Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 1 of 96 No. 21-15562 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ANDREW NAMIKI ROBERTS, Plaintiff-Appellant, v. AL CUMMINGS, in his Official Capacity as the State Sheriff Division Administrator; CLARE E. CONNORS, in her Official Capacity as the Attorney General of the State of Hawai‘i, Defendants-Appellees, and SUSAN BALLARD, in her Official Capacity as the Chief of Police of Honolulu County Defendant. On Appeal from the United States District Court for the District of Hawai‘i Honorable Helen Gillmor, Senior United States District Judge (Civil No. 1:18-cv-00125-HG-RT) DEFENDANTS-APPELLEES’ ANSWERING BRIEF CLARE E. CONNORS ROBERT T. NAKATSUJI Attorney General of Hawai‘i JOHN M. CREGOR, JR. Deputy Attorneys General KIMBERLY T. GUIDRY Department of the Attorney General Solicitor General of Hawai‘i 425 Queen Street Honolulu, Hawai‘i 96813 Telephone: (808) 586-1360 Fax: (808) 586-8116 E-mail: Robert.T.Nakatsuji@hawaii.gov John.M.Cregor@hawaii.gov Attorneys for Defendants-Appellees AL CUMMINGS and CLARE E. CONNORS Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 2 of 96 TABLE OF CONTENTS I. INTRODUCTION ...........................................................................................1 II. STATEMENT OF JURISDICTION ...............................................................2 III. STATEMENT OF AUTHORITIES................................................................2 IV. COUNTER-STATEMENT OF THE CASE ...................................................2 A. Procedural History of this Case.............................................................2 B. Enactment of Act 183............................................................................8 V. SUMMARY OF THE ARGUMENT............................................................11 VI. STANDARD OF REVIEW...........................................................................15 VII. ARGUMENT.................................................................................................15 A. This Appeal Should be Dismissed as Moot and the Case Remanded to the District Court for Entry of an Order Dismissing the Complaint ...................................................................15 1. Plaintiff has no claim for prospective injunctive relief because Haw. Rev. Stat. § 134-16 has been repealed by Act 183 .................................................................................17 2. Plaintiff also does not have a valid claim against Haw. Rev. Stat. § 134-51....................................................................20 B. This Court Does Not Have Appellate Jurisdiction Over this Issue.....................................................................................................28 C. The District Court Did Not Abuse its Discretion in Continuing the Stay Pending the Supreme Court’s Consideration of the NYSRPA and Young Cases ................................33 1. The orderly course of justice.....................................................35 2. Hardship or inequity in going forward .....................................37 3. Possible damage........................................................................38 VIII. CONCLUSION ..............................................................................................40 i Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 3 of 96 TABLE OF AUTHORITIES Cases Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144 (9th Cir. 2007) ..............................................................................18 Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118 (9th Cir. 1997) ..............................................................................15 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)................................................................................................15 Blue Cross & Blue Shield of Ala. v. Unity Outpatient Surgery Ctr., Inc., 490 F.3d 718 (9th Cir. 2007) ........................................................................ passim Board of Trustees of Glazing Health and Welfare Trust v. Chambers, 941 F.3d 1195 (2019)............................................................................... 17, 20, 40 Caetano v. Massachusetts, 577 U.S. 411 (2016)................................................................................. 13, 20, 25 City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982)..............................................................................................17 Clinton v. Jones, 520 U.S. 681 (1997)..............................................................................................34 CMAX, Inc. v. Hall, 300 F.2d 265 (9th Cir. 1962) ................................................................................35 Consumer Financial Protection Bureau v. Cashcall, Inc., Nos. 18-55407 & 18-55479, 2019 WL 5390028 (9th Cir. Oct. 21, 2019).........................................................................................39 Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102 (1980)..............................................................................................25 Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992 (9th Cir. 2010) ..................................................................................9 Dejetley v. Kahoʻohalahala, 122 Hawaiʻi 251, 226 P.3d 421 (2010).................................................................26 ii Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 4 of 96 Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059 (9th Cir. 2007) ..............................................................................15 District of Columbia v. Heller, 554 U.S. 570 (2008)..............................................................................................27 Doe No. 1 v. Reed, 697 F.3d 1235 (9th Cir. 2012) ....................................................................... 