Fisher v. Kealoha et al
Filing
35
ORDER GRANTING PLAINTIFF KIRK C. FISHER;S MOTION FOR A PRELIMINARY INJUNCTION 18 . Signed by JUDGE ALAN C KAY on 06/29/2012. (eps) -- the Court GRANTS Plaintiff's Motion for a Preliminary Injunction, and ORDERS Defendant Kealoha to rescind the prior denial of Plaintiff's permit to acquire firearms and to issue a permit authorizing Plaintiff to acquire firearms. CERTIFICATE 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 )
Honolulu Acting Chief of Police;)
and CITY AND COUNTY OF HONOLULU,)
)
Defendants. )
)
KIRK C. FISHER,
Civ. No. 11-00589 ACK-BMK
ORDER GRANTING PLAINTIFF KIRK C. FISHER’S
MOTION FOR A PRELIMINARY INJUNCTION
For the following reasons, the Court GRANTS Plaintiff
Kirk C. Fisher’s Motion for a Preliminary Injunction.
I.
PROCEDURAL BACKGROUND
Plaintiff filed the Complaint on September 28, 2011,
against defendants Louis Kealoha, Paul Putzulu, the City and
County of Honolulu, the Honolulu Police Department, and Doe
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Defendants 1-50 (collectively, the “Defendants”).
In the
Complaint, Plaintiff asserted two claims against Defendants for
violation of his Second, Fifth, and Fourteenth Amendment rights
in violation of 42 U.S.C. § 1983.
Compl. ¶¶ 47-57.
Plaintiff
sought the following relief: an order compelling Defendants to
issue a permit authorizing Plaintiff to keep and bear arms;
general and special damages; punitive and/or exemplary damages;
attorneys’ fees, costs, prejudgment and post-judgment interest;
and attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
Id.
at 16.
On December 9, 2011, Defendant City and County of
Honolulu (hereinafter, “City”) filed a Motion for “Partial”
Dismissal of the Complaint, as well as a memorandum in support of
the motion.
(Doc. No. 6.)
On January 4, 2012, City filed an
amended motion - the City Motion to Dismiss - as well as a
memorandum in support of the motion (Doc. No. 10-1, hereinafter,
the “City MTD Mem.”).
Defendant Kealoha filed a separate motion
- Kealoha’s Motion to Dismiss - on January 24, 2012, as well as a
memorandum in support of his motion (Doc. No. 16-1, hereinafter,
“Kealoha’s MTD Mem.”).
On March 19, 2012, Plaintiff filed a
Memorandum in Opposition to City’s Amended Motion for “Partial”
Dismissal of the Complaint (Doc. No. 19, hereinafter “P’s City
Opp. Mem.”), as well as a separate Memorandum in Opposition to
Defendant Louis Kealoha’s Motion for “Partial” Dismissal of the
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Complaint (Doc. No. 20, hereinafter “P’s Kealoha Opp. Mem.”).
On
March 26, 2012, Defendants City and Kealoha submitted a joint
Reply Memorandum to Plaintiff’s Oppositions to the Motions for
“Partial” Dismissal of the Complaint. (Doc. No. 23, hereinafter
“Defs’ Joint Reply Mem.”.)
Plaintiff filed a Motion for a Preliminary Injunction
(Doc. No. 18, “Mot. for Prelim. Inj.”) and a supporting
memorandum (Doc. No. 18-2, “Mem. in Supp. of Mot. for Prelim.
Inj.”) on March 19, 2012.
Defendants City and County of Honolulu
and Louis Kealoha filed an opposition to the motion on May 23,
2012.
(Doc. No. 27, the “Opp. Mem. to Mot. for Prelim. Inj.”).
Plaintiff filed a reply on June 4, 2012.
(Doc. No 29, the “Reply
in Supp. of Mot. for Prelim. Inj.”)
After the Court held a hearing on Defendants’ Motions
to Dismiss on April 9, 2012, the Court granted Defendant City and
County of Honolulu’s motion, and granted in part and denied in
part Defendant Kealoha’s motion.
(See Doc. 25.)
In its Order,
the Court dismissed all claims against Defendant City and County
of Honolulu without prejudice.
Id. at 50.
The Court also
dismissed all claims against the Honolulu Police Department, and
all claims based upon alleged violations of Plaintiff’s Fifth
Amendment rights, with prejudice.
Id.
However, the Court denied
Defendant Kealoha’s Motion to Dismiss to the extent that
Plaintiff sought injunctive relief against Kealoha in his
-3-
official capacity for alleged violations of Plaintiff’s Second
and Fourteenth Amendment rights under 42 U.S.C. § 1983.
Id.
The
Court made no ruling with respect to Defendant Putzulu, who had
not been served with the Complaint and was not represented in the
action.
Id.
The Court held a hearing on Plaintiff’s Motion for
Preliminary Injunction on Thursday, June 14, 2012.1/ On the same
1/
During the June 14, 2012 hearing, the Court raised the
issue of res judicata and directed the parties to file
supplemental memoranda addressing whether the issues raised in
this litigation were foreclosed by the State Court’s June 22,
2010 order denying Plaintiff’s request to enforce the Order
Permitting Return of Firearms, Ammunitions and Permits of
Licenses, with Conditions filed June 10, 2010 (which was denied
without findings of fact or conclusions of law). (See Compl. ¶
33.) On June 21, 2012, Plaintiff timely filed a memorandum
attaching the transcript of the proceedings in the June 22, 2010
court hearing, which demonstrated that the State Court judge did
not reach the merits and was concerned as to whether the court
had jurisdiction; although the judge did state that he believed
the 1997 Order was enforceable. (See Doc. No. 33, Supplemental
Memorandum In Support Of Motion For Preliminary Injunction, Ex. 1
at 2.) Nevertheless, the judge denied Plaintiff’s motion. Id.
Plaintiff argued that this action is not barred by res judicata
because: (1) the State Court judge did not consider the issue of
Plaintiff’s alleged constitutional violations or statutory
disqualification under state and/or federal law (nor was he asked
to); (2) there was no final adjudication on the merits; and
(3) the instant action involves different parties. Id. at 6-7.
Defendants timely filed a supplemental opposition memorandum
on the issue of res judicata on June 27, 2012. (Doc. No. 34.)
Although Defendants stated that they planned to raise res
judicata in their forthcoming Answer, the Court notes that
Defendants had an opportunity to address this issue in their
supplemental memorandum. Defendants asserted that the state
court transcript “does not make Plaintiff more likely to succeed
on the merits,” but failed to advance any persuasive counterarguments regarding the issue that the Court directed them to
address; namely, whether res judicata would preclude Plaintiff
(continued...)
