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Old March 9, 2012, 08:28 AM   #26
CowTowner
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And we also see the decision from Woollard v. Sheridan being cited.
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Old March 9, 2012, 09:40 AM   #27
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I wonder if the recent MD decision about showing "good cause" will appear in the arguements? The reasoning is clear, even if the case is limited to application in MD.

^^^Er, my question got answered...
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Old March 21, 2012, 09:37 PM   #28
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These notes are from a Mr. Sgan who was in the gallery at the hearing today.
***** I DID NOT WRITE THIS JUST REPOSTING****


Here are my notes on Judge Kay’s oral order today.

Plaintiff’s motion for preliminary injunction is denied. Plaintiff did not satisfy the four factor analysis to determine whether a preliminary injunction should issue. Plaintiff is unlikely to prevail on the merits. Plaintiff’s asserted harm is speculative. The balance of equities favors Defendants, not Plaintiff. Granting the preliminary injunction is not in the public interest.

City & County’s motion to dismiss is granted in part and denied in part. The Court dismisses HPD and Chief Kealoha in his personal capacity. Chief Kealoha is party only with respect to injunctive relief, if any.

The State’s motion for judgment on the pleadings is denied. The complaint is lengthy and not sufficiently precise. However, the court finds sufficient clarity under Ninth Circuit precedent that Plaintiff set out the various claims of the complaint.

Count 13 of the Complaint is dismissed. Injunctive relief is a prayer for relief, not an independent count or cause of action.

The City & County of Honolulu is not subject to 5th Amendment. The Fifth Amendment applies to the federal government, not a municipality.

Judge Kay’s written order will explain his reasoning.
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Here are my two cent comments from the peanut gallery.

1. At the outset of the hearing, Judge Kay asked whether the parties wanted to submit evidence in support or opposition to the preliminary injunction motion. None of the parties sought to admit further evidence in support of their position. Since Plaintiff has the burden of proof in a preliminary injunction motion, this may have been an important opportunity missed.

2. Judge Kay rejected Plaintiff’s reading of the HRS §§ 134-24, and 134-25, Place to Keep statutes, as a prohibition on in-home possession of loaded firearms, and therefore, a violation of the Supreme Court’s Heller and McDonald decisions. Judge Kay was highly critical, if not incredulous, towards Plaintiff’s statutory construction and interpretation.

3. The Court was critical of the “lumping together” of all the named defendants in the averments of the complaint. Judge Kay wants specific attribution of parties, facts, and theories of liability. He expressed his agreement with the C&C’s attorney that the complaint is excessively long. He also agreed that HPD is not “sui juris” as an entity, but is really just a department or organ of municipal government.

4. Now the good stuff with respect to the 2nd Amendment. Judge Kay is concerned about other courts staying their decisions until the 9th Circuit sitting en banc decides the Nordyke case. He asked each counsel what their position on staying this case pending a decision in the Nordyke case. The answers he got from counsel ranged from “the facts and issues in Nordyke are too different to this case” to “that case may be useful to provide an applicable standard of scrutiny to the right to keep and bear arms outside the home.” He then added that the “real issue in Nordyke” is the standard of review applicable in the Ninth Circuit. He mentioned Judge O’Scannlain’s “substantial burden” standard on Second Amendment rights, echoing the abortion standard, and perhaps foreshadowing the forthcoming en banc opinion.

5. As expected, the State and City’s position is that the Heller and McDonald decisions limited the right to keep and bear arms in the home and no more. Judge Kay doesn’t accept this position at face value. He is rightly concerned about the non-exhaustive list of either permissible or restricted sensitive areas discussed as obiter dictum in the Heller and McDonald decisions. Judge Kay criticized these Supreme Court opinions for their lack of clarity.

6. Judge Kay also talked aloud about a recent Fourth Circuit decision. He noted that the Fourth Circuit, without reaching a decision about the correct standard of review, expressed its reasoning that the Heller and McDonald cases must be read to recognize a general right to bear arms outside the home. This is because the Supreme Court expressly recognized and carved out “sensitive areas” where government may prohibit gun possession. If there were no such general 2A right, then there would be no need to carve out such gun-free zones. However, he also noted that the Fourth Circuit ultimately decided to await further instruction from the Supreme Court before issuing a decision consistent with that line of reasoning.

