Choda Complaint Filed-Combined

Case 1:21-cv-00384 Document 1 Filed 09/14/21 Page 1 of 22 PageID #: 1
Alan Alexander Beck

Law Office of Alan Beck
2692 Harcourt Drive
San Diego, California 92123
(619) 905-9105
Hawaii Bar No. 9145
[email protected]
Kevin Gerard O’Grady

Law Office of Kevin O’Grady, LLC
1136 Union Mall, Suite 808
Honolulu, Hawaii 96813
(808) 521-3367
Hawaii Bar No. 8817
[email protected]
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII
)
LANCE S. CHODA )
)
)
Plaintiff, )
) Civil Action No. _____________
v. )
)
COUNTY OF HAWAII )
)
)
)
)
)
Defendant. )
____________________________________)
VERIFIED COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF
COME NOW the Plaintiff, Lance S. Choda, (“Choda”), by and through his
undersigned counsel, and complain of the Defendant as follows:
I. PARTIES
Plaintiff
1. Plaintiff Lance S. Choda (“Choda”) is an adult male resident of the
State of Hawaii and resides in Hawaii County and is a citizen of the United States.
Defendant
2. Defendant County of Hawaii (“County”) is a municipal corporation
incorporated under the laws of the State of Hawaii. The County is authorized by
law to control and maintain the Hawaii Police Department, an agency of the
County, who acts on the County’s behalf in the area of law enforcement. The
County is therefore ultimately responsible for Hawaii Police Department (“HPD”)
and its actions, and therefore, must assume the risks incidental to the maintenance
of HPD, its employees, laws, customs and policies. The County can be served by
serving the Department of the Corporation Counsel, County of Hawaii 101 Aupuni
Street, #325, Hilo, Hawaii 96720.
II. JURISDICTION AND VENUE
3. This Court has subject matter jurisdiction over this action pursuant to 28
U.S.C. §§ 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983 and § 1988.
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4. Venue lies in this Court pursuant to 28 U.S.C. § 1391.
STATEMENT OF LAW
2ND Amendment
5. The Second Amendment to the United States Constitution provides: “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.”
6. The Second Amendment guarantees individuals a fundamental right to
keep and carry arms for self-defense and defense of others in the event of a violent
confrontation. District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v.
Chicago, 561 U.S. 742 (2010); Caetano v. Massachusetts, 577 U.S. 1027 (2016).
7. Firearms are protected by the Second Amendment. District of
Columbia v. Heller, 554 U.S. 570 (2008).
8. Given the decision in Heller, Defendants may not impose regulations
on the right to keep and carry arms that are inconsistent with the Second
Amendment. Heller v. District of Columbia, 801 F.3d 264 (D.C. Cir. 2015).
HRS §134 Firearms
9. Hawaii law requires the registration of all firearms. See H.R.S. §134-3.
10. Hawaii law requires that “[e]very person who acquires a firearm
pursuant to section §134-2 shall register the firearm in the manner prescribed by this
section within five days of acquisition.” See HRS §134-3.
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11. Prior to purchasing a handgun, all persons must apply for a permit to
acquire. See H.R.S. §134-2.
12. Pursuant to Hawaii law, after applying, an applicant must wait 14 days
before returning to retrieve his permit to acquire. See H.R.S. §134-2
13. Pursuant to H.R.S. §134-7, no one in the State of Hawaii who has been
convicted of a crime of violence may own, acquire, or possess a firearm.
§134-7 Ownership or possession prohibited, when; penalty.

(a) No person who is a fugitive from justice or is a person
prohibited from possessing firearms or ammunition under federal law
shall own, possess, or control any firearm or ammunition therefor.
(b) No person who is under indictment for, or has waived
indictment for, or has been bound over to the circuit court for, or has
been convicted in this State or elsewhere of having committed a
felony, or any crime of violence, or an illegal sale of any drug shall
own, possess, or control any firearm or ammunition therefor.
(c) No person who:
(1) Is or has been under treatment or counseling for
addiction to, abuse of, or dependence upon any dangerous, harmful, or
detrimental drug, intoxicating compound as defined in section 712-
1240, or intoxicating liquor;
(2) Has been acquitted of a crime on the grounds of mental
disease, disorder, or defect pursuant to section 704-411; or
(3) Is or has been diagnosed as having a significant
behavioral, emotional, or mental disorders as defined by the most
current diagnostic manual of the American Psychiatric Association or
for treatment for organic brain syndromes;
shall own, possess, or control any firearm or ammunition therefor,

unless the person has been medically documented to be no longer
adversely affected by the addiction, abuse, dependence, mental disease,
disorder, or defect.
(d) No person who is less than twenty-five years old and has been
adjudicated by the Family Court to have committed a felony, two or
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more crimes of violence, or an illegal sale of any drug shall own,

possess or control any firearm or ammunition therefor.
(e) No minor who:
(1) Is or has been under treatment for addiction to any dangerous,
harmful, or detrimental drug, intoxicating compound as defined in
section 712-1240, or intoxicating liquor;
(2) Is a fugitive from justice; or
(3) Has been determined not to have been responsible for a
criminal act or has been committed to any institution on account of a
mental disease, disorder, or defect; shall own, possess, or control any
firearm or ammunition therefor, unless the minor has been medically
documented to be no longer adversely affected by the addiction, mental
disease, disorder, or defect.
For the purposes of enforcing this section, and notwithstanding
section 571-84 or any other law to the contrary, any agency within the
State shall make its records relating to Family Court adjudications
available to law enforcement officials.
(f) No person who has been restrained pursuant to an order of any
court, including a gun violence protective order issued pursuant to part
IV, from contacting, threatening, or physically abusing any person,
shall possess, control, or transfer ownership of any firearm or
ammunition therefor, so long as the protective order, restraining order,
or any extension is in effect, unless the order, for good cause shown,
specifically permits the possession of a firearm and ammunition. The
protective order or restraining order shall specifically include a
statement that possession, control, or transfer of ownership of a firearm
or ammunition by the person named in the order is prohibited. The
person shall relinquish possession and control of any firearm and
ammunition owned by that person to the police department of the
appropriate county for safekeeping for the duration of the order or
extension thereof. At the time of service of a protective order or
restraining order involving firearms and ammunition issued by any
court, a police officer may take custody of any and all firearms and
ammunition in plain sight, those discovered pursuant to a consensual
search, and those firearms surrendered by the person restrained. If the
person restrained is the registered owner of a firearm and knows the
location of the firearm, but refuses to surrender the firearm or refuses
to disclose the location of the firearm, the person restrained shall be
guilty of a misdemeanor. In any case, when a police officer is unable
to locate the firearms and ammunition either registered under this
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chapter or known to the person granted protection by the court, the

police officer shall apply to the court for a search warrant pursuant to
chapter 803 for the limited purpose of seizing the firearm and
ammunition.
For the purposes of this subsection, good cause shall not be based
solely upon the consideration that the person subject to restraint
pursuant to an order of any court is required to possess or carry firearms
or ammunition during the course of the person's employment. Good
cause consideration may include but not be limited to the protection and
safety of the person to whom a restraining order is granted.
(g) Any person disqualified from ownership, possession, control, or
the right to transfer ownership of firearms and ammunition under this
section shall surrender or dispose of all firearms and ammunition in
compliance with section §134-7.3.
(h) Any person violating subsection (a) or (b) shall be guilty of a
class C felony; provided that any felon violating subsection (b) shall be
guilty of a class B felony. Any person violating subsection (c), (d), (e),
(f), or (g) shall be guilty of a misdemeanor.
H.R.S. §134-7, emphasis added.
14. Pursuant to HRS §711-1101, Disorderly Conduct is either a petty
misdemeanor or a violation,
§711-1101 Disorderly conduct.

