Fisher v. Kealoha

• Decision Date: 30 September 2013
• Docket Number: Civ. No. 11–00589 ACK–BMK.
• Citation: 976 F.Supp.2d 1200
• Parties: Kirk C. FISHER, Plaintiff, v. Louis KEALOHA, as an individual and in his official capacity as Honolulu Chief of Police, Paul Putzulu, as an individual and in his official capacity as former acting Honolulu Chief of Police, and City and County of Honolulu, Defendants.
• Court: U.S. District Court — District of Hawaii

976 F.Supp.2d 1200

Kirk C. FISHER, Plaintiff,

v.Louis KEALOHA, as an individual and in his official capacity as Honolulu Chief of Police, Paul Putzulu, as an individual and in his official capacity as former acting Honolulu Chief of Police, and City and County of Honolulu, Defendants.

Civ. No. 11–00589 ACK–BMK.

United States District Court, D. Hawai‘i.

Sept. 30, 2013.

Donald L. Wilkerson, Te–Hina Te–Moana Ickes, Honolulu, HI, for Plaintiff.

D. Scott Dodd, Office of Corporation Counsel–Honolulu, Honolulu, HI, Alan A. Beck, San Diego, CA, Jeff Kosseff, Phillip A. Rubin, Covington & Burling LLP, Washington, DC, for Defendants.

ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND (2) DENYING PLAINTIFF'S MOTION FOR PERMANENT INJUNCTION

ALAN C. KAY, Senior District Judge.

On September 28, 2011, Plaintiff Kirk C. Fisher (“Plaintiff”) filed his Complaint against Defendants Louis Kealoha, Paul Putzulu, the City and County of Honolulu (“City”), the Honolulu Police Department (“HPD”), and Doe Defendants 1–50. Plaintiff asserted two claims against Defendants for alleged violations of his Second, Fifth, and Fourteenth Amendment rights regarding his firearms and attempts to obtain a firearms permit. Compl. ¶¶ 47–57, ECF No. 1.

The City and Kealoha filed motions for “partial” dismissal of Plaintiff's Complaint. ECF Nos. 6 & 16–1. After receiving the briefs and conducting a hearing, this Court issued an order that (1) dismissed the claims against the City without prejudice, (2) dismissed part of Plaintiff's claims against Kealoha without prejudice, (3) dismissed all claims against the HPD with prejudice, and (4) dismissed Plaintiff's Fifth Amendment claims with prejudice (“Order re Defendants' Motions to Dismiss”). ECF No. 25.

Plaintiff subsequently filed an Amended Complaint against Louis Kealoha as an individual and in his official capacity, Paul Putzulu as an individual and in his official capacity, and the City (collectively, “Defendants”).¹ ECF No. 31. The Amended Complaint contains the following two counts: “Count I–The Second and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983 Against All Defendants,” and “Count II—The Fourteenth Amendments [sic] to the United States Constitution and 42 U.S.C. § 1983 Against All Defendants.” ²Id.

On March 19, 2012, Plaintiff filed a Motion for Preliminary Injunction. ECF No. 18. After receiving the briefs and holding a hearing, the Court issued its “Order Granting Plaintiff Kirk C. Fisher's Motion for a Preliminary Injunction” on June 29, 2012 (“2012 Preliminary Injunction Order”), 2012 WL 2526923. ECF No. 35. The Court issued an injunction to Defendant Kealoha to “rescind the prior denial of Plaintiff's permit to acquire firearms and to issue a permit authorizing Plaintiff to acquire firearms.” Id. at 36. Kealoha and the City (collectively, “City Defendants”) filed a Motion for Reconsideration of the 2012 Preliminary Injunction Order (ECF No. 39), which the Court subsequently denied in its “Order Denying Defendants' Motion for Reconsideration” (“Reconsideration Order re Plaintiff's Preliminary Injunction”). ECF No. 50.

On February 25, 2013, Plaintiff filed a Motion for Summary Judgment (“MSJ”) and a Motion for Permanent Injunction (“MPI”). ECF Nos. 75 & 77. Plaintiff also filed a Concise Statement of Facts in support of his MSJ. ECF No. 78. The City Defendants filed their Memorandum in Opposition and Concise Statement of Facts on July 22, 2013. ECF Nos. 89 & 90. Included on page three of the City Defendants' Opposition is a brief request that the Court grant summary judgment in favor of the City Defendants under Local Rule 56.1(i). ECF No. 89. Plaintiff filed his Reply on July 29, 2013. ECF No. 97. The Court set a hearing date for August 12, 2013. ECF No. 80.³

There are also two amici who requested to file briefs and to appear at the August 12, 2013 hearing regarding Plaintiff's MSJ and MPI. On December 20, 2012, the Hawaii Defense Foundation (“HDF”) filed a Motion for Leave to File Amicus Curiae Brief, which was subsequently granted by the Court. ECF Nos. 67, 69, 70, 72.⁴ On July 12, 2013, the Brady Center to Prevent Gun Violence (“Brady Center”) filed a Motion for Leave to File Amicus Curiae Brief, which was also granted by the Court. ECF Nos. 87 & 91.

HDF filed its brief on February 1, 2013. ECF No. 73. The Brady Center filed a brief on July 23, 2013. ECF No. 93. HDF also filed a Notice of Supplemental Authority on July 23, 2013. ECF No. 92.

