Resident Alien Preliminary Injunction

8/12/2019 Resident Alien Preliminary Injunction

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RICHARD L HOLCOMB (HI Bar No. 9177)Holcomb Law, A Limited Liability Law Corporation1136 Union Mall, Suite # 808Honolulu, HI 96813Telephone: (808) 545-4040Facsimile: (808) 356-1954

Email:[email protected]

ALAN BECK (HI Bar No. 9145)Attorney at Law4780 Governor DriveSan Diego, California 92122Telephone: (808) 295-6733Email: [email protected]

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

Steve Fotoudis,

Plaintiff,vs.

City and County of Honolulu;

Lois Kealoha, Chief of the HonoluluPolice Department, in his individualcapacity;

David Louie, Attorney General ofHawaii, in his individual and officialcapacity;

and, John Does 1-50 in their individualor official capacities.

Defendants.

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))))))))))))

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CASE NO. 1:14-CV-00333

PLAINTIFFS MOTION FORPRELIMINARY INJUNCTIVE

RELIEF; MEMORANDUM INSUPPORT OF MOTION FORPRELIMINARY INJUNCTIVERELIEF; DECLARATION OF

STEVEN FOTOUDIS;DECLARATION OF RICHARD L.

HOLCOMB; EXHIBITS ONETHROUGH TWELVE;

CERTIFICATE OF SERVICE

HEARING:

Date:Time:

Judge: Not Assigned

Case 1:14-cv-00333 Document 6 Filed 07/24/14 Page 1 of 3 PageID #: 43
mailto:[email protected]:[email protected]


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PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

COMES NOW the Plaintiff, Steve Fotoudis, by and through undersigned

counsel and pursuant to the Second and Fourteenth Amendments to the United

States Constitution, Title 42 U.S.C. 1983, and Rule 65(a) of the Federal Rules of

Civil Procedure, and request that this Court issue a preliminary injunction

enjoining Defendants and/or their officers, agents, servants, employees, and all

persons in concert or participation with them who receive notice of this injunction,

from enforcing the United States citizenship requirements of Section 134-2(d) of

the Hawaii Revised Statutes and any other Hawaii statutory language that imposes

a United States citizenship requirement which operates to restrict lawfully admitted

permanent resident aliens from exercising Second Amendment rights. Further, Mr.

Fotoudis requests this Court compel the same to:

(a) allow Mr. Fotoudis to apply for a permit pursuant to Section 134-2

of the Hawaii Revised Statutes;

(b) to promptly and meaningfully evaluate, with no more or less

scrutiny than would be applied to a citizen applicant, Mr. Fotoudis

application and background to determine his fitness and qualifications

to lawfully keep firearms; and,

(c) insofar as Mr. Fotoudis is determined to be fit and qualified to

keep firearms, to immediately thereafter issue to Mr. Fotoudis the



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permit contemplated by Section 134-2 of the Hawaii Revised Statutes,

vesting Mr. Fotoudis with the same rights and privileges to keep and

possess firearms as those of a United States citizens who obtains a

permit pursuant to Section 134-2.

In support of this Motion, Mr. Fotoudis relies on the Memorandum in

Support of his Motion for Preliminary Injunction and its attachments, including but

not limited to the Declarations of Plaintiff and of counsel, and all corresponding

exhibits to those Declarations, filed contemporaneously herewith.

DATED: Honolulu, Hawaii; July 24, 2013.

s/Richard L. Holcomb__

Richard L. Holcomb

Attorney for Plaintiff



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Steve Fotoudis,

Plaintiff,vs.

City and County of Honolulu;Lois Kealoha, in his individual capacity;and, John Does 1-50 in their individualor official capacities.

Defendants.

)

))))))))))))

CASE No. 1:14-CV-00333

MEMORANDUM IN SUPPORT OFMOTION FOR TEMPORARY

RESTRAINING ORDER AND INSUPPORT OF MOTION FOR

PRELIMINARY INJUNCTION

MEMORANDUM IN SUPPORT OF

MOTION FOR TEMPORARY RESTRAINING ORDER AND

IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 1:14-cv-00333 Document 6-1 Filed 07/24/14 Page 1 of 25 PageID #: 46


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TABLE OF CONTENTS

I. LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Mr. Foutodis will likely succeed on the merits. . . . . . . 4

1. Mr. Fotoudis core Second Amendment

rights continue to be violated. . . . . . . . . . . . . . . . . . . 4

2. Mr. Foutodis has been denied equalprotection of the laws. . . . . . . . . . . . . . . . . . . . . . . . . . 8

3. Mr. Fotoudis Due Process Rights

have been violated. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B. Mr. Fotoudis will be irreparably harmed. . . . . . . . . . . 14

C. The balance of equities tips sharply inMr. Fotoudis favor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

D. The injunction serves the publics interests. . . . . . . . . 18

IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19



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TABLE OF AUTHORITIES

Reported Cases

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) . . . . . . . . . 12

Associated General Contractors v. Coalition for Economic Equity,

950 F.2d 1401 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Chan v. City of Troy, 559 N.W.2d 374. (Mich.Ct.App. 1997) . . . . . . 10

Collins v. Brewer, 727 F. Supp. 2d 797 (D. Ariz. 2010) . . . . . . . . . . . 15

District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . 4, 5, 7

Fletcher v. Haas, 851 F.Supp.2d 287 (D. Mass 2012) . . . . . . . . . . . . . 7, 11, 13

Freminger v. Principi, 422 F.3d 815 (9th Cir. 2005) . . . . . . . . . . . . . 18

Graham v. Richardson, 403 U.S. 365 (1971) . . . . . . . . . . . . . . . . . . . 9, 10

Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) . . . . . . . . . . . . . . 6

McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010) . . . . . . . . 4-5

Monterey Mech. Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) . . . . . . 15

People v. Nakamura, 62 P.2d 246 (Colo. 1936) . . . . . . . . . . . . . . . . . 10

People v. Rappard, 28 Cal.App.3d 302,

104 Cal.Rptr. 535 (Cal.App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Sammartano v. First Judicial District Court Carson City,

303 F.3d 959 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18-19

Sandiford v. Commonwealth, 225 S.E.2d 409 (Va. 1976) . . . . . . . . . 10-11, 13

Smith v. South Dakota, 781 F.Supp.2d 879 (D. S.D. 2011) . . . . . . . . . 11



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State v. Chumphol, 634 P.2d 451 (Nev. 1981) . . . . . . . . . . . . . . . . . . . 11, 13

Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948) . . . . . 9

Toll v. Moreno, 458 U.S. 1 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tom v. Sutten, 533 F.2d 1101 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . 15

United States v. Lopez-Flores, 63 F.3d 1468 (9th Cir. 1995) . . . . . . 9

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) . . . . . . . . 6-7, 8

Winter v. Natural Resources Defense Council, Inc.,

129 S.Ct. 365 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17, 18

Unreported Cases and Dispositions

Alexander Say v. John Adams, et.al.,

No. 3:07-cv-377-R, 2008 wl 718163 (D. Ky. March 14, 2008) . . . . 11, 15, 17,

18, 19

Carlos Nino de Rivera Lajous v. David Sankey,

No. 4:13-cv-03070 (D. Neb. Oct. 15, 2013) (Exhibit Eight) . . . . . . . 11, 18

John W. Jackson, et. al. v. Gorden E. Eden,

No. 1:12-cv-00421 (D. N.M. March 31, 2014)

(Exhibits Nineand Ten) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18

Martin Pot, et. al. v. Colonel Stan Witt,

No. 3:13-cv-03102 (W.D. Ark. May 8, 2014) (Exhibit Eleven) . . . . 12

National Rifle Association, et. al. v. State of Washington, et. al.,

No. C08-1613 RSM (W.D. Wash. Jan. 27, 2009) (Exhibit Twelve). . 12

Second Amendment Foundation, Inc., et. al. v. Jim Suttle, et. al.,

No. 8:11CV335 (D. Neb. Nov. 21, 2011) (Exhibit Seven) . . . . . . . . . 11



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Statutes, Rules, and Other Authorities

18 U.S.C. 922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Haw. Rev. Stat. 134-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12, 13,

17, 18

Haw. Rev. Stat. 134-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

8 C.F.R. 316.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2



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I. LEGAL BACKGROUND.

In Hawaii, Section 134-2 of the Hawaii Revised Statutes provides the only

means by which any fit and qualified person may lawfully possess a firearm in

their home. Specifically, Section 134-2(a) prohibits any person from acquiring

ownership of a firearm without first obtaining a permit from the appropriate chief

of police. Haw. Rev. Stat. 134-2(a). It is a crime to possess a firearm in Hawaii

without the permit contemplated in Section 134-2. Haw. Rev. Stat. 134-17(c).

