the defendant’s prior offense to
determine whether it happened to involve domestic violence.”)
(Roberts, C.J., dissenting) (internal citation and alteration
omitted); Skoien, 614 F.3d at 642 (finding that, under Hayes, the
domestic nature of the relationship depends on the identity of
the victim rather than the elements of the predicate offense).
Pursuant to Hayes, this Court can examine the facts
-29-
underlying Plaintiff’s harassment convictions to see if there
existed a “specified domestic relationship” between Plaintiff and
the victim. As noted above, Plaintiff admits in his Amended
Complaint and deposition that Colette Fisher is currently his
wife and that they were married at the time of the 1997 incident.
Accordingly, Plaintiff’s relationship with Colette Fisher
satisfies Lautenberg’s domestic relationship requirement.
Because Plaintiff was convicted under H.R.S. § 7111106(1)(a) which has “as an element, the use . . . of physical
force” and committed this offense against his wife, Plaintiff’s
convictions qualify as “misdemeanor crime[s] of domestic
violence” and, therefore, he is precluded from possessing
firearms under federal law. As a result, the Court must conclude
that Plaintiff’s Amended Complaint must be dismissed in its
entirety.
As noted hereinbefore, the focus of the Amended
Complaint is Plaintiff’s assertion that he is qualified to obtain
a firearms permit under federal and Hawaii statutory law and
Defendants’ failure to provide him with such a permit constitutes
a denial of his Second Amendment right to keep and bear arms.
Sept. 30 Order at 18-19. Am. Compl. 10-17. Plaintiff also asserts
that his Fourteenth Amendment due process rights were violated in
connection with his alleged Second Amendment rights. Id. at 1517. In addition, Plaintiff asserts claims under 42 U.S.C. § 1983,
-30-
which are predicated upon the alleged Second and Fourteenth
Amendment violations. Id.
In its Sept. 30 Order, the Court rejected Defendants’
contention that Plaintiff was prohibited from possessing firearms
under 18 U.S.C. § 922(g)(9) because his harassment convictions
did not categorically qualify as misdemeanor crimes of domestic
violence. Now, in light of Castleman, the Lautenberg Amendment
statutorily disqualifies Plaintiff from obtaining a firearms
permit. Accordingly, Plaintiff cannot establish that his Second
Amendment rights were violated.
Amicus curiae HDF, citing U.S. v. Chovan, 735 F.3d
1127, 1129-30 (9th Cir. 2013), raises the argument that §
922(g)(9) is unconstitutional as applied to Plaintiff because
Hawaii law offers him limited means to restore his Second
Amendment rights. (HDF’s April 10 Supp. Brief at 3.)15/ According
to HDF, “[t]he plain language of the Lautenberg Amendment
contemplates some mechanism for reinstating Second Amendment
15/
To the extent that HDF also asserts a facial challenge to
§ 922(g)(9), the analysis to be applied is the same. See Brooklyn
Legal Servs. Corp v. Legal Servs. Corp., 462 F.3d 219, 228 (2d
Cir. 2006) (“Facial and as-applied challenges differ in the
extent to which the invalidity of a statute need be demonstrated
. . . . Invariant, however, is the substantive rule of law to be
used. In other words, how one must demonstrate the statute’s
invalidity remains the same for both types of challenges, namely,
by showing that a specific rule of law, usually a constitutional
rule of law, invalidates the statute, whether in a personal
application or to all.”) (emphasis in original); see also U.S. v.
Salerno, 481 U.S. 739, 745 (1987) (describing the facial
challenge standard).
-31-
rights after a misdemeanor conviction for domestic violence,” and
Hawaii does not provide such mechanism. (Id. at 3-4.)
In Chovan, the Ninth Circuit, applying intermediate
scrutiny, held that 18 U.S.C. § 922(g)(9) may prohibit an
individual who commits a misdemeanor crime of domestic violence
from possessing firearms without violating the Second Amendment.
735 F.3d at 1129-30; see also U.S. v. White, 593 F.3d 1199, 1205
(11th Cir. 2010) (considering the constitutionality of §
922(g)(9) and upholding it as a “presumptively lawful
longstanding prohibition”); Skoien, 614 F.3d at 641-42 (7th Cir.
2010) (upholding § 922(g)(9) against Second Amendment challenge);
U.S. v. Booker, 644 F.3d 12, 25 (1st Cir. 2011) (same); U.S. v.
