Fisher v. Kealoha et al
Filing
50
ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION 39 . Signed by JUDGE ALAN C KAY on 09/11/2012. (eps)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
)
)
KIRK C. FISHER,
)
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;)
CITY AND COUNTY OF HONOLULU,
)
)
Defendants. )
)
Civ. No. 11-00589 ACK-BMK
ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION
I.
BACKGROUND
The factual and procedural history of this case is set
forth in detail in the Court’s June 29, 2012 Order Granting
Plaintiff Kirk C. Fisher’s Motion for a Preliminary Injunction,
and the Court does not restate it herein.
“Preliminary Injunction Order.”)
(See Doc. No. 35, the
This action arises out of
Plaintiff’s contention that Defendants deliberately denied him of
-1-
his constitutional right to keep and bear arms based upon an
erroneous finding that a 1997 Hawaii state court conviction for
Harassment disqualified him from gun ownership.
Compl.)
(See generally
Currently before the Court is the City Defendants’
Motion for Reconsideration of the Preliminary Injunction Order,
wherein the Court granted Plaintiff’s Motion for a Preliminary
Injunction and ordered Defendant Kealoha to rescind the prior
denial of Plaintiff’s permit to acquire firearms and to issue a
permit authorizing Plaintiff to acquire firearms.1/
The Court held a hearing on Plaintiff’s Motion for a
Preliminary Injunction on Thursday, June 14, 2012.
At 9:09 a.m.
that morning, Plaintiff dilatorily filed an Amended Complaint,
which neither the Court nor Defendants had an opportunity to
review prior to the hearing which commenced at approximately
10:00 a.m.
No. 31.)
(See Rough Tr. of Jun. 14, 2012 Hearing, at 1-3; Doc.
Counsel for Defendants nevertheless stated that he was
prepared to go ahead with the hearing on the Motion for
Preliminary Injunction and submit arguments on the same.
Tr. of Jun. 14, 2012 Hearing, at 1-3.)
(Rough
On June 29, 2012,
following the Court’s review of supplemental briefings from the
1/
On April 19, 2012, prior to holding a hearing on
Plaintiff’s Motion for a Preliminary Injunction, the Court
granted Defendant City and County of Honolulu’s motion to
dismiss, and granted in part and denied in part Defendant
Kealoha’s motion to dismiss. (See Doc. 25 for further details
with respect to as to Court’s ruling on these motions.)
-2-
parties, the Court granted Plaintiff’s Motion for a Preliminary
Injunction.
Defendants filed a Motion for Reconsideration of the
Preliminary Injunction Order on July 27, 2012.2/
hereinafter “Reconsideration Motion.”)
(Doc. No. 39,
Plaintiff responded with
an untimely opposition memorandum on August 24, 2012.3/
No. 45.)
(Doc.
On August 31, 2012, Defendants filed a Reply in support
of their Reconsideration Motion.
(Doc. No. 46.)
The Court finds
this matter suitable for disposition without a hearing pursuant
to Local Rule 7.2(e).
II.
STANDARD OF REVIEW
Motion for Reconsideration
Pursuant to Local Rule 60.1, a motion for
reconsideration of an interlocutory order may only be brought if
there has been a discovery of new material facts not previously
2/
The Court had previously granted Defendants’ stipulated
motion to allow City Defendants an extension of time to file a
motion for reconsideration of the Preliminary Injunction Order,
providing the City Defendants with an extension until July 27,
2012 to file any motion for reconsideration, as well as to file
an answer to Plaintiff’s Amended Complaint. (Doc. No. 38.)
Defendants also filed a supplement to the Reconsideration Motion
on August 2, 2012, adding a Table of Authorities and Table of
Contents. (Doc. No. 43.)
3/
Pursuant to the Local Rules, an opposition to a nonhearing motion such as a motion for reconsideration shall be
served and filed not more than fourteen (14) days after service
of the motion. See L.R. 7.4, 60.1. The Court allowed
Plaintiff’s late filing and will consider the same.
-3-
available, an intervening change in law, or a manifest error of
law or fact.
See L.R. 60.1.
Motions for reconsideration
asserting a manifest error of law or fact must be made not more
than fourteen days after the Court's written order is filed. Id.
A “motion for reconsideration must accomplish two
goals.
First, a motion for reconsideration must demonstrate
reasons why the court should reconsider its prior decision.