Section 134-2(d) vests Defendant Kealoha, as chief of police, with discretion

to issue the permits contemplated in Section 134-2(a) to citizens of the United

States of the age of twenty-one years or more, diplomats, and alien law

enforcement agents on Oahu. Haw. Rev. Stat. 134-2(d). However, the chief is

only vested with discretion to issue severely limited permits to other alien

applicants. Id. Specifically, the chief may issue a permit that would allow the

alien applicant to possess shotguns or rifles for a maximum of 60 days and, then,

only after the alien has obtained a hunting license. Id. The chief also has

discretion to issue a permit to an alien who is training for specific sport-shooting

contests for a maximum of six months. Id. The sport-shooting contest must be

held during the time the permit allows the alien to possess the firearm(s). Id.



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II. FACTUAL BACKGROUND

Mr. Fotoudis is a lawfully admitted permanent resident alien who resides in

Hawaii. Decl. of Steve Fotoudis 2-5. The only reason that Mr. Fotoudis is not a

naturalized citizen is because he has not met the five-year residency requirement.

Decl. of Steve Fotoudis 3; see 8 C.F.R. 316.2(a); . Mr. Fotoudis has a green

card, Exhibit One, and a United States social security card, Exhibit Two. Decl. of

Steve Fotoudis 4.

Mr. Fotoudis wishes to import to Hawaii firearms that he currently owns but

are located in Australia. Decl. of Steve Fortoudis 21, 24, 32, 47-51. Mr.

Fortoudis is fit and qualified to keep firearms under the laws of the United States

and, with the exception of the statutory discriminatory provisions prohibiting

lawfully admitted aliens from acquiring firearms, under the laws of Hawaii. Decl.

of Steve Fortoudis, 4, 6-18, 31. Mr. Fotoudis holds firearms licenses in

Australia. Decl. of Steve Fotoudis 8, Exhibit Three. Mr. Fotoudis even

received a letter of recommendation from the South Australian Police stating that

he is a fit and proper person to keep and possess firearms and identifying several

firearms licenses Mr. Fotoudis holds or has held in Australia. Decl. of Steve

Fotoudis 10, Exhibit Four.

On July 10, 2014, Mr. Fotoudis went to the window at the Honolulu Police

Departments (HPD) main station on Beretania Street. Decl. of Steve Fotoudis



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24. The window is the designated place where members of the public may apply

for permits to acquire firearms pursuant to Hawaii law. Decl. of Steve Fotoudis

22. United States citizens are routinely permitted to apply for Section 134-2

permits at the window and, if found fit and qualified, those citizen applicants are

issued the permit. . Decl. of Steve Fotoudis 23.

Mr. Fotoudis was asked for identification by the police officer who was

assisting people at the HPD window. . Decl. of Steve Fotoudis 25. In response

to the request, Mr. Fotoudis presented his green card, United States Social Security

Card, and his Australian passport. . Decl. of Steve Fotoudis 26. Because he was

not a naturalized U.S. citizen, Mr. Fotoudis was not even allowed to apply for any

permit. . Decl. of Steve Fotoudis 27, 29.

In the context of Section 134-2 permits, Defendant Louie has not taken any

action to promulgate rules or otherwise ensure that resident aliens are not

discriminated against. In practice, Defendant Kealoha does not exercise even his

limited statutory discretion in favor of alien applicants. Upon information and

belief, aliens are not permitted to possess firearms even in the severely limited

circumstances identified in Section 134-2(d). No inquiry has ever been made as to

what type of firearm Mr. Fotoudis sought to acquire, whether Mr. Fotoudis had a

hunting license, and/or whether Mr. Fotoudis was training for a sport-shooting

contest. Decl. of Steve Fotoudis 28. In fact, Mr. Fotoudis has been specifically



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advised by HPD representatives that he could not possess a firearm in Hawaii.

Decl. of Steve Fotoudis 20, Exhibit Five. And, when Mr. Fotoudis wrote

Defendant Kealoha to inquire how this unconstitutional prohibition could be

avoided, Chief Kealoha did not even respond. Decl. of Steve Fotoudis 21,

Exhibit Six.

III. ARGUMENT

A plaintiff seeking a preliminary injunction must establish that he is likely

to succeed on the merits, that he is likely to suffer irreparable harm in the absence

of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest. Winter v. Natural Resources Defense Council,

Inc., 129 S.Ct. 365, 374 (2008).

A. Mr. Fotoudis will likely succeed on the merits.

1. Mr. Fotoudis core Second Amendment rights continue to be violated.

Although the Second Amendment is not an unlimited right, the Second

Amendment guarantees the right to keep and possess firearms for the purpose of

self-defense. District of Columbia v. Heller, 554 U.S. 570, 580 (2008). [T]he

need for defense of self, family and property is most acute in the home. Id. at

628. Accordingly, a complete prohibition of handguns and other protected arms

is invalid. Id. at 629. [T]he Due Process Clause of the Fourteenth Amendment



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incorporates the Second Amendment right recognized in Heller. McDonald v.

City of Chicago, Ill., 130 S. Ct. 3020, 3050 (2010).

Nevertheless, even if Chief Kealoha routinely permitted permanent residents

to apply for the limited permits contemplated by Section 134-2(d), those permits

do not satisfy the Second Amendment. Despite the questions that Heller left

unresolved and with which courts nationwide are currently struggling, Heller is

abundantly clear that the right to possess firearms within the confines of the home

for the purpose of self-defense is unequivocally protected. Section 134-2(d) does

not allow permanent residents to exercise that core right.

Mr. Fotoudis does not claim that the government may not reasonably

prohibit unfit and/or unqualified persons, fit and qualified illegalaliens, or fit and

qualified temporary non-immigrant aliens from possessing firearms. However, the

absolute prohibition on fit and qualified permanent residents ability to keep and

possess firearms within the confines of their Hawaii homes for the purpose of self-

defense not only obviously burdens Second Amendment rights but also patently

violates the Second Amendment. Heller, 554 U.S. at 580, 629. The prohibition of

Section 134-2(d) fails application of any form of means-end scrutiny.

Thus, the only question before this Court is whether fit and qualified

permanent residents such as Mr. Fotoudis are among the people protected by the

Second Amendment.



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The Bill of Rights is a futile authority for the alien seeking admission

for the first time to these shores. But once an alien lawfully enters

and resides in this country he becomes invested with the rightsguaranteed by the Constitution to all people within our borders.

Such rights include those protected by the First and the Fifth

Amendments and by the due process clause of the Fourteenth

Amendment. None of these provisions acknowledges any

distinction between citizens and resident aliens. They extend their

inalienable privileges to all persons' and guard against any

encroachment on those rights by federal or state authority.Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1455, 89 L.Ed.

2103 (concurring opinion).

The alien, to whom the United States has been traditionally

hospitable, has been accorded a generous and ascending scale ofrights as he increases his identity with our society. Mere lawful

presence in the country creates an implied assurance of safe conduct

and gives him certain rights; they become more extensive and secure

when he makes preliminary declaration of intention to become a

citizen, and they expand to those of full citizenship upon

naturalization. During his probationary residence, this Court has

steadily enlarged his right against Executive deportation except upon

full and fair hearing. * * * And, at least since 1886, we have

extended to the person and property of resident aliens important

constitutional guarantiessuch as the due process of law of the

Fourteenth Amendment.Johnson v. Eisentrager, 339 U.S. 763,

770771, 70 S.Ct. 936, 940, 94 L.Ed. 1255.

Kwong Hai Chew v. Colding, 344 U.S. 590, 596, n. 5 (1953) (emphases added).

In the context of the Second Amendment, the United States Supreme Court

has specifically found:

The Second Amendment protects the right of the people to keep and

bear Arms . . . While this textual exegesis is by no means conclusive,

it suggest that the people protected by the Fourth Amendment, and

by the First and Second Amendments . . . refers to a class of persons

who are part of a national community or who have otherwise



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developed sufficient connection with this country to be considered

part of that community.

United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). More specifically,

aliens receive constitutional protections when they have come within the territory

of the United States and developed substantial connections with this country. Id.

at 271. But once an alien lawfully enters and resides in this country he becomes

invested with the rights guaranteed by the Constitution to all people within our

borders. Id. (citation omitted). Thus, insofar as naturalized citizens are permitted

to keep and bear arms, resident aliens may do the same.