Staten, 666 F.3d 154, 167 (4th Cir. 2011) (same).
Chovan adopted the following two-step inquiry to be
applied to Second Amendment challenges: (1) “whether the
challenged law burdens conduct protected by the Second Amendment
and (2) if so, directs courts to apply an appropriate level of
scrutiny.” Chovan, 735 F.3d at 1136. The level of scrutiny
depends on (1) “how close the law comes to the core of the Second
Amendment right,” and (2) “the severity of the law’s burden on
the right.” Id. at 1138 (quoting Ezell v. City of Chicago, 651
F.3d 684, 703 (7th Cir. 2011)).
At the first step of the inquiry, the Chovan court
concluded that “by prohibiting domestic violence misdemeanants
-32-
from possessing firearms, § 922(g)(9) burdens rights protected by
the Second Amendment.” Id. at 1137.
Proceeding to the second step of the inquiry, the court
found that
Heller tells us that the core of the Second
Amendment is “the right of law-abiding,
responsible citizens to use arms in defense
of hearth and home.” 554 U.S. [570, 635
(2008)], 128 S.Ct. 2783. Section 922(g)(9)
does not implicate this core Second Amendment
right because it regulates firearm possession
for individuals with criminal convictions.
“Although [Chovan] asserts his right to
possess a firearm in his home for the purpose
of self-defense, we believe his claim is not
within the core right identified in Heller the right of a law-abiding, responsible
citizen to possess and carry a weapon for
self-defense - by virtue of [Chovan’s]
criminal history as a domestic violence
misdemeanant.” [U.S. v. Chester, 628 F.3d
673, 682-83 (4th Cir. 2010);] cf. [Ezell v.
City of Chicago, 651 F.3d 684, 708 (7th Cir.
2011] (finding that a challenged statute
implicated the core Second Amendment right
because “the plaintiffs are the ‘law-abiding,
responsible citizens’ whose Second Amendment
rights are entitled to full solicitude under
Heller”).
Id. at 1138 (emphasis in original). However, the court held that
the burden § 922(g)(9) places on domestic violence misdemeanants
is “quite substantial” and amounts to a near-total prohibition on
firearm possession. Id. Nevertheless, the court determined that
. . . Chovan goes too far when he argues that
§ 922(g)(9) is too broad because it “contains
no provision limiting its applicability.” As
explained above, § 922(g)(9) exempts those
with expunged, pardoned, or set-aside
convictions, or those who have had their
-33-
civil rights restored. Therefore, while we
recognize that § 922(g)(9) substantially
burdens Second Amendment rights, the burden
is lightened by these exceptions.
Id.
In sum, the Chovan court concluded that the Lautenberg
Amendment “does not implicate the core Second Amendment right,
but it does place a substantial burden on the right.” Id. As
such, the Court determined that intermediate rather than strict
scrutiny was the appropriate standard to apply when addressing §
922(g)(9)’s constitutionality. Id.
Chovan defined the intermediate scrutiny standard as
requiring that “(1) the government’s stated objective [] be
significant, substantial, or important; and (2) a reasonable fit
between the challenged regulation and the asserted objective.”
Id. at 1139. Applying this standard, the court reasoned that §
922(g)(9) served an important government interest in preventing
domestic gun violence. Chovan, 735 F.3d at 1139. In particular,
the court found that “the 1996 passage of § 922(g)(9) was
motivated by the concern that guns were not being kept away from
domestic abusers under felon-in-possession laws because many
people who engage in serious spousal or child abuse ultimately
are not charged with or convicted of felonies.” Id.
The Chovan court concluded that “[k]eeping guns
from domestic violence misdemeanants is substantially related to
the broader interest of preventing domestic gun violence for four
-34-
related reasons.” Id. at 1140. First, as the legislative history
indicates, Congress enacted the Lautenberg Amendment because
perpetrators of domestic violence were not being kept from
possessing firearms, as they were not usually convicted of
felonies. Id. Second, according to several academic studies, “a
high rate of domestic violence recidivism exists.” Id. Third,
domestic abusers use firearms during incidents of domestic
violence. Id. Finally, “the use of guns by domestic abusers is
more likely to result in the victim’s death.” Id.
“Putting these four conclusions together,” the Ninth
Circuit found that “domestic violence misdemeanants are likely to
commit acts of domestic violence again and that, if they do so
with a gun, the risk of death to the victim is significantly
increased.” Id. at 1140-41. Consequently, the court held that §
922(g)(9) was constitutional because the statute’s “prohibition
on gun possession by domestic violence misdemeanants is
substantially related to the important government interest of
preventing domestic gun violence.” Id. at 1141.