Second, a motion for reconsideration must set forth facts or law
of a strongly convincing nature to induce the court to reverse
its prior decision.”
Donaldson v. Liberty Mut. Ins. Co., 947 F.
Supp. 429, 430 (D. Haw. 1996); Na Mamo O ‘Aha ‘Ino v. Galiher, 60
F. Supp. 2d 1058, 1059 (D. Haw. 1999) (citation omitted).
Only three grounds justify reconsideration: (1) an
intervening change in controlling law; (2) the discovery of new
evidence not previously available; and (3) the need to correct
clear or manifest error in law or fact in order to prevent
manifest injustice.
See Mustafa v. Clark County Sch. Dist., 157
F.3d 1169, 1178–79 (9th Cir. 1998).
“Whether or not to grant
reconsideration is committed to the sound discretion of the
court.”
Navajo Nation v. Confederated Tribes & Bands of the
Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003)
(citation omitted).
-4-
III. DISCUSSION
In their Motion for Reconsideration, the City
Defendants contend that the Court committed error with respect to
two distinct rulings:
(1) by not permitting the City Defendants
an opportunity to present evidence that Plaintiff’s conviction
for Harassment was in fact a crime of domestic violence; and (2)
failing to employ or consider the “modified categorical approach”
to determine whether Plaintiff’s offense constitutes, or may
constitute, a crime of violence, thus disqualifying Plaintiff
from possession of firearms.
(Mot. for Recon. at 1-2.)
The City
Defendants also challenge the Court’s ruling on policy grounds,
and request that the Court certify to the Hawaii Supreme Court
the question of whether a conviction of Harassment under H.R.S. §
711-1106(1)(a) in the Family Court constitutes a “crime of
violence.”
The Court considers each of the City Defendants’
arguments, as well as Plaintiff’s response, in turn.
A.
The City Defendants’ Opportunity to be Heard
The City Defendants contend that at the time of the
hearing on Plaintiff’s Motion for a Preliminary Injunction, they
did not have a full opportunity to be heard for two reasons: (1)
they had not filed an answer to the Amended Complaint, which
Plaintiff in fact filed less than one hour before the hearing;
and (2) Plaintiff failed to file initial disclosures, resulting
-5-
in the City Defendants’ inability to gather evidence needed to
develop their defense.
(Mot. for Recon. at 5-6.)
Further, the
City Defendants assert that they have not had an opportunity to
conduct significant discovery upon Plaintiff nor take his
deposition.
Id. at 6.
At this juncture, the City Defendants
seek an opportunity to present evidence supporting their position
that Plaintiff’s conviction for harassment statutorily
disqualified him from possessing firearms, and they attach
portions of Plaintiff’s underlying criminal record for his
conviction in FC-CR 97-3233 in support of their assertion that
Harassment clearly constitutes a “crime of violence” pursuant to
H.R.S. § 134-7.
Id.
Plaintiff replies that the City Defendants were in fact
given nearly three months to prepare for the hearing on
Plaintiff’s Motion for Preliminary Injunction, which was
continued after all parties stipulated to an extension of time
within which the City Defendants were permitted to file their
untimely opposition memorandum.
(Opp. Mem. at 7.)
During those
three months, the City Defendants had “ample opportunity” to
propound discovery requests upon and depose Plaintiff, as well as
subpoena documents from HPD and/or the Hawaii State Judiciary,
among other things.
Id.
Plaintiff asserts that the portions of
his criminal record from his conviction in FC-CR 97-3233 and the
declaration from Deputy Prosecuting Attorney Charlene Ikeda are
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not newly discovered evidence justifying reconsideration, but
rather constitute evidence that could have been discovered prior
to the June 14, 2012 hearing through due diligence.
Id.4/
In their Reply, the City Defendants challenge
Plaintiff’s assertion that they had “ample” time to conduct
discovery, citing Plaintiff’s alleged failure to comply with the
rules mandating initial disclosures pursuant to Federal Rule of
Civil Procedure 26(a)(1)(A).
(Reply at 4.)
Further, the City
Defendants contend that Plaintiff should be estopped from making
this argument because he failed to provide any initial discovery
disclosures.
Id.5/
This failure on the part of Plaintiff
allegedly resulted in manifest injustice for the City Defendants,
who claim that they were denied a full and fair opportunity to
present their case during the June 14, 2012 hearing.