Heller, itself, quotes Verdugo-Urquidez, for the proposition that the phrase

the people is intended to confer individual rights to a class of persons who

are part of a national community or who have otherwise developed sufficient

connection with this country to be considered part of that community instead of

merely conferring the right to bear arms only upon male, able bodied [militia

members] within a certain age range. Heller, 554 U.S. at 580 (quotingVerdugo-

Urquidez, 494 U.S. at 265). And, at least Massachusetts United States District

Court has squarely found that permanent residents are included amongst the

people protected by the Second Amendment. Fletcher v. Haas, 851 F.Supp.2d

287, 288, 291-93, 299 (D. Mass 2012) (This case presents the question whether

lawful permanent resident aliens are among the people for whom the Second



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Amendment the United States Constitution provides a right to bear arms. I

conclude they are.).

Mr. Fotoudis is a permanent resident. Mr. Fotoudis has a green card. Mr.

Fotoudis will become naturalized upon the expiration of the five-year waiting

period. And, in the meantime, Mr. Fotoudis lives and works in Honolulu. Mr.

Fotoudis has necessarily developed sufficient connection with this country to be

considered part of [the] community. Verdugo-Urquidez, 494 U.S. at 265; See

Demore, 538 U.S. at 544 (Souter, J., concurring in part and dissenting in part) (the

lives of permanent residents are generally indistinguishable from those of United

States citizens.). Mr. Fotoudi has accepted some societal obligations that places

him among the people of the United States, including but not limited to

running a business and paying taxes in Honolulu. Verdugo-Urquidez, 494 U.S. at

273. Undoubtedly, Mr. Fotoudis has sufficient connection with the United States

to exercise the core of the fundamental right guaranteed by the Second

Amendment, i.e., to keep a firearm(s) within the confines of his home for the

purpose of self-defense.

Mr. Fotoudis is highly likely to prevail on the merits of this issue.

2. Mr. Fotoudis has been denied equal protection of the laws.

Section 134-2(d) of the Hawaii Revised Statutes and Defendants refusal to

issue and/or to allow Mr. Fotoudis to apply for a permit to acquire a firearm(s) to



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keep in his home for the purpose of self-defense and to use for other lawful

purposes violates the equal protection clause of the Fourteenth Amendment. Mr.

Fotoudis is likely prevail on the merits of this claim.

Our Supreme Court has specifically held that the term person in this

[Fourteenth Amendment] context encompasses lawfully admitted resident aliens as

well as citizens of the United States and entitles both citizens and aliens to the

equal protection of the laws of the State in which they reside. Graham v.

Richardson, 403 U.S. 365, 371 (1971) (denial of welfare benefits).

[C]lassifications based on alienage . . . are inherently suspect and subject to close

judicial scrutiny. Id. at 372. And, although here the core protection of

fundamental Second Amendment rights are at stake, the inherent suspicion and

close judicial scrutiny is applied whether or not a fundamental right is

impaired. Id. at 373. Thus, in contrast to federal laws, [s]tate alienage

classifications create a suspect class to which we applystrict scrutiny. United

States v. Lopez-Flores, 63 F.3d 1468, 1473 (9th Cir. 1995).

Not surprisingly, state laws that discriminate against a person based on his

or her alienage have been consistently struck. Takahashi v. Fish & Game

Commission, 334 U.S. 410, 421 (1948) (invalidating a state law excluding aliens

who are lawful residents of the State from making a living by fishing in the ocean

off its shores while permitting others to do so.). Takashiand Grahamstand for



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the broad principle that state regulation not congressionally sanctioned that

discriminates against aliens lawfully admitted to the country is impermissible if it

imposes additional burdens not contemplated by Congress. Toll v. Moreno, 458

U.S. 1, 12-13 (1982) (invalidating state law denying tuition benefits to

nonimmigrant aliens). In other words, absent specific congressional action to the

contrary, lawfully admitted resident aliens, such as Mr. Fotoudis, are entitled to

the full and equal benefit of all state laws for the security of persons and

property. Graham, 403 U.S. at 378 (emphasis added).

Accordingly, each court, known to the undersigned, that has reviewed the

issue sub judice has determined that permanent residents may, at the very least,

keep firearms in their homes for the purpose of self-defense and may enjoy the

same rights or privileges to bear arms as naturalized citizens. Chan v. City of Troy,

559 N.W.2d 374, 379-80, n. 3. (Mich.Ct.App. 1997) (the statute, which prohibits

the purchase of pistols by all noncitizens, fails to distinguish between dangerous

noncitizens and those noncitizens who would pose no particular threat if allowed to

purchase the weapons and [h]ad the statute excluded only illegal aliens, as

opposed to all noncitizens, it may well have passed constitutional muster.);

People v. Nakamura, 62 P.2d 246, 247 (Colo. 1936) (the act wholly disarms

aliens for all purposes. The state . . . cannot disarm any class of persons or deprive

them of the right . . . to bear arms in defense of home, person, and property.);



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Sandiford v. Commonwealth, 225 S.E.2d 409 (Va. 1976) (invalidating presumption

for possession of sawed-off shotgun by alien); State v. Chumphol, 634 P.2d 451

(Nev. 1981) (invalidating prohibition on possession of pistol); People v. Rappard,

28 Cal.App.3d 302, 304-05, 104 Cal.Rptr. 535 (1972) (invalidating prohibition on

possession of concealable firearm); Fletcher,851 Supp.2d 287 (determining that

resident aliens are people as contemplated by the Second Amendment and

holding that resident aliens are entitled to possess firearms); Smith v. South

Dakota, 781 F.Supp.2d 879 (D. S.D. 2011) (permanent injunction on equal

protection grounds for permanent resident who was prohibited from obtaining

conceal carry permit); Alexander Say v. John Adams, et.al., No. 3:07-cv-377-R,

2008 wl 718163 (D. Ky. March 14, 2008) (unreported) (Kentucky law authorizing

citizens but not permanent residents to obtain licenses to carry concealed weapons

violates equal protection); Second Amendment Foundation, Inc., et. al. v. Jim

Suttle, et. al., No. 8:11CV335 (D. Neb. Nov. 21, 2011) (stipulated preliminary

injunction) (attached as Exhibit Seven); Carlos Nino de Rivera Lajous v. David

Sankey, No. 4:13-cv-03070 (D. Neb. Oct. 15, 2013) (Order and Final Judgment

granting permanent injunctive relief prohibiting enforcement of statute that

prohibited issuance of conceal and carry permits to otherwise qualified resident

aliens) (attached as Exhibit Eight); John W. Jackson, et. al. v. Gorden E. Eden,

No. 1:12-cv-00421 (D. N.M. March 31, 2014) (Preliminary Injunction Order and



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Judgment finding that prohibiting resident aliens from obtaining conceal and carry

permits violates the equal protection clause and enjoining the enforcement of such

prohibition) (attached as Exhibits Nine and Ten); Martin Pot, et. al. v. Colonel

Stan Witt, No. 3:13-cv-03102 (W.D. Ark. May 8, 2014) (Order on Motion for

Consent for Judgment) (attached as Exhibit Eleven); National Rifle Association,

et. al. v. State of Washington, et. al. , No. C08-1613 RSM (W.D. Wash. Jan. 27,

2009) (Agreed Order Granting Plaintiffs Motion for Preliminary Injunction)

(attached as Exhibit Twelve).

Strict scrutiny must inevitably be applied to Hawaiis discriminatory

licensing procedure. Thus, the government must carry the burden of proving that

excluding lawful permanent residents who are fit and qualified to keep and possess

firearms is narrowly tailored [and] further[s] compelling governmental interests.

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).

Section 134-2 broadly categorizes all persons as either citizens or aliens.

Haw. Rev. Stat. 134-2(d). Thus, permanent residents are illegally deprived of the

same rights as those to which illegal immigrants or other non-immigrant aliens

who are in the United States lawfully but on a temporary visa are deprived. This

broad class-based categorization is not narrow but is, instead, sweeping.

Further, the government has no compelling interest in preventing lawful

permanent residents, who are no more prone to violence or likely to commit crimes



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than the naturalized population, from exercising the core of fundamental Second

Amendment rights. Fletcher, 851 F.Supp.2d at 303 (where statute did not

distinguish between dangerous or non-dangerous aliens or between permanent

residents and temporary non-immigrant residents, the court found [a]ny

classification based on the assumption that lawful permanent residents are

categorically dangerous and that all American citizens by contrast are trustworthy

lacks even a reasonable basis.).Sandiford, 225 S.E.2d at 411 (We see no rational

connection between a persons place of birth and his disposition to commit

offensive or aggressive acts.); Chumphol, 634 P.2d at 452 ( A person does not

exhibit a tendency toward crime merely because he or she is a noncitizen);People

v. Rappard, 28 Cal.App.3d 302, 304-05, 104 Cal.Rptr. 535 (Cal.App. 1972) (a

person does not . . . show a tendency toward crime simply because he is not a

citizen of this country.).

