Kirk C. Fisher, Plaintiff-Appellant,
Louis Kealoha, as an individual and in his official capacity as Honolulu Chief of Police; City and County of Honolulu, Defendants-Appellees.
and submitted February 21, 2017 Honolulu, Hawaii
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
E. Sherwood (argued) and Sarah T. Casken, Deputies
Corporation Counsel; Donna Y.L. Leong, Corporation Counsel;
Department of the Corporation Counsel, Honolulu, Hawaii; for
Kimberly Tsumoto Guidry and Marissa H. Luning, Department of
the Attorney General, Honolulu, Hawaii, for Amicus Curiae
State of Hawaii.
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.
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.
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
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.
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.