-4-
day, Plaintiff filed an Amended Complaint, naming as defendants
Louis Kealoha (in his individual and official capacities), Paul
Putzulu (in his individual and official capacities), and the City
and County of Honolulu.
(See Doc. No. 31, Amended Complaint,
hereinafter “FAC,” at 1.)
The parties agreed to proceed with the
June 14, 2012 hearing although neither Defendants nor the Court
had an opportunity to review the FAC that was dilatorily filed
that morning.2/
II.
FACTUAL BACKGROUND3/
In his Motion for a Preliminary Injunction, Plaintiff
contends that Defendants have deliberately denied Plaintiff of
his constitutional right to keep and bear arms, notwithstanding
Hawaii Revised Statutes (“H.R.S”) Chapter 134 and 18 U.S.C. §§
921 and 922.
(Mem. in Supp. of Mot. for Prelim. Inj. at 1.)
1/
(...continued)
from obtaining relief in the current lawsuit. The Court
concludes that Plaintiff’s claims are not barred by the doctrine
of res judicata because the State Court proceedings did not
result in a final adjudication on the merits with respect to the
issues raised in the instant action.
2/
The Court notes that all citations to a complaint in this
Order refer to the original Complaint filed on September 28,
2011, rather than the FAC that was filed on June 14, 2012. As
noted above, the parties agreed to proceed with the hearing on
Plaintiff’s Motion for Preliminary Injunction on June 14, 2012,
although the Defendants had not had an opportunity to review the
FAC.
3/
The facts as recited in this order are for the purpose of
disposing of these motions and are not to be construed as
findings of fact that the parties may rely on in future
proceedings in this case.
-5-
Prior to October of 2009, Plaintiff owned and possessed firearms.
Id.
However, Plaintiff contends that when he applied for a
permit to acquire additional firearms in the fall of 2009,
pursuant to H.R.S. § 134-2, Defendants denied the application
without providing Plaintiff with a meaningful opportunity for
further review.
Id. at 2.
More than ten years earlier, on November 5, 1997,
Plaintiff had been arrested on two counts of harassment in
violation of Hawaii Revised Statutes (“H.R.S.”) § 711-1106(1)(a).
Compl. ¶ 15.4/
This 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 . . . .
H.R.S. § 711-1106(1)(a).5/
The underlying State Court complaint
4/
The Court takes judicial notice of the December 3, 1997
judgment in State of Hawaii v. Kirk C. Fisher, FC-CR No. 97-3233,
pursuant to Fed. R. Evid. 201. See Skilstaf, Inc. v. CVS
Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012). This
judgment confirms that Plaintiff was convicted under Subsection
(1)(a) of Section 711-1106 of the Hawaii Revised Statutes, for
the crime of Harassment. Plaintiff alleges that the transcripts
and/or audio recordings of the December 3, 1997 hearing have been
destroyed pursuant to judiciary retention statutes. Compl. ¶ 19.
5/
The Commentary regarding H.R.S. § 711-1106 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.” (Emphasis added.)
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against Plaintiff alleges that on or about November 5, 1997,
“with intent to harass, annoy, or alarm Collette Fisher,
[Plaintiff] did strike, shove, kick, or otherwise touch Collette
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 v. Kirk C.
Fisher, FC-CR No. 97-3233, Compl. p. 1.)
In Count II, the
complaint sets forth the same allegations with respect to victim
Nicole Fisher.
Id.
Plaintiff owned firearms on or around this
time, and transferred those firearms to Defendant Honolulu Police
Department (hereinafter, “HPD”) pursuant to the Family Court
Order implementing H.R.S. §§806-11 and 134-7.
Compl. ¶ 17.
On December 3, 1997, Plaintiff pled guilty to two
counts of Harassment in the Family Court of the First Circuit,
State of Hawaii, in the case of State of Hawaii v. Kirk C.
Fisher, FC-CR No. 97-3233.
Id. ¶ 18.6/
6/
Plaintiff acknowledges
Notably, although Plaintiff was convicted of harassment
under §711-1106(1)(a), the statute provides for other means by
which an individual commits the offense of harassment, some of
which – unlike subsection (a) – do not explicitly require
physical contact. For example, pursuant to subsection (b), a
person “commits the offense of harassment if, with intent to
harass, annoy, or alarm any other person, that person” . . . “(b)
[i]nsults, taunts, or challenges another person in a
manner likely to provoke an immediate violent response or that
would cause the other person to reasonably believe that the actor
intends to cause bodily injury to the recipient or another or
damage to the property of the recipient or another . . . .”
(continued...)
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that he had a domestic relationship with the victims.
¶¶ 16, 26.
See Compl.
Plaintiff was placed on probation for a period of six
months, and was ordered to surrender all firearms, ammunition,
permits and licenses to HPD pursuant to the order in that case.
Id. ¶¶ 18, 20.
On November 4, 1998, the Family Court of the First
Circuit, State of Hawaii, issued an Order Permitting Return of
Firearms, Ammunition, Permits and Licenses, With Conditions.
¶ 20.
Id.
The order provided:
IT IS HEREBY ORDERED that Honolulu Police Department shall
return to [Plaintiff] all firearms and ammunition which were
surrendered pursuant to the above-mentioned court order,
provided that the provisions of H.R.S. Chapter 134 are
satisfied and that there are no outstanding state or federal
restraining orders, prohibitions under H.R.S. Section 134-7
or the Violence Against Women Act of 1994 (18 U.S.C. Section
2265 et. seq. and section 922(g)(9), or other outstanding
federal or state (H.R.S. Section [sic] 804-7.1) court orders
against [Plaintiff] which would prohibit [Plaintiff’s]
possession or control of firearms and ammunition. In the
event that any permits or licenses were revoked, said
permits or licenses shall be reissued by the Honolulu Police
Department, but only to the extent of the original
expiration date of such permits or licenses.
Id. (emphasis added). Following the issuance of this order, HPD
promptly returned Plaintiff’s firearms.
Id. ¶ 21.
More than ten years later, in fall 2009, Plaintiff
applied for and was denied a permit to acquire firearms and
ordered to surrender his firearms.
6/
(...continued)
H.R.S. §711-1106(1)(b).
-8-
Id. ¶ 22.
In a letter dated
October 1, 2009, Defendant Paul Putzulu – then Acting Chief of
Police - informed Plaintiff that he was disqualified from
firearms ownership or possession under the provisions of H.R.S. §
134-7, and directed Plaintiff to voluntarily surrender to the
Chief of Police or otherwise lawfully dispose of all firearms and
ammunition in his possession within 30 days of receipt of the
letter.