It is unfathomable that the government would be able to justify the

sweeping and discriminatory prohibition of Section 134-2(d). Because Section

134-2(d) excludes all fit and qualified permanent residents, it is unconstitutional on

its face. Additionally, Mr. Fotoudis was not permitted to even apply for the permit

because of his status as a permanent resident. Thus, the actions described in the

Complaint and above are unconstitutional as applied to Mr. Fotoudis.

Mr. Fotoudis is also highly likely to prevail on the merits of this claim.



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14

3. Mr. FotoudisDue Process Rights have been violated.

As shown above, the due process clause of the Fourteenth Amendment

undeniably applies to lawfully admitted aliens.

Hawaiis permitting scheme leaves fit and qualified applicants at the mercy

of the police chiefs discretion to determine whether the applicant may enjoy the

exercise of core Second Amendment rights. Whether such a scheme could satisfy

minimal due process guarantees of the Fourteenth Amendment is, at best,

questionable. However where, as here, an applicant is not even afforded the ability

to subject himself to the dubious procedure, the applicants due process rights have

clearly been violated. Mr. Fotoudis will also undoubtedly prevail on the merits of

Count Three of his Complaint.

B. Mr. Fotoudis will be irreparably harmed.

[A]n alleged constitutional infringement will often alone constitute

irreparable harm. Associated General Contractors v. Coalition for Economic

Equity, 950 F.2d 1401, 1412 (9th Cir. 1991); see Sammartano v. First Judicial

District Court Carson City, 303 F.3d 959, 973 (9th Cir. 2002) (the loss of First

Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury for purposes of the issuance of a preliminary

injunction). This Court should find irreparable harm solely because Mr. Fotoudis



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will be deprived of his core Second Amendment rights if the injunction is not

issued.

Moreover, all constitutional provisions are of equal dignity. Tom v.

Sutten, 533 F.2d 1101, 1106 (9th Cir. 1976). Thus, the Ninth Circuit has found

that a group of plaintiffs probability of success [in demonstrating irreparable

harm was] much higher after also finding that the challenged statute was

unconstitutional insofar as it classifies by ethnicity and sex. Monterey Mech. Co.

v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997).

At least one of this Courts sister districts has found, in a case where the

plaintiffs showed a likelihood of success on the merits of an equal protection claim

(for discrimination based on sexual orientation), that the plaintiffs had also

demonstrated sufficient irreparable harm. Collins v. Brewer, 727 F. Supp. 2d 797,

812 (D. Ariz. 2010), aff'd sub nom. Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011).

Such constitutional violations cannot be adequately remedied through damages

and therefore generally constitute irreparable harm. Id.

One other district court has specifically found irreparable harm in a case

precisely analogous to this case. Say, supra. There, a permanent resident

demonstrated the likelihood of prevailing on an equal protection claim challenging

a state firearms law. The law discriminated against permanent aliens as does

Section 134-2. Id. And, the court found irreparable harm. Id.



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This Court should find that Mr. Fotoudis is irreparably harmed because of

the continued deprivation of his equal protection rights.

Even if these constitutional violations were somehow an insufficient

demonstration of irreparable harm, the facts of this case present specific irreparable

harm beyond that of the violation of his constitutional rights.

Mr. Fotoudis, who was a regular competitor at numerous Australian sport-

shooting competitions, currently owns seven rifles and two handguns. Decl. of

Steve Fotoudis 31. When he moved to Hawaii and because he could not get a

Section 134-2 permit, Mr. Fotoudis sold the vast majority of his firearms and only

retained those that he finds irreplaceable because of the sentimental value he

attaches to those firearms. Decl. of Steve Fotoudis 34. Because Defendants will

not even allow Mr. Fotoudis to apply for the permit that would allow him to

possess his remaining firearms in Hawaii, Mr. Fotoudis is forced to keep those

firearms in Australia. Decl. of Steve Fotoudis 47.

Those firearms are now stored in a safe at Mr. Fotoudis fathers house.

Decl. of Steve Fotoudis 47. Mr. Fotoudis father wants the safe removed from

his house as soon as possible. Decl. of Steve Fotoudis 48. Moreover, Mr.

Foutodis Australian firearms permit expires on December 31, 2014 Decl. of Steve

Fotoudis 49. Then, Mr. Fotoudis will be forced to either sell the firearms or,

alternatively, pay Australian officials an exorbitant storage fee to keep the firearms



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on Mr. Fotoudis behalf. Decl. of Steve Fotoudis 50. Mr. Fotoudis cannot

afford to pay the fee for each of his remaining firearms. Decl. of Steve Fotoudis

51.

The impending loss of Mr. Fotoudis firearms also constitutes irreparable

harm.

C. The balance of equities tips sharply in Mr. Fotoudis favor.

In this case, the balance of equities tips in [Mr. Fotoudis] favor. Winter,

129 S. Ct. at 374. Being lawfully admitted for permanent residence and by having

previous firearm licenses, Mr. Fotoudis has been subjected to intensive background

checks. No legitimate State interest is served: by denying Mr. Fotoudis an

opportunity to apply for a permit contemplated by Section 134-2; by denying Mr.

Fotoudis a permit contemplated by Section 134-2 which would allow Mr. Fotoudis

to keep his firearms in his home; and/or by applying criminal penalties against Mr.

Fotoudis for not having the permit.

Say found that an injunction would require the state police to conduct a

manual case-by-case background check on alien concealed-carry applicants, as

well as update its electronic database software, amend its forms, and change its

record heck procedures. However, any harm to others caused by the granting of a

preliminary injunction is not substantial enough to justify the violation of

Plaintiffs constitutional rights. Say, 2008 wl 718163, *4.



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Say enjoined enforcement of the state law requiring applicants for a

concealed-carry permit to be U.S. citizens. Say, supra. Defendants were also

ordered to furnish Say with a license application and to accept and process the

application and issue the license in accordance with the established procedures for

processing such application and issuing such license, but without requiring proof

of United States citizenship. Id.; see also Sankey (Exhibit Eight); Jackson,

(Exhibits Nine and Ten).

Any additional administrative burden required for Defendants to issue or

renew permits to acquire to permanent resident aliens who wish to possess firearms

within the confines of their home for the purpose of self-defense would not be

substantial. The balance of equities tips sharply in favor of: enjoining the

enforcement of the discriminatory provision Section 134-2(d) and/or the

discriminatory practices of Defendants; compelling Defendants to allow Mr.

Fotoudis to apply; and compelling issuance of the permit to Mr. Fotoudis absent

some good faith finding that he is either unfit or unqualified.

D. The injunction serves the publics interests.

The injunction sought is in the public interest. Winter, 129 S.Ct. at 374.

Generally, public interest concerns are implicated when a constitutional right has

been violated, because all citizens have a stake in upholding the Constitution.

Freminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005). [I]t is always in the



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public interest to prevent the violation of a partys constitutional rights.

Sammartano, 303 F.3d at 974 (citation omitted). The Say injunction was found to

be in the public interest because Plaintiff is asserting a violation of the Equal

Protection Clause. Say, 2008 wl 718163, *4.

No public interest exists in denying firearm licenses to or prohibition firearm

possession by lawful permanent resident aliens. No such discrimination exists in

the federal Gun Control Act, which prohibits firearm possession only to aliens who

are: 1) illegally or unlawfully in the United States;: or 2) admitted to the United

States under a nonimmigrant visa. 18 U.S.C. 922(g)(5). The latter prohibition

is lifted if the alien is here for lawful hunting or sporting purposes or is in

possession of a hunting license. 18 U.S.C. 922(y)(2)(A).

There is no public interest in prohibiting fit and qualified, lawfully admitted

permanent resident aliens from exercising the core of the rights guaranteed by the

Second Amendment, i.e., to possess a firearm(s) in their home for the purpose of

self-defense.

IV. CONCLUSION

Mr. Fotoudis has strong, if not inevitable, likelihood of prevailing on the

merits of his facial and as applied challenges to Section 134-2(d) of the Hawaii

Revised Statutes. Mr. Fotoudis will suffer irreparable harm in the absence of the



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relief requested. The balance of equities tips in his favor and the requested

injunction is in the public interest. The motion(s) should be granted.