(1) A person commits the offense of disorderly conduct if, with
intent to cause physical inconvenience or alarm by a member or
members of the public, or recklessly creating a risk thereof, the person:
(a) Engages in fighting or threatening, or in violent or
tumultuous behavior;
(b) Makes unreasonable noise;
(c) Subjects another person to offensively coarse behavior
or abusive language which is likely to provoke a violent response;
(d) Creates a hazardous or physically offensive condition
by any act which is not performed under any authorized license or
permit; or
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(e) Impedes or obstructs, for the purpose of begging or

soliciting alms, any person in any public place or in any place open to
the public.
(2) Noise is unreasonable, within the meaning of subsection
(1)(b), if considering the nature and purpose of the person's conduct and
the circumstances known to the person, including the nature of the
location and the time of the day or night, the person's conduct involves
a gross deviation from the standard of conduct that a law-abiding citizen
would follow in the same situation; or the failure to heed the admonition
of a police officer that the noise is unreasonable and should be stopped
or reduced.
The renter, resident, or owner-occupant of the premises who
knowingly or negligently consents to unreasonable noise on the
premises shall be guilty of a noise violation.
(3) Disorderly conduct is a petty misdemeanor if it is the
defendant's intention to cause substantial harm or serious
inconvenience, or if the defendant persists in disorderly conduct after
reasonable warning or request to desist. Otherwise disorderly conduct
is a violation.
15. Pursuant to H.R.S. §711-1106 Harassment is a petty misdemeanor.
§711-1106 Harassment. (1) A person commits the offense of harassment

if, with intent to harass, annoy, or alarm any other person, that person:
(a) Strikes, shoves, kicks, or otherwise touches another person in an offensive

manner or subjects the other person to offensive physical contact;
(b) Insults, taunts, or challenges another person in a manner likely to provoke

an immediate violent response or that would cause the other person to reasonably
believe that the actor intends to cause bodily injury to the recipient or another or
damage to the property of the recipient or another;
(c) Repeatedly makes telephone calls, facsimile transmissions, or any form of

electronic communication as defined in section 711-1111(2), including electronic
mail transmissions, without purpose of legitimate communication;
(d) Repeatedly makes a communication anonymously or at an extremely

inconvenient hour;
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(e) Repeatedly makes communications, after being advised by the person to

whom the communication is directed that further communication is unwelcome; or
(f) Makes a communication using offensively coarse language that would cause
the recipient to reasonably believe that the actor intends to cause bodily injury to
the recipient or another or damage to the property of the recipient or another.
(2) Harassment is a petty misdemeanor.
16. Hawaii crimes are categorized as different grades of offenses pursuant to

HRS §701-107, Grades and Classes of Offenses.
HRS §701-107 sets forth the grades and classes of offenses,
§701-107 Grades and classes of offenses.

(1) An offense defined by this Code or by any other statute of
this State for which a sentence of imprisonment is authorized
constitutes a crime. Crimes are of three grades: felonies,
misdemeanors, and petty misdemeanors. Felonies include murder in
the first and second degrees, attempted murder in the first and second
degrees, and the following three classes: class A, class B, and class C.
(2) A crime is a felony if it is so designated in this Code or if
persons convicted thereof may be sentenced to imprisonment for a term
which is in excess of one year.
(3) A crime is a misdemeanor if it is so designated in this Code
or in a statute other than this Code enacted subsequent thereto, or if it
is defined in a statute other than this Code which provides for a term of
imprisonment the maximum of which is one year.
(4) A crime is a petty misdemeanor if it is so designated in this
Code or in a statute other than this Code enacted subsequent thereto, or
if it is defined by a statute other than this Code that provides that
persons convicted thereof may be sentenced to imprisonment for a term
not to exceed thirty days.
(5) An offense defined by this Code or by any other statute of
this State constitutes a violation if it is so designated in this Code or in
the law defining the offense or if no other sentence than a fine, or fine
and forfeiture or other civil penalty, is authorized upon conviction or if
it is defined by a statute other than this Code which provides that the
offense shall not constitute a crime. A violation does not constitute a
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crime, and conviction of a violation shall not give rise to any civil
disability based on conviction of a criminal offense.
(6) Any offense declared by law to constitute a crime, without
specification of the grade thereof or of the sentence authorized upon
conviction, is a misdemeanor.
(7) An offense defined by any statute of this State other than this
Code shall be classified as provided in this section and the sentence that
may be imposed upon conviction thereof shall hereafter be governed by
this Code.
H.R.S. §134-1 defines “Crime of Violence” as follows:
"Crime of violence" means any offense, as defined in title 37, that

involves injury or threat of injury to the person of another, including
sexual assault in the fourth degree under section 707-733 and
harassment by stalking under section 711-1106.5.
17.STATEMENT OF FACTS
A. PLAINTIFF CHODA
18. On December 19, 2020, Choda started his vehicle’s engine at night.
Choda’s neighbor yelled at him to be quiet. Choda yelled at his neighbor. Profanity
was used. Choda and his neighbor yelled at each other. Police were called. While
police were present Choda yelled at his neighbor using profanity. Choda and his
neighbor were on their own properties separated by a fence. No threats were made.
No physical contact occurred between Choda and his neighbor. Choda was arrested
for disorderly conduct;
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19. On January 21, 2021, in the Third District Court of the State of Hawaii,
in matter 3DCW21-0000081, Choda was charged with a violation of Harassment
and Disorderly Conduct. See Exhibit A, Complaint;
20. On January 21, 2021 in the Third District Court of the State of Hawaii,
in matter 3DCW21-0000081, Choda completed and submitted a written plea of no
contest to the charge of disorderly conduct only. See Written submission of plea
attached as Exhibit B;
21. On January 21, 2021, in the Third District Court of the State of Hawaii,
in matter 3DCW21-0000081, Choda, pled no contest and was found guilty of
Harassment under H.R.S. § 711-1106(1) and pled no contest and was found guilty
of Disorderly Conduct under H.R.S. §711-1101(1)(a)(b)(c)(3). See Exhibit C
judgment of the court 1;
22. The State of Hawaii records Choda as having two convictions, both
petty misdemeanors, one for Harassment and one for Disorderly Conduct, and both
convictions having been entered on January 21, 2021 in 3DCW21-0000081. See
ECrim printout attached as Exhibit D;
23. On April 8 or April 9, 2021, Choda applied for a permit to get another
firearm;
1
Both the complaint and the judgment of the court list all possible variations of the
offense and do not distinguish between the subsections.
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24. On August 11, 2021, COUNTY delivered a letter to Choda informing
him that the police department had denied his permit to acquire firearms and
informing him that he had until September 15, 2021, to dispose of all firearms and
ammunition within thirty days. See Exhibit E letter from HPD;
25. The August 11, 2021, COUNTY letter, attached as Exhibit E from
HPD, states that Choda is disqualified from owning any firearms because of a crime
of violence conviction in Hawaii. See Exhibit E;
26. Specifically, the August 11, 2021, COUNTY letter, attached as Exhibit
E states;
“Your application for a Permit to Acquire a firearm has been denied based
on Section 134-7(b) of the Hawaii Revised Statutes which precludes you
from possessing any firearms due to a crime of violence conviction in
Hawaii.
Any person disqualified from ownership, possession or control of firearms

and ammunition under Section 134-7 must dispose of all firearms and
ammunition within thirty days from the date of disqualification.
Firearms and ammunition may be disposed of by sale to a gun dealer

licensed under Section 134-31, transfer of ownership to any person who
meets the requirements of Section 134-2, or surrender to the police chief or
his representative for storage or disposal.
Should you elect to surrender the firearm(s) and ammunition to the police,
first contact Lieutenant Tuckloy D. Aurelio of our Records and
Identification Section at 961-2232 and then surrender the items to the
nearest police station. It will be your responsibility to provide updated
mailing addresses and contact phone numbers if the disqualification is not
permanent. All firearms and ammunition surrendered to the police without
updated contact information or due to permanent disqualification will be
destroyed.
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Any firearms and ammunition presently in your possession must be

disposed of by September 15, 2021. Failure to do so may result in seizure
of the firearms and ammunition and criminal prosecution under Chapter
134 of the Hawaii Revised Statutes”;
27. The COUNTY denial letter, attached as Exhibit E, only lists the “crime
of violence conviction” as the prohibition to acquiring and or possessing
firearms and ammunition;
28. The COUNTY denial letter, attached as Exhibit E, does not list any other
statutory prohibition under federal or state law;
29. Prior to 2021, Choda owned multiple permitted and registered firearms;
30. CHODA is not statutorily prohibited from acquiring and or possessing
firearms and ammunition under state and or federal law;
31. Harassment, under H.R.S. § 711-1106(1) is not categorically a crime of
violence as defined under H.R.S. §134-1 which provides "Crime of
violence" means any offense, as defined in title 37, that involves injury or
threat of injury to the person of another, including sexual assault in the
fourth degree under section 707-733 and harassment by stalking under
section 711-1106.5.”;
32.Disorderly Conduct, under H.R.S. §711-1101(1)(a)(b)(c)(3) is not
categorically a crime of violence as defined under H.R.S. §134-1 which
provides "Crime of violence" means any offense, as defined in title 37, that
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involves injury or threat of injury to the person of another, including sexual
assault in the fourth degree under section 707-733 and harassment by
stalking under section 711-1106.5.”;
33.Based upon the plain language of the statute, "injury" and "threat of
injury" are not elements of harassment as it is defined in H.R.S. § 711-
1106, which provides “ (1) A person commits the offense of harassment
if, with intent to harass, annoy, or alarm any other person, that person:
(a) Strikes, shoves, kicks, or otherwise touches another person in an

offensive manner or subjects the other person to offensive physical contact;
(b) Insults, taunts, or challenges another person in a manner likely to