16, 19 Ex parte Young, 209 U.S. 123 (1908)..............................................................................................18 Fed. Home Loan Mortg. Corp. v. Kama, Civ. No. 14-00137 ACK-KSC, 2016 WL 922780 (D. Haw. Mar. 9, 2016).................................................................................. 34, 37 Flast v. Cohen, 392 U.S. 83 (1968)................................................................................................16 Foster v. Carson, 347 F.3d 742 (9th Cir. 2003) ................................................................................15 Ganezer v. Directbuy, Inc., 571 F.3d 846 (9th Cir. 2009) ................................................................................39 George v. Manheim Investments, Inc., 731 F. App’x 624 (9th Cir. 2018) .................................................................. 29, 30 Gerritsen v. Warner Bros. Entertainment Inc., 112 F. Supp. 3d 1011 (S.D. Cal. 2015)...................................................................9 Grand Canyon Tr. v. U.S. Bureau of Reclamation, 691 F.3d 1008 (9th Cir. 2012) ..............................................................................16 Hancock v. Kulana Partners, LLC, 692 F. App’x 329 (9th Cir. 2017) .........................................................................26 Hawai‘i v. Trump, 233 F. Supp. 3d 850 (D. Haw. 2017)....................................................................36 Hines v. D’Artois, 531 F.2d 726 (5th Cir. 1976) ................................................................................31 iii Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 5 of 96 Italian Colors Rest. v. Becerra, 878 F.3d 1165 (9th Cir. 2018) ..............................................................................27 Karoun Dairies, Inc. v. Karlacti, Inc., Civil No. 08cv1521 AJB (WVG), 2013 WL 4716202 (S.D. Cal. Sept. 3, 2013) .......................................................................... 36, 37, 38 Kinkaid v. Bd. of Rev. of City & Cty. of Honolulu, 106 Hawai‘i 318, 104 P.3d 905 (2004).......................................................... 23, 24 Landis v. N. Am. Co., 299 U.S. 248 (1936)....................................................................................... 34, 35 Leslie v. Comm’r, 146 F.3d 643 (9th Cir. 1998) ................................................................................26 Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857 (9th Cir. 1979) ......................................................................... 34, 36 Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005) ..............................................................................35 Matera v. Google Inc., Case No. 15-cv-04062-LHK, 2016 WL 454130 (N.D. Cal. Feb. 5, 2016) .......................................................................... 35, 37, 38 Mediterranean Enterprises, Inc. v. Ssangyong Corp., 708 F.2d 1458 (9th Cir. 1983) ..............................................................................34 Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978)....................................................................................... 18, 19 New York State Rifle & Pistol Ass’n, Inc. v. Bruen, No. 20-843 (U.S. April 26, 2021) ................................................................. passim New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525 (2020)..................................................................................... 4, 19 New York State Rifle & Pistol Ass’n, Inc. v. City of New York, No. 18-280 (U.S.)....................................................................................................4 Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016) ..............................................................................15 iv Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 6 of 96 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)................................................................................................18 Powell v. McCormack, 395 U.S. 486 (1969)..............................................................................................16 Preiser v. Newkirk, 422 U.S. 395 (1975)..............................................................................................16 Rocky Mountain Farmers Union v. Corey, 913 F.3d 940 (9th Cir. 2019) ............................................................. 16, 17, 19, 20 State v. Giltner, 56 Haw. 374, 537 P.2d 14 (1975) ............................................................ 21, 22, 24 State v. Muliufi, 64 Haw. 485, 643 P.2d 546 (1982) ................................................................ 22, 24 State v. Ogata, 58 Haw. 514, 572 P.2d 1222 (1977) .....................................................................21 State v. Rackle, 55 Haw. 531, 523 P.2d 299 (1974) .................................................... 21, 22, 24, 27 Teter v. Connors, No. 20-15948 (9th Cir. April 27, 2021)................................................................39 U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980)..............................................................................................16 Union Cent. Life Ins. Co. v. Wernick, 777 F.2d 499 (9th Cir. 1985) ......................................................................... 23, 24 United States v. Gen. Dynamics Corp., 828 F.2d 1356 (9th Cir. 1987) ..............................................................................29 United States v. Salerno, 481 U.S. 739 (1987)..............................................................................................27 Williamson v. Hawai‘i Paroling Authority, 97 Hawai‘i 183, 35 P.3d 210 (2001).............................................................. 23, 24 v Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 7 of 96 Yong v. Immigration and Naturalization Service, 208 F.3d 1116 (9th Cir. 2000) ....................................................................... 