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Kirk C. Fisher v. Louis Kealoha

April 19, 2012

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; CITY AND COUNTY OF HONOLULU; HONOLULU POLICE DEPARTMENT; AND DOE DEFENDANTS 1-50, DEFENDANTS.



The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge

ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION FOR "PARTIAL" DISMISSAL OF THE COMPLAINT, AND GRANTING IN PART AND DENYING IN PART DEFENDANT LOUIS KEALOHA'S MOTION FOR "PARTIAL" DISMISSAL OF THE COMPLAINT

For the following reasons, the Court: (1) GRANTS Defendant City and County of Honolulu's Motion for "Partial" Dismissal of the Complaint; and (2) GRANTS in part and DENIES in part Defendant Kealoha's Motion for "Partial" Dismissal of the Complaint. Plaintiff is granted leave to amend the Complaint, except as to Count II (against all Defendants) insofar as it is based upon violation of the Fifth Amendment, and as to Plaintiff's claims against HPD, both of which are dismissed with prejudice.*fn1

I. PROCEDURAL BACKGROUND

This case concerns Plaintiff's contention that his application for a permit to acquire firearms was wrongly denied based upon his prior conviction for two counts of harassment. See Compl. ¶¶ 2, 4, 25. Plaintiff names the following defendants in his Complaint: 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); City and County of Honolulu; Honolulu Police Department; and Doe Defendants 1-50 (collectively, the "Defendants").

The crux of this case is Plaintiff's allegation that Defendants have propagated customs, policies, and practices that violate Plaintiff's rights guaranteed by the Second, Fifth, and Fourteenth Amendments of the United States Constitution. Id. ¶¶ 50, 54. Namely, Plaintiff alleges that he was deprived of his Second Amendment right to bear arms, and of the minimal due process protections guaranteed by the Fifth and Fourteenth Amendments, when Defendants denied his application for a permit to acquire firearms some ten years after he had been convicted of harassment in Hawaii State Court. Id.

There are two separate motions pending: (1) Defendant City and County of Honolulu's Amended Motion for "Partial" Dismissal of the Complaint (erroneously called a motion for partial dismissal) (hereinafter, the "City Motion to Dismiss"); and (2) Defendant Kealoha's Motion for "Partial" Dismissal of the Complaint (again, erroneously called a motion for partial dismissal) (hereinafter, "Kealoha's Motion to Dismiss"). (Doc. Nos. 10, 16.)

Plaintiff filed the Complaint on September 28, 2011, alleging deprivation of civil rights and seeking the following relief: an order compelling Defendants to issue a permit authorizing Plaintiff to keep and bear arms; general and special damages; punitive and/or exemplary damages; attorneys' fees, costs, prejudgment and post-judgment interest; and attorneys' fees and costs pursuant to 42 U.S.C. § 1988. Compl. at 16. On December 9, 2011, Defendant City and County of Honolulu (hereinafter, "City") filed a Motion for "Partial" Dismissal of the Complaint, as well as a memorandum in support of the motion. (Doc. No. 6.) On January 4, 2012, City filed an amended motion -the City Motion to Dismiss - as well as a memorandum in support of the motion (Doc. No. 10-1, hereinafter, the "City MTD Mem."). Defendant Kealoha filed a separate motion - Kealoha's Motion to Dismiss - on January 24, 2012, as well as a memorandum in support of his motion (Doc. No. 16-1, hereinafter, "Kealoha's MTD Mem.").

On March 19, 2012, Plaintiff filed a Memorandum in Opposition to City's Amended Motion for "Partial" Dismissal of the Complaint (Doc. No. 19, hereinafter "P's City Opp. Mem."), as well as a separate Memorandum in Opposition to Defendant Louis Kealoha's Motion for "Partial" Dismissal of the Complaint (Doc. No. 20, hereinafter "P's Kealoha Opp. Mem."). On March 26, 2012, Defendants City and Kealoha submitted a joint Reply Memorandum to Plaintiff's Oppositions to the Motions for "Partial" Dismissal of the Complaint. (Doc. No. 23, hereinafter "Defs' Joint Reply Mem.".)

