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Choda Complaint Filed-Combined
Choda Complaint Filed-Combined
)
LANCE S. CHODA )
)
)
Plaintiff, )
) Civil Action No. _____________
v. )
)
COUNTY OF HAWAII )
)
)
)
)
)
Defendant. )
____________________________________)
Case 1:21-cv-00384 Document 1 Filed 09/14/21 Page 2 of 22 PageID #: 2
COME NOW the Plaintiff, Lance S. Choda, (“Choda”), by and through his
I. PARTIES
Plaintiff
State of Hawaii and resides in Hawaii County and is a citizen of the United States.
Defendant
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
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
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.
2
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STATEMENT OF LAW
2ND Amendment
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.”
keep and carry arms for self-defense and defense of others in the event of a violent
Chicago, 561 U.S. 742 (2010); Caetano v. Massachusetts, 577 U.S. 1027 (2016).
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).
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
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11. Prior to purchasing a handgun, all persons must apply for a permit to
12. Pursuant to Hawaii law, after applying, an applicant must wait 14 days
13. Pursuant to H.R.S. §134-7, no one in the State of Hawaii who has been
4
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5
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misdemeanor or a violation,
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7
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(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.
8
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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.
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
9
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19. On January 21, 2021, in the Third District Court of the State of Hawaii,
20. On January 21, 2021 in the Third District Court of the State of Hawaii,
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,
Harassment under H.R.S. § 711-1106(1) and pled no contest and was found guilty
22. The State of Hawaii records Choda as having two convictions, both
petty misdemeanors, one for Harassment and one for Disorderly Conduct, and both
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.
10
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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
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
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.
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.
11
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27. The COUNTY denial letter, attached as Exhibit E, only lists the “crime
28. The COUNTY denial letter, attached as Exhibit E, does not list any other
29. Prior to 2021, Choda owned multiple permitted and registered firearms;
violence" means any offense, as defined in title 37, that involves injury or
section 711-1106.5.”;
provides "Crime of violence" means any offense, as defined in title 37, that
12
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33.Based upon the plain language of the statute, "injury" and "threat of
if, with intent to harass, annoy, or alarm any other person, that person:
13
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34. The Court of Appeals for the Ninth Circuit has held that the phrase
violent use of force against the body of another individual." See United
36 In Fisher v Kealoha, 869 F.Supp.2d 1203 (2012), the court ruled that
14
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46. Plaintiff CHODA has never been convicted of a crime that would
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
15
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51. Hawaii state law does not support criminalizing the possession of
County policy;
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
16
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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
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
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;
17
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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
has never been convicted of a prohibiting offense, yet he is being treated differently
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
vagueness if its prohibitions are not clearly defined. Grayned v. County of Rockford,
67. Here, the H.R.S. states that harassment and disorderly conduct
18
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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
COUNT IV
(DECLARATORY JUDGMENT)
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,
74. This Court possesses an independent basis for jurisdiction over the
parties;
the right to own, possess and acquire firearms is unconstitutional as applied to him;
19
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applied to Plaintiff;
participation with them who receive actual notice of the injunction, from enforcing
conduct and harassment from possessing and or acquiring firearms and ammunition;
H.R.S. §134-7, Plaintiff requests this Court, enjoin H.R.S. §134-7 and any other
4. Declaratory relief that if this Court finds a conviction for H.R.S. § 711-
H.R.S. §134-7, then H.R.S. §134-7 and any other relevant provision of the H.R.S. is
20
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§1988;
6. Nominal Damages.
8. Such other further relief as the Court deems just and appropriate.
Respectfully submitted,
21
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)
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. )
____________________________________)
Case 1:21-cv-00384 Document 3-1 Filed 09/14/21 Page 2 of 29 PageID #: 41
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
Conclusion ...............................................................................................................23
ii
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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
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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
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v
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Introduction
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
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.
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
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.