Id. at 6.
The Court concludes the City Defendants did in fact
have ample opportunity to raise the issue of Plaintiff’s failure
to provide Rule 26 initial disclosures before the Magistrate
Judge or before this Court, but declined to do so until they were
faced with an adverse decision when the Preliminary Injunction
Order issued.
In fact, the Court explicitly inquired as to
4/
In support of this assertion, Plaintiff cites Cranmer v.
Tyconic, Inc., 278 Fed. App’x 744, 746 (9th Cir. 2008) (quoting
Jones v. Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir. 1990)).
5/
The City Defendants also state that Fed. R. Civ. P. 26
“requires the production of discoverable information without any
request from the opposing side.” (Reply at 4.)
-7-
whether defense counsel was prepared to proceed with the hearing
on June 14, 2012, and he responded in the affirmative.
Tr. of Jun. 14, 2012 Hearing, at 1-3.)
(Rough
The City Defendants now
attempt to secure reconsideration based upon an alleged “manifest
injustice” that they have quietly ignored since January of 2012.
The Court finds this to be an unpersuasive basis for
reconsideration.
B.
Application of the Modified Categorical Approach
The City Defendants also submit that the Court did not
properly apply the modified categorical approach in reaching its
decision that Plaintiff was likely to succeed on the merits in
establishing that his conviction for Harassment was not a
misdemeanor crime of violence.
The Court finds this argument
unavailing; considering that it set forth a detailed explanation
of the application of the categorical and modified categorical
approaches to determine wether a state conviction falls within
the generic federal definition of a crime in its Preliminary
Injunction Order.
(Prelim. Inj. Order at 21-23.)
The Court
explained that if there is no categorical match, courts in the
Ninth Circuit will apply a modified categorical approach in some
instances, which is to be a limited inquiry wherein the Court
considers “the statutory definition, charging document, written
plea agreement, transcript of plea colloquy, and any explicit
-8-
factual finding by the trial judge to which the defendant
assented.” (Prelim. Inj. Order at 22 n.19 (citing 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.”
(Prelim. Inj. Order (citing United States v. Snellenberger, 548
F.3d 699, 701-02 (9th Cir. 2008) (en banc).6/
In its Preliminary
Injunction Order, the Court stated, “[i]t 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.”
(Prelim. Inj.
Order. at 22 n.19.)
The City Defendants contend that “newly discovered”
evidence contained in Plaintiff’s criminal file, including the
charging document, the judicial determination of probable cause,
and other accompanying records, “make clear that Plaintiff was
convicted not of mere offensive physical contact or the de
minimis use of physical force,” but of “violent use of force.”
Id. at 10.7/
As an initial matter, the Court notes that this
6/
The Snellenberger court held that district courts may
rely on clerk minute orders that conform to certain essential
procedures in applying the modified categorical approach, noting
that the minute order in question was prepared by a neutral
officer of the court and that defendant had the right to examine
and challenge its content. 548 F.3d at 702.
7/
In its Preliminary Injunction Order, the Court recognized
(continued...)
-9-
evidence is not in fact “newly discovered,” but could have been
obtained through due diligence prior to the June 14, 2012
hearing.
Further, even if the Court were to consider this
evidence, there are no new facts contained in the City
Defendants’ exhibits that establish that Plaintiff’s Harassment
conviction qualified as a misdemeanor crime of violence.8/
The
7/
(...continued)
the Ninth Circuit’s holding that for purposes 18 U.S.C. §
921(a)(33)(A)(i) (the Gun Control Act, which contains the
Lautenberg Amendment), “physical force” means “the violent use of
force against the body of another individual.” (Prelim. Inj.
Order at 21-22 (citing Belless, 338 F.3d 1063, 1068)). In
Belless, the Ninth Circuit reasoned that the physical force
requirement could not possibly include “any touching” in the
“sense of Newtonian mechanics” and held that the physical force
requirement cannot be satisfied by “de minimis” touching. Id. at
1067–68. The commentary on Harassment, a Hawaii state criminal
statute, on the other hand, describes the offense as “a
restatement of the common-law offense of battery involving any
slight touching of another person.” (Prelim. Inj. Order at 2122.)