DATED: Honolulu, Hawaii; July 24, 2014.

s/Richard L. Holcomb____

Richard L. Holcomb

Attorney for Plaintiff

Steve Fotoudis



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IN THE UNITED ST TES DISTRICT COU RTFOR THE DISTR ICT OF H W II

Steven Fotoudis,Plaintiff

vs.City and County of Honolulu;Lois Kealoha, in his individual capacity;and, David Louie, Attorney General ofHawii in his individual and officialcapacity; John Does 1-50 in theirindividual or official capacities.

Defendants. jDECL R TION OF STEVEN FOTOU DIS

1. M y nam e is Steven Fotoud is. I am the Plaintiff in the above-styledcase.

2. 1 am from Australia. I am an Au stralian citizen. How ever, haveimmigrated to the United States.

3 . I am in the process of bec om ing a citizen here. I have taken allnecessary steps to beco me a citizen of the United States. The only requirem ent

that I have n ot met in beco min g a fully naturalized citizen is that have not lived inthe United States continuously for five years.

4. In approxim ately Septem ber of 20011 , 1 disclosed to the Am ericanEmbassy in Sidney an Australian police clearance, a criminal history, fingerprintsand photo identification to assist the United States authorities in conducting the

CASE NO. L14-CV-00333

DECL R TION OF STEVENFOTOUDIS



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background investigation that was necessary for me to become a permanentresident. In Ma y 20 12 ,1 was granted perm anent residency in the United States. Isuccessfully underwent a thorough background investigation before I was grantedperm anent residency in the United States. Currently, I am lawfully admitted to theUnited States as a perm anen t resident alien. I have a green card, a true and exactcopy of my green card is attached as Exhibit One I have a United States socialsecurity card, a true and exact copy of my social security card is attached asExhibit Two

5. M y wife and have lived in Hon olulu, Haw aii since May 5, 201 3. Iam the Hawaii state sales ma nage r for Wash Multi-family L aundry S ystems. I payall applicable local, state and United States taxes. I have no plans of leavingHawaii or the United States.

6. In Australia, I wa s a com petitive shooter. I have participated in anumber of competitive shooting contests, including globally recognized ISSF(International Shooting Sport Federation) contests and IPSC (InternationalPractical Shooting Confed eration) contests. I was an active me mb er of acompetitive shooting club, Torrens Valley Pistol Club ( TVPC ) in Australia from2002 to 201 3. I served as club captain, range officer, instructor and com mitteemember during my membership with TVPC.



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7. I hav e had exten sive trainin g in firearms safety and use. I hav ecompleted a recognized Australian range officer's course where I learned safe way

to emp ty guns and clear a range as well as scoring . I passed the A ustraliangovernment's test that permitted me to become licensed for the ownership of longarms. I also com pleted a six we ek trainin g course w here I learned the safehandling , legalities, range rules, and basic shooting skills. That training allowedme to obtain a license to own firearms in Autstralia.

8. I hold an Au stralian firearms license. A true and exact copy of myAustralian firearms license is attached as Exhibit Three

9. In order to obtain the Au stralian firearms license, I had to un derg o anextensive investigation into my backgrou nd. I also had to dem onstrate my fitnessand qualifications.

10. On February 8, 201 2, Sergeant D. Gibson with the South AustralianPolice wrote a letter on mybehalf A true an exact copy of the letter is attached asExhibit Four The letter correctly states that I am a fit and pro per perso n tohold a firearms license. An d, it identifies several firearms licen ses hold or haveheld in Australia.

11. I have never been convicted of a crime.12. I am not a fugitive.

13 . I hav e no m ental illnesses or defects.



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14. I do not and never had any restraining order issued against me .15 . have never committed domestic or any other act of violence.16 . I am not and have never been addicted to mind -altering substances

and I do not use illegal mind -altering substance s.17 . I am not addicted to nor do use alcohol in excess.18 . I belie ve that I am fit and qualified to poss ess a firearm purs uan t to the

laws of the United States and of Hawaii (with the exception of the discriminatoryprovisions that exclude resident aliens from acquiring firearms in Hawaii).

19. The only reason that has ever been provided to me as to wh y I couldnot lawfully possess firearms in Hawaii is that am disqualified from obtaining apermit pursuant to Section 134-2 of the Hawaii Revised Statutes because I am notyet a fully naturalized citizen.

20. On Dec emb er 6, 20 11 , I received an e-mail from Sergeant D. Paperdof the Honolu lu Police De pa rtm ent s Firearms U nit. The e-mail states, in relevantpart:

You may bring firearms into the State, you must register them within72 hours of your arrival. Ho we ver [sic] Haw aii State law requires youto be a U.S. citizen with a U.S. passport or Naturalization certificate.A true and exact copy of the e-mail is attached as Exhibit Five



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2 1 . On February 2 1 , 2 01 2, I wrote Defendant Lois Kealoha a letterinquiring as to how I could possess my firearms in Haw aii. A true and exact cop yof my letter to Defendant Kealoha is attached as Exhibit Six I received noresponse to this inquiry.

2 2 . At the H PD 's main station on Be retania (and Alapai) Street, there is awindow where the public may obtain forms from HPD representatives and applyfor firearms perm its. During designated ho urs, the window is open to the public.

2 3 . It is my und erstandin g United States citizens are routinely permittedto obtain and/or submit applications at the window at HPD's main station. While Iwa s at the HPD station, I saw others applying and/or subm itting applications. It isalso my understanding that if the citizen applicant is found to be fit and qualifiedpursuant to Hawaii law, the citizen applicant is issued a permit as contemplated bySection 134-2 of the Hawaii Revised Statutes.

2 4. On July 10, 2 01 4 at approx imately 1:00 p.m ., I went to the win dow atthe Ho nolulu Police Dep artmen t. I informed the HP D representative that I wishe dto apply for a permit to acquire a firearm.

2 5 . W hen I informed the HP D representative (who I believe to be OfficerPrado ) that I wished to apply for a permit to acquire, Officer Prado requested

identification from me.



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26. I supplied Officer Pra do with my green card, my social security card,and my Australian passport.

27 . Officer Pra do and/or anothe r officer standin g at the adjacent wind owtold me that I could not apply for the permit because I am not a citizen of theUnited States.

28 . Ne ither officer inqu ired as to wh ether I had a hun ting license or w astraining for a sport-shooting contest.

29. was not permitted to apply for the permit to acquire a firearm30. Withou t the permit, it is my understanding that I am unable to acquire

or poss ess a firearm in Ha wa ii for self-defense or any other lawful purp ose. Infact, it is my understanding that to do so would be a crime.

31 . I hav e safely and lawfully po ssess ed a num ber of firearms in Au straliafor years.

32. wish to possess operational firearms and ammunition in my Hawaiihom e for the pu rpo se of self-defense. I also wish to pos sess firearms that I mayuse to train for and participate in sport-shooting competitions.

33. I currently ow n seven rifles and two handg uns.34. Before I m ove d to Ha wa ii, I sold the vast majority of my firearms and

only retained those that I find irrep lacea ble beca use of the sentim ental value Iattach to those firearms.



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47 . Bec ause I cannot apply for a permit under Haw aii law , I hav e to keepthose firearms in Au stralia. Th ose firearms are no w stored in a safe at my fath er'shouse.

48 . M y father wants the safe remo ved from his house as soon as possible.49. M y Australian firearms perm it expires on Dec emb er 31 , 2014 , at

which time my firearms must be removed from my father's house.50. Up on the expiration of the Australian permit, can no longer own the

firearms in Au stralia. I will be forced to either sell the firearms or, alternative ly,pay Australian officials an exorbitant storage fee to keep the firearms on mybeh lf Based on my experience as a Australian club captain, had to deal withAustralian gun stores to mak e purcha ses for new mem bers. Based on thisexperience, know the storage fees to be approximately $100 AUD per month orapproximately $107 USD.

51. I cann ot afford to pay the storag e fee for each of my rem ain ingfirearms and will likely be forced to sell som e if not all of my irrep lac eab lefirearms.



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I Steven Fotou dis do decla re und er penalty of law that the fore-going is true

and correct to the best of my know ledge.DA TED : Honolulu Hawaii July 24 20 14.

~l^ =Steven Fotoudis



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1



Steve Fotoudis,

Plaintiff,vs.

City and County of Honolulu;

Lois Kealoha, in his individual capacity;

David Louie, Attorney General ofHawaii in his individual and official

capacity;and, John Does 1-50 in their individualor official capacities.

Defendants.

)))))))))))

))))))))

CASE NO. 1:14-cv-00333

DECLARATION OF RICHARD L.

HOLCOMB

DECLARATION OF RICHARD L. HOLCOMB

1. My name is Richard L. Holcomb. I am an attorney duly licensed to

practice law in the State of Hawaii and admitted to practice before this Court.

