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Old October 19, 2012, 10:38 AM   #1
wolfwood
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Join Date: August 10, 2012
Posts: 21
Fisher v Kealoha is on appeal to the Ninth

If you don't remember this is the case
This is a summary from Professor Volkoh.
Quote:
In December 1997, Kirk Fisher pled guilty to two counts of misdemeanor “harassment” of his wife (who is apparently still his wife), and was placed on probation for six months. As part of his probation, he had to surrender his guns, but after the probation was over, the court ordered that the guns be returned, so long as that was consistent with Hawaii law and federal law; and the police department did indeed return them.

But in Fall 2009, Fisher asked for a license to buy another gun — Hawaii requires such a license — but the police department said no, and indeed ordered him to dispose of his current guns. Fisher, the police department reasoned, was forbidden from possessing a gun by Haw. Rev. Stat. § 134-7 and 18 U.S.C. § 922(g)(9). Hawaii law forbids gun possession by anyone who has been convicted of “any crime of violence,” including misdemeanors (Hawaii law). Federal law forbids gun possession by anyone who has been convicted of any misdemeanor that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon” against a spouse, cohabitant, or child.

Now here’s the twist: The Hawaii harassment statute, which Fisher had violated, covers any situation where a person “with intent to harass, annoy, or alarm any other person ... [s]trikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact.” This, the court held, includes not just violent touching but “any slight touching of another person in a manner which is known to be offensive to that person.” So many harassment convictions might be based on “violence” or “physical force,” but some might be based based on just an offensive touching that would be short of physical force, such as spitting or jabbing with a finger during an argument (to use a hypothetical from a Ninth Circuit case dealing with a similar statute).

The plaintiff won on a preliminary injunction and the City is appealing. This is the docket I pulled off pacer. Remember the Baker Appeal was filed in 2012 and managed to catch up to the Richards and Peruta appeals because it is a preliminary injunction appeal which means it is expedited. So Fisher could skip ahead of Enos v Holder. This case has sorta of slipped under the radar because it is being done for pay by two private attorney that are not supported by a lobbying group so they have no motivation to advertise it. Does Cal Guns have any plans of filing a amicus brief? It seems prudent to do so in order to preserve their interest.
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