Addressing HDF’s argument that § 922(g)(9) is
unconstitutional as applied to Plaintiff, the Court observes that
§ 922(g)(9) establishes three exceptions under which the
prohibition under the statute will no longer apply: (1) “if the
conviction has been expunged or set aside”; (2) if the offender
“has had civil rights restored (if the law of the applicable
-35-
jurisdiction provides for the loss of civil rights under such an
offense)”; or (3) if the offender “has been pardoned.” 18 U.S.C.
§ 921(a)(33)(B)(ii). Because the exceptions are listed in the
disjunctive, Plaintiff only has to satisfy one of the three
exceptions under § 921(a)(33)(B)(ii) in order to be statutorily
qualified under federal law to possess firearms.
With respect to the first exception, H.R.S. § 831-3.2
(entitled “Expungement [O]rders”) provides, in pertinent part,
that “[t]he attorney general . . . upon written application from
a person arrested for, or charged with but not convicted of a
crime, shall issue an expungement order annulling, cancelling,
and rescinding the record of arrest.” H.R.S. § 831-3.2(a)
(emphasis added). The plain language of § 831-3.2 indicates that
Plaintiff cannot receive an “expungement order” from the Attorney
General of Hawaii annulling his harassment convictions under
H.R.S. § 711-1106(1)(a). See also Department of the Attorney
General of the State of Hawaii, Hawaii Criminal Justice Data
Center, “Expungement Frequently Asked Questions,”
http://ag.hawaii.gov/hcjdc/expungement-frequently-askedquestions/#convictions (stating that convictions never qualify
for expungement).
As to the second exception, § 921(a)(33)(B)(ii) does
not define the term “civil rights.” In U.S. v. Brailey, however,
the Ninth Circuit addressed how to interpret the term. 408 F.3d
-36-
609, 611-13 (9th Cir. 2005). In 1997, Brailey was convicted in
Utah of a misdemeanor crime of domestic violence and, as a
result, was barred from possessing firearms under then-existing
Utah law. Id. at 610-11. In 2000, Utah amended its statutes such
that Brailey and other misdemeanants were allowed to possess
firearms. Id. Brailey was subsequently charged with and convicted
of firearm possession in violation of § 922(g)(9). Id. at 610.
On appeal, Brailey argued that his civil rights had
been restored within the meaning of § 921(a)(33)(B) (ii) because
his right to possess firearms had been restored under Utah law.
Id. The Ninth Circuit rejected that argument, finding that his
civil rights had never been “lost” because his misdemeanor
conviction had not take away his “core civil rights”: the right
to vote, to sit as a juror, or to hold public office. Id. at 613.
Because Brailey’s civil rights had never been lost, the court
reasoned, they could not have been restored. Id. Thus, the Ninth
Circuit concluded that Brailey failed to meet the civil rights
restored exception. Id.
Under Hawaii law, a misdemeanor conviction does not
take away an offender’s “core civil rights.” However, a felony
conviction does. Specifically, H.R.S. § 831-2 (entitled “Rights
“[L]ost”) provides that “[a] person sentenced for a felony, from
the time of the person’s sentence until the person’s final
discharge, may not: (1) Vote in an election . . . or (2) Become a
-37-
candidate for or hold public office.” H.R.S. § 831-2(a) (emphasis
added). In this case, Plaintiff was convicted of a misdemeanor
and, therefore, is ineligible to have his right to vote or right
to hold public office restored under H.R.S. § 831-2(a).
Accordingly, Plaintiff cannot satisfy § 921(a)(33)(B)(ii)’s
“civil rights restored” exception.
Finally, with respect to the third exception, Article
Five, Section Five of The Constitution of the State of Hawaii
provides in relevant part:
The governor may grant reprieves,
commutations and pardons, after conviction,
for all offenses, subject to regulation by
law as to the manner of applying for the
same. The legislature may, by general law,
authorize the governor to grant pardons
before conviction, to grant pardons for
impeachment and to restore civil rights
denied by reason of conviction of offenses by
tribunals other than those of this State.