Id. ¶¶ 23-24.
Plaintiff promptly contacted HPD and was
informed that the denial was based upon his prior conviction for
harassment in State of Hawaii v. Kirk C. Fisher, FC-CR No. 973233.
Id. ¶ 25.
Additionally, Plaintiff alleges, HPD informed
Plaintiff that it was HPD’s “custom, practice and policy to
review the police reports to determine whether or not a
defendant’s alleged crime was a crime of violence.”
Id.
Plaintiff subsequently transferred ownership and possession of
all of his firearms to his wife, Collette Fisher, after she
obtained permits.
Id. ¶ 26.
H.R.S. Section 134-7 provides in
relevant part:
(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.
H.R.S. § 134-7(b) (emphasis added).
The text of Section 134-7(b)
has remained unchanged since the time of Plaintiff’s guilty plea,
sentencing, and the order returning his firearms in 1997-98.
-9-
See
H.R.S. § 134-7(b).7/
The term “crime of violence” is defined as
“any offense, as defined in title 37, that involves injury or
threat of injury to the person of another.”
H.R.S. § 134-1.8/
This definition also remains unchanged since the 1997-98 period
wherein Plaintiff pled guilty and was sentenced for harassment.
See H.R.S. § 134-1.
On June 10, 2010, Plaintiff submitted a Motion to
Enforce Order Permitting Return of Firearms, Ammunition, Permits
and Licenses, with Conditions, to the Family Court of the First
Circuit, State of Hawaii FC-CR No. 97-3233.
Compl. ¶ 32. This
motion was denied by the state court on June 22, 2010, and no
findings of fact or conclusions of law were entered.
See id. ¶
33.9/
On August 31, 2010, Plaintiff wrote to Defendant
7/
The legislative history for H.R.S. § 134-7 reveals that
although the language of subsection (b) has not been amended
between 1997 and today, the legislature did amend subsection (a)
in 2006. This subsection provides: “No person who is a fugitive
from justice or is a person prohibited from possessing firearms
or ammunition under federal law shall own, possess, or control
any firearm or ammunition therefor.” H.R.S. § 134-7(a). The
phrase “or is a person prohibited from possessing firearms or
ammunition under federal law” was added in a 2006 amendment
effective April 25, 2006. See H.R.S. § 134-7, Ed. note.
8/
Based upon the plain language of the statute, “injury”
and “threat of injury” are not elements of harassment as it is
defined in H.R.S. § 711-1106.
9/
The parties did not submit a copy of this Order. At the
April 9, 2012 hearing, Plaintiff’s counsel stated that Plaintiff
did not appeal the State Court order’s denial of June 22, 2010.
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Kealoha requesting that the HPD grant his application for a
permit to acquire firearms and rescind the prior order to
surrender or dispose of his firearms.
Id. ¶ 34.
And on
September 29, 2010, Defendant Kealoha replied to Plaintiff by reaffirming Defendant Putzulu’s prior denial of the application.
Id. ¶ 35.
Plaintiff contends that he is “fit and qualified to
keep and bear arms,” but would be subject to arrest and
prosecution should he seek to exercise that right without
obtaining a permit; Plaintiff would face a class C felony for
unlawful ownership or possession of a firearm under H.R.S. § 1347.
Id. ¶¶ 36-38.
Plaintiff further alleges that the Chief of
Police is not vested with any discretion to deny a permit if an
applicant meets the objective criteria contained in H.R.S. §§
134-2 and 134-7.
Id. ¶ 42.10/
In his Motion for a Preliminary Injunction, Plaintiff
10/
H.R.S. § 134-2 provides, in relevant part:
Permits to acquire. (a) No person shall acquire the ownership
of a firearm, whether usable or unusable, serviceable or
unserviceable, modern or antique, registered under prior law or
by a prior owner or unregistered, either by purchase, gift,
inheritance, bequest, or in any other manner, whether procured in
the State or imported by mail, express, freight, or otherwise,
until the person has first procured from the chief of police of
the county of the person's place of business or, if there is no
place of business, the person's residence or, if there is neither
place of business nor residence, the person's place of sojourn, a
permit to acquire the ownership of a firearm as prescribed in
this section.
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asserts that “the core of the Second Amendment is selfprotection,” and the denial of Plaintiff’s application for a
permit to acquire, and to surrender his firearms, violated and
continues to violate his Second Amendment rights.
of Mot. for Prelim. Inj. at 2.)
(Mem. in Supp.
Plaintiff contends that he is
deprived of any means to protect himself, and also deprived of
the use and enjoyment of his firearms.
Id. at 2-3.
Furthermore,
Plaintiff states that Defendants have not established an
appellate process or provided Plaintiff with a meaningful
opportunity to be heard, thereby denying Plaintiff of the minimal
protection of due process guaranteed under the Fifth and
Fourteenth Amendments of the United States Constitution.
Id. at
3.
III.
STANDARD OF REVIEW
Motion For A Preliminary Injunction
A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.
Am. Trucking Ass’ns v.
City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)
(explaining that, “[t]o the extent that [the Ninth Circuit’s
cases have suggested a lesser standard, they are no longer
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controlling, or even viable” (footnote omitted)); see also
Stormans, Inc. v. Selecky, 571 F.3d 960, 978 (9th Cir. 2009)
(concluding that this is the “proper legal standard for
preliminary injunctive relief”).
Pursuant to the standard set forth in Winter, even
where a likelihood of success on the merits is established, a
mere possibility of irreparable injury is insufficient to warrant
preliminary injunctive relief, because “[i]ssuing a preliminary
injunction based only on a possibility of irreparable harm is
inconsistent with [the Supreme Court's] characterization of
injunctive relief as an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to
such relief”).
555 U.S. at 22.
The Ninth Circuit also articulated an alternate
formulation of the Winter test, pursuant to which “serious
questions going to the merits and a balance of hardships that
tips sharply towards the plaintiff can support issuance of a
preliminary injunction, so long as the plaintiff also shows that
there is a likelihood of irreparable injury and that the
injunction is in the public interest.” Farris v. Seabrook, 667
F.3d 1051, 1057 (9th Cir. 2012)(applying the Cottrell factors as
espoused in Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1135 (9th Cir. 2011), to hold that the district court erred
- although error was harmless - when it applied the first
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Cottrell factor and last three Winter factors, but failed to find
that the balance of the hardships tipped sharply in the
plaintiffs’ favor, as Cotrell requires, or a likelihood of
success on the merits, as Winter requires); see also M.R. v.
