Santucci v. City and County of Honolulu et al

Filing 48

ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION, AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS re 5 , 19 - Signed by CHIEF JUDGE DERRICK K. WATSON on 11/23/2022. (eta)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
MICHAEL SANTUCCI,
Plaintiff,
vs.
CITY AND COUNTY OF HONOLULU
and HOLLY T. SHIKADA, in her official
capacity as Attorney General of the State of
Hawaii,
Defendants.

Case No. 22-cv-00142-DKW-KJM
ORDER (1) GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION, AND
(2) GRANTING IN PART AND
DENYING IN PART DEFENDANT
CITY AND COUNTY OF
HONOLULU’S MOTION TO
DISMISS

On April 3, 2022, Plaintiff Michael Santucci filed a Complaint and a motion
for preliminary injunction against Defendants the City and County of Honolulu and
the Attorney General of the State of Hawai‘i with respect to an application to
register firearms he brought into the State after moving here. Santucci alleges that
he was required to deliver his firearms to the Honolulu Police Department (HPD)
after answering “yes” to a question on a “Firearm Application Questionnaire”
related to his mental health history. Santucci argues that this result is contrary to
State law or, alternatively, that State law is unconstitutional. Santucci further
alleges that, in applying to register his firearms, private personal
information−namely, his medical records and desire to acquire a firearm−have
been disclosed. He argues that this too is unconstitutional.

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Defendants have opposed the motion for preliminary injunction. The
Attorney General argues, inter alia, that the challenged State laws are
constitutional. The Attorney General also asserts that Santucci’s claims may not
be ripe because it is not clear whether HPD has granted or denied his application.
The City and County of Honolulu (Honolulu), meanwhile, argues that it is merely
enforcing State law and, thus, cannot be liable for any alleged problems that arise
from said enforcement. Honolulu further argues that Santucci’s privacy-related
claims fail. Honolulu has also filed a motion to dismiss, raising similar
arguments.
After settlement discussions between the parties failed to reach a resolution
of Santucci’s claims, the Court ordered supplemental briefing on the issue of
whether those claims were ripe for adjudication. All parties have now submitted
supplemental briefs, with each side generally opposed on the issue.
Having reviewed the foregoing, including all briefing and exhibits attached
thereto with respect to the pending motions, the Court finds, as further explained
below, that Santucci is entitled to limited preliminary injunctive relief, while
Honolulu is entitled to dismissal of Santucci’s privacy-related claims, as alleged in
the Complaint. First, the Court agrees with Santucci that, at least with respect to
the actions he challenges here—specifically, decisions requiring him to obtain
2

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documentation from a doctor and to sign a medical information waiver—those
actions are final. Second, the Court further agrees with Santucci that he is not
precluded from registering his firearms under Hawai‘i law. The Court, thus,
disagrees with Honolulu’s counter-argument that it is merely enforcing said law,
given that HPD is alleged to have taken possession of Santucci’s firearms. Third,
the Court finds that Santucci’s privacy-related claims, as alleged, are not supported
by the record. Should he choose to do so, though, Santucci may amend those
claims. Therefore, as set forth in more detail below, the motion for preliminary
injunction and motion to dismiss are GRANTED IN PART and DENIED IN
PART.
FACTUAL BACKGROUND
The allegations of the Complaint and the exhibits attached thereto reflect the
following. Santucci is a commissioned officer in the United States Navy.
Compl. at ¶ 21, Dkt. No. 1. Prior to arriving in Hawai‘i in February 2021,
Santucci “legally” owned several firearms. Id. at ¶¶ 22, 27. In May 2021,
Santucci saw a medical provider because he was feeling depressed and homesick.
Id. at ¶¶ 29-30. Neither at this time, nor ever, though, was Santucci diagnosed as
having a “significant behavioral, emotional, or mental disorder as defined by the

3

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most current diagnostic manual of the American Psychiatric Association nor was
he treated for organic brain syndromes.” Id. at ¶ 31.
In July 2021, Santucci filled out documents provided to him by HPD to
register his firearms. Id. at ¶ 32. Santucci alleges that the documentation was
“substantially identical” to the “blank form” attached to the Complaint as Exhibit
B. Id. Part of this documentation is a “Firearm Application Questionnaire,”
which included questions concerning drug dependence, acquittal of a crime on the
ground of mental disease, adjudication as a “mental defective,” diagnosis for
emotional or mental disorders, and treatment for organic brain syndromes. Id. at ¶
34. Santucci responded “no” to the questions concerning drug dependence,
acquittal of crime on the ground of mental disease, adjudication as a “mental
defective,” and treatment for organic brain syndrome. Id. at ¶¶ 35-38. However,
because Santucci had been treated for depression, he responded “yes”, adding “not
serious[,]” presumably to the question concerning diagnosis for emotional or
mental disorders. See id. at