Although there appear to be no Hawaii cases discussing the
contours of the governor’s right to grant pardons; the plain
language of Article Five, Section Five of the Hawaii Constitution
indicates that Plaintiff could receive a pardon for his
harassment convictions under H.R.S. § 711-1106(1)(a) and,
therefore, statutorily qualify under federal law to possess
firearms.
HDF asserts, without citing any authority, that such a
pardon (1) “must specifically state it restores Second Amendment
rights” and (2) would not allow Plaintiff “to purchase firearms
-38-
in other states in order to own in Hawaii”16/ because the pardon
would “only apply within Hawaii.” (HDF’s April 10 Supp. Brief at
4 n. 1.)
Regarding HDF’s first assertion, the Court has
conducted extensive independent research and found no authority
for the proposition that a pardon for a misdemeanor issued by the
Governor of Hawaii restores an offender’s Second Amendment right
to possess firearms only if the pardon specifically provides as
such.17/ Rather, § 921(a)(33)(B)(ii) indicates that a Hawaii
pardon will be given full effect and allow the individual to
possess firearms “unless the pardon . . . expressly provides that
the person may not ship, transport, possess, or receive
firearms.”
HDF’s second assertion is also unpersuasive. Again, the
Court has conducted extensive independent research and found no
authority for the proposition that a Hawaii pardon would not
16/
The Court observes that federal law bars anyone other than
a licensed importer, manufacturer, dealer, or collector from
transporting into his state of residence a firearm purchased
outside that state. 18 U.S.C. § 922(a)(3); U.S. v. Decastro, 682
F.3d 160, 162 (2nd Cir. 2012).
17/
The Court notes that the Hawaii Attorney General, in an
opinion letter dated October 14, 1981, and addressed to HPD’s
police chief, stated “that the mere granting of a pardon by the
Governor [does not] relieve[] persons with past felony
convictions of any disability relating to the possession of
firearms.” Hawaii A.G. Opinion No. 81-12 (Oct. 14, 1981),
available at 1981 WL 37235 (emphasis added). The Court finds that
the opinion letter is inapplicable to the instant case because
Plaintiff was convicted of a misdemeanor.
-39-
allow Plaintiff to purchase firearms in other states because the
pardon would only be given effect in Hawaii. In fact, some
decisions suggest that a foreign state may give effect to a
Hawaii pardon and allow Plaintiff to acquire firearms in that
state. See, e.g., Schlenther v. Dep’t of State, Division of
Licensing, 743 So.2d 536, 537 (Fla. Dist. Ct. App. 1998) (finding
that the State of Florida improperly denied plaintiff’s
application for a concealed-weapons permit because once a sister
state has restored a person’s firearms rights, Florida was
required to give “full faith and credit” to the restoration of
such rights); People v. Van Heck, 252 Mich. App. 207, 208-09, 214
& 217 (Mich Ct. App. 2002) (holding that Michigan must give full
effect to a Connecticut pardon because Connecticut law removes
all “legal disabilities that flow” from the pardoned conviction
and, therefore, a “pardoned individual is no longer considered by
the law to have been ‘convicted’ or otherwise adjudicated guilty
of the pardoned crime”).
As such, the Court finds that Plaintiff could receive a
pardon for his H.R.S. § 711-1106(1)(a) harassment convictions;
and that such a pardon would qualify him to possess a firearm
under federal law and restore his Second Amendment rights.
In its supplemental amicus brief, HDF asserts that the
Chovan court found that § 922(g)(9) as applied to the defendant
in that case was constitutional because California, unlike
-40-
Hawaii, “has an expungement process which allows domestic
violence offenders to regain their firearm[] rights.” (HDF’s
April 10 Supp. Brief at 3.)
The defendant in Chovan argued that Ҥ 922(g)(9) is
unconstitutional as applied to him because his 1996 domestic
violence conviction occurred fifteen years before his § 922(g)(9)
conviction, he is unlikely to recidivate, and he has in fact been
law-abiding for those fifteen years.” Chovan, 735 F.3d at 1141.
In rejecting the defendant’s as-applied constitutional challenge,
the Chovan majority noted that § 922(g)(9) has several exceptions
under which the prohibition under the statute will no longer
apply. However, contrary to HDF’s assertion, the Chovan majority
did not refer to California’s expungement laws when analyzing
whether § 922(g)(9) was constitutional as applied to the
defendant. Id. at 1141-42.
