Fisher v. Kealoha
| Citation | 49 F.Supp.3d 727 |
| Decision Date | 18 July 2014 |
| Docket Number | Civ. No. 11–00589 ACK–BMK. |
| Court | U.S. District Court — District of Hawaii |
| 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. |
Donald L. Wilkerson, Te–Hina Te–Moana Ickes, Honolulu, HI, for Plaintiff.
Lisa W. Cataldo, Marguerite S. Nozaki, Office of Corporation Counsel, Honolulu, HI, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR RECONSIDERATION
On September 28, 2011, Plaintiff Kirk Fisher filed a Complaint against Defendants Louis Kealoha, Paul Putzulu, the City and County of Honolulu (“City”), and the Honolulu Police Department (“HPD”). (Doc. No. 1.) Plaintiff asserted two claims against Defendants for alleged violations of his Second, Fifth, and Fourteenth Amendment rights regarding his firearms and attempt to obtain a firearms permit. (Compl. ¶¶ 47–57.)
On December 9, 2011, and January 24, 2012, respectively, the City and Kealoha filed motions for “partial” dismissal of the Complaint. (Doc. Nos. 6 & 16.) On April 19, 2012, 869 F.Supp.2d 1203 (D.Hawai'i 2012), the 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 HPD with prejudice; and (4) dismissed Plaintiff's Fifth Amendment claims with prejudice. (Doc. No. 25.)
On June 14, 2012, Plaintiff filed the operative Amended Complaint against Kealoha as an individual and in his official capacity, Putzulu as an individual and in his official capacity, and the City.1 (Doc. 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 Amendment[ ] to the United States Constitution and 42 U.S.C. § 1983 Against All Defendants.” (Id. )
On March 19, 2012, Plaintiff filed a Motion for Preliminary Injunction. (Doc. No. 18.) On June 29, 2012, the Court issued an order granting Plaintiff's Motion for Preliminary Injunction (“2012 Preliminary Injunction Order”). (Doc. No. 35.) The Court's injunction directed Kealoha to “rescind the prior denial of Plaintiff's permit to acquire firearms and to issue a permit authorizing Plaintiff to acquire firearms.” 2012 Preliminary Injunction Order at 36. Kealoha and the City (collectively, “Defendants”) filed a Motion for Reconsideration, which the Court subsequently denied. (Doc. Nos. 39 & 50.)
On February 25, 2013, Plaintiff filed a Motion for Summary Judgment and a Motion for Permanent Injunction. (Doc. Nos. 75 & 77.) On September 30, 2013, 976 F.Supp.2d 1200 (D.Hawai'i 2013), the Court issued an “Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgment and Denying Plaintiff's Motion for Permanent Injunction.” (Doc. No. 111 (“Sept. 30 Order”).) In the Sept. 30 Order, the Court granted in part Plaintiff's Motion for Summary Judgment regarding whether Plaintiff's prior harassment convictions prohibit him from acquiring a firearms permit pursuant to 18 U.S.C. § 922(g)(9), Haw.Rev.Stat. § 134–7(a), and Haw.Rev.Stat. § 134–7(b) ; denied in part Plaintiff's Motion for Summary Judgment regarding whether Plaintiff is prohibited from acquiring a firearms permit pursuant to Haw.Rev.Stat. § 134–7(c) ; and denied Plaintiff's Motion for Permanent Injunction. Sept. 30 Order at 1227–28.
On April 2, 2014, Defendants filed the instant Motion for Summary Judgment or, in the Alternative, Motion for Reconsideration (“Motion” or “Defs.'s Mot.”), along with a concise statement of facts. (Doc. Nos. 115 & 116.) On May 23, 2014, Plaintiff filed an Opposition to Defendants' Motion (“Opposition” or “Pl.'s Opp.”), along with a concise statement of facts. (Doc. Nos. 124 & 125.) On June 2, 2014, Defendants filed a Reply (“Reply” or “Defs.'s Reply”), along with a Separate and Concise Statement of Facts in Support of Reply and Objections to Plaintiff's Concise Statement of Facts. (Doc. Nos.127–128.) On June 14, 2014, Plaintiff filed a Motion for Leave to File Additional Exhibits to Supplement Plaintiff's Concise Statement of Facts. (Doc. No. 130.) Plaintiff attached two exhibits to his Motion for Leave to File. (Doc. Nos. 130–2 & 130–3.)2
Amicus curiae Hawaii Defense Foundation (“HDF”) requested to file a brief regarding Defendants' Motion. On April 6, 2014, HDF filed a Motion to File Supplemental Amicus Brief. (Doc. No. 119.) HDF attached a twelve-page supplemental amicus brief to its Motion to File. (Doc. No. 119–1.) On April 7, 2014, HDF filed an Errata in order to attach a copy of an academic study to its supplemental amicus brief. (Doc. No. 120.) On April 10, 2014, the Court issued a minute order granting the Motion to File a supplemental amicus brief. (Doc. No. 121.) On April 10, 2014, after the Court issued its minute order, HDF filed a second, sixteen-page supplemental amicus brief (“HDF's April 10 Supp. Brief”). (Doc. No. 122.) On April 23, 2014, HDF filed a Notice of Supplemental Authority. (Doc. No. 123.)