2. I represent the Plaintiff, Steven Fotoudis in the above-styled case.

3. I drafted the foregoing documents and, to the best of knowledge,

believe the factual averments therein to be true.

4. Attached hereto as Exhibits Seven through Twelve are Orders and

Judgments from various other United States District Courts. I obtained each of

those Exhibits from pacer.gov. The Exhibits are true and exact copies of the



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2

documents each purports to be as the documents appear in the record of the

respective case on Pacer.gov.

I, Richard L. Holcomb, do declare under penalty of law that the fore-going is

true and correct to the best of my knowledge.

DATED: Honolulu, Hawaii, July 24, 2014.

s/Richard L. Holcomb____

Richard L. HolcombAttorney for Plaintiff

Steve Fotoudis



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SurnameFOTOUDtSGiven NameS T E V EU S C t t _ CategoryDVCourSr of Btflhustra l ia

CRofKnh Sex

Card Expiree: 5 22 22ResidentSince: 9S 0W12

n ^ 0 6 2 0 3 0 4 4 5 4 S R C ^ < < < < < < < < < f ^ i < < < < i sp t IE I )KS n f emassm e m p t y i ; ' i S t f e j c r r m s e ) o f s t o o d m a Soci*d3 3m f nKig5 Gfig i r o nCLASS C B * KRJttAtJflS:Sen*}r a e ds fc i a s t f s af e s e o j # ; m r f * ^ b u ^ n g myAwhit sk s p t f w f c s s s a fe t r e s s w t e r ts*np*yis1 5 & g o rrave? o r s to red ne o t t e dsmi miz3r c c m .Acsfecwtcrs a f e m y s t t e madeo f ms te f ta i er J U S Q CMt t a t a e s s t o p ta re r r t i t t a n g i s a i y b r o k e n opens*}t r d e s t r s y i s i a r ui n a s i bfffrdu18ifeSnysn r l k i cks f t s t p ro ven rt f ro tnb e im je & % f o r ce d o p e a

CLUB USE. 2. TARGET S OOT a 3. HUMTINQ. 4 PUNT BALLS. PRM AR Y PROOUCTIOM. 8. SECURI TY INDU STRY7. OTHER AS PROVIDED BY REGISTRAR.



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urRefOur efnquiriesTelephoneFacsimile

MM7322 33467322 4182

Firearms Branch8 February 2012

Steven Fotoudis69 East StreetTORRENSVILLE SA5031

To whom itmay concernPlease accept this letter on behalf of the Deputy Registrar to advise that at the dateofwrit ing the following personis a fit and proper persontoholdaSouth Austra l ia FirearmsLicence.

Steven Fotoudis DateofBirth4W1963 of Torrensvil leSteven has heldhisSouth Aus tralia Firea rms Licence since 1996forc lassesAandBfor the purposes ofclub use target shooting andhunt ing. In2003 hewas grantedaclass H l icence for the purpose ofclub us e. His current exp iry dateis31/12/2012.

Yours faithfully

D G i b s o nA / S e r g e a n t 2258 8F i r ea r m s B r a n c h



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StevenFo toud isFrom:Sent :To :Sub jec t :

Paperd Daniel J. [dpaperd@ honolulu.gov]Tuesday 6 December2 1110:18 [email protected]

You may bring firearm s into the State you must register them within 72 hours of your arrival. However Hawa ii Statelaw requires you to be a U.S. citizen with a U.S. passp ort or Naturalization certificate.

If you have any additional questions please feel free to contact the Honolulu Police Department/Firearms Unit directlyat 808-529-3811.

Sgt. D. PaperdHonolulu Police Department/Firearms Unit

m i i f oe



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Steve Fotoudis69 East StreetTORRENSVILLE SA 5031AUSTRALIATelephone: +61407 161 764Email: ,._ a i < > . j

21 February 2012

Mr Louis M KealohaChief of PoliceHonolulu Police Department801 South Beretania StreetHonolulu,HI 96813

Dear Mr KealohaI would like to take this opportunity to introduce ourselves to you as we will soon beperma nent residents of Oahu migrating from AustraliaOur plan when we arrive in Oahu is to buy a home and start to set up businesses. Icurrently have a business in Australia that provides building maintenance services to newhome developers and would be keen to set up a business in a similar field such as supplyingma intenance se rvices to hotels. My wife has significant experience in risk, project andchange management and currently works for South Australia's capital city local government.She is keen to investigate opportunities in setting up a consultancy to provide these servicesin Oahu.In Australia I have been a keen hunter for approximately 30 years and an active memberand competitor of a firearms club where I have been training new member's safe shootingand handling of all firearms . I've been a comm ittee me mbe r for 9 years, club captain andsignificant v olunteering for the benefit of the club and its me mbe rs.My research into H awaii's gun laws has reve aled that until I become a Un ited States citizen Iam unable to own firearms in the state of Hawaii. I am seeking your assistance to hopefullyfind a way that I may be able to bring my firearms collection to Hawaii and continue to hunton a regular monthly basis, participate in my sporting pursuits and compete in local eventssuch as I.P.S.C. and standard club pistol matches . I realize that In accordance withHawa iian law I will be unable to purcha se a nd hold firearms until I become a US citizen, but Iwas hoping that you may be able to guide me to an alternative solution, such as placing thefirearms in storage an d only using them under a local clubs supervision. My collection inAustralia is worth approxim ately 70,000 and while I am currently selling many of thesethere are a few pieces tha t are irreplaceable and I would love to retain.Under the us citizenship requirem ents I am unable to apply for citizenship for five years(although i personally would love to become a US citizen as quickly as possible) and hereinlies my d ilemm a, as I am also u na ble to Leave my collection in Australia for five years.



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Any assistance or guidance that you may be able to provide me with would be greatlyappreciated.To confirm m y involvement in a pistol club and provide information on my Au stralian Gunlicence, I have references from both Torrens Valley Pistol Club and SAPOL SouthAus tralian Police). Direct contact details have been provided should you wish to confirmthese references or require more information.I am hoping to find a way of bringing my collection of firearms to Hawaii so that I can still bean active competitor and member of one of your states club

Yours faithfully

Steve Fotoudis



47/84

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEBRASKA

SECOND AMENDMENTFOUNDATION, INC., NEBRASKA

FIREARMS OWNERS ASSOCIATION,and ARMANDO PLIEGO GONZALEZ,

Plaintiffs,

v.

JIM SUTTLE, individually and in hisofficial capacity as Mayor of Omaha,Nebraska, CITY OF OMAHA,Nebraska, a municipal corporation, and

ALEX HAYES, individually and in hisofficial capacity as Chief of Police ofOmaha, Nebraska,

Defendants.

))

)))))))))))

))))))

8:11CV335

INJUNCTION

This matter is before the court on the plaintiffs motion for a preliminary injunction,

Filing No. 21. The parties have entered into a Stipulation agreeing to the terms of the

preliminary injunction. Filing No. 26.

In the stipulation, the parties agree that individuals have a fundamental right under

the Second Amendment to keep firearms, including handguns, in their homes for lawful

purposes, most notably for self-defense, the right is enforceable against state and local

governments, legal aliens residing in Omaha enjoy fundamental constitutional rights, and

legal aliens also enjoy the right of equal protection of the laws under the Fourteenth

Amendment of the Constitution. Id. the parties agree to the entry of an order enjoining the

enforcement of Omaha Municipal Code 20-253(9), which denies non-citizens the right

8:11-cv-00335-JFB-TDT Doc # 28 Filed: 11/21/11 Page 1 of 3 - Page ID # 76Case 1:14-cv-00333 Document 6-10 Filed 07/24/14 Page 1 of 3 PageID #: 89
http://ecf.ned.uscourts.gov/doc1/11302400795http://ecf.ned.uscourts.gov/doc1/11302403427http://ecf.ned.uscourts.gov/doc1/11302403427http://ecf.ned.uscourts.gov/doc1/11302403427http://ecf.ned.uscourts.gov/doc1/11302400795


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2

to register a concealable firearm with the Omaha Chief of Police, thus denying them the

ability to possess a concealable firearm in their homes. Id.

The stipulation establishes that the plaintiffs are entitled to preliminary injunctive

relief. See Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109,114 (8th Cir. 1981)(en

banc). Pursuant to the stipulation, the court further finds that no security is required as the

defendants will not suffer financial harm by issuance of this order. This injunction shall

remain in place pending the conclusion of this litigation.