The concurrence in Chovan used strict scrutiny to
analyze whether § 922(g)(9) was unconstitutionally applied to the
defendant and addressed California’s expungement process. Id. at
1151 (Bea, J., concurring). The Chovan concurrence argued that §
922(g)(9) was “narrowly tailored” because California, where the
defendant was convicted, “makes expungement of misdemeanor
convictions a right.” Id.
In contrast, the Chovan majority used the intermediate
scrutiny standard to analyze whether § 922(g)(9) was
-41-
unconstitutionally applied to the defendant and, without
discussing California’s expungement provision, stated in general
that “Congress permissibly created a broad statute that only
excepts those individuals with expunged, pardoned, or set aside
convictions and those individuals who have had their civil rights
restored.” Id. at 1141-42.18/ The Chovan majority found that, even
assuming the defendant had no history of domestic violence since
his 1996 conviction, he had neither “presented evidence to
directly contradict the government’s evidence that the rate of
domestic violence recidivism is high” nor “directly proved that
if a domestic abuser has not committed domestic violence for
fifteen years, that abuser is highly unlikely to do so again.”
Id. at 1142. Accordingly, the majority concluded “that the
application of § 922(g)(9) to Chovan is substantially related to
the government’s important interest of preventing domestic gun
violence.” Id.
The Chovan majority recognized that Congress created a
broad statute which imposes a lifetime ban for domestic violence
misdemeanants, subject to several narrow exceptions. Id. While
18/
The Chovan majority addressed the defendant’s “nonconstitutional argument that § 922(g)(9) does not apply to him
because his civil rights had been restored.” Chovan, 735 F.3d at
1131. Applying its prior decision in U.S. v. Brailey, 408 F.3d
609, 611-13 (9th Cir. 2005), the court rejected the defendant’s
argument that his civil rights had been restored within the
meaning of § 921(a)(33)(B)(ii) when his ten-year ban on owning
firearms under California state law expired. Chovan, 735 F.3d at
1131-33.
-42-
Plaintiff’s harassment convictions occurred roughly fourteen
years before he filed his original complaint; Chovan makes clear
that
[i]f Congress had wanted § 922(g)(9) to apply
only to individuals with recent domestic
violence convictions, it could have easily
created a limited duration rather than
lifetime ban. Or it could have created a good
behavior clause under which individuals
without new domestic violence arrests or
charges within a certain number of years of
conviction would automatically regain their
rights to possess firearms. But Congress did
not do so. Congress permissibly created a
broad statute that only excepts those
individuals with expunged, pardoned, or set
aside convictions and those individuals who
have had their civil rights restored. See
Skoien, 614 F.3d at 641 (“Some categorical
disqualifications are permissible: Congress
is not limited to case-by-case exclusions of
persons who have been shown to be
untrustworthy with weapons, nor need these
limits be established by evidence presented
in court.”)
Id. (alteration omitted).
The Chovan court concluded its analysis of §
922(g)(9)’s constitutionality by stating that “[t]he breadth of
the statute and the narrowness of these exceptions reflect
Congress’s express intent to establish a ‘zero tolerance policy’
towards guns and domestic violence.” Id.
Two circuit courts of appeals which have addressed §
922(g)(9)’s constitutionality have found it unnecessary to
address any of the statutory exceptions in § 921(a)(33)(B)(ii).
See U.S. v. White, 593 F.3d 1199, 1205-06 (11th Cir. 2010)
-43-
(upholding the Lautenberg Amendment as a “presumptively lawful
longstanding prohibition[]” without examining §
921(a)(33)(B)(ii)’s exceptions); U.S. v. Booker, 644 F.3d 12, 2226 (1st Cir. 2011) (apparently applying intermediate scrutiny
(whether “there is a substantial relationship between §
922(g)(9)’s disqualification of domestic violence misdemeanants
from gun ownership and the governmental interest in preventing
gun violence in the home”) and upholding the constitutionality of
§ 922(g)(9) without analyzing § 921(a)(33)(B)(ii)’s exceptions).
On the other hand, the Fourth and Seventh Circuits have
addressed these exceptions. The Fourth Circuit in Staten observed
that § 922(g)(9)’s “prohibitory sweep is . . . narrowed by the
fact that, for purposes of § 922(g)(9), a person shall not be
considered to have been convicted of a domestic violence
misdemeanor” if his conviction has been expunged, set-aside, or
pardoned, or if his civil rights have been restored. U.S. v.