31, 32 Young v. Hawai‘i, No. 12-17808, 2021 WL 1114180 (9th Cir. Mar. 24, 2021) (en banc)........................................................................................................ passim Young v. Hawai‘i, No. 20-1639 (U.S. May 11, 2021) ..........................................................................6 Statutes 28 U.S.C. § 1291......................................................................................... 2, 6, 8, 29 Haw. Rev. Stat. §§ 134-2(e) & (g), 134-4(b), 134-5(c), 134-9, 134-25 ..................24 Haw. Rev. Stat. § 134-16 (2011 & Supp. 2019).............................................. passim Haw. Rev. Stat. §§ 134-23, 134-24, 134-25 (2011) ................................................11 Haw. Rev. Stat. § 134-51 (2011) ..................................................................... passim Rules Fed. R. Evid. 201 .......................................................................................................9 Haw. R. App. P. 13 ..................................................................................................26 Constitutional Provisions Haw. Const. art. III, § 10 .........................................................................................28 Legislative History Act 183, Session Laws of Hawai‘i 2021.......................................................... passim Act 183, Session Laws of Hawai‘i 2021 § 1..................................................... 11, 25 Act 183, Session Laws of Hawai‘i 2021 § 2........................................... 9, 10, 22, 23 Act 183, Session Laws of Hawai‘i 2021 § 8....................................................... 9, 19 Act 183, Session Laws of Hawai‘i 2021 § 12............................................................9 vi Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 8 of 96 GM1311, Hawai‘i State Legislature, http://www .capitol.hawaii.gov/measure_indiv.aspx?billtype=GM&billnumber =1311&year=2021 ..................................................................................................9 HB891 Measure Status, Hawai‘i State Legislature, https://www.capitol.hawaii.gov/measure_indiv .aspx?billtype=HB&billnumber=891&year=2021 ................................ 8, 9, 14, 28 Other Authorities Associated Press, Ruling upholds Hawaii’s limits on carrying guns in public, Honolulu Star-Advertiser (Mar. 24, 2021), https://www.staradvertiser.com/2021/03/24/breaking-news /ruling-upholds-hawaiis-limits-on-carrying-guns-in-public/..................................5 R.F. Chase, Annotation, Appealability of order staying, or refusing to stay, action because of pendency of another action, 18 A.L.R.3d 400, § 2 (1968)......29 vii Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 9 of 96 I. INTRODUCTION Plaintiff-Appellant ANDREW NAMIKI ROBERTS (“Plaintiff”) filed an appeal from the District Court’s Order continuing the stay in this case, notwithstanding the fact that the District Court had several strong reasons for continuing the stay. During the pendency of this appeal, however, events have overtaken the case and have rendered the entire case moot. The Hawai‘i State Legislature has enacted a law, which the Governor of Hawai‘i has signed, that repeals the statute challenged by Plaintiff and replaces the statutory scheme applicable to electric guns. Therefore, this case is now moot. In the alternative, this Court lacks appellate jurisdiction to consider this appeal. The stay is not sufficiently lengthy or indefinite so as to support appellate jurisdiction. In any event, this Court should affirm the District Court’s Order on the merits. The District Court clearly did not abuse its discretion in denying Plaintiff’s Motion to Lift Stay and Re-urge Summary Judgment. The orderly course of justice, the hardship or inequity in going forward, and the possible damage all weigh in favor of continuing the stay. Moreover, there is nothing unusual about federal courts staying cases pending U.S. Supreme Court decisions. Defendants-Appellees AL CUMMINGS, in his Official Capacity as the State Sheriff Division Administrator, and CLARE E. CONNORS, in her Official 1 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 10 of 96 Capacity as the Attorney General of the State of Hawai‘i (“State Defendants”) respectfully request that this Court dismiss the instant appeal on grounds of mootness and remand this case to the District Court for entry of an Order dismissing the complaint with prejudice. In the alternative, this Court should dismiss this appeal for lack of appellate jurisdiction. Or this Court should affirm the District Court on the merits and hold that the District Court did not abuse its discretion in continuing the stay. II. STATEMENT OF JURISDICTION State Defendants disagree with Plaintiff’s claim that this Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291. The instant appeal is an appeal from an order continuing a stay and is therefore not an appeal from a final order. State Defendants recognize that the Order entered on May 13, 2021 held that appellate jurisdiction existed for purposes of Plaintiff’s Motion for Summary Disposition. DktEntry 11. However, the Ninth Circuit’s Order entered on August 11, 2021 redirected the parties to brief the jurisdiction issue in this appeal. DktEntry 14. III. STATEMENT OF AUTHORITIES State Defendants set forth the pertinent constitutional provisions, statutes, and rules in an Addendum attached below. IV. COUNTER-STATEMENT OF THE CASE A. Procedural History of this Case. 2 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 11 of 96 On April 2, 2018, Plaintiff filed his Complaint challenging the constitutionality of Section 134-16 of the Hawai‘i Revised Statutes, which generally prohibited the possession and sale of electric guns by ordinary civilians.1 ER-066 (ECF 1); SER-085-110. On May 21, 2018, Plaintiff filed his First Amended Complaint, which added additional language challenging Section 134-51 of the Hawai‘i Revised Statutes. ER-043-064. 