Fotoudis v. City of Honolulu

• Decision Date: 17 September 2014
• Docket Number: Civ. No. 14–00333 JMS–RLP.
• Citation: 54 F.Supp.3d 1136
• Parties: Steve FOTOUDIS, Plaintiff, v. CITY AND COUNTY OF HONOLULU; Louis Kealoha, Chief of the Honolulu Police Department in His Official Capacity; David Louie, Attorney General of Hawaii, in His Official Capacity, Defendants.
• Court: U.S. District Court — District of Hawaii

54 F.Supp.3d 1136

Steve FOTOUDIS, Plaintiff,

v.CITY AND COUNTY OF HONOLULU; Louis Kealoha, Chief of the Honolulu Police Department in His Official Capacity; David Louie, Attorney General of Hawaii, in His Official Capacity, Defendants.

Civ. No. 14–00333 JMS–RLP.

United States District Court, D. Hawai‘i.

Signed Sept. 17, 2014.

Unconstitutional as Applied

HRS § 134–2(d)Alan A. Beck, San Diego, CA, Richard L. Holcomb, Holcomb Law, LLLC, Honolulu, HI, for Plaintiff.

Lisa W. Cataldo, Ernest H. Nomura, Office of Corporation Counsel, Kendall J. Moser, Office of the Attorney General, State of Hawaii, Honolulu, HI, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND FOR PERMANENT INJUNCTIVE RELIEF

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

Plaintiff Steve Fotoudis (“Plaintiff” or “Fotoudis”) moves for summary judgment and for permanent injunctive relief in this action challenging the constitutionality of certain provisions of Hawaii Revised Statutes (“HRS”) § 134–2(d) regarding applications for a permit to acquire firearms. Under 42 U.S.C. § 1983, Fotoudis seeks an order: (1) finding violations of constitutional rights, and (2) permanently enjoining Defendants the City and County of Honolulu (the “City”), Louis Kealoha (in his official capacity as Chief of the Honolulu Police Department) (“Kealoha”), and David Louie (in his official capacity as Attorney General of the State of Hawaii) (“Louie”) (collectively, “Defendants”) from refusing to allow Fotoudis (and other lawful permanent residents) to apply for permits to acquire firearms under HRS § 134–2(d). Based on the following, the Motion is GRANTED.

II. BACKGROUND

A. Factual Background

1. The Parties

Fotoudis is a permanent resident of the United States, living in Honolulu, Hawaii. Doc. No. 26, Verified First Amended Complaint (“FAC”) ¶ 8. According to the FAC, [b]efore moving to Hawaii, [Fotoudis] was a competitive shooter in Australia. [He] was an active member in a club of competitive shooters, has had extensive training in firearms use and safety, and has safely and lawfully possessed a number of firearms in Australia for many years.” Id. ¶ 23.

The City is a municipal corporation, incorporated under the laws of the State of Hawaii. Id. ¶ 9. Kealoha, Chief of the Honolulu Police Department, is “sued in his official capacity as a City official and/or employee who supervised, oversaw, and/or participated in the violation of Mr. Fotoudis' rights” as alleged in the FAC; and is “responsible for developing and/or enforcing the City and [State's] policies, customs, or practices” at issue. Id. ¶ 10. Similarly, Louie, as “chief legal officer and chief law enforcement officer for the State of Hawaii ... is tasked by Hawaii law to comply with, enforce, and/or defend the laws at issue.” Id. ¶ 11.

2. The Dispute

The parties have stipulated to the following facts, which the court considers to be proven for purposes of this action.¹See, e.g., United States v. Houston, 547 F.2d 104, 107 (9th Cir.1976) (“Stipulations as to material facts ... will be deemed to have been conclusively established.”).

a. Plaintiff is a lawfully admitted permanent resident of the United States who at all material times has resided in the City and County of Honolulu. Doc. No. 27, Stip. Facts ¶ 1.

b. Plaintiff holds a Form I–551 green card as well as a United States Social Security Administration Card. Id. ¶ 2.

c. Plaintiff intends to become a naturalized citizen of the United States. Id. ¶ 3.