provoke an immediate violent response or that would cause the other person
to reasonably believe that the actor intends to cause bodily injury to the
recipient or another or damage to the property of the recipient or another;
(c) Repeatedly makes telephone calls, facsimile transmissions, or any form

of electronic communication as defined in section 711-1111(2), including
electronic mail transmissions, without purpose of legitimate communication;
(d) Repeatedly makes a communication anonymously or at an extremely

inconvenient hour;
(e) Repeatedly makes communications, after being advised by the person to

whom the communication is directed that further communication is
unwelcome; or
(f) Makes a communication using offensively coarse language that would

cause the recipient to reasonably believe that the actor intends to cause
bodily injury to the recipient or another or damage to the property of the
recipient or another;
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34. The Court of Appeals for the Ninth Circuit has held that the phrase
"physical force" pursuant to 18 U.S.C. § 921(a)(33)(A)(i) means "the
violent use of force against the body of another individual." See United
States v. Belless, 338 F.3d 1063, 1068 (9th Cir. 2003).
35 The Commentary regarding H.R.S. § 711-1106 states that "Subsection
(1)(a) is a restatement of the common-law crime of battery, which was
committed by any slight touching of another person in a manner which is
known to be offensive to that person.";
36 In Fisher v Kealoha, 869 F.Supp.2d 1203 (2012), the court ruled that
Harassment, under H.R.S. § 711-1106(1) is not a crime of violence as
defined under H.R.S. §134-1 and 134-7;
37 Choda’s Harassment conviction, pursuant to Fisher, is not a crime of
violence under H.R.S. §134-1 and 134-7;
38 Choda’s Disorderly conduct conviction, analyzed under Fisher, is not a
crime of violence under H.R.S. §134-1 and 134-7;
39 Without any qualifying convictions Choda is not prohibited from
acquiring, owning and possessing firearms;
40 County’s policy of treating Choda’s Harassment conviction under H.R.S.
§ 711-1106(1) as a disqualifying crime of violence under H.R.S. §134-7
violates Choda’s Second Amendment rights;
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41 County’s policy of treating Choda’s Disorderly Conduct conviction under
§711-1101(1)(a)(b)(c)(3) as a disqualifying crime of violence under
H.R.S. §134-7 violates Choda’s Second Amendment rights;
B. Plaintiff Lance S. Choda Biographical Facts
42 Plaintiff CHODA was born in Maui county, Hawaii;
43 Plaintiff CHODA was raised on the islands Maui and Hawaii;
44 Plaintiff CHODA currently resides on Hawaii in Hawaii county;
45. Plaintiff CHODA is currently employed as a concrete foreman;
46. Plaintiff CHODA has never been convicted of a crime that would
disqualify him from firearms ownership under federal law;
47. Outside of the laws that could potentially be at issue in this litigation,
Plaintiff Choda has never been convicted of a crime that would disqualify him under
state law;
48. Plaintiff Choda has never been diagnosed with a mental disorder that
would disqualify him from firearms ownership under Hawaii or federal law;
49. Plaintiff Choda does not take illegal drugs or abuse alcohol;
COUNT I
U.S. CONST., AMEND. II
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50. Plaintiff repeats and realleges the allegations of the preceding
paragraphs as if set forth herein;
51. Hawaii state law does not support criminalizing the possession of
firearms by Plaintiff because neither of his convictions, for harassment and
disorderly conduct, are for crimes of violence;
52. Thus, categorically criminalizing the possession of firearms by those
convicted of H.R.S. § 711-1101(1)(a) and H.R.S. § 711-1106 is an independent
County policy;
53. Defendant’s policy of criminalizing the possession of firearms by
Plaintiff violates his Second Amendment rights;
54. Alternatively, if the County may properly criminalize the ownership,
possession and acquisition of firearms based on a conviction for a violation of HRS
§ 711-1101(1)(a) and H.R.S. § 711-1106 pursuant to H.R.S. §134-7, then H.R.S.
§134-7 is unconstitutional as applied to Plaintiff;
COUNT II
Due Process
55. The Due Process states that “No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process
of law”. See U.S. Const. amend. XIV, § 2;
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56. Under the law governing substantive due process, Plaintiff must prove
that: (1) he had a valid interest at stake; and (2) defendant infringed on that interest
in an arbitrary or irrational manner. Royal Crown Day Care LLC v. Dep't of Health
& Mental Hygiene, 746 F.3d 538, 545 (2d Cir. 2014);
57. Plaintiff has a valid liberty interest in his constitutional right to own a
firearm;
58. Plaintiff has a valid property interest in the possession of his already
owned firearms;
59. The County infringes on that right by acting in an ultra vires manner
which is inherently arbitrary;
60. The County is acting in an ultra vires manner because it purports to
apply Hawaii’s prohibition on firearm ownership for persons convicted of crimes of
violence onto persons such as Plaintiff who has never been convicted of a
disqualifying crime;
61. Because the County “did not have authority for the actions it took
regarding” Plaintiff’s firearm rights, the County’s action was “ultra vires and, as a
result, sufficiently arbitrary to amount to a substantive due process violation.” Cine
SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007);
62. Thus, the County has violated Plaintiff’s Due Process rights;
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COUNT III
Equal Protection
63. The Equal Protection Clause of the 14th Amendment provides "nor
shall any State ... deny to any person within its jurisdiction the equal protection of
the laws". See U.S. Const. amend. XIV, § 2;
64. The County’s policy is a violation of Equal Protection because Plaintiff
has never been convicted of a prohibiting offense, yet he is being treated differently
than other law-abiding citizens;
Vagueness
65. Alternatively, if this Court finds that a conviction for disorderly conduct
and harassment can be grounds to disqualify a person under H.R.S. § 134-7, then the
statutory scheme is void for vagueness;
66. It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined. Grayned v. County of Rockford,
408 U.S. 104, 108, 92 S. Ct. 2294, 2298 (1972);
67. Here, the H.R.S. states that harassment and disorderly conduct
convictions are not crimes of violence convictions since neither categorically
includes injury or threat of injury to the person of another;
68. The prohibition in H.R.S § 134-7 only applies to crimes of violence;
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69. Therefore, assuming a conviction of disorderly conduct and harassment
can disqualify you under H.R.S. §134-7, the H.R.S. fails to provide fair warning of
what is a prohibiting crime and the H.R.S. is unconstitutionally vague both facially
and as applied to Plaintiff;
COUNT IV
(DECLARATORY JUDGMENT)
70. Plaintiff repeats and realleges the allegations of the preceding
paragraphs as if set forth herein;
71. The Declaratory Judgment Act provides: "In a case of actual
controversy within its jurisdiction, any court of the United States may declare the
rights and other legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought." 28 U.S.C. 2201(a);
72. Absent a declaratory judgment, there is a substantial likelihood that
Plaintiff will suffer irreparable injury in the future;
73. There is an actual controversy between the parties of sufficient
immediacy and reality to warrant issuance of a declaratory judgment;
74. This Court possesses an independent basis for jurisdiction over the
parties;
75. A judgment declaring that Defendants’ policy which denies Plaintiff
the right to own, possess and acquire firearms is unconstitutional as applied to him;
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76. Alternatively, a declaration that H.R.S. §134-7 is unconstitutional as
applied to Plaintiff;
PRAYER FOR RELIEF
WHEREFORE, Plaintiff requests that judgment be entered in his favor and
against Defendant as follows:
1. An order preliminarily and permanently enjoining Defendant, its
officers, agents, servants, employees, and all persons in active concert or
participation with them who receive actual notice of the injunction, from enforcing
Defendant’s policy of prohibiting people who have been convicted of disorderly
conduct and harassment from possessing and or acquiring firearms and ammunition;
2. Alternatively, if this Court finds Choda’s convictions for H.R.S. § 711-
1101 (1)(a) and H.R.S. § 711-1106 constitute crimes of violence as contemplated by
H.R.S. §134-7, Plaintiff requests this Court, enjoin H.R.S. §134-7 and any other
relevant provision of the H.R.S. both facially and as applied to him.
3. Declaratory relief that the complained of County policy is
unconstitutional both facially and as applied to Plaintiff.
4. Declaratory relief that if this Court finds a conviction for H.R.S. § 711-
1101(1)(a) and H.R.S. § 711-1106 constitute crimes of violence as contemplated by
H.R.S. §134-7, then H.R.S. §134-7 and any other relevant provision of the H.R.S. is
unconstitutional facially and as applied to him.
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5. Costs of suit, including attorney fees and costs pursuant to 42 U.S.C.
§1988;
6. Nominal Damages.
7. Such other relief consistent with the injunction as appropriate; and
8. Such other further relief as the Court deems just and appropriate.
Dated: September 14, 2021.
Respectfully submitted,
/s/ Alan Beck