IT IS ORDERED:

1. Defendants Jim Suttle, individually and in his official capacity as Mayor of

Omaha, Nebraska; the City of Omaha, Nebraska, a municipal corporation; Alex Hayes,

individually and in his official capacity as Chief of Police of Omaha, Nebraska; their

officers, agents, servants, employees, and all persons in active concert or participation with

them who receive actual notice of the injunction are preliminarily enjoined from enforcing

Omaha Municipal Code 20-253(9), pending resolution of this action.

2. Defendants Jim Suttle, individually and in his official capacity as Mayor of

Omaha, Nebraska; the City of Omaha, Nebraska, a municipal corporation; Alex Hayes,

individually and in his official capacity as Chief of Police of Omaha, Nebraska; their

officers, agents, servants, employees, and all persons in active concert or participation with

them who receive actual notice of the injunction shall allow plaintiffs and other legal aliens

residing in Omaha to register concealable firearms for possession in their homes,

provided they are otherwise-qualified to possess a firearm.

3. The hearing scheduled for November 22, 2011 at 2:00 p.m. is canceled.

http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109


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*This opinion may contain hyperlinks to other documen ts or Web sites. The U.S. District Court forthe District of Nebraska does not endorse, recom mend, approve, or guarantee any third parties or the services

or products they provide on their Web sites. Likewise, the court has no agreem ents with any of these third

parties or their Web sites. The court accepts no responsibility for the availability or functionality of any

hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect

the opinion of the court.

3

4. This matter is referred to the United States Magistrate Judge for expedited

progression.

DATED this 21st day of November, 2011.

BY THE COURT:

s/Joseph F. Bataillon IUNITED STATES DISTRICT JUDGE



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FOR THE DISTRICT OF NEBRASKA

CARLOS NINO DE RIVERALAJOUS, et al,

Plaintiffs,

v.

DAVID SANKEY, in his official capacityas Superintendent of the NebraskaState Patrol,

Defendant.

))

))))))))))

Case No. 4:13-CV-3070

ORDER AND

FINAL JUDGMENT

This matter is before the Court upon the parties Joint Stipulation to Entry of FinalJudgment and Permanent Injunction (Filing No. 26). The parties stipulated to an Order ofthe Court enjoining Defendant from enforcing Neb. Rev. Stat. 69-2433(10) as applied tothe application of lawful permanent residents to obtain a permit to carry a concealedhandgun, provided they are otherwise-qualified.(Filing No. 26).

The Court concludes that the Stipulation should be approved, and judgment shouldbe entered in favor of Plaintiffs. Accordingly,

IT IS ORDERED:

1. For the reasons set forth in the Courts Order on Motion to Dismiss of August 30,2013 (Filing No. 22),

a. Count I of Plaintiffs Complaint is dismissed with prejudice.b. Plaintiffs claims against the Nebraska Attorney General are dismissed with

prejudice.c. Count III of Plaintiffs Complaint is voluntarily dismissed pursuant to

F.R.Civ.P. 41(a)(1)(A)(ii).

2. Pursuant to Plaintiffs as-applied Fourteenth Amendment Equal Protection claim inCount II, Defendant is permanently enjoined from taking any action to enforce Neb.Rev. Stat. 69-2433(10) as applied to the application of lawful permanent residentsto obtain a permit to carry a concealed handgun, provided they are otherwise-qualified. Upon entry of the final order and permanent injunction, Defendant shallallow Plaintiffs and other lawful permanent residents residing in Nebraska to applyfor, and obtain, a permit to carry a concealed handgun, provided they are otherwise-qualified to obtain such a permit pursuant to the Nebraska Concealed HandgunPermit Act.

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3. Plaintiffs shall file an application for attorneys fees and expenses on or beforeNovember 5, 2013.

Dated this 15thday of October, 2013.

BY THE COURT:

s/ Richard G. KopfSenior United States District Judge

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FOR THE DISTRICT OF NEW MEXICO

JOHN W. JACKSON and SECOND

AMENDMENT FOUNDATION,INC.,

Plaintiffs,

vs. No. 2:12-CV-00421-MCA-RHS

GARY KING, in his Official Capacity

as Attorney General of the State of New

Mexico, and BILL HUBBARD, in his

Official Capacity as Director of theSpecial Investigations Division of the

New Mexico Department of Public

Safety,

Defendants.

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Plaintiffs Motion for Preliminary

Injunction. [Doc. 18] The Court conducted oral argument on Plaintiffs motion on

December 18, 2012. [Doc. 27] Having considered the submissions, the relevant case law,

and otherwise being fully advised in the premises, the Court grants Plaintiffs motion.

I. BACKGROUND

On April 24, 2012, Plaintiffs John W. Jackson and the Second Amendment

Foundation, Inc. (SAF), filed their Complaint [Doc. 1] pursuant to 42 U.S.C. 1983 for

deprivation of civil rights under color of law, [seeking] equitable, declaratory, and

injunctive relief challenging the State of New Mexicos prohibition on otherwise

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qualified non-U.S. citizens who legally reside in New Mexico from obtaining a concealed

carry permit, pursuant to section NMSA 1978, 29-19-4(A)(1) of the New Mexico

Concealed Handgun Carry Act. [Doc. 1 at 1] Plaintiffs allege that the citizenship

requirement in Section 29-19-4(A)(1) violates the equal protection clause of the United

States Constitution, the right to keep and bear firearms in the Second Amendment to the

United States Constitution, and is preempted by federal immigration law. [Doc. 1 at 6-7]

On May 17, 2012, Defendants Gary King, Attorney General of the State of New

Mexico, and Bill Hubbard, Director of the Special Investigations Division of the New

Mexico Department of Public Safety, filed their Answer to Plaintiffs Complaint. [Doc.

10] In their Answer Defendants admitted that legal resident aliens are prohibited from

carrying concealed weapons and that only citizens may carry concealed weapons.

[Doc. 10 at 2]

On August 9, 2012, Plaintiffs filed Plaintiffs Motion for Preliminary Injunction.

[Doc. 18] In support of their motion, Plaintiffs submitted the Declaration of John W.

Jackson, who averred that he is a permanent legal resident of the United States residing in

Rio Rancho, Sandoval County, New Mexico, and that he is prohibited by NMSA 1978,

29-19-4A(1) from obtaining a concealed carry permit, and thus carrying a handgun in a

concealed manner for self-defense. [Doc. 19] Plaintiffs also submitted the Declaration

of Julianne Versnel, who is the Director of Operations of SAF. Ms. Versnel averred that

SAF has individual members and supporters who are adversely impacted by NMSA

1978, 29-19-14(A)(1) and that [b]ut for criminal enactments challenged in this

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complaint, SAF members who are legal aliens residing within New Mexico would obtain

concealed carry permits and carry concealed firearms for their own defense. [Doc. 19]

Plaintiffs contend that they are entitled to preliminary injunctive relief because [t]he

deprivations of constitutional rights subject Plaintiffs to irreparable harm, and is such a

clear-cut constitutionally-inflicted harm that Plaintiffs are likely to succeed on the merits

by the conclusion of this litigation. [Doc. 19 at 6] Plaintiffs further contend that the

balance of the equities and the public interest would be served by awarding them the

preliminary injunctive relief that they seek.

Defendants do not dispute that permanent resident aliens are entitled to Second

Amendment rights under the equal protection clause of the Fourteenth Amendment.

[Doc. 20 at 4] Defendants contend, however, that no Second Amendment rights are at

issue in this case because the concealed carry of a firearm is not a constitutional right.

[Id.] Defendants point out that Plaintiffs are free to carry firearms openly and to carry

concealed firearms in their own home, on their own property, and in their own vehicle.

Because there is no constitutional violation, Defendants argue that Plaintiffs motion for a

preliminary injunction should be denied.

On September 19, 2012, the Court held a telephonic status conference regarding

Plaintiffs motion. At the status conference, the parties agreed that an evidentiary hearing

was unnecessary, but requested oral argument. [Doc. 25] Oral argument on Plaintiffs

motion was held on Tuesday, December 18, 2012. [Doc. 27]

Following oral argument, Defendant King moved to dismiss Plaintiffs Complaint

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for failure to state a claim upon which relief can be granted and for lack of standing,

alleging that he is not responsible for the execution and administration of the Concealed

Handgun Carry Act, NMSA 1978, 29-19-1, et seq. and, therefore, Plaintiffs injuries are

not traceable to him, nor redressable by him. [Doc. 28] The Court agreed and granted

Defendant Kings motion to dismiss. [Doc. 41] Accordingly, Defendant King is no

longer a party to this case.

II. STANDARD

The decision to grant a preliminary injunction is within the Courts discretion. See

Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202, 1205 (10th Cir. 2003).