¶ 39.1

1

The Complaint does not specifically allege to which question Santucci responded “yes.” See
Compl. at ¶ 39. However, given the context of the surrounding allegations, it appears that
Santucci is referring to the question concerning whether he has been diagnosed as having a
behavioral, emotional, or mental disorder, i.e., Question 11 of the questionnaire.
4

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Apart from the Firearm Application Questionnaire, Santucci also received a
“Medical Information Waiver” form. Id. at ¶ 40. Santucci alleges that a “blank”
copy of the waiver form is attached to the Complaint as Exhibit C. Id. The
waiver form would provide HPD with authority to access “any and all records
which have a bearing on [the applicant’s] mental health for the strict purpose of
determining [his] qualification to acquire, own, possess, or have under [his]
control, a firearm.” Exh. C at 2, Dkt. No. 1-3.2
In July 2021, Santucci received a letter from HPD, which he alleges is
attached to the Complaint as Exhibit D (July 2021 Letter). Compl. at ¶ 41. The
July 2021 Letter states that, during HPD’s background check of Santucci, it was
determined that he may have received treatment for one of the following: (1)
dependence upon a drug; (2) a behavioral, emotional, or mental disorder “as
defined by the most current manual of [the] American Psychiatric Association”; or
(3) an organic brain syndrome. Exh. D at 2, Dkt. No. 1-4. The July 2021 Letter
further stated:
As such, in order to complete the processing of your application, we
will require written certification from a licensed psychologist,
psychiatrist, or medical doctor documenting that you are no longer
adversely affected by the addiction, abuse, dependence, mental
disease, disorder, or defect. No further action will be taken on your
2

In citing to the exhibits attached to the Complaint, the Court cites the page number assigned in
the top right corner of the document, i.e., “Page 2 of 3.”
5

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application until the required letter is received.
Id.
At the same time, “Santucci delivered his firearms to HPD because he was
told he had to.” Compl. at ¶ 43. Although Santucci does not allege whether he
submitted to HPD the written certification demanded in the July 2021 Letter, he
alleges that no further action has been taken on his permit to acquire firearms, and
HPD “still holds” his firearms. Id. According to Santucci, HPD does not possess
any information proving that he has a significant behavioral, emotional, or mental
disorder as defined by the most current diagnostic manual of the American
Psychiatric Association (APA) or an organic brain syndrome. Id. at ¶¶ 44-46.
Santucci further alleges that, in investigating an applicant’s medical history,
HPD sends an applicant’s doctor a form disclosing that he is purchasing a firearm.
Id. at ¶ 87. Santucci alleges that a copy of the letter “typically” sent to doctors is
attached to the Complaint as Exhibit F (Typical Letter). Id. Among other things,
the Typical Letter states that the applicant identified therein has “applied for a
permit to acquire a firearm….” Exh. F at 2, Dkt. No. 1-6. The Typical Letter
also requests that the applicant’s doctor respond to a “request for information”
included with the same. Id. The “Request for Information” asks the doctor six
“yes” or “no” questions concerning the applicant’s possible drug dependence,
6

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diagnosis of a “significant” behavioral, emotional, or mental disorder as defined by
the most current diagnostic manual of the APA, and treatment for organic brain
syndrome. Id. at 4.
PROCEDURAL BACKGROUND
On April 3, 2022, Santucci initiated this action with the filing of a Complaint
against Honolulu and the Attorney General and a motion for preliminary
injunction. Dkt. Nos. 1, 5. The Complaint asserts five substantive claims for
violations of the Second Amendment, Due Process, and Equal Protection. In the
motion for preliminary injunction, Santucci argues that he has a likelihood of
success on his claims, he will suffer irreparable harm, and public interest factors
weigh in his favor.
Prior to any responses on the motion for preliminary injunction, Honolulu
filed a motion to dismiss. Dkt. No. 19. On June 24 and June 27, 2022, the
parties filed responses to the motions, and, on July 1, and July 5, 2022, they filed
replies. Dkt. Nos. 25-31. After review of the parties’ briefing, the Court ordered
an early settlement conference. Dkt. No. 32. While settlement discussions were
ongoing, the Court also ordered supplemental briefing on whether any of
Santucci’s claims were ripe for adjudication. Dkt. No. 41. The Court has
received supplemental briefs from all parties. Dkt. Nos. 43, 46-47. However,
7

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after multiple settlement conferences, the parties reached an “impasse.” Dkt. No.
45.
This Order on the pending motions, therefore, follows.
LEGAL STANDARD
I.