1
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711-1101(1)(a). See Complaint ¶ 21. Both convictions stem from the same
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:
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
In the event this Court disagrees with this analysis, then H.R.S. § 134-7(b) is
1204, 2013 U.S. Dist. LEXIS 141095, *7. The City and County of Honolulu
2
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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
has been convicted of a crime1. Neither is disorderly conduct. As is the case here,
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
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
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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
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
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
mental well-being" even if there is no "threat of injury." Id. at 1223. Similarly, the
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
violence.
4
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Court agrees with this reasoning, then the County is disqualifying Choda from
firearm ownership and in so doing violates, the Second Amendment, Due Process,
Hawaii law authorizes or requires the removal of Choda’s firearm rights, then
or through an application of state law. The Ninth Circuit “along with the majority
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
‘that have been historically unprotected,’” See Jackson v. City & County of San
5
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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
“The result is a sliding scale. A law that imposes such a severe restriction on
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
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
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
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destruction of the core Second Amendment right, which is to own firearms in case
(strict scrutiny)”, these laws are “neither ‘substantially related’ nor ‘narrowly
domestic violence, the Ninth Circuit in United States v. Chovan found that violent
Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013). As we have seen in the Founding
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
7
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implicate a core Second Amendment right, or does not place a substantial burden
City & County of San Francisco, 746 F.3d 953, 961 (9th Cir. 2014).
Id. Choda’ challenge is distinguishable from Chovan in this regard “by virtue of
F.3d at 1138. In the instant matter, Choda was convicted of crimes which are not
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
County’s conduct destroys Choda’s rights to own firearms, and this amounts to the
8
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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
scrutiny should apply, because the County’s conduct and/or application of state
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
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.
In this matter, the ban at issue similarly does not “leave open alternative
Amendment rights. Jackson v. City & Cty. of S.F., 746 F.3d 953, 961 (9th Cir.
County’s policy. Strict scrutiny should apply, and the County of Hawaii must
9
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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
The County has similarly curtailed Choda’s Second Amendment rights. This
Court should apply true strict scrutiny and find that there is no compelling
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
10
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muster. Our intermediate scrutiny test under the Second Amendment requires that
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
to the litigants:
11
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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
firearms, 837 F.3d 678 (6th Cir. 2016) (en banc). Judge Julia Gibbons wrote that
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
Similarly, the Second Circuit found the permanent revocation of a pistol permit
adversarial testing.” Henry v. Cty. of Nassau, No. 20-1027-cv, 2021 U.S. App.
banning people from firearm ownership who have been convicted for nonviolent
12
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a government interest, this policy is not sufficiently tailored to support that interest.
& 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
mentioned by the Skoien court showing that the recidivism rates for individuals
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
13
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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)
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
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push their way into Fun Quest by the time the fire marshal arrived and cleared the
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
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
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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
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
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,
16
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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.
being treated differently than others who have never been convicted of a crime of
violence;
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).
treatment of plaintiffs will draw strict scrutiny (as opposed to rational basis review)
17
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Amendment rights.” See OSU Student Alliance v. Ray, 699 F.3d 1053, 1067 (9th
Cir. 2012).
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
others to own firearms, though they too are also non-statutorily precluded, “is
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
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Vagueness/Fair Notice
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
crime and H.R.S. §134-7 is unconstitutionally vague both facially and as applied to
Choda.
claims, the remaining temporary restraining order factors follow readily. “It is well
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
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al., Federal Practice and Procedure § 2948.1 (2d ed. 1995) (“When an alleged
showing of irreparable injury is necessary.”). The Ninth Circuit has imported the
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
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.
public interest. When challenging government action that affects the exercise of
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
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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
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
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
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
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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.
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-
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
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
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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
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
Conclusion
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
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restraining order enjoining the County from denying him his right to firearm
Respectfully submitted,
24
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)
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
____________________________________)
Case 1:21-cv-00384-DKW-RT Document 9 Filed 09/15/21 Page 2 of 3 PageID #: 82
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
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
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
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
D~
United States District Judge
-