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Fisher v. Kealoha

United States Court of Appeals, Ninth Circuit

May 5, 2017

Kirk C. Fisher, Plaintiff-Appellant,
v.
Louis Kealoha, as an individual and in his official capacity as Honolulu Chief of Police; City and County of Honolulu, Defendants-Appellees.

          Argued and submitted February 21, 2017 Honolulu, Hawaii

         Appeal from the United States District Court for the District of Hawaii D.C. No. 1:11-cv-00589-ACK-BMK Alan C. Kay, Senior District Judge, Presiding

          Te-Hina Te-Moana Ickes (argued), Law Offices of Te-Hina Ickes, Honolulu, Hawaii; Donald L. Wilkerson, Law Office of Donald L. Wilkerson ALC, Honolulu, Hawaii; Alan Alexander Beck, Law Offices of Alan Beck, San Diego, California; for Plaintiff-Appellant.

          Curtis E. Sherwood (argued) and Sarah T. Casken, Deputies Corporation Counsel; Donna Y.L. Leong, Corporation Counsel; Department of the Corporation Counsel, Honolulu, Hawaii; for Defendants-Appellees.

          Kimberly Tsumoto Guidry and Marissa H. Luning, Department of the Attorney General, Honolulu, Hawaii, for Amicus Curiae State of Hawaii.

          Andrew E. Siegel, Covington & Burling LLP, Washington, D.C., for Amicus Curiae Brady Center to Prevent Gun Violence.

          Before: Alex Kozinski, Michael Daly Hawkins, and Carlos T. Bea, Circuit Judges.

         SUMMARY[*]

         Civil Rights

         The panel affirmed the district court's summary judgment in an action challenging the constitutionality of section 134-7 of the Hawaii Revised Statues, which prohibit plaintiff from owning or possessing firearms because of his 1997 state law conviction for harassment.

         The panel determined that although plaintiff stated that he challenged only section 134-7 of the Hawaii Revised Statute, that statute, in relevant part, merely incorporated federal law. Analyzing the federal statutes, the panel rejected plaintiff's contention that 18 U.S.C. § 922(g)(9) was unconstitutional as applied to him. The panel first held that plaintiff's argument that his harassment conviction occurred many years ago, and that he has not committed any other crimes since that time, was not meaningfully distinguishable from the argument that this court rejected in United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013).

         The panel also rejected plaintiff's argument that section 922(g)(9) is unconstitutional as applied to him because Hawaii law provides for only one of the four restoration mechanisms listed in section 921(a)(33)(B)(ii): gubernatorial pardon. The panel held that although this argument was not foreclosed by Chovan, plaintiff conceded that he had not applied for a gubernatorial pardon for his 1997 conviction. Thus, the panel concluded that plaintiff failed to avail himself of the one restoration mechanism that was available to him under Hawaii law, and therefore he was in no position to argue that Hawaii's restoration mechanisms were constitutionally insufficient.

         Ruminating, Judge Kozinksi stated that Hawaii's procedure for restoring Second Amendment rights by way of a gubernatorial pardon was notably slender and vested unbridled discretion in a government official. Judge Kozinski stated that while plaintiff's case did not require a review of Hawaii's restoration procedure, other cases will raise the issue.

          OPINION

          PER ...


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