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.” Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008).
Before issuing an injunction, to the extent raised by a party or sua sponte,
this Court must satisfy itself that subject matter jurisdiction exists. See Arbaugh v.
Y&H Corp., 546 U.S. 500, 514 (2006) (explaining that subject matter jurisdiction
“involves a court’s power to hear a case” and a court has an independent obligation
to determine whether such jurisdiction exists) (quotation and citation omitted);
Zepeda v. U.S. Immigration & Naturalization Serv., 753 F.2d 719, 727 (9th Cir.
1983) (“A federal court may issue an injunction if it has personal jurisdiction over
the parties and subject matter jurisdiction over the claim….”). In that regard,
under Article III of the U.S. Constitution, this Court’s subject matter jurisdiction is
8

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limited to “cases” or “controversies.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 559 (1992). Standing and ripeness are components of the case or controversy
requirement, and a lack of either equals a lack of subject matter jurisdiction. Id. at
560-561; St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).
When presented with an argument relating to a court’s subject matter
jurisdiction, “the district court is ordinarily free to hear evidence regarding
jurisdiction and to rule on that issue prior to trial, resolving factual disputes where
necessary.” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
Where the court considers evidence outside the pleadings for this purpose, “[n]o
presumptive truthfulness attaches to plaintiff’s allegations, and the existence of
disputed material facts will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.” Id.
II.

Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a

complaint that fails “to state a claim upon which relief can be granted.” Rule
12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
9

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to relief that is plausible on its face.’” 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In addition, “the tenet that
a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. Rather, “[a] claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court
to infer “the mere possibility of misconduct” do not show that the pleader is
entitled to relief as required by Rule 8(a)(2). Id. at 679.
DISCUSSION
The Court begins with whether subject matter jurisdiction exists over
Santucci’s claims.
I.

Subject Matter Jurisdiction
The question before the Court is whether Santucci’s claims are ripe. The

Attorney General argues that they are not because HPD has made only a
“preliminary determination” with respect to Santucci’s mental health and, if HPD
has erred in that regard, Santucci can “raise[]” the issue with HPD to allow it to
“fix its mistakes before issuing a final decision.” Dkt. No. 43 at 4. Santucci
disagrees, arguing that HPD has taken possession of his firearms, and he cannot
10

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reacquire them until he submits documentation from a doctor. Dkt. No. 47 at 5.
Santucci continues that the “need to undergo this [doctor’s] evaluation is the issue
he is bringing suit over.” Id.
In light of the manner in which Santucci has framed his claims, the Court
finds that the same are ripe because the actions he challenges are final.
Specifically, the principal action Santucci challenges is the one contained in the
July 2021 Letter from HPD instructing him to provide documentation from a
doctor stating that he is no longer adversely affected by an addiction, dependence,
mental disease, or disorder. This action is final because (1) the July 2021 Letter
expressly states that “[n]o further action will be taken on your application until the
required letter is received[]”, and (2) the Complaint alleges that Santucci has been
required to turn in his firearms, which he cannot recover, until and unless he
complies with HPD’s medically-related demands. In other words, without
documentation from a doctor, Santucci’s application to register has come to a stop,
and his firearms have been seized. Therefore, given that Santucci asserts that he
brings suit over the need to submit documentation from a doctor, rather than the
granting or denial of his application, on the record before the Court, HPD’s action
in that regard appears final.

11

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The Attorney General’s arguments to the contrary are unpersuasive. The
Attorney General asserts that a final decision has not been made on Santucci’s
application. While that is true, it misses what Santucci says is the point of his
claims: the need to submit documentation from a doctor. The Attorney General
further contends that, if HPD has erred, Santucci should raise such error with HPD
to allow it to “fix” its mistakes. While that sounds reasonable in a vacuum, the
Attorney General provides no meaningful explanation of how Santucci is meant to
raise any purported errors with HPD’s actions.3
Therefore, the Court finds that Santucci’s claims are ripe.
II.