8/
In support of their Motion for Reconsideration, the City
Defendants provide the following from Plaintiff’s criminal file
in FC-CR 97-3233: (1) a certified copy of the complaint, charging
Plaintiff with two counts of Harassment pursuant to H.R.S. § 7111106(1)(a); (2) certified copies of the judicial determinations
of probable cause; (3) the judgment of conviction on December 3,
1997, showing that Plaintiff pleaded guilty to two counts of
Harassment pursuant to H.R.S. § 711-1106(1)(a); (4) the terms and
conditions of probation and the acknowledgment of the terms and
conditions of probation signed by Plaintiff, showing the
requirement that Plaintiff attend domestic violence intervention,
parenting classes and drug and alcohol assessment and treatment;
(5) the compliance reports showing that Plaintiff completed ten
sessions of domestic violence counseling and twelve hours of drug
and alcohol education; (6) the Order Permitting Return of
(continued...)
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City Defendants contend that the police report, which allegedly
was included by reference in the plea documents, “includes facts
that make it clear the Plaintiff was convicted of conduct that
qualifies as the ‘use of physical force’ such that a ‘crime of
violence’ has occurred.”
(Mot. for Recon. at 14)
However, the
City Defendants’ newly submitted evidence does not contain the
police report, and as a result the Court has not had an
opportunity to review its contents.
In any event, even if the City Defendants had provided
the Court with the police report that purportedly establishes
Plaintiff’s use of physical force, the City Defendants have not
demonstrated that the police report in this case is the type of
document that is sufficiently reliable pursuant to the standard
set forth in Snellenberger.
548 F.3d at 701-02.
In the Ninth
Circuit, police reports generally cannot be used in a modified
categorical approach.
Shepard, 544 U.S. at 16 (“The question
here is whether a sentencing court can look to police reports or
8/
(...continued)
Firearms, Ammunition, Permits and Licenses, With Conditions,
filed on November 4, 1998. (See Mot. for Recon., Exs. A-F.) The
documents do not provide the Court with any new information as to
the specific conduct for which Plaintiff was convicted. For
example, the Complaint alleges that Plaintiff “did strike, shove,
kick, or otherwise touch Colette Fisher in an offensive manner .
. . “ with intent to harass, annoy, or alarm her. (Mot. for
Recon., Ex. A.) This language merely recites the statutory
language of H.R.S. § 711-1106(1)(a), and does not provide any
information as to whether Plaintiff’s conduct was violent as
opposed to non-violent.
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complaint applications to determine whether an earlier guilty
plea necessarily admitted, and supported a conviction for, [a
crime] . . . . We hold that it may not . . . .”)
However, in
certain limited instances police reports may be considered when
the defendant stipulates to their use as a factual basis for
supporting a plea.
See United States v. AlmazanBecerra, 537 F.3d
1094, 1098 (9th Cir. 2008).9/
In the absence of such a
stipulation, a police report, unlike a clerk minute order, is
drafted by a police officer who cannot be considered a “neutral”
figure, and the Court is unaware of any procedure by which a
criminal defendant may review and correct any inaccuracies in
such a report.
The “newly discovered” evidence does not
establish that Plaintiff stipulated to the use of a police report
as a factual basis for supporting his guilty plea, and
accordingly it would be error for the Court to consider this type
of unreliable document in applying the modified categorical
9/
See also United States v. Osuna-Armenta, Cr. No.
10–041–JLQ, 2010 WL 4867380, at *5 (E.D. Wash. Nov. 23, 2010)
(“because of the Defendant's specific consent in his written []
plea authorizing the court to review the police reports and/or
statement of probable cause to establish the factual conduct
supporting the plea, this court may also permissibly consider the
police incident report and the state's statement of probable
cause . . . .”; Parilla v. Gonzales, 414 F.3d 1038, 1044 (9th
Cir. 2005) (defendant’s decision to incorporate the police report
into his guilty plea made the report “an explicit statement ‘in
which the factual basis for the plea was confirmed by the
defendant’”) (quoting Shepard, 544 U.S. at 26).
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approach.10/
Furthermore, the case law relied upon by the City
Defendants generally fails to support their argument that the
Court misapplied the modified categorical approach.
For example, the City Defendants rely heavily upon
United States v. Nobriga, which involved whether a plaintiff’s
conviction for Abuse of a Family or Household Member under the
Hawaii Revised Statutes constituted a crime of violence.
F.3d 561 (9th Cir. 2006).