Dreyfus, 663 F.3d 1100, 1108 (9th Cir. 2011) (recognizing Winter
test as well as alternate Cottrell test for the grant of a
preliminary injunction).
A district court has “great discretion” in determining
whether to grant or to deny a preliminary injunction.
See, e.g.,
Siales v. Hawaii State Judiciary, Dep’t of Human Res., Civ. No.
11-00299 DAE-RLP, 2012 WL 220327, at *2 (D. Haw. Jan. 24, 2012)
(quoting Wildwest Inst. v. Bull, 472 F.3d 587, 589-90 (9th Cir.
2006)).
IV.
DISCUSSION
Plaintiff seeks a Preliminary Injunction pursuant to
the Second, Fifth, and Fourteenth Amendments to the United States
Constitution, as well as Rules 7(b) and 65 of the Federal Rules
of Civil Procedure, and requests that the Court issue an Order
“compelling Defendants, their officers, agents, servants,
employees, and all persons in active concert or participation
with them who receive notice of the order to rescind the prior
denial of [Plaintiff’s] permit to acquire firearms and issue a
permit authorizing [Plaintiff] to acquire firearms.”
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(Mot. for
Prelim. Inj. at 2.)11/
Generally, Defendants assert that Plaintiff’s motion
should be denied because it is based upon arguments that are
“erroneous in numerous respects in that they misstate facts and
Hawaii law and ignore widely-recognized limits on the individual
right to bear arms.”
(Opp. to Mot. for Prelim. Inj. at 4.)
For
the reasons set forth below, the Court concludes that the
preliminary injunction should issue.
The Court previously dismissed all of Plaintiff’s
claims against Defendants HPD, the Doe Defendants, and the City
and County of Honolulu.
The Court denied Defendant Kealoha’s
Motion to Dismiss with respect to official capacity claims for
injunctive relief for alleged violations of Plaintiff’s Second
and Fourteenth Amendment rights under Section 1983.
25, at 50.)
(Doc. No.
However, Plaintiff filed the FAC on June 14, 2012,
naming the City and County of Honolulu once again as a Defendant
in this action.
(See FAC at 1.)
Nevertheless, in light of the
parties’ agreement to proceed with the hearing on the Motion for
Preliminary Injunction on June 14, 2012, the Court considers this
Motion in light of the arguments made in the briefings and at the
hearing based upon the original Complaint.
11/
The Court declines to consolidate the hearing of this
Motion with a trial on the merits pursuant to Federal Rule of
Civil Procedure 65(a)(2). See Mem. in Supp. of Mot. for Prelim.
Inj. at 3.
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A.
Likelihood of Success on the Merits
The crux of Plaintiff’s case concerns his contention
that his Second Amendment right to bear arms was infringed when
Defendants denied him a permit and ordered the revocation of his
currently owned firearms pursuant to HRS §§ 134-2 and 134-7.
(Mem. in Supp. of Mot. for Prelim. Inj. at 2-3.)
For the reasons
discussed herein, the Court concludes that Plaintiff is likely to
succeed on the merits.
1.
Statutory Qualification for Firearm Ownership
Plaintiff asserts that he is not statutorily
disqualified from gun ownership.
Prelim. Inj. at 5.)
(Mem. in Supp. of Mot. for
Consequently, Plaintiff submits that
Defendants’ denial of a permit to acquire a firearm and order
that Plaintiff relinquish his current firearms infringed upon
Plaintiff’s rights under the Second and Fourteenth Amendments, in
violation of Section 1983.
Id.
Plaintiff states that HPD
informed him that the reason for the denial of his application
for a permit to acquire a firearm was based upon his prior
conviction for Harassment in State of Hawaii v. Kirk C. Fisher,
FC-CR No. 97-3233.
Id.
This misdemeanor, Plaintiff asserts, is
not a basis for disqualification under state or federal law.
Id.
In their Opposition, Defendants assert that Plaintiff’s
likelihood of success on the merits is low.
Mot. for Prelim. Inj. at 8.)
(Mem. in Opp. to
However, Defendants fail to address
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whether Plaintiff is statutorily disqualified from gun ownership
under state or federal law.
Instead, Defendants merely allude to
the fact that the Court previously denied the motions to dismiss
except with respect to certain official capacity claims against
Defendant Kealoha, and contend that Kealoha is entitled to raise
the defense of qualified immunity.
Id.12/
The Court finds these
arguments unavailing, and observes that Defendants have failed to
address the most critical issue in this case; whether Plaintiff
had a statutory right to firearm ownership that was infringed
upon by Defendants’ actions.13/
Under state law, individuals who have been convicted of
a “crime of violence” are statutorily disqualified from owning
ammunition or firearms pursuant to H.R.S. § 134-7(b).
The Hawaii
Revised Statutes define “crime of violence” as “...any offense,
as defined in title 37, that involves injury or threat of injury
to the person of another.”
The Harassment statute under which
12/
In his Reply, Plaintiff attacks Defendants’ reliance upon
the Court’s grant of Defendants’ Motions to Dismiss, noting that
the Court’s decision to grant Plaintiff leave to amend the
Complaint evinces the Court’s belief that an amendment could save
Plaintiff’s claims. (Reply at 3.) Plaintiff also states his
intent to file an Amended Complaint before the date of the
hearing on the Motion for a Preliminary Injunction. Id. at 3-4.
13/
Furthermore, the Court observes that municipal employees
sued in their official capacity may not claim qualified immunity
in a Section 1983 action. See Eng v. Cooley, 552 F.3d 1062, 1064
n.1 (9th Cir. 2009). Accordingly, qualified immunity is not
available to Kealoha with respect to the remaining official
capacity claims.
-17-
Plaintiff was convicted, H.R.S. 711-1106(1)(a), states, “A person
commits the offense of harassment if, with intent to harass,
annoy or alarm the other person: (a) strikes, shoves, kicks, or
otherwise touches another person in an offensive manner or
subjects the other person to offensive physical contact.”
Moreover, the Commentary states that this offense 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.”
See Commentary,
H.R.S. § 711-1106.
As the Court stated in its April 19, 2012 Order,
although Defendants have asserted that Harassment clearly “falls
within the definition of ‘crime of violence’ in that it ‘involves
injury or threat of injury to the person of another,” they have
not provided any case law support – and the Court is not aware of
any – interpreting “harassment,” as defined in the Hawaii Revised
Statutes, as a “crime of violence.”14/
Additionally, the State of Hawaii Intermediate Court of
Appeals has held, albeit in a case that is distinguishable, that
harassment and contempt of court convictions did not authorize a
14/
The Court also recognizes that the Chief of Police may
rely upon bases other than a prior conviction for a “crime of
violence” in rejecting an application for a permit pursuant to
H.R.S. § 134-7, such as a diagnosis of significant behavior,
emotional or mental disorders or treatment for addiction to
drugs. See H.R.S. § 134-7.