7. With respect to the issuance of carry permits by Chief Kealoha of HPD, Judge Kay was critical of Plaintiff’s avowed “exceptional circumstances” that would warrant issuance of a permit. Judge Kay relied on anecdotal evidence that Chris Baker was the only one out of 75 process servers who actually applied for a permit. Plaintiff’s counsel made some inroads by arguing that “exceptional circumstances” are not necessary in the presence of a constitutional right deprivation. If there is a constitutional right, then Chief Kealoha’s exclusive and unreviewable authority does not satisfy procedural due process. Judge Kay responded weakly and unpersuasively that Baker didn’t ask for an explanation following his denial. Plaintiff’s counsel scored points here.

8. With respect to the element of irreparable injury, Plaintiff’s counsel waded straight back into Judge Kay’s rejection of the argument that the Place to Keep statutes prohibit carrying loaded firearms inside your home. In other words, Hawaii law is and has been consistent with the Heller and McDonald decisions with respect to your right to keep and bear a loaded firearm in your home, work, place of sojourn, and at the range. Plaintiff’s counsel argued that even a momentary and minimal denial of a constitutional right constitutes irreparable harm. This is a familiar and valid concept recognized in Free Speech cases. Judge Kay had no response, but rejected the argument by implication in his order.

9. Judge Kay returned to his observation that none of the other process servers seem to have Baker’s need to carry a firearm in the course of their service duties. No one apprised the Court that some of Hawaii’s process servers are LEOs moonlighting, and don’t need to avail themselves of the permit process.

10. With respect to the public interest factor, Judge Kay is relying on his survey of cases, perhaps post-Miller and pre-Heller, to conclude that the “vast majority” of courts have ruled that granting injunctive relief in 2A cases is not in the public interest. Judge Kay’s public interest analysis is not very persuasive and presented (and may continue to present) an opportunity for Plaintiff to discredit.

The whole question of whether a judge even has the capacity to evaluate the “public interest” has been challenged in a variety of civil contexts including antitrust and securities regulations. As if to exact a concession, Judge Kay cited Defendants’ proffered statistics as evidence and the Court’s own “common sense” before asking Plaintiff’s counsel to comment or rebut. I think Judge Kay knows he’s on weak ground by using anecdotes (e.g., road rage, Zimmerman), suspect data, and his “common sense” in order to deprive Chris Baker of a fundamental constitutional right to keep and bear arms for self-defense outside the home.

I also think that Judge Kay is relying on the causal fallacy that rates of crimes committed with a firearm vary directly with gun sales and ownership. As far as I can tell, all the statistics used on either side of the various 2A debates and cases are highly suspect, grossly misleading, and wildly inconclusive. It reminds me of Prof. Coase’ quote, “if you torture the data long enough, it will confess." Nonetheless, the context of a preliminary injunction behooves Plaintiff to come forward with statistics and perhaps an expert to show and opine that the increased issuance of carry permits does not increase local violent crime rates.
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Old May 4, 2012, 10:04 PM   #29
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As good as the reporting was, the actual oder is in.

Quote:
Order granting defendants state of Hawaii and governor Abercrombie's motion for judgment on the pleadings, granting in part and denying in part defendants city and county of Honolulu, Honolulu police department and Louis Kealoha's motion to dismiss, and denying plaintiff's motion for a preliminary injunction.
http://www.archive.org/download/gov....98653.51.0.pdf

If you thought some of the other district courts were bad, you'll be amazed at this one. This Judge even ignores Woolard and Bateman.
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Old May 5, 2012, 12:15 AM   #30
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So, he set up the next battle with such shoddy work?
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Old May 5, 2012, 08:26 AM   #31
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Quote:
Originally Posted by funtimes
LOTS of updates and filings back and forth - funny reading is in the police declaration at the end.
???

The end appears to be a court order basically tossing your case out. I didn't see any police declaration.

Would you be so kind as to summarize entry #51 in plain English? Do you have any case left at this level, or is it now up for appeal?
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Old May 5, 2012, 11:20 AM   #32
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One perhaps obvious point: A decision that's this poorly crafted will be like shooting fish in a bucket on appeal. They really are helping the cause with their incompetence. If this were somehow upheld, we might all just go dig a hole and climb in.
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Old May 7, 2012, 12:17 AM   #33
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Hawaiian demographics cannot be compared to Phoenix or Memphis.
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Old May 7, 2012, 06:19 PM   #34
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Your point?

