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Kirk C. Fisher v. Louis Kealoha

September 11, 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, DEFENDANTS.



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

ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION

I. BACKGROUND

The factual and procedural history of this case is set forth in detail in the Court's June 29, 2012 Order Granting Plaintiff Kirk C. Fisher's Motion for a Preliminary Injunction, and the Court does not restate it herein. (See Doc. No. 35, the "Preliminary Injunction Order.") This action arises out of Plaintiff's contention that Defendants deliberately denied him of his constitutional right to keep and bear arms based upon an erroneous finding that a 1997 Hawaii state court conviction for Harassment disqualified him from gun ownership. (See generally Compl.) Currently before the Court is the City Defendants' Motion for Reconsideration of the Preliminary Injunction Order, wherein the Court granted Plaintiff's Motion for a Preliminary Injunction and ordered Defendant Kealoha to rescind the prior denial of Plaintiff's permit to acquire firearms and to issue a permit authorizing Plaintiff to acquire firearms.*fn1

The Court held a hearing on Plaintiff's Motion for a Preliminary Injunction on Thursday, June 14, 2012. At 9:09 a.m. that morning, Plaintiff dilatorily filed an Amended Complaint, which neither the Court nor Defendants had an opportunity to review prior to the hearing which commenced at approximately 10:00 a.m. (See Rough Tr. of Jun. 14, 2012 Hearing, at 1-3; Doc. No. 31.) Counsel for Defendants nevertheless stated that he was prepared to go ahead with the hearing on the Motion for Preliminary Injunction and submit arguments on the same. (Rough Tr. of Jun. 14, 2012 Hearing, at 1-3.) On June 29, 2012, following the Court's review of supplemental briefings from the parties, the Court granted Plaintiff's Motion for a Preliminary Injunction.

Defendants filed a Motion for Reconsideration of the Preliminary Injunction Order on July 27, 2012.*fn2 (Doc. No. 39, hereinafter "Reconsideration Motion.") Plaintiff responded with an untimely opposition memorandum on August 24, 2012.*fn3 (Doc. No. 45.) On August 31, 2012, Defendants filed a Reply in support of their Reconsideration Motion. (Doc. No. 46.) The Court finds this matter suitable for disposition without a hearing pursuant to Local Rule 7.2(e).

II. STANDARD OF REVIEW

Motion for Reconsideration

Pursuant to Local Rule 60.1, a motion for reconsideration of an interlocutory order may only be brought if there has been a discovery of new material facts not previously available, an intervening change in law, or a manifest error of law or fact. See L.R. 60.1. Motions for reconsideration asserting a manifest error of law or fact must be made not more than fourteen days after the Court's written order is filed. Id.

A "motion for reconsideration must accomplish two goals. First, a motion for reconsideration must demonstrate reasons why the court should reconsider its prior decision. Second, a motion for reconsideration must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Donaldson v. Liberty Mut. Ins. Co., 947 F. Supp. 429, 430 (D. Haw. 1996); Na Mamo O 'Aha 'Ino v. Galiher, 60 F. Supp. 2d 1058, 1059 (D. Haw. 1999) (citation omitted). Only three grounds justify reconsideration: (1) an intervening change in controlling law; (2) the discovery of new evidence not previously available; and (3) the need to correct clear or manifest error in law or fact in order to prevent manifest injustice. See Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1178--79 (9th Cir. 1998). "Whether or not to grant reconsideration is committed to the sound discretion of the court." Navajo Nation v. Confederated Tribes & Bands of the Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003) (citation omitted).

III. DISCUSSION

In their Motion for Reconsideration, the City Defendants contend that the Court committed error with respect to two distinct rulings: (1) by not permitting the City Defendants an opportunity to present evidence that Plaintiff's conviction for Harassment was in fact a crime of domestic violence; and (2) failing to employ or consider the "modified categorical approach" to determine whether Plaintiff's offense constitutes, or may constitute, a crime of violence, thus disqualifying Plaintiff from possession of firearms. (Mot. for Recon. at 1-2.) The City Defendants also challenge the Court's ruling on policy grounds, and request that the Court certify to the Hawaii Supreme Court the question of whether a conviction of Harassment under H.R.S. § 711-1106(1)(a) in the Family Court constitutes a "crime of violence." The Court considers each of the City Defendants' arguments, as well as Plaintiff's response, in turn.

A. The City Defendants' Opportunity to be Heard

The City Defendants contend that at the time of the hearing on Plaintiff's Motion for a Preliminary Injunction, they did not have a full opportunity to be heard for two reasons: (1) they had not filed an answer to the Amended Complaint, which Plaintiff in fact filed less than one hour before the hearing; and (2) Plaintiff failed to file initial disclosures, resulting in the City Defendants' inability to gather evidence needed to develop their defense. (Mot. for Recon. at 5-6.) Further, the City Defendants assert that they have not had an opportunity to conduct significant discovery upon Plaintiff nor take his deposition. Id. at 6. At this juncture, the City Defendants seek an opportunity to present evidence supporting their position that Plaintiff's conviction for harassment statutorily disqualified him from possessing firearms, and they attach portions of Plaintiff's underlying criminal record for his conviction in FC-CR 97-3233 in support of their assertion that Harassment clearly constitutes a "crime of violence" pursuant to H.R.S. § 134-7. Id.

Plaintiff replies that the City Defendants were in fact given nearly three months to prepare for the hearing on Plaintiff's Motion for Preliminary Injunction, which was continued after all parties stipulated to an extension of time within which the City Defendants were permitted to file their untimely opposition memorandum. (Opp. Mem. at 7.) During those three months, the City Defendants had "ample opportunity" to propound discovery requests upon and depose Plaintiff, as well as subpoena documents from HPD and/or the Hawaii State Judiciary, among other things. Id. Plaintiff asserts that the portions of his criminal record from his conviction in FC-CR 97-3233 and the declaration from Deputy Prosecuting Attorney Charlene Ikeda are ...


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