1 Section 134-16 provided in relevant part: Restriction on possession, sale, gift, or delivery of electric guns. (a) It shall be unlawful for any person, including a licensed manufacturer, licensed importer, or licensed dealer, to possess, offer for sale, hold for sale, sell, give, lend, or deliver any electric gun. ... (c) This section shall not apply to: (1) Law enforcement officers of county police departments; (2) Law enforcement officers of the department of public safety; (3) Conservation and resources enforcement officers of the department of land and natural resources; (4) Members of the Army or Air National Guard when assisting civil authorities in disaster relief, emergency management, or law enforcement functions, subject to the requirements of section 121-34.5; (5) Law enforcement officers appointed by the director of transportation pursuant to section 266-24; and (6) Vendors providing electric guns to the individuals described in paragraphs (1) through (5)[.] Haw. Rev. Stat. § 134-16 (2011 & Supp. 2019). 3 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 12 of 96 On December 17, 2018, the parties stipulated to stay the proceedings based on proposed legislation on electric guns pending before the 2019 session of the Hawai‘i State Legislature. ER-040-042. Ultimately, the proposed legislation did not pass during that session. On August 2, 2019, Plaintiff filed his Motion for Summary Judgment. ECF 51. On September 4, 2019, State Defendants filed their Cross-[Motion] for Summary Judgment and Memorandum in Opposition to Plaintiff’s Motion. ECF 54. On November 26, 2019, the District Court stayed the proceedings pending a decision by the U.S. Supreme Court in New York State Rifle & Pistol Ass’n, Inc. v. City of New York, No. 18-280 (U.S.). ER-035-037. The Supreme Court eventually issued its decision on April 27, 2020. See New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525 (2020). On June 17, 2020, the District Court stayed the proceedings based on the pendency of the Ninth Circuit en banc proceedings in Young v. Hawai‘i, No. 12- 17808 (9th Cir.). ER-033-034. The Court also based the stay on the fact that legislation on electric guns was pending before the 2020 session of Hawai‘i Legislature. Id. On July 20, 2020, Plaintiff filed a Motion to Lift Stay. ER-030-032. 4 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 13 of 96 On August 14, 2020, the District Court denied Plaintiff’s Motion to Lift Stay and decided to continue the stay pending a decision in Young. ER-075 (ECF 81); SER-078. The Court also relied on “the reasons previously stated in the Minute Order dated June 17, 2020.” SER-078. On March 24, 2021, the Ninth Circuit issued its en banc decision in Young v. Hawai‘i, No. 12-17808, 2021 WL 1114180 (9th Cir. Mar. 24, 2021) (en banc). On March 24, 2021, Plaintiff filed a Motion to Lift Stay and Re-urge Summary Judgment. ER-025-029. On March 25, 2021, the District Court denied Plaintiff’s Motion to Lift Stay and Re-urge Summary Judgment, determining that it would not act until the Young proceedings had concluded. ER-008-009. The Court further noted that, according to a report from the Honolulu Star-Advertiser, Alan Beck, who is the plaintiff’s attorney in Young, and an attorney for Plaintiff in the present case, stated that Mr. Young will be asking the Supreme Court to review the Young decision. Id. See also Associated Press, Ruling upholds Hawaii’s limits on carrying guns in public, Honolulu Star-Advertiser (Mar. 24, 2021), https://www.staradvertiser.com /2021/03/24/breaking-news/ruling-upholds-hawaiis-limits-on-carrying-guns-in- public/ (“George Young’s lawyer said he will ask the U.S. Supreme Court to review the case. ‘We are hopeful the Supreme Court will grant review in Mr. Young’s case,’ attorney Alan Beck said.”). 5 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 14 of 96 Plaintiff filed a Notice of Appeal from the denial of the Motion on March 26, 2021. ER-003-007. Plaintiff also filed a Motion for Summary Disposition in the Ninth Circuit on March 31, 2021. 9th Cir. DktEntry 2-1. State Defendants filed a Memorandum in Opposition to Plaintiff’s Motion for Summary Disposition on April 9, 2021. DktEntry 7-1. Plaintiff filed a Reply on April 14, 2021. DktEntry 8. On April 26, 2021, the Supreme Court granted certiorari in another Second Amendment case—New York State Rifle & Pistol Ass’n, Inc. v. Bruen, No. 20-843 (U.S. April 26, 2021) (Order granting certiorari), SER-024-026 (Exhibit “A” to Memorandum in Opposition).2 On May 11, 2021, the Plaintiff in Young v. Hawai‘i filed his Petition for Writ of Certiorari in the Supreme Court. See Young v. Hawai‘i, No. 20-1639 (U.S. May 11, 2021) (Petition for Writ of Certiorari), SER-027-069 (Exhibit “B” to Memorandum in Opposition). On May 13, 2021, two judges of the Ninth Circuit, addressing Plaintiff’s Motion for Summary Disposition, entered an order remanding the case to the District Court. DktEntry 11. The court held that it had “jurisdiction under 28 U.S.C. § 1291 to review stay orders that impose lengthy or indefinite delays and 2 Formerly New York State Rifle & Pistol Ass’n, Inc. v. Corlett, hereinafter “NYSRPA.” 