Counsel for Plaintiff
Alan Alexander Beck

2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
Hawaii Bar No. 9145
[email protected]
/s/ Kevin O’Grady

Counsel for Plaintiff

(808) 521-3367
Hawaii Bar No. 8817
[email protected]
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Case 1:21-cv-00384 Document 3-1 Filed 09/14/21 Page 1 of 29 PageID #: 40
Alan Alexander Beck

2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
Hawaii Bar No. 9145
[email protected]

(808) 521-3367
Hawaii Bar No. 8817
[email protected]

)
LANCE S. CHODA )
)
)
Plaintiff, )
) Civil Action No. _____________
v. )
)
COUNTY OF HAWAII )MEMORANDUM IN SUPPORT OF
)MOTION FOR TEMPORARY
)RESTRAINING ORDER
)
) Judge: N/A
) Trial: N/A
) Hearing: N/A
Defendant. )
____________________________________)
Table of Contents
Introduction ................................................................................................................1
Plaintiffs Are Likely to Succeed on the Merits..........................................................1
Plaintiffs Are Not Precluded from Firearms Ownership Under Hawaii Law. ..........1
Disqualifying Plaintiffs From Firearm Ownership Violates the Second Amendment
....................................................................................................................................5
This Court Should Find That Plaintiffs’ Prohibition Is Categorically Invalid…..…8
Strict Scrutiny Should Apply to Plaintiffs’ Claims ...................................................9

Under Intermediate Scrutiny the Ban Fails..............................................................11
Defendants Ban on Plaintiffs’ Right to Firearms Ownership ......................................
Violates Due Process Because it is Ultra Vires .......................................................14
The City’s Policy Violates Equal Protection ...........................................................17
Vagueness/Fair Notice .............................................................................................19
Plaintiffs Will Suffer Irreparable Harm ...................................................................19
Granting Preliminary Injunctive Relief Is in the Public Interest .............................19
The Balance of Equities Tips Sharply in Plaintiff Favor.........................................21
Waiver of Bond is Proper and Appropriate Under These Circumstances……… 22
Conclusion ...............................................................................................................23
ii
Cases
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ...............21
Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,
(9th Cir. 2009) .................................................................................................1
Binderup v. Att’y Gen,..............................................................................................11
Chalk v. U.S. Dist. Ct. (Orange Cty. Superin. of Schs.), 840 F.2d 701
(9th Cir. 1998). ................................................................................................1
Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778 (2d Cir. 2007) .................. 14, 16
District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008) ... .. 5, 6, 8. 17
East Bay Sanctuary Covenant v. Trump, 349 F.Supp.3d 838 (N.D. Cal. 2018)….23
Elrod v. Burns, 427 U.S. 347, 373 (1976) ...............................................................19
Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) .................................... 10, 20
Fisher v. Kealoha, 2012 U.S. Dist. LEXIS 90734, *40, 2012 WL. ........... 20, 21, 22
Fisher v. Kealoha, 49 F. Supp. 3d 727 (D. Haw. 2014) ............................................3
Fisher v. Kealoha, 855 F.3d 1067 (9th Cir. 2017).................................................6, 9
Fisher v. Kealoha, 976 F. Supp. 2d 1200 (D. Haw. 2013) ............................... 2, 3, 4
Fotoudis v. City & County of Honolulu, 54 F. Supp. 3d 1136 (D. Haw. 2014) ...., 13
Grayned v. City of Rockford, 408 U.S. 104 (1972) .................................................19
Henry v. Cty. of Nassau, No. 20-1027-cv, 2021 U.S. App. LEXIS 22137, at *17
(2d Cir. July 26, 2021)……………………………..………………………12
Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir. 2014) ..... 5, 8, 9
Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009). ........................ 20, 21
McDonald v. City of Chicago, 561 U.S. at 742 (2010) ...........................................20
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ................................................19
Monterey Mech. Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) ................................20
OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2012) .................................18
iii
People of the State of Cal. ex rel. Van De Kamp v. Tahoe Regency Planning
Agency, 766 F.2d 1319, 1326 (9th Cir. 1985)……………………………...23
Preminger v. Principi, 422 F.3d 815 (9th Cir. 2005). .............................................21
Rhode v. Becerra, 2020 U.S. Dist. LEXIS 71893, *98 ...........................................13
Richmond v. Peraino, 128 F. Supp. 3d 415 (D. Mass. 2015) ....................................8
Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) .............................................21
Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538
(2d Cir. 2014).................................................................................................14
Schweiker v. Wilson, 450 U.S. 221 (1981). .............................................................17
Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) .......................................... 17, 18
Silvester v. Harris, 843 F.3d 816, 821-22 (9th Cir. 2016).............................. 5, 6, 11
Tipple v. County of San Diego, 2006 U.S. Dist. LEXIS 106905..……………………..1
Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707 (1981)….10, 18
Tyler v. Hillsdale Cnty. Sheriff's Dep't, 837 F.3d 678 (6th Cir. 2016) ................…12
U.S. v. Castleman, 134 S. Ct. 1405 (2014) ................................................................3
United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013)................................. passim
Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013) ..................................21
Weaver v. City of Montebello, 370 F.Supp.3d 1130, 1139 (C.D. Cal. 2109)……..22
Wesson v. Town of Salisbury, 13 F. Supp. 3d 171 (D. Mass. 2014) ..........................8
Winter v. Nat. Res. Def. Council, Inc., 55 U.S. 7 (2008) ...........................................1
Yukutake v. Conners, No. 19-00578 JMS-RT, 2021 U.S. Dist. LEXIS 153586, at
(D. Haw. Aug. 16, 2021)…………………………………………………………13
Statutes
H.R.S. § 134-1……………………………………………………………….2, 4, 19
H.R.S. § 134-7......................................................................................................5, 19
H.R.S. § 134-7(b) ............................................................................................. passim
H.R.S. § 711-1101..................................................................................................2, 4
iv
H.R.S. § 711-1106(1)(a) .................................................................................... 2,3, 4

Treatises
Charles Alan Wright et al., Federal Practice and Procedure § 2948.1
(2d ed. 1995) ..................................................................................................19
v
Introduction
Plaintiff Lance S. Choda (“Choda”) is a County of Hawaii (“County”)
resident, who the County, through an independent policy or its application of State
law, will not allow to own firearms due to convictions of disorderly conduct and
harassment. He faces deprivation of his constitutional rights and is entitled to an
immediate injunction to enjoin the County from its unconstitutional conduct.
The standard for issuing a temporary restraining order is the same as that for
issuing a preliminary injunction. Tipple v. County of San Diego, 2006 U.S. Dist.
LEXIS 106905, *5-6. “The purpose of a preliminary injunction is to preserve the
status quo pending a determination of the action on the merits.” Chalk v. U.S. Dist.
Ct. (Orange Cty. Superin. of Schs.), 840 F.2d 701, 704 (9th Cir. 1998). To obtain
preliminary injunctive relief, the moving party must show: (1) a likelihood of
success on the merits; (2) a likelihood of irreparable harm absent preliminary
relief; (3) that the balance of equities tips in favor of injunction; and (4) that an
injunction is in the public interest. Am. Trucking Ass’ns, Inc. v. City of Los
Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def.
Council, Inc., 55 U.S. 7, 20 (2008)).
Choda is Likely to Succeed on the Merits
Choda is Not Precluded from Firearm Ownership Under Hawaii Law.
1
Choda has been convicted of petty misdemeanor harassment i.e. § 711-
1106(1)(a) and a conviction of petty misdemeanor disorderly conduct i.e. H.R.S. §
711-1101(1)(a). See Complaint ¶ 21. Both convictions stem from the same
incident where Choda yelled at his neighbor in a nonthreatening manner. Id at ¶ 18.
The County argues pursuant to these convictions, Choda is barred from receiving a
firearm permit under H.R.S. § 134-7(b). See Complaint at ¶ 25. It reads as follows:
(b) No person who is under indictment for, or has waived indictment