Staten, 666 F.3d 154, 163 (4th Cir. 2011). “With the narrowness
of § 922(g)(9)’s prohibitory sweep in mind,” the Fourth Circuit
applied intermediate scrutiny and found that the statute was a
reasonable fit between the substantial government objective of
reducing domestic gun violence and keeping domestic violence
offenders from possessing firearms. Id. at 163-67.
In Skoien, the Seventh Circuit, apparently using
intermediate scrutiny (whether there is a “substantial relation”
-44-
between § 922(g)(9) and the “important governmental objective” of
“preventing armed mayhem”), briefly discussed whether the
defendant could satisfy any of § 922(g)(9)’s exceptions under the
law of the convicting state. U.S. v. Skoien, 614 F.3d 638, 644-45
(7th Cir. 2010). The Skoien court noted that the defendant was
convicted in Wisconsin; and Wisconsin provides “misdemeanants an
opportunity to seek pardon or expungement.” Id. at 645.
Skoien recognized that the Lautenberg Amendment
“tolerates different outcomes for persons convicted in different
states, but this is true of all situations in which a firearms
disability (or any other adverse consequence) depends on state
law.” Id. at 645. “The [Supreme Court] held in [Logan v. U.S.,
552 U.S. 23 (2007)] that this variability does not call into
question federal firearms limits based on state convictions that
have been left in place under the states’ widely disparate
approaches to restoring civil rights.” Id.
Under Hawaii law, Plaintiff is eligible to have his
harassment convictions pardoned, but cannot get his convictions
expunged or have his civil rights restored within the meaning of
§ 921(a)(33)(B)(ii). As discussed above, although Plaintiff’s
options to restore his Second Amendment rights are more limited
than some other states; the Supreme Court has recognized that
Congress’ decision to have restoration
triggered by events governed by state law
insured anomalous results. The several states
have considerably different laws governing
-45-
pardon, expungement, and forfeiture and
restoration of civil rights. Furthermore,
states have drastically different policies as
to when and under what circumstances such
discretionary acts of grace should be
extended. Anomalies generated by [the
statutory exceptions in § 921(a)(33)(B)(ii)]
are the inevitable consequence of making
access to the exemption[s] depend[ent] on the
differing laws and policies of the several
states.
Logan, 552 U.S. at 34 (quoting McGrath v. U.S., 60 F.3d 1005,
1009 (2nd Cir. 1995)).
This Court recognizes that the burden the Lautenberg
Amendment places on Plaintiff is quite substantial and amounts to
a near “total prohibition” on his right to possess firearms.
Chovan, 735 F.3d at 1138. However, section 922(g)(9) has several
limiting provisions, one of which allows Plaintiff to restore his
Second Amendment rights by obtaining a pardon.19/
For the foregoing reasons, the Court finds that 18
U.S.C. § 922(g)(9) is constitutional as applied to Plaintiff and
19/
In their supplemental brief, Defendants cite two federal
district court cases for the proposition that the Lautenberg
Amendment survives constitutional scrutiny even if the particular
offender cannot satisfy any of the statutory exceptions in §
921(a)(33)(B)(ii). See U.S. v. Smith, 742 F.Supp.2d 855, 869
(S.D. W. Va. 2010) (holding that, even assuming the defendant is
permanently barred from future firearms possession, § 922(g)(9)
is reasonably tailored to accomplish the government’s compelling
interest in preventing domestic violence misdemeanants from
possessing guns); Enos v. Holder, 855 F.Supp.2d 1088, 1098-1100
(E.D. Cal. 2012) (finding that § 922(g)(9) passes constitutional
muster even assuming the plaintiffs are without a means to
restore their rights or have their convictions set aside,
pardoned or expunged).
-46-
statutorily disqualifies him from possessing firearms under
federal law. Accordingly, Plaintiff cannot establish that his
Second Amendment rights were violated.
Because Plaintiff cannot establish a liberty or
property interest under the Second Amendment, the Court further
concludes that Plaintiff cannot establish that his Fourteenth
Amendment due process rights were violated. See Hewitt v.
Grabicki, 794 F.2d 1373, 1380 (9th Cir. 1986) (ruling that a
liberty or property interest must exist in order for a plaintiff
to establish a due process violation). Consequently, Plaintiff’s
42 U.S.C. § 1983 claims, which are predicated on Second and
Fourteenth Amendment violations, fail as well. See 42 U.S.C. §
1983; Gibson v. U.S., 781 F.2d 1334, 1338 (9th Cir. 1986) (“To
make out a cause of action under section 1983, plaintiff[] must
plead that (1) the defendants acting under color of state law (2)
deprived plaintiff[] of rights secured by the Constitution or
federal statutes.”).