6 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 15 of 96 ‘place a plaintiff effectively out of court.’” Id. The court further noted that the challenged stay order did not set forth the District Court’s analysis or explain its weighing of the relevant factors. Id. The court remanded for the limited purpose of allowing the District Court “to reconsider its decision and to set forth its reasons for whatever decision it reaches, so that [the Ninth Circuit] can properly exercise [its] powers of review.” Id. The court directed the District Court to issue its ruling on remand within 30 days of the order and directed Plaintiff to file a status report and/or motion for appropriate relief within 7 days of the District Court’s ruling. Id. On May 19, 2021, the District Court authorized State Defendants to file a Memorandum in Opposition to Plaintiff’s Motion to Lift Stay and Re-urge Summary Judgment, and the Court also authorized Plaintiff to file a Reply, since neither had been previously filed in the case. SER-076-077. On May 24, 2021, State Defendants filed their Memorandum in Opposition to Plaintiff’s Motion. SER-004-075. On May 26, 2021, Plaintiff filed his Reply. ER-017-024. On June 2, 2021, the District Court filed its Response to the Ninth Circuit’s May 13, 2021 Order, which elected to continue the stay of the proceedings in this case. ER-010-016; DktEntry 12. The District Court stated three reasons for continuing the stay: (1) in order for the U.S. Supreme Court to address the 7 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 16 of 96 standard of review that applies to a Second Amendment challenge, which is before the Court in NYSRPA; (2) to await a decision by the Court on the application for a writ of certiorari seeking review of the en banc decision in Young v. Hawai‘i; and (3) to allow the Governor of Hawai‘i to review House Bill (“H.B.”) 891, which the State Defendants represented would repeal and replace the electric gun statute at issue in this case. ER-010-016; DktEntry 12. Plaintiff filed his Status Report in the Ninth Circuit on June 7, 2021. DktEntry 13. On August 11, 2021, the Ninth Circuit denied Plaintiff’s Motion for Summary Disposition without prejudice to him renewing the arguments in the opening brief. DktEntry 14. The court set a briefing schedule and also directed the parties to address two additional issues: (1) “the basis for this court’s jurisdiction under 28 U.S.C. § 1291” (i.e., appellate jurisdiction); and (2) “the extent to which any live controversy remains in this action following the State of Hawaii’s repeal of Haw. Rev. Stat. § 134-16” (i.e., mootness). DktEntry 14. B. Enactment of Act 183. H.B. 891 was introduced in the 2021 session of the Hawai‘i Legislature, after similar attempts in several previous sessions had failed. See HB891 Measure Status, Hawai‘i State Legislature, https://www.capitol.hawaii.gov/measure_indiv .aspx?billtype=HB&billnumber=891&year=2021 (last visited 9/15/21). It was part 8 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 17 of 96 of Governor David Y. Ige’s own legislative package. Id. (“Package: Governor”). Following approval by the House of Representatives and the Senate, the Governor signed H.B. 891 into law as Act 183 on July 6, 2021. Act 183, Session Laws of Hawai‘i 2021, at 32.3 Act 183 takes effect on January 1, 2022. Id. § 12 at 32 . Section 8 of Act 183 expressly repeals Section 134-16, which is the provision at the core of Plaintiff’s case. Id. § 8 at 28-31. Act 183 essentially replaces the ban on civilian ownership established by Section 134-16 with a statutory scheme that regulates the sale of electric guns through licensed sellers. It prohibits using electric guns for purposes other than self-defense, defense of another person, or protection of property. Id. § 2 at 3. It prohibits persons who are not licensed sellers from selling, offering, distributing, or transferring electric guns or cartridges. Id. § 2 at 3-4, 5-9. It also prohibits people from purchasing, obtaining, or receiving electric guns or cartridges from persons who are not 3 The text of Act 183 is available on the Hawai‘i Legislature’s website, attached to Governor’s Message No. 1311, which transmitted the final signed version of the bill back to the Legislature. See GM1311, Hawai‘i State Legislature, http://www .capitol.hawaii.gov/measure_indiv.aspx?billtype=GM&billnumber=1311&year=20 21 (click on pdf icon) (last visited 9/15/21). State Defendants respectfully request that this Court take judicial notice of Act 183, pursuant to Fed. R. Evid. 201. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010); Gerritsen v. Warner Bros. Entertainment Inc., 112 F. Supp. 3d 1011, 1033 (S.D. Cal. 2015). Act 183 is also available on Westlaw, in the Hawai‘i state materials section, Hawai‘i proposed and enacted legislation subsection. See 2021 Hawai‘i Laws Act 183 (H.B. 891) (Westlaw). For the Court’s convenience, Act 183 is included in the Addendum. 9 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 18 of 96 licensed sellers. Id. § 2 at 4. Licensed sellers are required to be trained in electric gun safety. Id. § 2 at 9-10. They are required to provide an informational safety briefing to purchasers at the time of sale. Id. § 2 at 12-13. Licensed sellers are required to conduct criminal background checks of purchasers. Id. § 2 at 11-12. They are required to keep records of their inventory and records of all sales sold in the State or to a recipient in the State. Id. § 2 at 10-11, 13-14. And during regular business hours, licensed sellers must allow the chief of police of the appropriate county to inspect their records and all electric guns and cartridges in their possession or control. Id. § 2 at 14-15. Act 183 also prohibits certain persons from owning electric guns, such as fugitives; persons charged with or convicted of felonies, violent crimes, or drug crimes; the mentally ill; minors under age 21; and persons subject to restraining orders. Id. § 2 at 16-20. It makes the use of electric guns in the commission of separate misdemeanors and separate felonies criminal offenses. Id. § 2 at 22-23. It also provides for certain exceptions for law enforcement and the National Guard. Id. § 2 at 20-21, 25-28. Nothing in Act 183 limits the carrying or possession of electric guns in specific locations. The primary limitation on the use of electric guns is that they must be used for self-defense, defense of another person, or protection of property, which