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district court to order a defendant to relinquish his firearms.
See State v. Char, 909 P.2d 590, 597 (Haw. Ct. App. 1995).15/
Finally, the Court notes that the Family Court of the First
Circuit, State of Hawaii, ordered the return of Plaintiff’s
firearms and ammunition in 1998 - so long as there were no
prohibitions under Section 134-7 or applicable federal law - and
the HPD promptly returned them.16/
Thereafter, Plaintiff lawfully
possessed firearms for some ten years following his conviction
for harassment.
The Court concludes that Plaintiff is likely to
establish statutory entitlement to firearm possession under
Hawaii State law.
Turning to federal restrictions on the possession of
firearms, the Lautenberg Amendment “prohibits firearm ownership
by any person that ‘has been convicted in any court of a
15/
This is the only available case analyzing whether
harassment qualifies as an offense that prohibits individuals
from firearm ownership pursuant to Section 134-7. In that case,
the court concluded that the defendant was prohibited from
possessing firearms pursuant to another subsection of H.R.S. §
134-7, namely subsection (f), which prohibits those under a
restraining/protective order. The Court observes, however, that
the court in Char considered the crime of harassment pursuant to
H.R.S. § 711-1106(b), rather than (a). See Char, 909 P.2d at
597. Subsection (b) does not require physical contact, whereas
subsection (a) - the provision pursuant to which Plaintiff pled
guilty - requires physical contact.
16/
Although, as counsel conceded at the April 9, 2012
hearing, it is possible that HPD did so erroneously, given that
the court’s order provided that reinstatement of Plaintiff’s
firearms and ammunition also hinged on Plaintiff qualifying under
Section 134-7 and applicable federal law provisions.
-19-
misdemeanor crime of domestic violence.’”
922(g)(9))).
18 U.S.C. §
The Lautenberg Amendment is a provision of the Gun
Control Act of 1968 (18 U.S.C.A. § 921 et seq.), added in 1996,
which prohibits any person who “has been convicted in any court
of a misdemeanor crime of domestic violence” from owning a
firearm.
18 U.S.C. § 922(g)(9).
Under this federal statute,
“misdemeanor crime of violence” is defined as a crime that is “a
misdemeanor under Federal, State, or Tribal law; and “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.”
921(a)(33)(A)(i) (emphasis added).17/
17/
18 U.S.C. §
Plaintiff argues that
The United States Supreme Court has held that the
predicate offense need not have the “domestic relationship” as an
element under the Lautenberg Amendment. United States v. Hayes,
555 U.S. 415 (2009) (affirming conviction under 922(g)(9) where
predicate offense was misdemeanor assault that did not include
domestic relationship as an element, but did involve such
relationship factually). In Hayes, the Supreme Court concluded
that the “definition of ‘misdemeanor crime of domestic violence,’
contained in § 921(a)(33)(A), imposes two requirements. First,
the crime must have, ‘as an element the use or attempted use of
physical force, or the threatened use of a deadly weapon.’ §
921(a)(33)(A)(ii). Second, it must be ‘committed by’ a person
who has a specified domestic relationship with the victim.’” 555
U.S. at 415. Here, the Complaint establishes that Plaintiff’s
(continued...)
-20-
“use of physical force” and “attempted use of physical force” are
not elements of Harassment under H.R.S. 711-1106, asserting that
“[t]o constitute an element of a crime, the particular factor in
question needs to be a constituent part of the offense that must
be proved in every case to sustain a conviction under a given
statute.”
(Mot. for Prelim. Inj. at 9 (quoting United States v.
Beltran-Mungia, 489 F.3d 1042, 1045 (9th Cir. 2007) (citations
and internal quotation marks omitted) (emphasis in original)).
The Court of Appeals for the Ninth Circuit has held
that the phrase “physical force” pursuant to 18 U.S.C. §
921(a)(33)(A)(i) means “the violent use of force against the body
of another individual.”
See United States v. Belless, 338 F.3d
1063, 1068 (9th Cir. 2003).18/
The court reasoned that the
physical force requirement could not possibly include “any
touching” in the “sense of Newtonian mechanics” and held that the
17/
(...continued)
crime was committed against family members.
18/
See Compl. ¶ 16.
The Courts of Appeal for the Fourth, Seventh and Tenth
Circuits have also concluded that the “touching” element of
common law battery is not “physical force” as contemplated in 18
U.S.C. § 921(a)(33)(A) or similar statutes. See United States v.
White, 606 F.3d 144 (4th Cir. 2010); United States v. Hays, 526
F.3d 674 (10th Cir. 2008); Flores v. Ashcroft, 350 F.3d 666 (7th
Cir. 2003). In contrast, the Courts of Appeal for the First,
Eighth and Eleventh Circuits have concluded that the “touching”
element of common law battery - no matter how slight - falls
within the plain meaning of the statutory term “physical force”
as intended by Congress. See United States v. Griffith, 455 F.3d
1339 (11th Cir. 2006); United States v. Nason, 269 F.3d 10 (1st
Cir. 2001); United States v. Smith, 171 F.3d 617 (8th Cir. 1999).
-21-
physical force requirement cannot be satisfied by “de minimis”
touching.
Id. at 1067–68.
This stands in stark contrast to the
commentary on Harassment, which provides that it is a restatement
of the common-law offense of battery involving any slight
touching of another person.
In his Motion for a Preliminary Injunction, Plaintiff
contends that the Hawaii Harassment statute encompasses less
violent behavior than the “use or attempted use of physical
force” as set forth in 18 U.S.C. 921(a)(33), thus having too
broad a scope to qualify as a misdemeanor crime of domestic
violence under applicable federal law.
Prelim. Inj. at 12.)19/
(Mem in Supp. of Mot. for
The Court agrees that it is possible for
19/
When a federal statute refers to generic crimes, courts
in the Ninth Circuit apply the categorical and modified
categorical approaches, set forth in Taylor v. United States, 495
U.S. 575 (1990), in order to determine whether the state
conviction falls within the generic federal definition. See,
e.g., Fregozo v. Holder, 576 F.3d 1030, 1038 (9th Cir. 2009).