As such, the Court DISMISSES Plaintiff’s Amended
Complaint in its entirety with prejudice.
B.
Hawaii Law
Cases from the Supreme Court and Ninth Circuit indicate
that federal law can preclude an individual from obtaining
firearms, even if that individual is qualified to possess
firearms under state law.
-47-
In U.S. v. Brailey, which this Court discusses
hereinbefore, Brailey was convicted of violating § 922(g)(9).
Brailey, 408 F.3d at 610. Citing the Supreme Court’s decision in
Caron v. U.S., 524 U.S. 308, 313-14 (1998), Brailey argued that a
2000 amendment to Utah law (allowing misdemeanants like himself
to possess firearms) was a state law to which the federal law
must give “full effect.” The Ninth Circuit affirmed Brailey’s
conviction under § 922(g)(9) even though he was qualified to
possess firearms under Utah law because “Caron decided that the
defendant could be convicted of possession of a firearm, in his
case a rifle, under federal law, even though his possession of
the rifle was permitted under state law. Caron’s holding,
therefore, is that federal law, not state law, controls the right
of a defendant to bear a firearm under a federal statute.”
Brailey, 408 F.3d at 612; see also Caron, 524 U.S. at 316
(“Restoration of the right to vote, the right to hold office, and
the right to sit on a jury turns on so many complexities and
nuances that state law is the most convenient source for
definition. As to the possession of weapons, however, the Federal
Government has an interest in a single, national, protective
policy, broader than required by state law.”).
As Defendants point out in their supplemental brief,
these two cases demonstrate that “Congress anticipated that there
would be discrepancies in the various states’ procedures
-48-
regarding means to expunge, set aside or pardon convictions, and
restoration of civil rights, but that the focus is on a single
[national] policy regarding the prohibition of firearm ownership
for individuals who commit a misdemeanor crime of domestic
violence.” (Defs.’s Supp. Brief at 5.)
Similarly, in Chovan, which this Court discusses above,
Daniel Chovan was convicted in 1996 of the misdemeanor of
inflicting corporal injury on a spouse, in violation of
California Penal Code § 273.5(a). Chovan, 735 F.3d at 1130. Under
California Penal Code § 12021(c)(1), which at the time applied to
misdemeanants generally, Chovan was barred from owning any
firearm for a ten-year period following his conviction. Id.
However, under
18 U.S.C. § 922(g)(9), Chovan was barred from
possessing any firearm for life. Id. In 2010, and after the
California ten-year limitations period had run, Chovan was
indicted for and convicted of possessing firearms in violation of
§ 922(g)(9). Id. at 1131. On appeal, the Ninth Circuit affirmed
Chovan’s conviction under § 922(g)(9), despite the fact that
Chovan was statutorily qualified under state law to possess
firearms. Id.
Accordingly, pursuant to the Brailey, Caron and Chovan
decisions, federal law can preclude Plaintiff from obtaining a
firearms permit, even assuming he qualifies under Hawaii
statutory law.
-49-
In any event, this Court finds that H.R.S. § 134-7(a)
bars Plaintiff from possessing firearms. H.R.S. § 134-7(a) was
added to § 134-7's statutory scheme in 2006 and allows the police
chief to deny a firearms permit to persons who are “prohibited
from possessing firearms or ammunition under federal law.”
In its Sept. 30 Order, the Court noted that neither
party addressed whether the police chief was entitled to
retroactively apply H.R.S. § 134-7(a). Sept. 30 Order at 20 n.
15. Because the Lautenberg Amendment (as defined in Belless) did
not bar Plaintiff from obtaining a firearms permit, the Court
concluded that it need not determine whether it was improper for
the police chief to apply § 134-7(a). Now, in light of Castleman,
the Court finds that the Lautenberg Amendment prohibits Plaintiff
from possessing firearms. Consequently, the issue before the
Court is whether the application of § 134-7(a) would have an
impermissible retroactive effect.
The Ninth Circuit has articulated a two-step framework
for determining whether a statute has an impermissible
retroactive effect. Sacks v. S.E.C., 648 F.3d 945, 951 (9th Cir.
2011). First, a court must “determine whether the statute . . .
clearly expresses that the law is to be applied retroactively.”