Motion for Preliminary Injunction and Motion to Dismiss
Because the arguments related to the motion to dismiss are largely

encompassed in the briefing on the motion for preliminary injunction, the Court
addresses those arguments as one below.
Santucci argues that he is likely to succeed on the merits of his claims.
First, Santucci argues that he is not precluded from firearm ownership under
Hawai‘i law−specifically, Hawai‘i Revised Statutes (HRS) Section 134-7. Dkt.
No. 5-1 at 3-4. He then argues that, “[i]n the event this Court disagrees” with

3

While the Attorney General arguably alludes to a “contested-case hearing” as a potential avenue
of redress, she provides no explanation of why such a hearing is applicable in the circumstances
described. See Dkt. No. 43 at 4-5 n.3.
12

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Santucci’s construction of Hawai‘i law, Section 134-7 is unconstitutional under the
Second Amendment and/or unconstitutionally vague. Id. at 4, 6-12, 23. Santucci
also argues that, in seeking to register his firearms, he has been required to disclose
private personal information in violation of the Second Amendment and Due
Process. Id. at 4-6, 15-23. Specifically, Santucci challenges the alleged
disclosure of his medical information and desire to purchase a firearm. Id. 4
For the reasons discussed below, the Court agrees that, pursuant to Section
134-7, Santucci is not precluded from registering his firearms. As a result, it is
unnecessary to address Santucci’s self-described “alternative[]” arguments related
to the alleged unconstitutionality of that provision.
As an initial matter, it is important to note that no party here disputes
Santucci’s allegations that (1) he affirmatively answered Question 11 of the
Firearm Application Questionnaire, which relates to whether he has ever been
diagnosed as having a behavioral, emotional, or mental disorder, and (2) the only
reason Santucci was asked to provide a letter from a doctor stating that he was no
longer affected by such a disorder was due to his affirmative answer to Question

4

Santucci also, briefly, argues that his right to Equal Protection has been violated. Dkt. No. 5-1
at 14-15. The argument, however, is far too conclusory and undeveloped for the Court to assess
at this juncture whether Santucci has a likelihood of success on the same. Therefore, the Court
does not further address his Equal Protection claim.
13

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11. With those two undisputed facts in mind, there is no basis in the record for
Santucci to have been asked to provide the doctor’s letter or even, at least under
Section 134-7, for Santucci to have been told to turn over his firearms. The
reason is simple: pursuant to Section 134-7, an affirmative answer to Question 11
does not render Santucci ineligible for gun registration or ownership. And no one
really disputes that. See Dkt. No. 26 at 8-9 (Honolulu noting that Question 11
misses “critical language” from Section 134-7); Dkt. No. 28 at 14 (Attorney
General agreeing that an applicant “would not be disqualified” unless he has been
diagnosed as having a significant behavioral, emotional, or mental disorder).
Therefore, given that Santucci’s affirmative answer is undisputedly the sole reason
he was asked to provide the doctor’s letter, that request cannot stand.
Honolulu nonetheless offers some push-back. Principally, although
Question 11 provides no basis under Hawai‘i law to do so, Honolulu argues that it
was “required by law” to ask Santucci to submit the doctor’s letter. Dkt. No. 26 at
9. Honolulu does so, not by pointing to Section 134-7, but, instead, Section 1343, which Honolulu contends provides for the registration of firearms on forms
prescribed by the Attorney General. Id. at 10. Honolulu argues that, because it is
statutorily required to use a form prescribed by the Attorney General−here, the
Firearm Application Questionnaire−it was required to ask for a doctor’s letter from
14

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Santucci following his affirmative answer to Question 11. Id. at 9-10. Only part
of what Honolulu asserts, however, is true. That Section 134-3 mandates the
“registration of all firearms . . . on forms prescribed by the attorney general….” is
certainly true. See Haw. Rev. Stat. § 134-3(b). The part that is not true, though,
is that Honolulu was required to ask for a doctor’s letter after an affirmative
answer to Question 11. Honolulu cites no support for that proposition because, as
explained above, there is none. Notably, the only statutory mandate Honolulu is
following in this regard is in using the form prescribed by the Attorney General.
The form itself nowhere mentions the supposed requisite submission of a doctor’s
letter in follow-up to a response to any specific question. In demanding a doctor’s
letter that Santucci is no longer affected by a behavioral or mental disorder,
Honolulu is noticeably ignoring Section 134-7’s mandate that only significant such
disorders may require a doctor’s letter to show an applicant’s entitlement to
register.5