can occur anywhere. Id. § 2 at 3. Act 183 contains no provision that is 10 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 19 of 96 equivalent to the “place to keep” requirements for firearms, which limit the possession of firearms to the person’s place of business, residence, or sojourn, or travel between these places and other specified locations in an enclosed container. See Haw. Rev. Stat. §§ 134-23, 134-24, 134-25 (2011). Therefore, Act 183 clearly permits people to carry or possess electric guns regardless of the location. Act 183 serves the State’s important, even compelling, interest in protecting public safety. Act 183, § 1 at 1 (“The purpose of this Act is to protect the health and safety of the public by regulating the sale and use of electric guns[.]”). However, it does so by repealing the former ban on civilian ownership and replacing it with a scheme based on reasonable regulation. Id. V. SUMMARY OF THE ARGUMENT The only remaining claim in this case is a claim for prospective injunctive relief against the State Defendants. However, going forward, nothing prevents Plaintiff from owning, possessing, and using electric guns under Hawai‘i law. On July 6, 2021, Governor Ige signed Act 183 into law. Act 183 expressly repeals Section 134-16. Because the challenged law has been repealed, this case is moot. Act 183 essentially replaces the ban on civilian ownership established by Section 134-16 with a statutory scheme that regulates the sale of electric guns through licensed sellers. Act 183 cannot be construed as “reenacting” Section 134-16, and there is no “reasonable expectation” that the Legislature might reenact Section 11 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 20 of 96 134-16 in the future. As a practical matter, there is no indication that Plaintiff will not be able to satisfy the modest requirements of Act 183 and secure an electric gun once businesses begin selling them. Therefore, in light of the statute as it now stands, there is no present case or controversy. Section 134-51 also does not amount to a ban on electric guns. Section 134- 51 prohibits the carrying, concealed or unconcealed, of certain enumerated weapons and other “deadly or dangerous weapon[s].” Pursuant to a well- established line of Hawai‘i cases, an electric gun is not a “deadly or dangerous weapon” under the statute. While electric guns are instruments designed to inflict bodily injury, they also have “normal or lawful use[s]” and “have recognized uses of a socially acceptable nature.” They are not “closely associated with criminal activity” and they are not “used only in furtherance of crime[.]” In addition, Act 183 is a specific statute that prevails over a general statute such as Section 134-51. Section 134-51 also applies only to persons “not authorized by law,” and Act 183 constitutes express “authoriz[ation] by law” for persons to carry or possess electric guns. Consequently, Act 183 controls with respect to electric guns, Section 134-51 does not apply, and Section 134-51 does not prevent this case from being moot. Although there was a comment by a state senator to the news media regarding the applicability of Section 134-51, a statement by a single legislator does not control the interpretation of legislation, and it is incorrect in any event. 12 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 21 of 96 Numerous well-settled Hawai‘i cases, the rules of statutory construction, and the clear statutory text indicate that Section 134-51 does not apply to electric guns. Moreover, the intent of the legislature was to legalize electric guns so as to avoid legal challenges such as Caetano v. Massachusetts, 577 U.S. 411 (2016). Plaintiff’s interpretation would allow lawsuits to continue, defeating the purpose of Act 183. It would also effectively render Act 183 a nullity, since there would be no point in enacting Act 183 if electric guns could continue to be banned through another statute. While this Court could certify a question to the Hawai‘i Supreme Court, it would be a waste of time for both this Court and the Hawai‘i Supreme Court because the law is clear. Moreover, because Plaintiff never actually tried to purchase or carry an electric gun, he is making only a facial challenge, and facial challenges require proof that “no set of circumstances exists under which [the challenged law] would be valid[.]” Here, there is no question that ordinary civilians can now own, possess, and use electric guns, at the very least within their homes. In addition, Section 134-51 applies to many other types of weapons, such as blackjacks and metal knuckles, that are “closely associated with criminal activity[.]” Thus, there are other circumstances under which Hawaii’s statutes would be valid, Plaintiff’s facial challenge fails, and his lawsuit is moot. 13 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 22 of 96 In the alternative, this Court lacks appellate jurisdiction to consider this appeal. Appellate jurisdiction ordinarily requires a final judgment, and a stay order is not a final judgment. The exception is when a plaintiff is placed effectively out of court because the stay is lengthy and indefinite. The stay in the present case is not sufficiently lengthy or indefinite so as to support appellate jurisdiction. The stay based on the Supreme Court cases will end when the Supreme Court decides the NYSRPA and Young cases, which will likely occur during the current term. As for the stay based on H.B. 891, the Governor has already signed the bill and it has been enacted as Act 183. Therefore, this Court can determine this case to be moot and resolve it immediately. Furthermore, although it need not do so for the reasons mentioned above, this Court could also affirm the District Court’s Order on the merits. The District Court clearly did not abuse its discretion in denying Plaintiff’s Motion to Lift Stay and Re-urge Summary Judgment. The orderly course of justice, the hardship or inequity in going forward, and the possible damage all weigh in favor of continuing the stay. Moreover, there is nothing unusual about federal courts staying cases pending U.S. Supreme Court decisions. Therefore, this Court should dismiss the instant appeal as moot and remand this case to the District Court for entry of an Order dismissing the complaint with prejudice. In the alternative, this Court should dismiss this appeal for lack of 14 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 23 of 96 appellate jurisdiction. Or this Court should affirm the District Court on the merits and hold that the District Court did not abuse its discretion in continuing the stay. VI. STANDARD OF REVIEW A Court of Appeals “review[s] de novo the question whether a case is moot.” Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003). “[A] challenge to . . . appellate jurisdiction over an interlocutory appeal” is reviewed de novo. Pauluk v. Savage, 836 F.3d 1117, 1120 (9th Cir. 2016). The Court of Appeals “review[s] a district court’s stay order for abuse of discretion. However, the standard is ‘somewhat less deferential’ than the abuse of discretion standard used in other contexts. A district court abuses its discretion if it ‘base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’” Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007) (citations omitted). VII. ARGUMENT A. This Appeal Should be Dismissed as Moot and the Case Remanded to the District Court for Entry of an Order Dismissing the Complaint. “A federal court’s jurisdiction is limited to cases or controversies.” Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997). “To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser 15 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 24 of 96 v. Newkirk, 422 U.S. 395, 401 (1975)). A case is moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). These requirements ensure that federal courts exercise jurisdiction only over “questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.” Flast v. Cohen, 392 U.S. 83, 95 (1968). “If an event occurs that prevents the court from granting effective relief, the claim is moot and must be dismissed.” Grand Canyon Tr. v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1016-17 (9th Cir. 2012). “The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted.” Doe No. 1 v. Reed, 697 F.3d 1235, 1238 (9th Cir. 2012). “[T]he Supreme Court and [the Ninth Circuit] have repeatedly held that a case is moot when the challenged statute is repealed, expires, or is amended to remove the challenged language. Where there is nothing left of a challenged law to enjoin or declare illegal, further judicial action would necessarily be advisory and in violation of the limitations of Article III.” Rocky Mountain Farmers Union v. Corey, 913 F.3d 940, 949 (9th Cir. 2019) (citation omitted). “[I]n determining whether a case is moot, we . . . presume that the repeal, amendment, or expiration 16 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 25 of 96 of legislation will render an action challenging the legislation moot, unless there is a reasonable expectation that the legislative body will reenact the challenged provision or one similar to it.” Board of Trustees of Glazing Health and Welfare Trust v. Chambers, 941 F.3d 1195, 1199 (2019). “[A] determination that such a reasonable expectation exists must be founded in the record, as it was in City of Mesquite [v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982)], rather than on speculation alone.” In City of Mesquite, the “city had revised a challenged ordinance but was reasonably expected to reenact offending provisions because it had announced its intention to do so.” Board of Trustees, 941 F.3d at 1198 (citing City of Mesquite, 455 U.S. at 289 & n.11). “To test whether subsequent developments have mooted a suit, we ask whether the claim could have been brought ‘in light of the . . . statute as it now stands.’” Rocky Mountain Farmers Union, 913 F.3d at 949. If a case becomes moot on appeal, the appellate court should “dismiss this appeal as moot and remand to the district court with instructions to . . . dismiss the complaint[.]” Board of Trustees, 941 F.3d at 1200. 1. Plaintiff has no claim for prospective injunctive relief because Haw. Rev. Stat. § 134-16 has been repealed by Act 183. The essence of this case is a claim for prospective injunctive relief on the constitutionality of Hawaii’s electric gun law. Both Plaintiff’s Complaint and First Amended Complaint expressly stated that they were Complaints “for Declaratory 17 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 26 of 96 and Injunctive Relief.” SER-085; ER-043. The primary relief they both requested was for preliminary and permanent injunctions as well as declarations on unconstitutionality. SER-097; ER-058. Although both Complaints also requested damages, the damages claim was relevant only to Defendant SUSAN BALLARD, who at the time was the Chief of Police of the Honolulu Police Department. SER- 097; ER-058. As a local official, Chief BALLARD was subject to money damages based on municipal liability pursuant to Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690-95 (1978). Chief BALLARD was ultimately dismissed from this case without prejudice. SER-081-084; SER-079-080. The remaining defendants, however, are state officials. It is well-settled that “[t]he Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials acting in their official capacities.” Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citation omitted); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101–03 (1984). The State Defendants—Attorney General CONNORS and Sheriffs Division Administrator CUMMINGS—are state officials sued in their official capacities. Therefore, the only claim left in this case is a claim for prospective injunctive relief against the State Defendants under the Ex parte Young exception. See Ex parte Young, 209 U.S. 123, 126 (1908). 