Id. If not, a court must “consider whether application of the
[statute] would have a retroactive effect by ‘attaching new legal
consequences to events completed before its enactment.’” Id.
-50-
(quoting Mejia v. Gonzales, 499 F.3d 991, 997 (9th Cir. 2007)).
Here, the Court in its review of § 134-7(a)’s
legislative history has not found any indication that the Hawaii
State Legislature intended the statute to be applied
retroactively. See 2006 Haw. Sess. Laws at 28-30; 2006 Haw.
Senate Journal of 23rd Legislature at 1200 & 1277; 2006 Haw.
House of Representatives Journal of 23rd Legislature at 1497 &
1653. However, proceeding to the second step of the Sacks
framework, it appears that application of § 134-7(a) would not
have an impermissible retroactive effect in this case.
Specifically, the Lautenberg Amendment was enacted in 1996 and,
therefore, defined gun rights at the time Plaintiff was convicted
in 1997. Accordingly, it appears that the application of § 1347(a) would not have an impermissible retroactive effect because
the state law does not take away or impair rights Plaintiff had
before the law was enacted. 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”).
For these reasons, the Court concludes that H.R.S. §
134-7(a) precludes Plaintiff from acquiring a firearms permit.20/
20/
Because 18 U.S.C. § 922(g)(9) and H.R.S. § 134-7(a) bar
Plaintiff from possessing firearms, the Court finds it
(continued...)
-51-
Since Plaintiff’s constitutional rights have not been
violated, it follows that the claims against Kealoha and the City
lack merit.21/
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’
Motion for Summary Judgment or, in the Alternative, Motion for
Reconsideration.
All claims against the City and Kealoha are dismissed
with prejudice because Plaintiff’s prior harassment convictions
prohibit him from obtaining a firearms permit pursuant to 18
20/
(...continued)
unnecessary to address subsections (b) and (c) of H.R.S. § 134-7.
21/
Alternatively, the Court finds that Kealoha is entitled to
qualified immunity and the City is not subject to municipal
liability under Monell v. New York City Dept. Soc. Serv., 436
U.S. 658, 694 (1978).
The qualified immunity defense is a two-part inquiry: (1)
whether the facts shown make out a violation of a constitutional
or federal statutory right and (2) whether that “right was
‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). Here, the
Court does not have to proceed to the second step of the
qualified immunity inquiry: as discussed supra, the Court finds
that there was no violation of Plaintiff’s Second Amendment
rights as he is statutorily disqualified under 18 U.S.C. §
922(g)(9) and H.R.S. § 134-7(a) from possessing firearms.
Accordingly, the Court finds that Kealoha is entitled to
qualified immunity as to Plaintiff’s claims for money damages.
For the same reason, the Court concludes that the City is
not liable under Monell. See Van Ort v. Estate of Stanewich, 92
F.3d 831, 835 (9th Cir. 1996) (finding that to prevail on a
Monell claim a plaintiff must establish, inter alia, that he
possessed a constitutional right of which he was deprived).
-52-
U.S.C. § 922(g)(9) and H.R.S. § 134-7(a).22/ The Court finds that
18 U.S.C. § 922(g)(9) is constitutional as applied to Plaintiff
because, inter alia, he can restore his Second Amendment rights
by seeking a pardon for his harassment convictions.23/
In sum, the Court concludes that Plaintiff’s recourse
from the prohibitions under 18 U.S.C. § 922(g)(9) and H.R.S. §
134-7(a) is to seek a pardon for his harassment convictions.
IT IS SO ORDERED.
DATED:
Honolulu, Hawai#i, July 18, 2014.
________________________________
Alan C. Kay
Senior United States District Judge
Fisher v. Kealoha et al., Civ. No. 11-00589 ACK-BMK: ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR
RECONSIDERATION.
22/
Because Plaintiff is statutorily disqualified from
possessing firearms under 18 U.S.C. § 922(g)(9) and H.R.S. § 1347(a), the Court vacates its prior Order, entered on June 29,
2012, in which the Court issued a preliminary injunction
directing Kealoha to “rescind the prior denial of Plaintiff’s
permit to acquire firearms and to issue a permit authorizing
Plaintiff to acquire firearms.” 2012 Preliminary Injunction Order
at 36.
23/
The Court also finds that Section 922(g)(9) is
constitutional on its face. See footnote 15, page 31 of this
Order (explaining that the analysis to be applied to facial and
as-applied constitutional challenges is the same).
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