474
In Nobriga, however, the plaintiff
actually pleaded no contest and was found guilty of the crime of
Abuse of a Family or Household Member, not Harassment.
That
fact, together with the court’s finding that “the charging papers
and the judgment of conviction ma[d]e clear that Nobriga pleaded
guilty to ‘physically abus[ing] a family or household member,’
not to ‘refus[ing] compliance with a lawful order of a police
officer,’ led the court to conclude that the plaintiff
10/
The City Defendants contend that, “[b]y pleading guilty
to the charge of Harassment, as opposed to pleading no contest,
Plaintiff did not dispute the facts included in the police
report, and the police report was included by reference in the
plea documents.” (Mot. for Recon. at 11 n.3.) However, the plea
documents on their face do not incorporate the findings in the
police report, and the City Defendants have not presented the
Court with a transcript of the plea colloquy to substantiate the
basis for Plaintiff’s guilty plea and the specific facts to which
Plaintiff stipulated in connection with that plea. See, e.g.,
Almazan-Becerra, 482 F.3d at 1091 (finding police reports
unreliable even though the defendant had stipulated that the
reports formed a factual basis to support his plea, because the
plea was disjunctive and therefore the conduct to which the
defendant stipulated was not clear).
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necessarily pleaded guilty to a “violent use of force.”
564.11/
Id. at
In the instant action, Plaintiff never pleaded no
contest, nor was he convicted of, Abuse of a Family or Household
Member under H.R.S. § 709-906.
Plaintiff pleaded guilty to
Harassment, and there is no new evidence that he did so based
upon facts that revealed violent, rather than non-violent,
conduct.12/ (See Motion for Recon., Exs. A-F.)
Moreover, the City Defendants’ reliance upon United
States v. Serrao does not support their argument.
The issue in
Serrao was whether the plaintiff was entitled to have an
indictment against him dismissed, wherein he was charged with
possessing a firearm or ammunition following conviction of a
misdemeanor crime of domestic violence.
1143 (D. Haw. 2004).
301 F. Supp. 2d 1142,
The Serrao court stated that it “can, and
in fact must,” consider the declarations of the prosecutor in the
state case to determine whether the record submitted “clearly
11/
Although the court ultimately determined that because
H.R.S. 709-906(1)’s “physical abuse” prong could be satisfied
with a reckless, as opposed to intentional, use of force, the
court ruled that the defendant’s motion to dismiss the indictment
should have been granted because Hawaii law holds that crimes
involving reckless use of force cannot be considered crimes of
violence. Nobriga, 474 F.3d at 565.
12/
Further, the fact that deputy prosecuting attorney
Charlene Ikeda declared that in her experience, she would amend
initial arrests for Abuse of a Family or Household Member to
Harassment does not change the fact that Plaintiff was ultimately
convicted of Harassment, a crime that by definition constitutes
both violent and non-violent conduct. (See Ikeda Decl.)
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establish[ed]” that the prior offense involved the use of
physical force.
Id. at 1146 (quoting United States v. Sweeten,
933 F.2d 765, 769-700 (9th Cir. 1991)).
In the state case, the
record showed that the plaintiff had been charged with Abuse of a
Family and Household Member, although he ultimately pled no
contest to Assault in the Third Degree.
Id. at 1145.13/
The
charge had been amended orally and there was no evidence of the
facts underlying the amended charge.
Id.
Significantly, the
Serrao court explained:
This court, however, can only give limited weight to an ex
parte document prepared many years after the fact . . . . More
importantly, the key inquiry is what Serrao admitted while
pleading, not what the prosecutor intended and understood him
to be admitting. [The state prosecutor’s] declaration sheds
little light on the specific facts that Serrao admitted. In
all probability, Serrao understood that he was pleading no
contest to Assault in the Third Degree based on the
allegations in the initial Family Court complaint. The judge
in all probability was accepting the plea thinking that it
involved the acts complained of in the Family Court file. That
may explain the inclusion in the sentence of conditions that
Serrao not threaten or harm his wife and that he complete an
anger management program. But the “clearly establish”
standard requires more than a mere likelihood. The record
does not “clearly establish” the facts to which Serrao pled no
contest . . . .The court, therefore, cannot determine what
Serrao pled guilty to, and the prior state conviction cannot
serve as a predicate for a § 922(g) or § 924(a)(2) charge.
Id. at 1146.