Plaintiff also filed a Motion for a Preliminary Injunction and a supporting memorandum on March 19, 2012. (Doc. No. 18.) However, this motion is set to be heard separately at a hearing on June 4, 2012, and is not addressed in this Order.

The Court held a hearing on these motions on Monday, April 9, 2012, and addresses the motions together herein.

II. FACTUAL BACKGROUND*fn2

The history of this case dates back to November 5, 1997, when Plaintiff was arrested on two counts of harassment in violation of Hawaii Revised Statutes ("H.R.S.") § 711-1106(1)(a). Compl. ¶ 15.*fn3 This statute provides, 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).*fn4 The underlying State Court complaint against Plaintiff alleges that on or about November 5, 1997, "with intent to harass, annoy, or alarm Collette Fisher, [Plaintiff] did strike, shove, kick, or otherwise touch Collette 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 Hawaii v. Kirk C. Fisher, FC-CR No. 97-3233, Compl. p. 1.) In Count II, the complaint sets forth the same allegations with respect to victim Nicole Fisher. Id. Plaintiff owned firearms on or around this time, and transferred those firearms to Defendant Honolulu Police Department (hereinafter, "HPD") pursuant to the Family Court Order implementing H.R.S. §§806-11 and 134-7. Compl. ¶ 17.

On December 3, 1997, Plaintiff pled guilty to two counts of Harassment in the Family Court of the First Circuit, State of Hawaii, in the case of State of Hawaii v. Kirk C. Fisher, FC-CR No. 97-3233. Id. ¶ 18.*fn5 Plaintiff acknowledges that he had a domestic relationship with the victims. See Compl. ¶¶ 16, 26. Plaintiff was placed on probation for a period of six months, and was ordered to surrender all firearms, ammunition, permits and licenses to HPD pursuant to the order in that case. Id. ¶¶ 18, 20.

On November 4, 1998, the Family Court of the First Circuit, State of Hawaii, issued an Order Permitting Return of Firearms, Ammunition, Permits and Licenses, With Conditions. Id. ¶ 20. The order provided:

IT IS HEREBY ORDERED that Honolulu Police Department shall return to [Plaintiff] all firearms and ammunition which were surrendered pursuant to the above-mentioned court order, provided that the provisions of H.R.S. Chapter 134 are satisfied and that there are no outstanding state or federal restraining orders, prohibitions under H.R.S. Section 134-7 or the Violence Against Women Act of 1994 (18 U.S.C. Section 2265 et. seq. and section 922(g)(9), or other outstanding federal or state (H.R.S. Section [sic] 804-7.1) court orders against [Plaintiff] which would prohibit [Plaintiff's] possession or control of firearms and ammunition. In the event that any permits or licenses were revoked, said permits or licenses shall be reissued by the Honolulu Police Department, but only to the extent of the original expiration date of such permits or licenses.

Id. (emphasis added). Following the issuance of this order, HPD promptly returned Plaintiff's firearms. Id. ¶ 21.

More than ten years later, in fall 2009, Plaintiff applied to HPD for a permit to acquire an additional firearm.

Id. ¶ 22. In a letter dated October 1, 2009, Defendant Paul Putzulu -- then Acting Chief of Police - informed Plaintiff that he was disqualified from firearms ownership or possession under the provisions of H.R.S. § 134-7, and directed Plaintiff to voluntarily surrender to the Chief of Police or otherwise lawfully dispose of all firearms and ammunition in his possession within 30 days of receipt of the letter. Id. ¶¶ 23-24. Plaintiff promptly contacted HPD and was informed that the denial was based upon his prior conviction for harassment in State of Hawaii v. Kirk C. Fisher, FC-CR No. 97-3233. Id. ¶ 25. Additionally, Plaintiff alleges, HPD informed Plaintiff that it was HPD's "custom, practice and policy to review the police reports to determine whether or not a defendant's alleged crime was a crime of violence." Id. Plaintiff subsequently transferred ownership and possession of all of his firearms to his wife, Collette Fisher, after she obtained permits. Id. ¶ 26. H.R.S. Section 134-7 provides in relevant part:

(b) No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.