d. Plaintiff desires to possess an operational firearm or firearms and ammunition for lawful purposes, including in his home for self-defense. Id. ¶ 4.

e. On July 10, 2014, Plaintiff went to the Honolulu Police Department and attempted to apply for a permit to acquire a firearm. Id. ¶ 5.

f. Plaintiff was not allowed to apply for a permit to acquire a firearm because he is not yet a citizen of the United States. Id. ¶ 6.

g. HRS § 134–2(d) states in pertinent part that, with limited exceptions that are inapplicable to Plaintiff, the chiefs of police of the counties in Hawaii may only issue permits to acquire firearms to citizens of the United States. Id. ¶ 7.²

B. Procedural Background

Plaintiff filed this action on July 24, 2014, seeking a temporary restraining order (“TRO”) and preliminary injunction. See Doc. Nos. 1 (Verified Compl.), 5 (Motion for TRO), 6 (Motion for Preliminary Injunction). After a July 30, 2014 status conference with the court, the parties agreed to certain relief that rendered moot the Motions for TRO and preliminary injunction. The parties also jointly requested that “the court determine the constitutionality of [HRS] § 134–2(d)” based on stipulated facts without further briefing or argument. See Doc. No. 24, Aug. 5, 2014 ltr. at 2.

Based on subsequent agreement, on August 22, 2014, Plaintiff filed the FAC, Stipulated Facts, as well as the current Motion for Summary Judgment and for Permanent Injunctive Relief. Doc. Nos. 26, 27, 29. On August 29, 2014, Louie filed an Opposition, and the City filed a statement taking no position regarding the Motion. Doc. Nos. 31, 32. Stipulated proposed language as to the scope of an injunction was provided to the court on August 29, 2014, and during a September 16, 2014 status conference the parties agreed to modify that language. See Doc. Nos. 34–36. The court determines the matter under Local Rule 7.2(d) without a hearing.

III. STANDARDS OF REVIEW

A. Summary Judgment

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir.1999).

“A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548); see also Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1079 (9th Cir.2004). “When the moving party has carried its burden under Rule 56 [ (a) ], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that a party cannot “rest upon the mere allegations or denials of his pleading” in opposing summary judgment).

“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material’ only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir.2008) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir.2008) (stating that “the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor.” (citations omitted)).

B. Permanent Injunction

“To be entitled to a permanent injunction, a plaintiff must demonstrate: (1) actual success on the merits; (2) that it has suffered an irreparable injury; (3) that remedies available at law are inadequate; (4) that the balance of hardships justify a remedy in equity; and (5) that the public interest would not be disserved by a permanent injunction.” Indep. Training & Apprenticeship Program v. Cal. Dep't of Indus. Relations, 730 F.3d 1024, 1032 (9th Cir.2013) (citing eBay Inc. v. MercExch., LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)); see also W. Watersheds Project v. Abbey, 719 F.3d 1035, 1054 (9th Cir.2013).

IV. ANALYSIS

A. Equal Protection

The undisputed facts establish that Fotoudis, as a lawful permanent resident alien of the United States (and resident of Hawaii), was denied the opportunity to apply for a permit to acquire firearms solely because of his alienage.³ This classification violates the equal protection clause of the U.S. Constitution. HRS § 134–2(d) is thus unconstitutional as-applied to Fotoudis (and other lawful permanent resident aliens), and Defendants are therefore permanently enjoined from denying Fotoudis the opportunity (1) to apply for a permit to acquire firearms, and (2) to obtain such a permit, if he otherwise meets the qualifications of state law, as specifically set forth in the Conclusion of this Order.⁴

Under HRS § 134–2(d), the “chief of police of the respective counties may issue permits to acquire firearms to citizens of the United States of the age of twenty-one years or more,” and not to “aliens” (unless the aliens are “duly commissioned law enforcement officers of the State”). Permits may also be issued (1) to “aliens of the age of eighteen years or more for use of rifles and shotguns for a period not exceeding sixty days” if they have a hunting license, or (2) to “aliens of the age of twenty-one years” for a period not to exceed six months if they are “in training for a specific organized sport-shooting contest to be held within the permit period.” Id. But the exceptions...