The Court of Appeals for the Ninth Circuit reached the
13/
The assault charge, like Harassment under HRS 7111106(1)(a), did not require force as an element for conviction.
Serrao, 301 F. Supp. 2d at 1145.
-15-
opposite conclusion when presented with different facts in
Sweeten.
In that case, the prosecutor had submitted an ex parte,
nunc pro tunc order eleven years following the original
conviction, stating that a typographical error had caused the
original judgment to mischaracterize Sweeten’s offense.
at 767.
933 F.2d
Importantly, although the court did consider the
prosecutor’s ex parte statement, it held that a court could not
rely “solely” on an ex parte, after the fact order to establish
the earlier predicate offense.
Id. at 769.
Nevertheless, the
court held that the nunc pro tunc order, in conjunction with the
signed guilty plea and indictment that the government had
provided to the court, demonstrated that the earlier conviction
did involve the use or threat of physical force, and accordingly
concluded that the conviction could serve as a predicate offense.
Id.
The facts presented in the instant action much more
closely mirror those in Serrao, because the City Defendants
purport to rely on a state prosecutor’s declaration that was
obtained some 15 years after the fact, without sufficient
additional reliable evidence, to establish that Plaintiff’s state
conviction constitutes a crime of violence.
The underlying
criminal file establishes nothing more than the fact that
Plaintiff was initially charged with Abuse of a Household Family
Member.
(See Mot. for Recon., Exs. A, B.)
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Moreover, the
Complaint does not contain any new factual allegations that
suggest violent conduct, but instead merely sets forth the
ambiguous language contained in the Harassment statute.
Mot. for Recon., Ex. A.)
(See
Just as in Serrao, here the record does
not “clearly establish” the facts to which Plaintiff pled guilty.
Consequently, the Court concludes that it correctly applied the
modified categorical approach to determine that Plaintiff was
likely to succeed on the merits in establishing that his
Harassment conviction did not constitute a misdemeanor crime of
violence.
Serrao, 301 F. Supp. 2d at 1146.
The Court observes that the City Defendants’ other
assertions with respect to this issue simply raise the legal
arguments that were already raised, or should have previously
been raised, as the City Defendants have identified no change in
intervening or controlling law to justify reconsideration of the
Court’s Preliminary Injunction Order.
(See Opp. Mem. at 8.)
The City Defendants have failed to convince the Court
that it has committed a manifest error of law with respect to its
application of the modified categorical approach to Plaintiff’s
Harassment conviction; particularly given the fact that this area
of law is far from well-settled.
The Court additionally
concludes that the City Defendants’ “newly discovered” evidence
certainly could have been discovered prior to the June 14, 2012
hearing through diligence.
Again, in any event, the Court
-17-
concludes that this evidence does not establish that Plaintiff’s
conduct was violent as opposed to non-violent in nature.
For
these reasons, the Court declines to grant reconsideration on
this basis.
C.
Policy Considerations
The City Defendants’ contention that the Court “should
not make a blanket determination that harassment convictions
cannot serve to disqualify a person from acquiring firearms,” is
without merit.
(See Mot. for Recon. at 14.)
Contrary to the
City Defendants’ assertion, the Court in no way excluded “ALL
harassment convictions under subsection (a) as a ‘crime of
violence.”
Id.
In fact, the Court specifically stated in its
Preliminary Injunction Order that “an order directing [the
Honolulu Police Department] to grant Plaintiff’s permit to
acquire would not extend to any applicants other than Plaintiff.”
(Prelim. Inj. Order at 34.)
Accordingly, the City Defendants’
several pages of policy arguments are misplaced because the
Court’s Preliminary Injunction Order applies only to Plaintiff.14/
14/
The City Defendants mention for the first time in the
Reconsideration Motion the fact that Plaintiff has a prior
conviction for driving under the influence of an intoxicant in
1986, and state that he was ordered to participate in a drug
assessment and treatment as a term and condition of probation for
his Harassment conviction. (Mot. for Recon. at 16.) Based upon
this information, the City Defendants contend, “it is reasonable
to conclude that there was some indication of a substance abuse
(continued...)
-18-
D.
Certification of a Question to the Hawaii Supreme Court
The City Defendants also ask the Court to certify to
the Hawaii Supreme Court the question of whether a conviction for
Harassment under H.R.S. § 711-1106(1)(a) in Family Court
constitutes a “crime of violence” for purposes of
disqualification from firearm possession under H.R.S. § 134-7.