for, or has been bound over to the circuit court for, or has been
convicted in this State or elsewhere of having committed a felony, or
any crime of violence, or an illegal sale of any drug shall own,
possess, or control any firearm or ammunition therefore.
However, Choda’s convictions are not for crimes of violence. The statutory
scheme defines a "crime of violence" as "any offense, as defined in title 37, that
involves injury or threat of injury to the person of another." H.R.S. § 134-1. As
argued below, Choda’s convictions do not qualify as "crimes of violence."
Therefore, the County is prohibiting Choda due to an independent County policy.
In the event this Court disagrees with this analysis, then H.R.S. § 134-7(b) is
unconstitutional as applied to Choda. Nearly 8 years ago, this Court decided
similar issues in Fisher v. Kealoha.
In Fisher, the litigant was convicted of harassment i.e. Hawai'i Revised
Statutes ("H.R.S.") § 711-1106(1)(a). See Fisher v. Kealoha, 976 F. Supp. 2d 1200,
1204, 2013 U.S. Dist. LEXIS 141095, *7. The City and County of Honolulu
2
argued that this precluded the litigant from owning a firearm pursuant to both 134-
7(a) and (b). Judge Kay disagreed and found “H.R.S. § 134-7(b) does not
disqualify Plaintiff from exercising his Second Amendment rights because the
Court cannot conclude that his convictions for harassment constitute a crime of
violence.” Id. at 1224. This was because the City and County of Honolulu,
pursuant to its document retention policy, had destroyed the original paperwork
and that “H.R.S. § 711-1106(1)(a) is not categorically a crime of violence.” Id. at
1223. Thus, a conviction of harassment is not dispositive evidence that a person
has been convicted of a crime1. Neither is disorderly conduct. As is the case here,
one can be convicted of disorderly conduct for “abusive language”.
In Choda’s case, he merely yelled at his neighbor. See Complaint ¶ 18.
Based upon the plain language of the statute, the terms "injury" and "threat of
injury" are not elements of either disorderly conduct or harassment. See Fisher,
976 F. Supp. 2d at 1221. As a result of the above, this Court should find “that the
legislative history does not indicate an intent to categorically include” either
harassment or disorderly conduct “as a crime of violence”. Id at 1222-1223.
1
Fisher v Kealoha was reconsidered due to the Supreme Court’s ruling in U.S. v.
Castleman, 134 S. Ct. 1405 (2014). See Fisher v. Kealoha, 49 F. Supp. 3d 727,
738. There the Court found that any conviction for domestic violence is a violation
of the Lautenberg Amendment. This, however, does not change the analysis in the
instant matter because this Court’s later ruling dealt solely with domestic violence
under federal law which is not applicable to Choda’s case.
3
This Court should also construe H.R.S. § 711-1101(1)(a) and § 711-
1106(1)(a) in favor of Choda pursuant to the doctrine of lenity as did the Court in
Fisher. Id. at 1223. “In addition to the above finding that the legislative history
does not indicate that harassment categorically constitutes a crime of violence
under H.R.S. § 134-7(b), the Court also construes H.R.S. § 134-1 in favor of
Plaintiff pursuant to the doctrine of lenity.” This Court should do the same. There
is no support in the legislative history to find that a conviction for disorderly
conduct or harassment is categorically a crime of violence. Finally, the Court
found “that holding that harassment is categorically a crime of violence would not
align with the reason and spirit of the law…This Court declines to interpret § 711-
1106(1)(a) in a manner that shifts the focus to whether the conduct causes a "threat
of injury" as opposed to deterring conduct that offends a person's "psyche and
mental well-being" even if there is no "threat of injury." Id. at 1223. Similarly, the
disorderly conduct statute appears to be designed to deter conduct that offends a
person's "psyche and mental well-being" even if there is no "threat of injury.” The
same applies here. This Court should follow the reasoning in Fisher and find that a
conviction for either disorderly conduct or harassment do not constitute crimes of
violence.
The County is precluding Choda through an independent county policy
while erroneously claiming to be applying state law without authority. If this
4
Court agrees with this reasoning, then the County is disqualifying Choda from
firearm ownership and in so doing violates, the Second Amendment, Due Process,
and Equal Protection. Alternatively, if H.R.S. § 134-7 or another provision of
Hawaii law authorizes or requires the removal of Choda’s firearm rights, then
Hawaii state law is unconstitutional as applied to Choda.
Disqualifying Choda From Firearm Ownership
Violates the Second Amendment
Permanently removing Choda’s firearm rights violates the Second
Amendment regardless of whether the County is doing so as an independent policy
or through an application of state law. The Ninth Circuit “along with the majority
of our sister circuits, has adopted a two-step inquiry in deciding Second
Amendment cases: first, the court asks whether the challenged law burdens
conduct protected by the Second Amendment; and if so, the court must then apply
the appropriate level of scrutiny.” See Silvester v. Harris, 843 F.3d 816, 820-821
(9th Cir. 2016). “In the first step, we ask ‘whether the challenged law burdens
conduct protected by the Second Amendment,’ [United States v. Chovan, 735 F.3d
1127, 1136 (9th Cir. 2013)], based on a ‘historical understanding of the scope of
the [Second Amendment] right,’ Heller, 554 U.S. at 625, or whether the challenged
law falls within a ‘well-defined and narrowly limited’ category of prohibitions
‘that have been historically unprotected,’” See Jackson v. City & County of San
5
Francisco, 746 F.3d 953, 960 (9th Cir. 2014). If the challenge survives the first
step, the next step is to determine the appropriate level of scrutiny. “In
ascertaining the proper level of scrutiny, the court must consider: (1) how close the
challenged law comes to the core of the Second Amendment right, and (2) the
severity of the law's burden on that right.” Id. at 960-61.
“The result is a sliding scale. A law that imposes such a severe restriction on
the fundamental right of self-defense of the home that it amounts to a destruction
of the Second Amendment right is unconstitutional under any level of scrutiny.”
Id. at 961. That is the essence of the holding in District of Columbia v. Heller, 554
U.S. 570, 628-629 (2008). A law that implicates the core of the Second
Amendment right and severely burdens that right warrants strict scrutiny. See
Chovan, 735 F.3d at 1138. Otherwise, intermediate scrutiny is appropriate. “[I]f a
challenged law does not implicate a core Second Amendment right, or does not
place a substantial burden on the Second Amendment right, the court may apply
intermediate scrutiny.” Silvester, 843 F.3d at 821. “Indeed, in Chovan, we applied
‘intermediate’ rather than ‘strict’ judicial scrutiny in part because section
922(g)(9)’s ‘burden’ on Second Amendment rights was ‘lightened’ by [various]
mechanisms.” Fisher v. Kealoha, 855 F.3d 1067, 1071 (9th Cir. 2017). This Court
should, therefore, find the policy at issue is categorically invalid under any level of
scrutiny. If it does not, it should apply strict scrutiny to the County’s policy of
6
permanently removing Choda’s Second Amendment rights because it amounts to a
destruction of the core Second Amendment right, which is to own firearms in case
of confrontation. Regardless of whether this Court “implements an ‘important
government objective’ (intermediate scrutiny) or a ‘compelling state interest’
(strict scrutiny)”, these laws are “neither ‘substantially related’ nor ‘narrowly
tailored’ to such interests.” Fotoudis v. City & County of Honolulu, 54 F. Supp. 3d
1136, 1144 (D. Haw. 2014).
In reviewing the federal ban on firearm ownership by those convicted of
domestic violence, the Ninth Circuit in United States v. Chovan found that violent
misdemeanants receive Second Amendment protection. “[W]e conclude that by
prohibiting domestic violence misdemeanants from possessing firearms, §
922(g)(9) burdens rights protected by the Second Amendment.” United States v.
Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013). As we have seen in the Founding
period, felonies historically resulted in disqualification from certain rights, but
misdemeanors did not, nor did infractions, nor restraining orders. Id. at 1149 (Bea,
concurring).
Circuit precedent dictates Choda has Second Amendment rights. Thus, the
next matter is for this Court to determine is what level of scrutiny is appropriate to
apply to this challenge. A law that imposes such a severe restriction on the core
right of self-defense that it "amounts to a destruction of the [Second Amendment]
7
right," is unconstitutional under any level of scrutiny. Heller, 554 U.S. at
629 (internal quotations omitted). By contrast, if a challenged law does not
implicate a core Second Amendment right, or does not place a substantial burden
on the Second Amendment right, we may apply intermediate scrutiny. Jackson v.
City & County of San Francisco, 746 F.3d 953, 961 (9th Cir. 2014).
This Court Should Find That Choda’s Prohibition Is Categorically Invalid
This Court should find that H.R.S. §134-7(b) is categorically invalid as
applied because it amounts to a destruction of the Second Amendment right. See
Id. Choda’ challenge is distinguishable from Chovan in this regard “by virtue of
[Chovan]'s criminal history as a domestic violence misdemeanant." Chovan, 735
F.3d at 1138. In the instant matter, Choda was convicted of crimes which are not
disqualifying crimes of violence. Choda should, therefore, be considered a law-
abiding citizen afforded full Second Amendment protection.
Support for this can be found in Wesson v. Town of Salisbury, 13 F. Supp.
3d 171 (D. Mass. 2014) and Richmond v. Peraino, 128 F. Supp. 3d 415 (D. Mass.
2015), both Courts court found that a ban on firearms ownership based on decades
old marijuana convictions was unconstitutional without the need to apply scrutiny.
Much like disorderly conduct, possession of small amounts of marijuana is not the
type of conviction that demonstrates a person has a criminal disposition. The
County’s conduct destroys Choda’s rights to own firearms, and this amounts to the
8
rare type of infringement that requires no interest balancing at all to decide. This
Court should simply find the County’s policy and/or H.R.S. §134-7(b) is
categorically unconstitutional as applied to Choda. If this Court does not, strict
scrutiny should apply, because the County’s conduct and/or application of state
law strikes at the core of the Second Amendment right.
Strict Scrutiny Should Apply to Choda’s Claims
Post-Heller, the Ninth Circuit has developed a body of case law which
supports the application of strict scrutiny in this matter if means end scrutiny is
required. In Fisher the Ninth Circuit suggested that strict scrutiny should apply in a
subsequent challenge similar to Mr. Fisher’s.
Unlike Fisher, however, Chovan never argued that section [18 U.S.C.]
922(g)(9) was unconstitutional as applied to him because California
(Chovan's state of conviction) provided too few of the restoration
mechanisms listed in section 921(a)(33)(B)(ii). See [United States v.
Chovan, 735 F.3d 1127, 1137-42 (9th Cir. 2013)]. Indeed, in Chovan,
we applied ‘intermediate’ rather than ‘strict’ judicial scrutiny in part
because section 922(g)(9)'s ‘burden’ on Second Amendment rights was
‘lightened’ by those mechanisms.
Fisher, 855 F.3d at 1071.
In this matter, the ban at issue similarly does not “leave open alternative
channels for self-defense” and is thus a severe burden on Choda’s Second
Amendment rights. Jackson v. City & Cty. of S.F., 746 F.3d 953, 961 (9th Cir.
2014). Accordingly, Choda’s right to self-defense is completely foreclosed by the
County’s policy. Strict scrutiny should apply, and the County of Hawaii must
9
demonstrate a compelling government interest to permanently deprive a person of
their Second Amendment right for convictions of disorderly conduct and
harassment and demonstrate how that is narrowly tailored to achieve that interest.
See Thomas v. Review Bd. of Ind.do Employment Sec. Div., 450 U.S. 707, 718
(1981) (“The state may justify an inroad on religious liberty by showing that it is
the least restrictive means of achieving some compelling state interest.”). In Ezell,
the 7th circuit applied “not quite strict scrutiny” to Chicago’s prohibition on live-
fire training ranges—in part because Chicago required residents to undergo such
training to obtain a license to possess firearms at all. Ezell v. City of Chicago, 651
F.3d 684, 689 (7th Cir. 2011).
The County has similarly curtailed Choda’s Second Amendment rights. This
Court should apply true strict scrutiny and find that there is no compelling
government interest in permanently removing Choda’s Second Amendment rights.
Even if it does not, this scheme is not narrowly tailored to achieve that goal. In the
alternative, this Court should employ the Ezell approach and find that the County
has not demonstrated such a risk to public safety that its firearms prohibition is
justified. However, even if intermediate scrutiny applies, this Court should still
rule in Choda’s’ favor.
10
Under Intermediate Scrutiny the Ban Fails
Even if this Court finds intermediate scrutiny is appropriate to the instant
case, the County’s application of Hawaii law cannot withstand constitutional
muster. Our intermediate scrutiny test under the Second Amendment requires that
(1) the government's stated objective . . . be significant, substantial, or important;
and (2) there . . . be a 'reasonable fit' between the challenged regulation and the
asserted objective." Silvester v. Harris, 843 F.3d 816, 821-22 (9th Cir. 2016)
(quoting Chovan, 735 F.3d at 1139). The County simply has not and cannot
present evidence that the County’s policy and/or application of State law fulfills
this test. In any event, many courts have struck similar or less restrictive laws
based on intermediate scrutiny.
In Binderup v. Att’y Gen, the Third Circuit sitting en banc applied
intermediate scrutiny in finding 18 U.S.C. § 922(g)(1) unconstitutional as applied
to the litigants:
But whether we apply intermediate scrutiny or strict scrutiny…the

