Young v. Hawaii

Decision Date24 July 2018
Docket NumberNo. 12-17808,12-17808
Citation896 F.3d 1044
Parties George K. YOUNG, Jr., Plaintiff-Appellant, v. State of HAWAII; Neil Abercrombie, in his capacity as Governor of the State of Hawaii; David Mark Louie I, Esquire, in his capacity as State Attorney General; County of Hawaii, as a sub-agency of the State of Hawaii; William P. Kenoi, in his capacity as Mayor of the County of Hawaii; Hilo County Police Department, as a sub-agency of the County of Hawaii; Harry S. Kubojiri, in his capacity as Chief of Police; John Does, 1–25; Jane Does, 1–25; Doe Corporations, 1–5; Doe Entities, 1–5, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Alan A. Beck (argued), Law Offices of Alan Beck, San Diego, California; Stephen D. Stamboulieh, Stamboulieh Law PLL, Madison, Mississippi; for Plaintiff-Appellant.

D. Kaena Horowitz (argued), County of Hawaii Deputy Corporation Counsel; Laureen L. Martin, County of Hawaii Assistant Corporation Counsel; Office of the Corporation Counsel, Hilo, Hawaii; for Defendants-Appellees County of Hawaii, William P. Kenoi, and Harry S. Kubojiri.

Kimberly Tsumoto Guidry, First Deputy Solicitor General; Robert Tadao Nakatsuji, Deputy Solicitor General; Department of the Attorney General, Honolulu, Hawaii; for Defendant-Appellee and Amicus Curiae State of Hawaii.

No appearance for Defendants-Appellees Neil Abercrombie and David Mark Louie I.

Before: Diarmuid F. O'Scannlain, Richard R. Clifton, and Sandra S. Ikuta, Circuit Judges.

Dissent by Judge Clifton

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether the Second Amendment encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home.

I
A

George Young wishes to carry a firearm publicly for personal self-defense in the State of Hawaii. He twice in 2011 applied for a license to carry a handgun, either concealed or openly. His application was denied each time by the County of Hawaii's Chief of Police, Harry Kubojiri, because Young failed to satisfy the requirements set forth in section 134-9 of the Hawaii Revised Statutes ("H.R.S.").

Section 134-9 acts as a limited exception to the State of Hawaii's "Place[s] to Keep" statutes, which generally require that gun owners keep their firearms at their "place of business, residence, or sojourn." H.R.S. §§ 134-23, 134-24, 134-25. The exception allows citizens to obtain a license to carry a loaded handgun in public, either concealed or openly, under certain circumstances. H.R.S. § 134-9. Respecting concealed carry, section 134-9 provides that "[i]n an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property, the chief of police ... may grant a license to an applicant ... to carry a pistol or revolver and ammunition therefor concealed on the person." The chief of police may, under section 134-9, grant a license for the open carry of a loaded handgun only "[w]here the urgency or the need has been sufficiently indicated" and the applicant "is engaged in the protection of life and property." The County of Hawaii has promulgated regulations to clarify that open carry is proper only when the license-holder is "in the actual performance of his duties or within the area of his assignment." Police Dep’t of Cty. of Haw., Rules and Regulations Governing the Issuance of Licenses 10 (Oct. 22, 1997).

Absent a license under section 134-9, a person may only transport an unloaded firearm, in an enclosed container, to and from a place of repair, a target range, a licensed dealer, a firearms exhibit, a hunting ground, or a police station, H.R.S. §§ 134-23, 134-24, 134-25, 134-26, 134-27, and may only use those firearms while "actually engaged" in hunting or target shooting, H.R.S. § 134-5.

B

On June 12, 2012, Young filed this suit pro se under 42 U.S.C. § 1983 against the State of Hawaii, its then-Governor, Neil Abercrombie, and its then-Attorney General, David Louie (collectively "the State"), as well as the County of Hawaii, its then-Mayor, William Kenoi, the Hilo County Police Department, and its then-Chief of Police, Harry Kubojiri (collectively "the County"). Primarily alleging that denying his application for a handgun license violates his Second Amendment right to carry a loaded firearm in public for self-defense, Young requested, among other things, injunctive and declaratory relief from the enforcement of section 134-9's licensing requirements.

