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Old March 21, 2012, 09:37 PM   #28
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Join Date: April 15, 2011
Posts: 8
These notes are from a Mr. Sgan who was in the gallery at the hearing today.

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.
6 minutes ago · Like
David Sgan
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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