Under the categorical approach, the court will “‘compare the
elements of the statute of conviction with a federal definition
of the crime to determine whether conduct proscribed by the
[state] statute is broader than the generic federal definition,’
looking only at the fact of conviction and the statutory
definition.” Id. (quoting Quintero-Salazar v. Keisler, 506 F.3d
688, 692 (9th Cir. 2007)). However, “[i]f the statute of
conviction criminalizes conduct that would not satisfy the
federal definition of the crime at issue, then the conviction
does not qualify as a predicate offense under the categorical
approach.” Id.
If there is no categorical match, courts in the Ninth
Circuit in some circumstances apply a modified categorical
approach, pursuant to which the inquiry is limited to “the
statutory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by
(continued...)
-22-
a defendant to be convicted for Harassment under H.R.S. § 7111106 subsection (1)(a) for behavior that does not include injury,
threat of injury, use of physical force, and/or threatened use of
physical force.
Accordingly, the Court concludes Plaintiff is
likely to succeed in establishing that Harassment is not a
misdemeanor crime of violence, thus demonstrating that he is not
statutorily disqualified from firearm ownership pursuant to his
Harassment conviction under state or federal law.
2.
Violation of Plaintiff’s Second Amendment Rights
Although Defendants focus upon the limited scope of the
Second Amendment right to bear arms in their opposition
memorandum, the central issue is whether Defendant is statutorily
prohibited from firearm ownership under state and federal law.
Plaintiff’s right to bear arms for self-defense within the home
19/
(...continued)
the trial judge to which the defendant assented.” Shepard v.
United States, 544 U.S. 13, 16 (2005). Further, under the
modified categorical approach, courts may also consider
“comparable” judicial documents of sufficient reliability. See
United States v. Snellenberger, 548 F.3d 699, 701-02 (9th Cir.
2008) (en banc) (minute orders are judicial documents of “equal
reliability as those listed in Shepard and may be consulted under
the modified categorical approach).
As Plaintiff asserts, numerous courts which have considered
the issue have held that harassment is not a categorical crime of
violence. See supra, n. 25. In applying the categorical
approach, harassment will not be a categorical “match” with the
federal statute if its statutory definition includes both conduct
that is of a non-violent nature and conduct that is of a violent
nature. It appears that generally, under a modified categorical
approach, the outcome depends upon whether the underlying conduct
- as it can be determined by reliable documents - is of a violent
nature.
-23-
is well-established, and the Court cannot conclude that District
of Columbia v. Heller and its progeny leave room for doubt
regarding this fundamental right.
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 individual
right to keep and bear arms for self-defense.
(2008).
554 U.S. 570
The Supreme Court suggested that the core purposes of
the right conferred by the Second Amendment was to permit “lawabiding, responsible citizens to use arms in defense of hearth
and home.”
Id. at 635.
Consequently, Supreme Court
jurisprudence establishes that there is an individual
constitutional right to bear arms,20/ and that this right is
particularly acute with respect to the right to self-defense in
the home.
In the instant action, Defendants’ denial of
Plaintiff’s application for a permit to acquire a firearm, as
well as their order that Plaintiff relinquish all firearms and
20/
Two years later, in McDonald v. City of Chicago, the
Supreme Court held that the Second Amendment right to keep and
bear arms is fully applicable to the States by virtue of the
Fourteenth Amendment. 130 S.Ct. 3020 (2010). In McDonald v.
City of Chicago, the Supreme Court stated that its “central
holding” in Heller was “that the Second Amendment protects a
personal right to keep and bear arms for lawful purposes, most
notably for self-defense within the home.” 130 S.Ct. 3020, 3044
(2010) (emphasis added).
-24-
ammunition in his possession, impact Plaintiff’s Constitutionally
protected right to bear arms for self-defense in the home.21/
3.
Violation of Plaintiff’s Procedural Due Process
Rights
Furthermore, because Plaintiff has a clear Second
Amendment right to bear arms for self-defense within the home,
Defendants’ denial of this right without a meaningful opportunity
to be heard or to have the decision reviewed likely impacts
Plaintiff’s right to procedural Due Process pursuant to the
Fourteenth Amendment.
See Mathews v. Eldridge, 424 U.S. 319,
335, 96 S.Ct. 893, 47 L.Ed. 2d 18 (1976).
Plaintiff asserts that his liberty and property
interests are being unduly restricted, and the risk of continued
deprivation is great.
15.)
(Mem. in Supp. of Mot. for Prelim. Inj. at
He claims that in the event an application is denied, an
applicant has no means by which to seek review of the police
chief’s decisions, thereby depriving the applicant of minimal
protections of due process of law.
21/
Id.
Additionally, Plaintiff
Nevertheless, the Supreme Court also stated that its
opinion in Heller should not call into question “longstanding
prohibitions on the possession of firearms” by certain classes
of persons, such as the mentally ill and convicted felons, and in
certain places constituting security concerns. Id. at 626–27 &
n. 26. However, as discussed, the Court finds that Plaintiff’s
conviction for Harassment is not clearly a misdemeanor crime of
violence pursuant to which Plaintiff would be statutorily
disqualified from firearm ownership.
-25-
contends that remedying this lack of due process would not unduly
burden the government, asserting that permitting citizens to
exercise their Second Amendment rights “has been shown to reduce
crime.”
Id.
The text of the due process clause provides “nor shall
any State deprive any person of life, liberty, or property
without due process of law.”
U.S. Const. amend. XIV.
In
Mathews, the Supreme Court set forth a three part balancing test
for analysis of an individual's constitutional entitlement to a
particular judicial or administrative procedure: (1) the private
interest that will be affected by the official action; (2) the
risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and (3) the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.
Id. at 335.
The court observes that “[a] threshold requirement for
asserting a due process claim is the existence of a property or
liberty interest.”
(1972).
Board of Regents v. Roth, 408 U.S. 564, 569
In Peruta v. County of San Diego, the court relied upon
the Ninth Circuit’s opinion Erdelyi v. O’Brien in holding that
the plaintiff had no property or liberty interest in obtaining a
concealed weapons license.
In Ederlyi, the Ninth Circuit Court
-26-
of Appeals had determined that plaintiff did not have a property
interest in a concealed weapons license because “[w]here state
law gives the issuing authority broad discretion to grant or deny
license applications in a closely regulated field, initial
applicants do not have a property right in such licenses
protected by the Fourteenth Amendment.”
Cir. 1982).
680 F.2d 61, 63 (9th
The Ederlyi court explained that “[p]roperty
interests protected by the Due Process Clause of the Fourteenth
Amendment do not arise whenever a person has only ‘an abstract
need or desire for,’ or ‘unilateral expectation of,’ a benefit.”
Id. at 63.