(Mot. for Recon. at 17.)
Noting the Court’s previous
acknowledgment that State v. Char is the only available Hawaii
case analyzing this issue,15/ the City Defendants assert that it
is appropriate to certify this question.
Id. (citing 909 P.2d
590 (Haw. Ct. App. 1995)).
In response, Plaintiff emphasizes that there is a
presumption against certifying a question to a state supreme
court after a federal district court has already issued a
decision, noting that the a party “should not be allowed a chance
a[t] victory through certification by the appeals court after an
adverse district court ruling.” (Opp. Mem. at 6.)16/
Plaintiff
14/
(...continued)
problem or the use of an illicit substance by Plaintiff in
connection to the incident that led to his arrest and
conviction.” Id. at 16-17. The City Defendants could have
discovered and raised this issue prior to the June 14, 2012
hearing but failed to do so, and the Court will not consider it
at this time.
15/
Further, Char analyzes a different subsection of the
Harassment statute, namely H.R.S. § 711-1106(1)(b).
16/
Plaintiff cites the following cases in support of his
(continued...)
-19-
emphasizes that the City Defendants chose to wait until they had
an adverse ruling from this Court to petition for certification,
even though counsel for the City Defendants knew from the filing
of the Complaint on September 28, 2011 that Plaintiff challenged
the interpretation of the statutes at issue in this litigation.
Id. at 11-12.
Moreover, Plaintiff argues that certification is
not warranted because the Court has not made a ruling on the
interpretation of the Hawaii harassment statute itself, but
rather has ruled that the Plaintiff in this particular case is
not statutorily disqualified from firearm possession based on his
conviction for harassment.
The Court agrees.
Id. at 11.17/
If the City Defendants believed that
it was appropriate to certify this question to the Hawaii Supreme
Court, they had an opportunity to do so prior to the issuance of
16/
(...continued)
assertion that the City Defendants should not be given an
opportunity to certify this question to the Hawaii State Supreme
Court when the federal district court has already issued its
decision: In re Complaint of McLinn, 744 F.2d 677, 681 (9th Cir.
1984); Enfield v. A.B. Chance Co., 228 F.3d 1245, 1255 (10th Cir.
2000) (“Although the issues raised by the City are novel and
somewhat difficult, the City did not seek certification until
after it received an adverse ruling from the district court.
That fact alone persuades us that certification is
inappropriate.”); Perkins v. Clark Equip. Co., Melrose Div., 823
F.2d 207, 209-210
17/
In fact, Plaintiff notes, the Court specifically stated
in its Preliminary Injunction Order that “granting [of
Plaintiff’s] request for a preliminary injunction ... and an
order directing HPD to grant Plaintiff’s permit to acquire would
not extend to any applicants other than Plaintiff.” Opp. Mem. at
11 (citing Prelim. Inj. Order at 34).
-20-
the Preliminary Injunction Order.
Instead, they waited to
request certification until this Court issued an adverse
decision.
Courts in the Ninth Circuit recognize a presumption
against certifying questions after the district court has reached
a final decision.
JJCO, Inc. v. Isuzu Motors Amer., Inc., Civ.
No. 10-16597, 2012 WL 2584294, at *3 (9th Cir. July 5, 2012)
(citing Thompson v. Paul, 547 F.3d 1055, 1065 (9th Cir. 2008)).
Seeing as the City Defendants had ample opportunity to request
certification prior to the Court’s issuance of its Preliminary
Injunction Order, granting their request at this time would allow
the City Defendants an unwarranted second chance at victory.
For
these reasons, the Court denies the City Defendants’ request for
certification to the Hawaii Supreme Court.
***
In conclusion, the City Defendants have failed to
establish any of the three recognized bases for reconsideration,
and have not set forth facts or law of a strongly convincing
nature to induce this Court to reverse its prior decision.
See
Donaldson, 947 F. Supp. at 430.
IV.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’
Motion for Reconsideration.
-21-
IT IS SO ORDERED.
DATED:
Honolulu, Hawai‘i, September 11, 2012.
________________________________
Alan C. Kay
Sr. United States District Judge
Fisher v. Kealoha, et al.; Civ. No. 11-00589 ACK-BMK:
Defendants’ Motion for Reconsideration.
-22-
Order Denying
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