Government bears the burden of proof on the appropriateness of the
means it employs to further its interest. [citations omitted] Here the
Government falls well short of satisfying its burden—even under
intermediate scrutiny. The record before us consists of evidence about
the Challengers’ backgrounds, including the time that has passed since
they last broke the law. It contains no evidence explaining why banning
people like them (i.e., people who decades ago committed similar
misdemeanors) from possessing firearms promotes public safety.
836 F.3d 336 (3d Cir. 2016) (en banc)
11
In Tyler v. Hillsdale Cnty. Sheriff's Dep't, the Sixth Circuit sitting en banc
ruled that a person who “has been adjudicated intellectually disabled” or “has been
committed to a mental institution” is not permanently barred from possessing
firearms, 837 F.3d 678 (6th Cir. 2016) (en banc). Judge Julia Gibbons wrote that
under intermediate scrutiny, the burden of justification is demanding and it rests
entirely on the State and “in discharging this burden, the government can rely on a
wide range of sources, including legislative history, empirical evidence, case law,
and even common sense, but it may not ‘rely upon mere anecdote and
supposition”’ (Tyler, No. 13-1876, slip op. at 20). In Tyler, according to Judge
Gibbons, the government had not presented sufficient evidence of the continued
risk presented by persons who were previously committed (Id. at 24). Thus, the
statute, as applied, given the evidence supplied, failed intermediate scrutiny.
Similarly, the Second Circuit found the permanent revocation of a pistol permit
due to an ex parte application failed intermediate scrutiny. “Such actions do not
withstand intermediate scrutiny because ex parte orders of protection issue without
adversarial testing.” Henry v. Cty. of Nassau, No. 20-1027-cv, 2021 U.S. App.
LEXIS 22137, at *17 (2d Cir. July 26, 2021)..
Choda’s challenge, in this matter, is analogous. There is no evidence that
banning people from firearm ownership who have been convicted for nonviolent
disorderly conduct or harassment promotes a government interest. Even if there is
12
a government interest, this policy is not sufficiently tailored to support that interest.
“Here, assuming § 134-7(b) “implements an ‘important government objective’
(intermediate scrutiny) or a ‘compelling state interest’ (strict scrutiny), it is neither
‘substantially related’ nor ‘narrowly tailored’ to such interests.” Fotoudis v. City
& County of Honolulu, 54 F. Supp. 3d 1136, 1144 (D. Haw. 2014). As Judge
Seabright recently stated in striking two of Hawaii’s registration laws, “[i]t is the
government's burden to prove that both prongs of the test are satisfied.” Yukutake
v. Conners, No. 19-00578 JMS-RT, 2021 U.S. Dist. LEXIS 153586, at *15 (D.
Haw. Aug. 16, 2021). Choda’s case is highly distinguishable from United States v
Chovan. In Chovan, the government was able to present volumes of evidence that
those convicted of domestic violence are at a significantly higher risk of
recidivism. “[T]he government has referred to domestic violence studies
mentioned by the Skoien court showing that the recidivism rates for individuals
convicted of domestic violence is significant—between 35 and 80 percent.”
Chovan, 735 F.3d at 1141. There simply is no evidence that those convicted of
disorderly conduct or harassment are a danger to the public. The County’s “purely
legal argument without evidence is not enough” to survive intermediate scrutiny.
Rhode v. Becerra, 2020 U.S. Dist. LEXIS 71893, *98.
13
The County’s Ban on Choda’s Right to Firearms Ownership
Violates Due Process Because it is Ultra Vires
As established above, the County’s interpretation of Hawaii law is ultra
vires. This is a violation of due process. Under the law governing substantive due
process, Choda must prove that: (1) he had a valid interest at stake; and (2)
defendant infringed on that interest in an arbitrary or irrational manner. Royal
Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 545 (2d
Cir. 2014). Choda has a fundamental right to own firearms which is being
infringed by the County misapplying state law. This is analogous to the Second
Circuit’s jurisprudence. As shown below, this Court should adopt the Second
Circuit’s reasoning and apply it to this matter. In this case, a due process violation
exists because the County acted in an ultra vires manner which is inherently
arbitrary. In Cine SK8, Inc. v. Town of Henrietta (The d/b/a of Cine SK8 is Fun
Quest), the owners of a family recreation business called Fun Quest obtained a
special use permit to host youth dances at their facility. 507 F.3d 778, 779 (2d Cir.
2007). One night, in 2002, an exceptionally large group of teenagers arrived at Fun
Quest. Id. at 780. These teenagers came from a nearby movie theater that had lost
power. Id. The crowd became so dense that ingress and egress was cut off and the
fire marshal was summoned to the scene. Id. Thousands of people were trying to
14
push their way into Fun Quest by the time the fire marshal arrived and cleared the
area with the help of police. Id. at 781.
Days later, one of the Henrietta town supervisors sent a letter to the owners
of Fun Quest asking that they immediately discontinue teen dances. Id. The letter
threatened to revoke or amend Fun Quest’s special use permit if the owners did not
comply. Id. The supervisors held a special meeting the next day at which they
reviewed the overcrowding incident. The board then held its regular meeting and
passed a resolution calling for a public hearing. After a contentious hearing, the
board voted unanimously to adopt a resolution amending Fun Quest’s special use
permit to forbid teen dances. Id. at 782. Fun Quest later went bankrupt and had to
close because the dance ban destroyed its business. Id. at 783. The owners sued the
town for violating their substantive due process rights because, they argued, the
Board did not have authority to amend a validly issued special use permit under
town regulations. Id. at 784.
The Second Circuit concluded that the appropriate question to ask in this
situation was whether the town infringed on the owners’ property rights in an
arbitrary or irrational manner. The court examined the town regulations and
discovered that the Board could approve, deny, suspend, or revoke a special use
permit, but nowhere did the code provide that the Board had the authority to amend
a duly issued special use permit and place limitations on it. The Second Circuit
15
thus agreed with the property owners: “[I]f the Town Board did not have authority
for the actions it took regarding Fun Quest’s permit—as it appears it did not—the
Board’s actions were ultra vires and, as a result, sufficiently arbitrary to amount to
a substantive due process violation.” Id. at 790. The Second Circuit reversed the
lower court’s award of summary judgment to the town and remanded the case to
allow Fun Quest’s owners to proceed on their substantive due process claim.
Similarly, Choda has had his Due Process rights violated by the County’s
ultra vires conduct. If the County did not have authority for the actions it took
regarding Choda’s firearms rights — as it appears it did not — the County’s
“actions were ultra vires and, as a result, sufficiently arbitrary to amount to a
substantive due process violation.” Id. 790. In Cine SK8, the litigants were able to
invoke Due Process because they were able to establish a protected property
interest. Here, Choda may invoke Due Process because he has a protected liberty
interest in his right to own a firearm for purposes of lawful self-defense as well as
a protected property interest in the firearms that he already owns. As in Cine SK,
Defendant’s ultra vires conduct is inherently arbitrary and the decision to deny
Choda a permit was made through a process tainted with fundamental
irregularities. Here, as in Cine SK, if the County does not have authority for the
actions it took regarding Choda’s firearm permit, its actions “were ultra vires and,
as a result, sufficiently arbitrary to amount to a substantive due process violation.”
16
The County is acting outside of the scope of the laws and authority granted to it
promulgated by the Hawaii legislature. Choda has a protected liberty and property
interest in his firearm permits and firearms. The County’s conduct is ultra vires.
That violates Due Process.
The County’s Policy Violates Equal Protection
The County’s policy is a violation of Equal Protection because Choda is
being treated differently than others who have never been convicted of a crime of
violence;
When a state statute burdens a fundamental right or targets a suspect