“Whether the statute creates a property interest in
concealed weapons licenses depends ‘largely upon the extent to
which the statute contains mandatory language that restricts the
discretion of the (issuing authority) to deny licenses to
applicants who claim to meet the minimum eligibility
requirements.’” Id. (citations omitted).
In the instant case, Plaintiff contends that H.R.S.
Section 134-2 vests no discretion in the chief of police to
determine whether an applicant is “qualified” so long as the
applicant meets the objective criteria pursuant to H.R.S. §§ 1342 and 134-7.
Section 134-2 provides, in relevant part, “The
chief of police of the respective counties may issue permits to
acquire firearms to citizens of the United States of the age of
twenty-one years or more . . . .”
-27-
Section 134 presents a list of
bases upon which an applicant is disqualified, none of which,
Plaintiff argues, applies to him.
The Court observes that
Defendants’ actions not only impacted Plaintiff’s property
interests with respect to future firearm ownership, but also
denied him of the enjoyment of property that he already owned.
Moreover, the Court notes that at least one Court of Appeals to
consider this issue has determined that an individual does have a
liberty interest tied to the right to bear arms.
Kuck v.
Danaher, 600 F.3d 159, 164 (2d Cir. 2010) (a case decided one
month prior to McDonald that found a liberty interest in the
right to bear arms based upon the Connecticut state
Constitution).
For these reasons, the Court concludes that Plaintiff
is likely to establish that he is not statutorily disqualified
from firearm ownership based upon his conviction for Harassment
under H.R.S. 711-1106(1)(a), and that Defendants’ actions likely
deprived Plaintiff of his Fourteenth Amendment right to
procedural due process.
Accordingly, the Court rules that
Plaintiff is likely to succeed on the merits with respect to his
official capacity claims against Defendant Kealoha based upon
infringement of his Second and Fourteenth Amendment rights in
violation of Section 1983.
-28-
B.
Irreparable Harm
Plaintiff contends that in the absence of a preliminary
injunction, he will suffer irreparable harm with respect to both
a liberty interest and a property interest.
Prelim. Inj. at 16.)
(Mem. in Supp. of
First, Plaintiff states that when liberties
are infringed, irreparable injury is presumed.
Id. (citing 11A
Charles Alan Wright et al., Federal Practice and Procedure 2948.1
(2d ed. 1995) (“When an alleged deprivation of a constitutional
right is involved, most courts hold that no further showing of
irreparable injury is necessary.”).
Plaintiff relies upon the
Seventh Circuit’s statement that “because ‘[t]he Second Amendment
protects similarly intangible and unquantifiable interests’ as
those secured by the First Amendment . . . “[i]nfringements of
this right cannot be compensated by money damages.” Id. (quoting
Ezell v. Chicago, 651 F.3d 684 (7th Cir. 2011)).
Furthermore, Plaintiff asserts that although the
deprivation of a liberty interest alone merits issuance of the
preliminary injunction, Plaintiff has also suffered and continues
to suffer an irreparable loss of a property interest, noting that
“[p]roperty is always unique under general principles of the law
of equity and its possible loss or destruction usually
constitutes irreparable harm.”
Id. (quoting Bennet v. Dunn, 504
F. Supp. 981, 986 (D. Nev. 1980).
Defendants respond that Plaintiff’s arguments are not
-29-
persuasive because he has failed to show that irreparable injury
is likely, not merely possible, in the absence of an injunction.
(Opp. to Mot. for Prelim. Inj. at 9 (citing Winter,555 U.S. at
8).)
Moreover, Defendants distinguish Ezell, wherein the Seventh
Circuit considered an ordinance that infringed the right to
possess firearms in defense of the home, the constitutional right
recognized in Heller.
Id. (citing Ezell, 651 F.3d at 691).22/
In his Reply, Plaintiff emphasizes that violation of a
constitutional right “is itself irreparable harm.”
Spiridon, 463 F. Supp. 2d 255 (D. Conn. 2006).
Appel v.
When a
constitutional deprivation is involved, Plaintiff contends, most
Courts require no further showing to establish irreparable
injury.
(Reply at 5.)
In fact, Plaintiff argues, if a court
finds that a constitutional right is being threatened or impaired
in the context of considering a motion for a preliminary
injunction, then a finding of irreparable injury is “mandated.”
Id. at 6 (citing Mich. Rehab. Clinic, Inc., P.C. v. City of
Detroit, 310 F. Supp. 23 867 (E.D. Mich. 2004).
The Court concludes that Plaintiff has established a
likelihood of irreparable harm.
Contrary to Defendants’
22/
Defendants also contend that because Ezell concerned a
facial challenge to the statute, and individual harm was
therefore irrelevant, in the instant action because Plaintiff has
sought injunctive relief at least in part based upon an “as
applied” challenge, individual harm is “quite relevant here.”
D’s Opp. Mem. at 10.
-30-
assertions, the Court finds that Plaintiff is being deprived of a
liberty and property interest, and deprivation of that
constitutional right requires a finding of irreparable injury.
At issue in this litigation is the alleged infringement of
Plaintiff’s right to bear arms for self-defense within the home,
the very right that the Ezell court considered.
This case does
not concern the denial of a license to publicly carry a firearm,
which other courts have found does not implicate a property or
liberty interest.
See, e.g., Peruta v. County of San Diego, 758
F. Supp. 2d 1106, 11 (finding no liberty or property interest in
right to license to carry firearm in public.)
Moreover,
Defendants’ actions have deprived Plaintiff of his property,
namely the firearms he kept in his home for more than ten years.
The Court concludes that Plaintiff has established a likelihood
of irreparable harm if the preliminary injunction does not issue.
The Court observes, however, that Plaintiff’s claim of
irreparable injury is somewhat diluted by the fact that
Plaintiff’s wife has taken ownership of his firearms and they are
still in his home.
C.
(See Compl. ¶ 26.)
The Public Interest
Plaintiff contends that it is “clearly” in the public
interest to grant the Motion because HPD’s “customs, practices
and policies” “impact every person living in the State of
Hawaii.”
(Mem in Supp. of Mot. for Prelim. Inj. at 19.)
-31-
Granting the preliminary injunction vindicating the “fundamental”
Second Amendment rights of Plaintiff and others who are similarly
situated would “advance the shared interest of all citizens in
enforcing the Constitution’s guarantees . . . .”
Id.
Moreover,
Plaintiff asserts that although firearm ownership has “set
unprecedented records for four consecutive years,” violent crime
has not increased.
Id. at 20.
Additionally, Plaintiff submits
that people who are “unsuitable” applicants are already
prohibited and/or prevented from carrying firearms under Hawaii
law.