Demographics do not determine our rights.
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Old May 7, 2012, 06:28 PM   #35
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No, but they unfortunately influence the makeup, political leanings, and quality of local judges. That's one reason why it's fortunate we that have a tiered judicial system. Many things ARE best handled locally. Other issues like civil rights sometimes require higher authority.
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Old June 27, 2012, 10:15 AM   #36
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The opening brief appealing the district courts denial of the injunction has been filed.

http://www.hawaiidefensefoundation.o...e-Copy-065.pdf

I'm still reading....

ETA: Here's the briefing schedule:

Quote:
05/31/2012 2 ... The briefing schedule shall proceed as follows: the opening brief and excerpts of record are due not later than June 26, 2012; the answering brief is due July 24, 2012 or 28 days after service of the opening brief, whichever is earlier; and the optional reply brief is due within 14 days after service of the answering brief. See 9th Cir. R. 3-3(b). ...
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Old August 10, 2012, 07:23 PM   #37
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Answering Brief from the City filed a couple days ago

http://www.scribd.com/doc/102589814/Answering-Brief

the reply is due 14 days from the 8th (City actually filed one day late even with the 14 day extension they received)
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Old August 10, 2012, 07:49 PM   #38
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Thanks, wolfwood. And welcome to TFL.
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Old August 11, 2012, 12:29 AM   #39
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nice to be here what did you think of the opening brief?
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Old August 11, 2012, 01:30 AM   #40
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Nicely done. Thanks for posting and Godspeed.
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Old August 14, 2012, 05:15 PM   #41
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the Brady Campaign filed a amicus brief
this is the second one they filed one at the district court level against a preliminary injunction as well

http://www.scribd.com/doc/102880530/...micusbrief-New
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Old August 21, 2012, 09:37 PM   #42
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reply brief filed
and with that briefing is done for the time being


http://www.scribd.com/doc/103533734/Reply-Final
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Old August 22, 2012, 07:50 AM   #43
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wolfwood, thanks for keeping this up to date for us.
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Old August 31, 2012, 07:51 AM   #44
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A motion to stay, pending resolution of Richards v. Prieto was filed yesterday, by the Appellant/Plaintiff.

http://www.scribd.com/doc/104491360/...-Stay-at-Ninth
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Old August 31, 2012, 12:16 PM   #45
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I guess that indicates they have confidence that Richards/Prieto will have a positive outcome?
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Old September 3, 2012, 09:33 PM   #46
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This is crazy, here comes the snow ball of stays. We need these issues in the hands of the Ninth Circuit, not stayed. Richards doesn't even have a panel assigned yet...to each his own I guess, but having started to read all the briefing I was seeing hope...
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Old September 4, 2012, 07:45 PM   #47
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I love good news and what it says about what Kozinski intends to do!

The following transaction was entered on 09/04/2012 at 413 PM PDT and filed on 09/04/2012
Case Name: Christopher Baker v. Louis Kealoha, et al
Case Number: 12-16258
Document(s): Document(s)

Docket Text:
Filed clerk order (Deputy Clerk: HB): The court denies appellant’s motion to stay appellate proceedings in this preliminary injunction appeal pending issuance of the decision in Richards, et al. v. Prieto, et al., No. 11-16255. The Clerk shall calendar this appeal, No. 12-16258, before the panel that will be assigned to decide appeal No. 11-16255. Briefing is completed. The amicus brief submitted by the Brady Center to Prevent Gun Violence is filed. Within 7 days of the filing of this order, the filer is ordered to file 7 copies of the brief in paper format, with a green cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically.[8309708] (WL)
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Old September 8, 2012, 09:41 PM   #48
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Who is Kozinki? I don't get the reference. And the plaintiff indeed put his faith in Mr. Gura. However since the stay was denied he certainly will advocate for the Second Amendment with all his might.
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Old September 8, 2012, 09:46 PM   #49
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He is the chief judge of the 9th circuit, a prolific writer and he blasted nordyke plaintiffs for depriving him of the chance to write a 2a opinion. He is an activist judge and I believe when he writes the opinion he will make it clear that the "core right in the home" Brady machination is simply not consistent with our fundamental right to bear arms for self defense.
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Old September 8, 2012, 09:47 PM   #50
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what are the odds of him being on the panel? I don't really know how this works. Unofficially it is going to be in December between the 3rd-7th according to the Clerk.
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