class, that statute receives heightened scrutiny under the Fourteenth
Amendment's Equal Protection Clause…However, if a legislative act
neither affects the exercise of a fundamental right, nor classifies
persons based on protected characteristics, then that statute will be
upheld "if the classification drawn by the statute is rationally related
to a legitimate state interest."
Schweiker v. Wilson, 450 U.S. 221, 230 (1981).
Silveira v. Lockyer, 312 F.3d 1052, 1087-88 (9th Cir. 2002) abrogated on other
grounds by District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008).
According to Heller, Choda has a fundamental right to own a firearm for
self-defense. Thus, strict scrutiny applies. “Therefore, the University's differential
treatment of plaintiffs will draw strict scrutiny (as opposed to rational basis review)
under the Equal Protection Clause only if it impinged plaintiffs' First
17
Amendment rights.” See OSU Student Alliance v. Ray, 699 F.3d 1053, 1067 (9th
Cir. 2012).
The County must demonstrate a compelling government interest in order to
permanently remove a person’s Second Amendment right for convictions of
disorderly conduct and harassment. The County must also show how its policy is
narrowly tailored to achieve that interest. See Thomas v. Review Bd. of Ind.do
Employment Sec. Div., 450 U.S. 707, 718 (1981). There is no compelling
government interest for the County to treat Choda differently than other citizens
that have not been convicted of a crime of violence. Furthermore, a complete ban
would not be narrowly tailored. Thus, the County’s conduct violates the Equal
Protection Clause.
Even if this Court were to find that rational scrutiny applies, allowing some
individuals to own firearms who are non-statutorily precluded, while disallowing
others to own firearms, though they too are also non-statutorily precluded, “is
wholly unconnected to any legitimate state interest. A statutory exemption that
bears no logical relationship to a valid state interest fails constitutional scrutiny”.
Silveira v. Lockyer, 312 F.3d 1052, 1091 (9th Cir. 2002). In this matter, the
County’s conduct is similarly irrational, and, thus, fails rational basis review.
18
Vagueness/Fair Notice
Alternatively, if this Court finds that Choda’s convictions can be grounds to
disqualify him under H.R.S. §134-7, then the statute is
unconstitutionally vague. “It is a basic principle of due process that an enactment
is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972). H.R.S §134-7 only applies to crimes of
violence. A reasonable person would not know that yelling at a person without
threatening them would be considered a crime of violence in light of Hawaii’s
admonition that a crime of violence is an "offense, as defined in title 37, that
involves injury or threat of injury to the person of another." H.R.S. § 134-1.
Therefore, H.R.S. §134-7 fails to provide fair warning of what is a prohibiting
crime and H.R.S. §134-7 is unconstitutionally vague both facially and as applied to
Choda.
Choda Will Suffer Irreparable Harm
If this Court concludes that Choda is likely to prevail on his constitutional
claims, the remaining temporary restraining order factors follow readily. “It is well
established that the deprivation of constitutional rights ‘unquestionably constitutes
irreparable injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); 11A Charles Alan Wright et
19
al., Federal Practice and Procedure § 2948.1 (2d ed. 1995) (“When an alleged
deprivation of a constitutional right is involved, most courts hold that no further
showing of irreparable injury is necessary.”). The Ninth Circuit has imported the
First Amendment “irreparable-if-only-for-a-minute” rule to other rights and, in
doing so, has held deprivation of those rights is irreparable harm per se. Monterey
Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997). The Second Amendment
should be treated no differently. See McDonald, 561 U.S. at 780; see also Ezell,
651 F.3d at 700 (a deprivation of the right to arms is “irreparable and having no
adequate remedy at law.”)
This Court should conclude “that Plaintiff has established a likelihood of
irreparable harm…At issue in this litigation is the alleged infringement of
Plaintiff's right to bear arms for self-defense …, the very right that the Ezell court
considered.” Fisher v. Kealoha, 2012 U.S. Dist. LEXIS 90734, *40, 2012 WL.
Granting A Temporary Restraining Order is in the Public Interest
For similar reasons, granting a temporary restraining order is clearly in the
public interest. When challenging government action that affects the exercise of
constitutional rights, “[t]he public interest . . . tip[s] sharply in favor of enjoining
the” law. Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009). As
the Ninth Circuit has made clear, “all citizens have a stake in upholding the
20
Constitution” and have “concerns [that] are implicated when a constitutional right
has been violated.” Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005). The
public interest thus tips sharply in Choda’s favor. Klein, 584 F.3d at 1208.
Moreover, the County has no plausible argument that enjoining enforcement of its
denial will unduly endanger public safety. After all, doing so would merely return
to the status quo, where Choda legally owns firearms. The Court should conclude
“that it is in the public interest to uphold Plaintiff's Constitutional right to bear
arms in self-defense …, and accordingly finds that this factor weighs in favor of
granting the preliminary injunction.” Fisher v. Kealoha, 2012 U.S. Dist. LEXIS
90734, *44, 2012 WL 2526923.
The Balance of Equities Tips Sharply in Choda’s Favor
Finally, the balance of hardships tips sharply in Choda’s favor. This factor
considers “the balance of hardships between the parties.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1137 (9th Cir. 2011). In contrast to Choda’s
and the public’s many injuries, the County will suffer no concrete harm from a
temporary restraining order. The County “cannot suffer harm from an injunction
that merely ends an unlawful practice or reads a statute as required to avoid
constitutional concerns.” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir.
2013); See Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (“[I]t
is clear that it would not be equitable . . . to allow the state . . . to violate the
21
requirements of federal law.” (citations omitted)). Granting the relief Choda seeks
will merely preserve the status quo, which is Choda owning firearms, while the
case moves forward on the merits. This further “strengthens [Choda’s] position” in
the analysis of the equitable injunction factors. Id. On the other hand, granting a
restraining order will end the ongoing violation of Choda’s rights, allowing him
and the public the freedom to exercise those rights without fear of prosecution.
In ruling on a preliminary injunction in Fisher v Kealoha, which as
established above dealt with similar facts, this Court found that “in the absence of a
preliminary injunction, Plaintiff will be denied the use and enjoyment of firearms
and will be unable to exercise his Second Amendment right to bear arms for self-
defense within the home when he has demonstrated a likelihood of success in
establishing his statutory qualification under state and federal law. For these
reasons, the Court concludes that the balance of the equities tip in Plaintiff's favor”.
Fisher v. Kealoha, 2012 U.S. Dist. LEXIS 90734, *46-47, 2012 WL 2526923. This
Court should find the same here.
Waiver of Bond is Proper and Appropriate Under These Circumstances
“Notwithstanding its seemingly mandatory language,” stating that the
movant must provide “security in an amount that the court considers proper to pay
the costs and damages sustained by any party found to have been wrongfully
enjoined or restrained,” “Rule 65(c) invests the district court with discretion as to
22
the amount of security required, if any.” Weaver v. City of Montebello, 370
F.Supp.3d 1130, 1139 (C.D. Cal. 2109) (quoting Johnson v. Couturier, 572 F.3d
1067, 1086 (9th Cir. 2009)). The court may properly dispense with any such bond
requirement when “the balance of ... equities weighs overwhelmingly in favor of
the party seeking the injunction,” East Bay Sanctuary Covenant v. Trump, 349
F.Supp.3d 838, 869 (N.D. Cal. 2018) (quoting Elliott v. Kiesewetter, 98 F.3d 47,
60 (3d Cir. 1996)), when “there is no realistic likelihood of harm to the defendant
from enjoining his or her conduct,” Johnson at 1086 (internal quotations omitted),
and where the plaintiffs have a “likelihood of success on the merits,” People of the
State of Cal. ex rel. Van De Kamp v. Tahoe Regency Planning Agency, 766 F.2d
1319, 1326 (9th Cir. 1985). All these factors are true here, as illustrated above, thus
rendering a waiver both proper and appropriate.
Conclusion
“Heller was a constitutional decision. It recognized the scope of a passage
of the Constitution. The boundaries of this right are defined by the Constitution.
They are not defined by Congress.” United States v. Chovan, 735 F.3d 1127, 1148
(9th Cir. 2013) (Bea, concurring). Neither are they defined by the County. For the
reasons raised above, the County’s conduct and/or application of state law violates
the Constitution. Choda respectfully requests this Court issue a temporary
23
restraining order enjoining the County from denying him his right to firearm
ownership and to issue him a permit to acquire firearms.
Dated: September 14, 2021.
Respectfully submitted,
/s/Kevin Gerard O’Grady
/s/ Alan Beck