H.R.S. § 134-7(b) (emphasis added). The text of Section 134-7(b) has remained unchanged since the time of Plaintiff's guilty plea, sentencing, and the order returning his firearms in 1997-98. See H.R.S. § 134-7(b).*fn6 The term "crime of violence" is defined as "any offense, as defined in title 37, that involves injury or threat of injury to the person of another." H.R.S. § 134-1.*fn7

This definition also remains unchanged since the 1997-98 period wherein Plaintiff pled guilty and was sentenced for harassment. See H.R.S. § 134-1.

On June 10, 2010, Plaintiff submitted a Motion to Enforce Order Permitting Return of Firearms, Ammunition, Permits and Licenses, with Conditions, to the Family Court of the First Circuit, State of Hawaii FC-CR No. 97-3233. Compl. ¶ 32. This motion was denied by the state court on June 22, 2010, and no findings of fact or conclusions of law were entered. See id. ¶ 33.*fn8

On August 31, 2010, Plaintiff wrote to Defendant Kealoha requesting that the HPD grant his application for a permit to acquire firearms and rescind the prior order to surrender or dispose of his firearms. Id. ¶ 34. And on September 29, 2010, Defendant Kealoha replied to Plaintiff by re- affirming Defendant Putzulu's prior denial of the application. Id. ¶ 35.

Plaintiff contends that he is "fit and qualified to keep and bear arms," but would be subject to arrest and prosecution should he seek to exercise that right without obtaining a permit; Plaintiff would face a class C felony for unlawful ownership or possession of a firearm under H.R.S. § 134-7. Id. ¶¶ 36-38. Plaintiff further alleges that the Chief of Police is not vested with any discretion to deny a permit if an applicant meets the objective criteria contained in H.R.S. §§ 134-2 and 134-7. Id. ¶ 42.*fn9 Additionally, Plaintiff alleges that he has no opportunity to participate in the decision-making process, nor any means to seek review of the denial of his application. Id. ¶¶ 43-44.

Plaintiff asserts two causes of actions in his Complaint: (1) violation of Plaintiff's rights guaranteed by the Second and Fourteenth Amendments, in violation of 42 U.S.C. § 1983; and (2) wrongful denial of his application for a permit to acquire firearms pursuant to H.R.S. § 134-2 without minimal due process protection, as guaranteed by the Second, Fifth and Fourteenth Amendments, and in violation of 42 U.S.C. § 1983. Id. ¶¶ 47-57.

III. STANDARD OF REVIEW

Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") permits dismissal of a complaint that fails "to state a claim upon which relief can be granted." Under Rule 12(b)(6), review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). Courts may also "consider certain materials - documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice - without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Documents whose contents are alleged in a complaint and whose authenticity is not questioned by any party may also be considered in ruling on a Rule 12(b)(6) motion to dismiss. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

On a Rule 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. See Sprewell, 266 F.3d at 988; Nat'l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000); In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996). Moreover, the court need not accept as true allegations that contradict matters properly subject to judicial notice or allegations contradicting the exhibits attached to the complaint. Sprewell, 266 F.3d at 988.

In summary, to survive a Rule 12(b)(6) motion to dismiss, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotations omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal citations and quotations omitted). Dismissal is appropriate under Rule 12(b)(6) if the facts alleged do not state a claim that is "plausible on its face." Id. at 570. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. (quoting Fed. R. Civ. P. 8(a)(2)).

"Dismissal without leave to amend is improper unless it is clear that the complaint could not be saved by any amendment." Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (internal quotation marks omitted). "But courts have discretion to deny leave to amend a complaint for futility, and futility includes the inevitability of a claim's defeat on summary judgment." Johnson v. Am. ...


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