Id.
Defendants respond that a grant of Plaintiff’s
requested preliminary injunction could impair the HPD’s (in other
words, the City’s) ability to carefully screen firearm
applicants, and “could possibly permit the carrying of any
firearm by any person without regard to their training or intent
to use the weapon for crimes of violence, without regard to
whether the person was intoxicated, and without limitation as to
the nature of the public place.”
Id. at 11.
In essence,
Defendants submit that the public interest will not be served by
subjecting the public to increased safety risks.
Id. at 12.
Plaintiff replies that Defendants inexplicably discuss
the dangers associated with the right to carry a firearm in
public, whereas the statute at issue here, H.R.S. § 134-2,
concerns permits to acquire firearms.
-32-
(Reply at 6.)
Consequently, for the same reasons, Plaintiff asserts that
Defendants’ reliance on U.S. v. Masciandaro, wherein the court
noted that danger to the public would rise exponentially if the
right to carry a weapon moved from the home to the public square,
is misplaced.
2011)).
Id. at 7 (citing 638 F.3d 458, 475 (4th Cir.
Masciandaro involved prosecution of a criminal defendant
for possession of a firearm in a public place (a national park).
Id.
In the instant action, Plaintiff asserts, Plaintiff is
seeking a permit to acquire a firearm pursuant to H.R.S. 134-2,
not a license to publicly carry that firearm.
Id.
Moreover,
Plaintiff asserts that Defendants’ arguments of the
“possibilities” of harm to the public is mere speculation,
failing to establish how the injunction would impair the police
department’s ability to perform its careful screening function,
among other things.
Id. at 7.
Plaintiff also notes that other Hawaii citizens not
statutorily disqualified are being wrongly denied permits to
acquire, stating that 54 applications for permits to acquire were
rejected in 2011 – eight of which were based on a prior
conviction of harassment.
Id. (citing Criminal Justice Data
Brief, 2011, “Firearm Registration in Hawaii, 2011.”
The Court concludes that it is in the public interest
to grant the preliminary injunction.
Unlike the issues at stake
in numerous recent cases involving the public carrying of
-33-
firearms (such as Masciandaro), the issue at bar in this
litigation concerns Plaintiff’s right to own a firearm and keep
it in his home, not a license to carry a firearm in public.
The Court notes that Plaintiff’s right to acquire a
firearm does not raise the same safety concerns associated with a
license to carry a firearm in public.
The effect of granting the
request for a preliminary injunction would not permit Plaintiff
to freely carry his firearm, open or concealed, in public,23/ and
an order directing HPD to grant Plaintiff’s permit to acquire
would not extend to any applicants other than Plaintiff.
The
Court concludes that it is in the public interest to uphold
Plaintiff’s Constitutional right to bear arms in self-defense
within the home, and accordingly finds that this factor weighs in
favor of granting the preliminary injunction.
23/
The Court observes that Chapter 134 of the Hawaii Revised
Statutes contains “Place to Keep” statutes requiring firearms to
“be confined to the possessor’s place of business, residence, or
sojourn,” but permitting the transport of firearms between those
places and repair shops, target ranges, licensed dealerships,
organized firearms shows, firearm training places, and police
stations. See Haw. Rev. Stat. § 134-23 (loaded firearms); § 13424 (unloaded firearms); § 134-25 (pistols and revolvers); § 13427 (ammunition).
Chapter 134 also contains an exception for the
carry and use of lawfully acquired rifles or shotguns with
suitable ammunition while actually engaged in hunting or target
shooting, or while going to and from the place of hunting or
target shooting. Haw. Rev. Stat. § 134-5. Accordingly,
although an individual with a permit to acquire a firearm may be
able to transport that firearm to and from designated places, the
individual is not permitted to generally carry a loaded firearm,
open or concealed, in public unless he secures a separate license
to do so.
-34-
D.
Balancing of the Equities
Plaintiff argues that the balance of the equities tips
in his favor because the customs, practices and policies of HPD
“can affect anyone that wishes to exercise their fundamental
right to keep and bear arms.”
Inj. at 17.)
(Mem. in Supp. of Mot. for Prelim.
Plaintiff draws an analogy between the instant
action and the Ninth Circuit’s decision in Klein v. City of San
Clemente, wherein the court found that the balance of equities
(and the public interest) tipped sharply in favor of enjoining an
ordinance that prohibited plaintiff’s fundamental right to free
speech.
584 F.3d 1196 (9th Cir. 2009).
Plaintiff argues that if the court denies the motion
for a preliminary injunction, Plaintiff will spend a great deal
of time deprived of the right to lawful self-defense, as well as
the personal use and enjoyment of his firearms.
of Mot. for Prelim. Inj. at 18.)
(Mem. in Supp.
On the other hand, Plaintiff
asserts that the government “suffers no harm by issuing a
permit,” contending that dangerous felons and those citizens who
have been specifically adjudicated as unfit to keep and bear arms
are already prohibited pursuant to Hawaii state law and 18 U.S.C.
§ 922.
The Court observes that Defendants do not address the
balancing of the equities in their opposition memorandum.
Opp. Mem.)
-35-
(See
The Court concludes that the balance of the equities
tips in Plaintiff’s favor.
Defendants have not offered any
arguments to the contrary, and the Court observes that granting
the preliminary injunction would not allow Plaintiff to carry a
loaded firearm in public without obtaining a separate license to
do so, thereby avoiding the safety risks that play a central role
in cases involving the right to obtain a license for open or
concealed carry of a firearm outside the home.
In the instant litigation, the Court concludes that
Defendants will not face a hardship in granting Plaintiff’s
permit.
On the other hand, in the absence of a preliminary
injunction, Plaintiff will be denied the use and enjoyment of
firearms and will be unable to exercise his Second Amendment
right to bear arms for self-defense within the home when he has
demonstrated a likelihood of success in establishing his
statutory qualification under state and federal law.
For these
reasons, the Court concludes that the balance of the equities tip
in Plaintiff’s favor.
V.
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff’s
Motion for a Preliminary Injunction, and ORDERS Defendant Kealoha
to rescind the prior denial of Plaintiff’s permit to acquire
firearms and to issue a permit authorizing Plaintiff to acquire
firearms.
-36-
IT IS SO ORDERED.
Dated:
Honolulu, Hawai#i, June 29, 2012.
________________________________
Alan C. Kay
Sr. United States District Judge
Kirk C. Fisher v. Louis Kealoha et al., Civ. No. 11-00589 ACK-BMK: Order
Granting Plaintiff Kirk C. Fisher’s Motion For A Preliminary Injunction.
-37-
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