Alan Alexander Beck
24
Case 1:21-cv-00384-DKW-RT Document 9 Filed 09/15/21 Page 1 of 3 PageID #: 81
Alan Alexander Beck

2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
Hawaii Bar No. 9145
[email protected]

(808) 521-3367
Hawaii Bar No. 8817
[email protected]

)
LANCE S. CHODA, )
)
)
Plaintiff, )
) Civil Action No. 1:21-cv-384
v. )
) STIPULATION
COUNTY OF HAWAII )
)
)
)
) Judge: N/A
) Trial: N/A
Defendant. ) Hearing: N/A
____________________________________)
Stipulation and Order
On August 11, 2021, Plaintiff Lance S. Choda received a letter (“HCPD
Letter”) from the County of Hawaii Police Department stating that he was
prohibited from owning firearms. See Complaint ¶ 24. The HCPD Letter ordered
him to turn in or transfer his firearms by September 15, 2021. If Plaintiff does not,
his firearms could be seized and Plaintiff may face criminal sanctions including
arrest and or prosecution. On September 14, 2021, Plaintiff filed a verified
complaint and a motion for a temporary restraining order requesting that this Court
restrain the County from prohibiting him from firearms possession. See Docket No.
[1] & [3]. It is unclear whether this Court will be able to rule on Plaintiff’s motion
for a temporary restraining order by September 15, 2021. Therefore, the parties
have stipulated to the following:
It is hereby stipulated that the September 15, 2021 deadline referenced in the
HCPD Letter for Mr. Choda to turn in or transfer his firearms is extended until five
business days after resolution of the above-captioned litigation. It is further
stipulated that no agent or person working for the County or any of its subdivisions
including all County of Hawaii police and prosecutors may arrest, prosecute or
otherwise initiate criminal or civil sanctions against Mr. Choda for failure to turn
in or transfer his firearms by September 15, 2021 as directed in the HCPD Letter
until five business days after resolution of the above-captioned litigation.

DATED: Hilo, Hawaii, September 15, 2021.
ISi STEVEN IDEMOTO

LAUREEN MARTIN
STEVEN IDEMOTO
Deputy Corporation Counsel

Attorneys for Defendant
COUNTY OF HAWAII
DATED: San Diego, California, September 15, 2021 .
ISi ALAN ALEXANDER BECK

ALAN ALEXANDER BECK
KEVIN GERARD O' GRADY
LANCES . CHODA
IT IS APPROVED AND SO ORDERED:
DATED: September 15, 2021 at Honolulu, Hawaii.
D~
United States District Judge
-
Lance S. Choda v. County ofHawaii; Civil No. l:21-cv-384 DKW-RT;

Stipulation and Order

Choda Complaint Filed-Combined

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Case 1:21-cv-00384 Document 1 Filed 09/14/21 Page 1 of 22 PageID #: 1

Alan Alexander Beck

Kevin Gerard O’Grady

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

VERIFIED COMPLAINT FOR DECLARATORY

undersigned counsel, and complain of the Defendant as follows:

1. Plaintiff Lance S. Choda (“Choda”) is an adult male resident of the

2. Defendant County of Hawaii (“County”) is a municipal corporation

County is therefore ultimately responsible for Hawaii Police Department (“HPD”)

Street, #325, Hilo, Hawaii 96720.

II. JURISDICTION AND VENUE

4. Venue lies in this Court pursuant to 28 U.S.C. § 1391.

5. The Second Amendment to the United States Constitution provides: “A

6. The Second Amendment guarantees individuals a fundamental right to

confrontation. District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v.

7. Firearms are protected by the Second Amendment. District of

Columbia v. Heller, 554 U.S. 570 (2008).

8. Given the decision in Heller, Defendants may not impose regulations

HRS §134 Firearms

section within five days of acquisition.” See HRS §134-3.

acquire. See H.R.S. §134-2.

before returning to retrieve his permit to acquire. See H.R.S. §134-2

convicted of a crime of violence may own, acquire, or possess a firearm.

§134-7 Ownership or possession prohibited, when; penalty.

shall own, possess, or control any firearm or ammunition therefor,

more crimes of violence, or an illegal sale of any drug shall own,

chapter or known to the person granted protection by the court, the

H.R.S. §134-7, emphasis added.

14. Pursuant to HRS §711-1101, Disorderly Conduct is either a petty

§711-1101 Disorderly conduct.

(e) Impedes or obstructs, for the purpose of begging or

15. Pursuant to H.R.S. §711-1106 Harassment is a petty misdemeanor.

§711-1106 Harassment. (1) A person commits the offense of harassment

(a) Strikes, shoves, kicks, or otherwise touches another person in an offensive

(b) Insults, taunts, or challenges another person in a manner likely to provoke

(c) Repeatedly makes telephone calls, facsimile transmissions, or any form of

(d) Repeatedly makes a communication anonymously or at an extremely

(e) Repeatedly makes communications, after being advised by the person to

(2) Harassment is a petty misdemeanor.

16. Hawaii crimes are categorized as different grades of offenses pursuant to

HRS §701-107 sets forth the grades and classes of offenses,

§701-107 Grades and classes of offenses.

H.R.S. §134-1 defines “Crime of Violence” as follows:

"Crime of violence" means any offense, as defined in title 37, that

for disorderly conduct;

in matter 3DCW21-0000081, Choda was charged with a violation of Harassment

and Disorderly Conduct. See Exhibit A, Complaint;

in matter 3DCW21-0000081, Choda completed and submitted a written plea of no

in matter 3DCW21-0000081, Choda, pled no contest and was found guilty of

of Disorderly Conduct under H.R.S. §711-1101(1)(a)(b)(c)(3). See Exhibit C

judgment of the court 1;

convictions having been entered on January 21, 2021 in 3DCW21-0000081. See

ECrim printout attached as Exhibit D;

24. On August 11, 2021, COUNTY delivered a letter to Choda informing

ammunition within thirty days. See Exhibit E letter from HPD;

of violence conviction in Hawaii. See Exhibit E;

Any person disqualified from ownership, possession or control of firearms

Firearms and ammunition may be disposed of by sale to a gun dealer

Any firearms and ammunition presently in your possession must be

of violence conviction” as the prohibition to acquiring and or possessing

firearms and ammunition;