5

To be clear, the Court is not unsympathetic to the position in which Honolulu has been placed
by the Attorney General’s unexplained, and likely unexplainable, reason for not revising the
Firearm Application Questionnaire to reflect the current language of Section 134-7. The
Attorney General’s inaction appears particularly unexplainable, given that, according to her,
although Section 134-7 has been amended in the past, the language requiring a behavioral or
mental disorder to be significant has existed since at least 1981. See Dkt. No. 28 at 2.
Ultimately, however, it is not Santucci’s fault that Question 11 of the Firearm Application
Questionnaire ignores the language of Section 134-7 to his detriment. Moreover, it is not this
Court’s role to allow Honolulu’s enforcement of the Attorney General’s inaction to continue
simply because Honolulu is concerned about its potential liability. It is simply this Court’s role
15

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The remaining preliminary injunction factors also favor Santucci on this
specific issue. As for irreparable harm, Santucci is harmed by being asked to
provide documentation from his doctor that Section 134-7 does not require him to
provide. This harm is irreparable because, as the July 2021 Letter states, “[n]o
further action will be taken on your application until the required letter is
received.” In other words, Santucci will not be able to register (or recover) his
firearms until he provides the “required” letter, which, as discussed, is not required
by Hawai‘i law. 6 As for the public interest and balance of the equities,7 the public
interest is best reflected in the statutory language passed by the public’s
representatives in the Hawai‘i Legislature. Specifically, there is a public interest
in precluding from firearm registration individuals who have been diagnosed with
and remain adversely affected by a significant behavioral, emotional, or mental
disorder. As discussed, an affirmative answer to Question 11 does not address
that interest. There is, thus, no public interest in precluding an individual from
registering firearms based solely on his answer to the question in its present form.

to address what the law is and, here, the law is that an affirmative answer to Question 11 does
not alone preclude Santucci from registering his firearms.
6
In addition, contrary to Honolulu’s assertion, Dkt. No. 26 at 15, it is unclear how monetary
damages can compensate Santucci for having to comply with an instruction that is not required
by Hawai‘i law.
7
These factors merge here because the government is a party. Nken v. Holder, 556 U.S. 418,
435 (2009).
16

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Similarly, it is in the public interest to have the language of Hawai‘i law enforced,
as written in the statute, as opposed to in the flawed language of Question 11. Cf.
Rodriguez v. Robbins, 715 F.3d 1127, 1146 (9th Cir. 2013) (explaining that the
public interest is benefited by construing statutes “in a manner that avoids serious
constitutional questions[,]” even if such construction may impose burden on the
government).
In this light, the Court finds that Santucci is not precluded from registering
his firearms solely because of his affirmative answer to Question 11. He is also
not required to provide a doctor’s letter stating that he is no longer adversely
affected by a behavioral, emotional, or mental disorder. As a result, given that
there are no reasons other than Santucci’s answer to Question 11 for failing to
register his firearms, Honolulu is ordered to (1) return to Santucci his firearms
within 15 days of this Order, and (2) complete the registration of Santucci’s
firearms, pursuant to Section 134-3, within 60 days, unless good cause is shown
for an extension of time.
In addition, going forward, Honolulu is preliminarily enjoined from (1)
requiring an applicant for firearm registration to provide written certification from
a licensed psychologist, psychiatrist, or medical doctor, or (2) otherwise taking no
further action on an application to register firearms, solely due to an affirmative
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answer to Question 11, as currently written, on the Firearm Application
Questionnaire. 89 Therefore, with respect to the foregoing, the motion for
preliminary injunction is GRANTED, and the motion to dismiss is DENIED.
Santucci also argues that his private personal information has been disclosed
in violation of the Second Amendment and Due Process. The personal
information and disclosures at issue are (1) a medical waiver provided to Honolulu
to access records related to his mental health, and (2) informing his doctor that he
is purchasing a firearm. The Court addresses each in turn.
First, Santucci argues that the disclosure of his medical information is not
“tailored” to Honolulu’s rationale for the same. That is because, although
Honolulu’s purported reasoning is to determine whether a person has been
diagnosed with a significant mental illness, an applicant’s doctor is required to