Because a preliminary injunction is an extraordinary remedy, the right to relief must be

clear and unequivocal. Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256

(10th Cir. 2003). To obtain a preliminary injunction, the moving party must

demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the movant

will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of

equities tips in the movants favor; and (4) that the injunction is in the public interest.

Attorney Gen. of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)

(internal quotation marks and citation omitted). Generally, where the moving party has

established that the [latter] three harm factors tip decidedly in its favor, the probability of

success requirement is somewhat relaxed and the movant need only show questions going

to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground

for litigation. Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1298 n.6 (10th Cir.

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2006) (internal quotation marks and citations omitted). However, this relaxed standard

does not apply to the three types of disfavored injunctions, which are:

(1) preliminary injunctions that alter the status quo; (2) mandatory

preliminary injunctions; and (3) preliminary injunctions that afford themovant all the relief that it could recover at the conclusion of a full trial on

the merits. When a preliminary injunction falls into one of these categories,

it must be more closely scrutinized to assure that the exigencies of the case

support the granting of a remedy that is extraordinary even in the normal

course. A district court may not grant a preliminary injunction unless the

moving party makes a strong showing both with regard to the likelihood of

success on the merits and with regard to the balance of harms.

Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012) (internal quotation marks and

citation omitted).

Plaintiffs contend that the relaxed standard is applicable to this case because the

latter three elements weigh heavily in its favor. [Doc. 19 at 10 (internal quotation marks

and citation omitted)]. However, in Nova Health Systems, the Tenth Circuit Court of

Appeals held that where . . . the plaintiff seeks to enjoin the enforcement of a statute, a

showing that the questions are fair ground for litigation is not enough; the plaintiff must

meet the traditional substantial likelihood of success standard. 460 F.3d at 1298 n.6;

see also Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)

([w]here ... a preliminary injunction seeks to stay governmental action taken in the

public interest pursuant to a statutory or regulatory scheme, the less rigorous

fair-ground-for-litigation standard should not be applied. (internal quotation marks and

citation omitted)). Accordingly, the Court concludes that the relaxed standard is

inapplicable to this case.

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Defendant Hubbard contends that Plaintiffs seek a disfavored injunction and,

therefore, the heightened standard must be applied. [Doc. 20 at 3] The status quo is

defined as

the last uncontested status between the parties which preceded the

controversy until the outcome of the final hearing. In determining the status

quo for preliminary injunctions, [the Tenth Circuit] looks to the reality of

the existing status and relationship between the parties and not solely to the

parties legal rights.

Schrier v. Univ. Of Colorado, 427 F.3d 1253, 1260 (10th Cir. 2005) (internal quotation

marks and citations omitted). In Nova Health Systems, the Court expressed no opinion as

to whether a preliminary injunction seeking to enjoin the enforcement of a statute would

alter the status quo and, therefore, be a disfavored injunction subject to the heightened

standard of review. 460 F.3d at 1298 n.5.

The District of Kansas addressed this issue, however, in American Civil Liberties

Union of Kansas and Western Missouri v. Praeger, 815 F.Supp.2d 1204 (D. Kan. 2011).

In that case, the plaintiff sought declaratory and injunctive relief to halt the enforcement

of a Kansas statute which took effect on July 1, 2011. Id. at 1207. The Court held that,

because the statute was newly enacted, the last uncontested status between the parties

before the dispute arose would be that which existed prior to the challenged statute taking

effect. Id. at 1208. In arriving at this conclusion, the Court relied on the concurrence in

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th

Cir. 2004), which noted that [w]hen a statute is newly enacted, and its enforcement will

restrict rights citizens previously had exercised and enjoyed, it is not uncommon for

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district courts to enjoin enforcement pending a determination of the merits of the

constitutional issue. Conversely, [w]hen a statute has long been on the books and

enforced, . . . it is exceedingly unusual for a litigant who challenges its constitutionality to

obtain (or even to seek) a preliminary injunction against its continued enforcement. Id.

Because the statute at issue in Praeger was newly enacted, the Court concluded that the

heightened standard for injunctions that alter the status quo [did] not apply to plaintiffs

request for a preliminary injunction. Praeger, 815 F.Supp.2d at 1209.

The citizenship requirement in New Mexicos Concealed Handgun Carry Act is

not newly enactedit has been a part of the statutory scheme since its enactment in 2003.

See 2003 New Mexico Laws Ch. 255 (S.B. 23). Because the citizenship requirement has

long been on the books and enforced, O Centro Espirita Beneficiente Uniao Do Vegetal,

389 F.3d at 977, the Court concludes that the requested relief seeks to alter the status quo.

Cf. American Ass'n of People With Disabilities v. Herrera, 580 F.Supp.2d 1195, 1247 (D.

N.M. 2008) (denying the plaintiffs request for a preliminary injunction enjoining the

enforcement of New Mexicos voter-registration laws in relevant part because it would

upset the status quo that has existed for three years). Accordingly, the heightened

standard of review applicable to disfavored injunctions applies to Plaintiffs motion for a

preliminary injunction.

III. DISCUSSION

It is undisputed that Plaintiffs may openly carry a loaded firearm in accordance

with Article II, Section 6 of the New Mexico Constitution. See N.M. Const. art. II, 6

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(No law shall abridge the right of the citizen to keep and bear arms for security and

defense, for lawful hunting and recreational use and for other lawful purposes, but

nothing herein shall be held to permit the carrying of concealed weapons. No

municipality or county shall regulate, in any way, an incident of the right to keep and bear

arms.). However, New Mexicos Concealed Handgun Carry Act does not permit non-

United States citizens to carry a loaded concealed firearm. Specifically, Section 29-19-4

provides, in relevant part, as follows:

A. The department shall issue a concealed handgun license to an

applicant who:(1) is a citizen of the United States;

(2) is a resident of New Mexico or is a member of the armed

forces whose permanent duty station is located in New Mexico or is a

dependent of such a member;

(3) is twenty-one years of age or older;

(4) is not a fugitive from justice;

(5) has not been convicted of a felony in New Mexico or in any

other state or pursuant to the laws of the United States or any other

jurisdiction;

(6) is not currently under indictment for a felony criminal offensein New Mexico or any other state or pursuant to the laws of the United

States or any other jurisdiction;

(7) is not otherwise prohibited by federal law or the law of any

other jurisdiction from purchasing or possessing firearms;

(8) has not been adjudicated mentally incompetent or committed

to a mental institution;

(9) is not addicted to alcohol or controlled substances; and

(10) has satisfactorily completed a firearms training course

approved by the department for the category and the largest caliber of

handgun that the applicant wants to be licensed to carry as a concealedhandgun.

Although noncitizens cannot obtain a concealed handgun license, they may nonetheless

carry a concealed loaded firearm in the following limited circumstances:

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(1) in the personss residence or on real property belonging to him as

owner, lessee, or licensee;

(2) in a private automobile or other private means of conveyance, for

lawful protection of the persons or anothers person or property.

NMSA 1978, 30-7-2. In any other circumstance, carrying a loaded concealed firearm

without a valid concealed handgun license issued . . . by the department of public safety

pursuant to the provisions of the Concealed Handgun Carry Act is a petty

misdemeanor. Id.

A. Second Amendment

Plaintiffs contend that the citizenship requirement in New Mexicos Concealed

Handgun Carry Act violates their fundamental right to keep and bear arms under the

Second Amendment to the United States Constitution. Defendant Hubbard responds that

there is no fundamental right to carry a concealed firearm under the Second Amendment.

The Second Amendment provides as follows: A well regulated Militia, being

necessary to the security of a free State, the right of the people to keep and bear Arms,

shall not be infringed. This provision is fully applicable to the States. McDonald v.

City of Chicago, 130 S. Ct. 3020, 3026 (2010) (citations omitted).

In District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States

Supreme Court held that the Second Amendment guarantees the individual right to

possess and carry weapons in case of confrontation. However, the Court cautioned that

the right [is] not a right to keep and carry any weapon whatsoever, in any manner

whatsoever and for whatever purpose. Id. at 626. For example, the majority of 19th-

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century courts to consider the question held that prohibitions on carrying concealed

weapons were lawful under the Second Amendment or state analogues. Id. Although

the Court did not undertake an exhaustive historical analysis . . . of the full scope of the

Second Amendment, the Court stated that nothing in its opinion should be taken to cast

doubt on longstanding prohibitions on the possession of firearms by felons and the

mentally ill, or laws forbidding the carrying of firearms in sensitive places such as

schools and government buildings, or law imposing conditions and qualifications on the

commercial sale of arms. Id. at 626-27.

After examining the history and text of the Second Amendment, the Heller Court

held that the D

Documents

Resident Alien Preliminary Injunction