The State filed a motion to dismiss Young's claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and the County filed a motion to dismiss the claims under Rule 12(b)(6). The district court granted both. As for the State of Hawaii, the district court found Young's action to be barred by sovereign immunity. Young's action against the State officials—while not barred by sovereign immunity under Ex Parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) —was dismissed because the district court found their general oversight of the enforcement of Hawaii's laws "insufficient to establish a nexus between [such] officials and the alleged violation of [Young's] civil rights."

Dismissing Young's action against the County on the merits, the district court found that section 134-9"does not implicate activity protected by the Second Amendment," because that Amendment "establishes only a narrow individual right to keep an operable handgun at home for self-defense." In the alternative, the district court indicated that it would uphold section 134-9's open and concealed carry limitations under intermediate scrutiny. As the court reasoned, the State's "substantial interest in safeguarding the public from the inherent dangers of firearms" was reasonably furthered by policies that "enable[ ] officials to effectively differentiate between individuals who need to carry a gun for self-defense and those who do not."

Young timely appealed.1

II
A

Young's argument is straightforward: he asserts that the County has violated the Second Amendment by enforcing against him the State's limitations in section 134-9 on the open carry of firearms to those "engaged in the protection of life and property"2 and on the concealed carry of firearms to those who can demonstrate an "exceptional case."3

The County and the State respond that Young's claim is foreclosed by our en banc decision in Peruta v. County of San Diego (Peruta II ), 824 F.3d 919 (2016) (en banc), which overturned a three-judge panel's decision striking down a concealed carry licensing regime, see Peruta v. County of San Diego (Peruta I ), 742 F.3d 1144 (9th Cir. 2014).

In Peruta II , we considered a challenge to San Diego's limitations on the concealed carry of handguns outside of the home. 824 F.3d at 924. California law generally prohibits carrying firearms in public, whether concealed or openly. See Cal. Penal Code §§ 25400, 25850, 26350. But San Diego County leaves open the opportunity to carry a concealed firearm upon the demonstration of "good cause." See Peruta II , 824 F.3d at 926. Rejecting Peruta's challenge, our en banc court held that "the Second Amendment right to keep and bear arms does not include, in any degree , the right of a member of the general public to carry concealed firearms in public." Id. at 939 (emphasis added). But, as even the dissent acknowledges, our court explicitly left unresolved the question of whether the Second Amendment encompasses a right to open carry. See id . ("There may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public. The Supreme Court has not answered that question, and we do not answer it here."). Young's claim therefore picks up where Peruta's left off and presents an issue of first impression for this circuit: whether the Second Amendment encompasses a right to carry firearms openly in public for self-defense.

Our interpretation of the Second Amendment is guided by the Supreme Court's decisions in District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). In Heller , the Court invalidated a District of Columbia ban on handgun possession in the home, holding that the Second Amendment guarantees an individual right to keep a handgun in one's home for self-defense, and rejecting a collective view of the right. See 554 U.S. at 635, 128 S.Ct. 2783. Because the District of Columbia law had completely banned "the quintessential self-defense weapon" within the home, the Court saw no need to clarify further the scope of the right or the level of scrutiny it demands. See id. at 629, 128 S.Ct. 2783. "Under any of the standards of scrutiny that [the Court has] applied to enumerated constitutional rights," such a severe deprivation must fail. Id. at 628–29, 128 S.Ct. 2783.

In McDonald , the Court incorporated the Second Amendment against the States through the Fourteenth Amendment, invalidating a Chicago law that effectively banned handgun possession by residents of the city. 561 U.S. at 750, 130 S.Ct. 3020. In determining whether the pre-existing right codified by the Second Amendment was "fundamental to our scheme of ordered liberty," the Court stressed the centrality of self-defense: "Self-defense is a basic right, recognized by many legal systems from ancient times to the present day ...." Id. at 767, 130 S.Ct. 3020. Consequently, the Court held it "clear that this right is ‘deeply rooted in this Nation's history and tradition,’ " thus binding the States alongside the federal government. Id. at 768, 130 S.Ct. 3020 (quoting Washington v. Glucksberg , 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ); see also id. at 805–06, 130 S.Ct. 3020 (Thomas, J., concurring in part and concurring in the judgment) (agreeing that the Second Amendment is "fully applicable to the States," but via the Fourteenth Amendment's Privileges or Immunities Clause).

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