On August 8, 2013, two business days before the hearing, the City Defendants filed a Motion for Leave to File Document Consisting of an Additional Exhibit. ECF No. 99. The Exhibit submitted by the City Defendants was Plaintiff's deposition transcript from his April 17, 2013 deposition. Id. Plaintiff filed an Opposition to the City Defendants' Motion for Leave on August 9, 2013. ECF No. 100.

On August 12, 2013, the Court held a hearing regarding Plaintiff's Motion for Summary Judgment, Motion for Permanent Injunction, and the City Defendants' Motion for Leave to File Document Consisting of an Additional Exhibit. ECF No. 101. Because all parties failed in their briefs to address Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), a Supreme Court case the Court found to be controlling regarding Plaintiff's motions, the Court ordered the parties to submit supplemental briefing. ECF No. 102. As a result, the Court moved the hearing regarding Plaintiff's motions to September 17, 2013. Id. The Court also granted the City Defendants' Motion for Leave to File and allowed them to submit Plaintiff's deposition after finding that (1) the document addressed several important matters before the Court and (2) Plaintiff would have a chance to respond and suffered no prejudice. Id. The Court denied the City Defendants' request that the Court grant summary judgment in their favor under Local Rule 56.1(i) because the request had been made only three weeks before the hearing and had not been sufficiently briefed, and Plaintiff did not have sufficient notice to oppose the motion. Id.

In compliance with this Court's August 12, 2013 minute order, Plaintiff, City Defendants, the Brady Center, and HDF filed supplemental briefs. ECF Nos. 105, 106, 104, and 103. The Court held another hearing regarding Plaintiff's Motion for Summary Judgment and Motion for Permanent Injunction on September 17, 2013. ECF No. 109.

FACTUAL BACKGROUND

On November 5, 1997, Plaintiff was arrested for two counts of harassment in violation of Hawai'i Revised Statutes (“H.R.S.”) § 711–1106(1)(a). Defs.' Mtn. for Recon. Ex. B, ECF No. 39–5.⁵ The statute states, 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).⁶

The state court complaint against Plaintiff alleges that, on or about November 5, 1997, “[Plaintiff], with intent to harass, annoy, or alarm Colette Fisher, did strike, shove, kick, or otherwise touch Colette Fisher in an offensive manner, or subject her to offensive physical contact, thereby committing the petty misdemeanor offense of harassment in violation of Section 711–1106(1)(a) of the Hawaii Revised Statutes.” State of Hawai'i v. Kirk C. Fisher, FC–CR No. 97–3233, Compl. p. 1. At the time of the 1997 incident to the present, Colette Fisher has been Plaintiff's wife. Am. Compl. at 8, ¶ 24, ECF No. 31; Deposition of Kirk C. Fisher at 9–10, ECF No. 99–2. A second count in the complaint contains the same allegations with respect to Nicole Fisher, Plaintiff's daughter. Id.

On December 3, 1997, Plaintiff pled guilty to two counts of harassment in the Family Court of the First Circuit, State of Hawai'i and was sentenced to six months of probation. Decl. of Kirk C. Fisher, ¶ 3, ECF No. 78–1.⁷ As part of the terms of his probation, the judge ordered Plaintiff “to attend substance abuse assessment and ... participate in counseling and/or treatment until clinically discharged or as directed by the probation officer.” Defs.' Mtn. for Recon. Ex. C, ECF No. 39–6. Plaintiff evidently received a certificate of completion stating that he completed a “Twelve Hour Drug and Alcohol Education Course.” ⁸Id. at Ex. E, ECF No. 39–8.

In connection with his conviction, Plaintiff was also ordered to surrender all firearms, ammunition, permits, and licenses to HPD. Defs.' Mtn. for Recon. Ex. D, ECF No. 39–7. On November 4, 1998, state judge Dan Kochi issued an “Order Permitting Return of Firearms, Ammunition, Permits and Licenses, With Condition.” Plntf.'s CSF Ex. 2, ECF No. 78–4. The order stated, in relevant part, that the HPD should return Plaintiff's firearms and ammunition “provided that the provisions of H.R.S. Chapter 134 are satisfied and that there are no ... prohibitions under H.R.S. Section 134–7 ... or a conviction of a misdemeanor crime of violence under 18 U.S.C. section 922(g)(9).” Id. The HPD promptly returned Plaintiff's firearms as a result of this order. Defs.' Answer at ¶ 1, ECF No. 40, Am. Compl. at 7, ¶ 19, ECF No. 31.

Prior to October of 2009, Plaintiff owned and possessed firearms. Decl. of Kirk C. Fisher, ¶ 8, ECF No. 78–1. In the fall of 2009, Plaintiff submitted an application to HPD in order to obtain a permit for additional firearms. Id. On October 1, 2009, Acting Chief of Police Paul Putzulu, through subordinate Major Kurt B. Kendro, denied Plaintiff's application via letter on the grounds that Plaintiff was disqualified under H.R.S. § 134–7.⁹ Decl. of Kirk C. Fisher, ¶ 9, ECF No. 78–1; Plntf.'s CSF Ex. 3. HPD then ordered Plaintiff to surrender to the police or otherwise lawfullydispose of his firearms and ammunition within 30 days of October 1, 2009. Plntf.'s CSF Ex. 3, ECF No....