The Court held a hearing regarding Defendants' Motion on June 16, 2014. At the hearing Plaintiff acknowledged that HDF raised issues in its supplemental amicus brief, which Plaintiff had not raised in his Amended Complaint, Opposition, or by way of argument at the hearing. Several hours after the hearing Plaintiff filed a Motion to Incorporate and Reference in its Entirety HDF's supplemental amicus brief. (Doc. No. 132.) At the hearing Defendants requested that, if the Court were to consider arguments raised only by HDF, Defendants be given an opportunity to file a brief in response. Defendants noted in their Reply that it was inappropriate for an amicus curiae to raise issues that had not been raised by the parties. (Reply at 10 (citing Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 719 (9th Cir.2003) ); see also Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir.1993) ).
In light of these circumstances, the Court determined that it will sua sponte in its discretion consider issues raised by HDF, and will allow Defendants to file a brief in response. (Doc. No. 134 (“June 20, 2014 Minute Order”).) On the other hand, the Court did not allow HDF and Plaintiff to file further briefing since they had already taken the opportunity to raise and address the subject issues. (Id. )
On July 7, 2014, Defendants filed a supplemental brief (“Defs.'s Supp. Brief”). (Doc. No. 136.)
On November 5, 1997, Plaintiff was arrested for two counts of harassment in violation of H.R.S. § 711–1106(1)(a). That statute provides, in relevant part:
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.” (Doc. 39–4 (“State of Hawaii v. Kirk C. Fisher, FC–CR No. 97–3233”) at 1.)3 At the time of the 1997 incident to the present, Colette Fisher has been Plaintiff's wife. (Am. Compl. ¶ 24; Doc. 99–2 (“Deposition of Kirk C. Fisher”) at 9–10.) A second count in the state court complaint contains the same allegations with respect to Nicole Fisher, Plaintiff's daughter. (Doc. 39–4 at 1–2.)
On December 3, 1997, Plaintiff pled guilty to two counts of harassment in the Family Court of the First Circuit, State of Hawaii, and was sentenced to six months of probation. (Defs.'s CSF at 2, ¶ 2.) 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.” (Id. Ex. C.) Around February 1998, Plaintiff completed a “Twelve Hour Drug and Alcohol Education Course” presented by the “Hawaii Alcohol and Drug Safety Action Program.” (Id. Ex. F.) While the record does not indicate the substance underlying Plaintiff's probation requirement to attend the Drug and Alcohol Education Course; this Court noted in its Sept. 30 Order that Plaintiff admitted in his deposition that he had been drinking alcohol ( a six-pack of beer) on the day of the alleged domestic violence incident. Sept. 30 Order at 1205 n. 8.
In connection with his convictions, Plaintiff was ordered to surrender all firearms, ammunition, permits, and licenses to HPD. (Defs.'s CSF Ex. D.) On November 4, 1998, state judge Dan Kochi issued an “Order Permitting Return of Firearms, Ammunition, Permits and Licenses, With Conditions.” (Id. Ex. E.) The order stated that HPD should return Plaintiff's firearms and ammunition “provided that the provisions of H.R.S. Chapter 134 are satisfied and there are no ... prohibitions under H.R.S. Section 134–7... or a conviction of a misdemeanor crime of [domestic] violence under 18 U.S.C. section 922(g)(9).” (Id. ) HPD promptly returned Plaintiff's firearms as a result of this order. (Defs.'s CSF at 3, ¶ 6.)
In the fall of 2009, Plaintiff submitted an application to HPD seeking to obtain a permit for additional firearms. (Id. at 3–4, ¶ 11.) On October 1, 2009, HPD denied Plaintiff's application via letter on the grounds that Plaintiff was disqualified under H.R.S. § 134–7. (Doc. No. 78–5.)4 HPD...
To continue reading
Request your trial
-
Fisher v. Kealoha
...49 F.Supp.3d 727Kirk 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. 1......