8

The Court notes that in neither the Complaint nor the motion for preliminary injunction does
Santucci provide specific guidance on the preliminary injunctive relief he presently seeks, other
than to generally ask for the Defendants’ conduct or Section 134-7 to be enjoined. See Compl.
at 26; Dkt. No. 5 at 2. Despite this ambiguity, the Court finds that the preliminary injunctive
relief ordered herein is appropriate, but no more than necessary, to remedy the proven deficiency
here.
9
In partially granting Santucci preliminary injunctive relief, the Court does not order any security
to be given under Fed.R.Civ.P. 65(c). In the motion for preliminary injunction, Santucci argues
that waiver of bond is appropriate. Dkt. No. 5-1 at 26-27. Neither Honolulu nor the Attorney
General responded to this argument in their oppositions, see generally Dkt. Nos. 26, 28;
therefore, the Court considers it unopposed and declines to order the giving of security. See
Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (explaining that Rule 65(c) “invests
the district court with discretion as to the amount of security required, if any.”) (quotations
omitted, emphasis in original).
18

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disclose all mental health treatment, even treatment unrelated to significant mental
illness. Dkt. No. 5-1 at 19. The Court disagrees. Notably, there is no evidence
in the record to support the assertion that an applicant’s doctor is required to
disclose information unrelated to significant mental illness. The only evidence
presented in this regard is a generic medical waiver form and a letter sent to a
doctor that is not Santucci’s doctor. See id. at 18 (citing Exhibits C and F).
Exhibit C, the medical waiver form, merely provides access to any records that
have a bearing on an applicant’s mental health “for the strict purpose of
determining [his] qualification to acquire, own, possess, or have under [his]
control, a firearm.” According to Santucci, Exhibit F is an example of the waiver
in action. See Compl. at ¶ 87. Exhibit F is a letter to a doctor that also contains a
“Request for Information.” Santucci asserts that, in this documentation, Honolulu
should only inquire whether or not an applicant has a significant behavioral,
emotional, or mental disorder. Dkt. No. 5-1 at 20. That, however, is precisely
what Exhibit F does. Specifically, the relevant question in the “Request for
Information” asks: “is the Applicant a person who…[i]s or has been diagnosed as
having a significant behavioral, emotional, or mental disorder as defined by the
most current diagnostic manual of the [APA]?” Exh. F at 4 (emphasis added).10

10

The Court notes that, on the present record, this is the one time where, in light of the statutory
19

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In other words, Exhibit F does not ask a doctor to disclose any more medical
information than Santucci himself concedes is appropriate. As a result, the Court
does not find a likelihood of success on this claim.
Second, again citing Exhibit F, Santucci “challenges the release of the fact
that he is purchasing [] a firearm to his doctor.” Dkt. No. 5-1 at 18. Exhibit F,
however, shows no such thing. Notably, as mentioned, Exhibit F is a letter that
was sent to a doctor that is not Santucci’s doctor. This is because the applicant at
issue in Exhibit F is not Santucci. See Dkt. No. 1-6 at 1. In other words, there is
no evidence in the record that Santucci’s desire to acquire or register a firearm has
been disclosed to anyone. Moreover, Santucci does not allege otherwise. See
Compl. at ¶ 87. As a result, the Court does not find any support for this claim.
Therefore, with respect to Santucci’s privacy-related claims, the motion for
preliminary injunction is DENIED.
For the same reasons, the Court also finds that Honolulu is entitled to
dismissal of Santucci’s privacy-related claims. 11 Because this is the first time that
dismissal has been sought, however, should he so choose, Santucci may amend his

language, the correct question has been asked.
11
Whether this is due to a failure to state a claim or a failure to establish a cognizable injury-infact, which relates to standing and subject matter jurisdiction, the claim is still subject to
dismissal based upon the record before the Court.
20

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PageID.474

privacy-related claims. Santucci may have until December 16, 2022 to do so.
Should he elect not to amend these claims, this action will proceed on the
remaining claims in the Complaint.
CONCLUSION
To the extent set forth herein, the motion for preliminary injunction, Dkt.
No. 5, is GRANTED IN PART and DENIED IN PART. The motion to dismiss,
Dkt. No. 19, is GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED.
Dated: November 23, 2022 at Honolulu, Hawai‘i.

___________________________
Derrick K. Watson
Chief United States District Judge

Michael Santucci v. City and County of Honolulu, et al; Civil No. 22-00142 DKWKJM; ORDER (1) GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION, AND (2)
GRANTING IN PART AND DENYING IN PART DEFENDANT CITY AND
COUNTY OF HONOLULU’S MOTION TO DISMISS

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