18 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 27 of 96 Plaintiff argues that he still has a claim for money damages against State Defendants based on New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525 (2020), and therefore the case is not moot. See Opening Brief (“O.B.”) at 14-15. However, the defendant in New York State Rifle & Pistol Ass’n, Inc. v. City of New York was, of course, the City of New York, which is a municipality and not a state. Therefore, it was subject to money damages under Monell. In contrast, Hawai‘i is a state. Since State Defendants are state officials being sued in their official capacities, they are protected against money damages by the Eleventh Amendment. Consequently, the only remaining issue in this case is whether, going forward, Plaintiff can own, possess, and use electric guns under Hawai‘i law. The answer to that question is yes. Therefore, this case is moot. On July 6, 2021, Governor Ige signed Act 183 into law. Section 8 of Act 183 expressly repeals Section 134-16, which is the electric gun statute that is the primary focus of Plaintiff’s challenge. See Act 183, § 8 at 28-31; SER-093; SER- 097; ER-052; ER-058. Because the challenged statute has been repealed, this case is moot. “[T]here is nothing left of [the] challenged law.” Rocky Mountain Farmers Union, 913 F.3d at 949. Plaintiff cannot obtain declaratory or injunctive relief against a statute that has been repealed; therefore, the court cannot grant effective relief. Doe No. 1, 697 F.3d at 1238. Act 183 essentially replaces the ban 19 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 28 of 96 on civilian ownership established by Section 134-16 with a statutory scheme that regulates the sale of electric guns through licensed sellers. The approach taken in Act 183 is so different from the approach taken in Section 134-16 that it cannot in any way be construed as “reenact[ing] the challenged provision or one similar to it.” Board of Trustees, 941 F.3d at 1199. There is also no “reasonable expectation” that the Legislature might reenact Section 134-16 in the future. Nothing in the record reflects an intent by policymakers to reenact the statute, and indeed, the same conditions that induced the Legislature to enact Act 183— specifically, Supreme Court cases such as Caetano v. Massachusetts, 577 U.S. 411 (2016)—still exist. As a practical matter, there is no indication that Plaintiff will not be able to satisfy the modest requirements of Act 183 and secure an electric gun once businesses begin selling them. Therefore, in light of the statute as it now stands, there is no present case or controversy. See Rocky Mountain Farmers Union, 913 F.3d at 949. 2. Plaintiff also does not have a valid claim against Haw. Rev. Stat. § 134-51. Plaintiff also argues that, even with the repeal of Section 134-16, this case is not moot because Section 134-51 still amounts to a ban on electric guns. See O.B. at 15-16. Plaintiff seriously misinterprets Hawai‘i law on this issue and is simply wrong. Section 134-51 provides in relevant part: 20 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 29 of 96 (a) Any person, not authorized by law, who carries concealed upon the person’s self or within any vehicle used or occupied by the person or who is found armed[4] with any dirk, dagger, blackjack, slug shot, billy, metal knuckles, pistol, or other deadly or dangerous weapon shall be guilty of a misdemeanor and may be immediately arrested without warrant by any sheriff, police officer, or other officer or person. Haw. Rev. Stat. § 134-51 (2011). Whether a particular instrument is a “deadly or dangerous weapon” under Section 134-51 has been addressed in numerous Hawai‘i cases. In State v. Rackle, 55 Haw. 531, 523 P.2d 299 (1974), the Hawai‘i Supreme Court held that a flare gun was not a “deadly or dangerous weapon” because the statute applies to “instruments closely associated with criminal activity whose sole design and purpose is to inflict bodily injury or death upon another human being.” Id. at 537, 523 P.2d at 303. In State v. Giltner, 56 Haw. 374, 537 P.2d 14 (1975), the Hawai‘i Supreme Court held that a diver’s knife was not a “deadly or dangerous weapon”: [W]hat the statute proscribe[s] [is] the act of carrying any of the weapons enumerated, and those closely akin to those named, as well as instruments associated with criminal activity whose sole design is to inflict death or bodily injury. The fact that an object originally designed for normal or lawful use can be perverted to a use dangerous to one attacked does not convert it into a “deadly or 4 “[A] person who carries a prohibited weapon upon his person, whether concealed or unconcealed, is a person ‘armed’ within the meaning of the statute.” State v. Ogata, 58 Haw. 514, 519-20, 572 P.2d 1222, 1226 (1977). “HRS § 134-51 may be violated by the carrying of deadly or dangerous weapons, whether concealed or unconcealed.” Id. at 520, 572 P.2d at 1227. 21 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 30 of 96 dangerous weapon” within the meaning of the statute. The instrument proscribed is one which was designed primarily as a weapon, or one which has been modified for combat purposes. Id. at 376, 537 P.2d at 16 (emphases added). In State v. Muliufi, 64 Haw. 485, 643 P.2d 546 (1982), the Hawai‘i Supreme Court summarized the prior cases and further noted that: (I)t is useful to distinguish between those weapons which are offensive in themselves, meaning that the universal experience within our society has been that these weapons are used only in furtherance of crime, and those that can be used offensively, in the hands of one inclined to do so, but also have recognized uses of a socially acceptable nature. Id. at 488, 643 P.2d at 548 (emphases added). While electric guns are instruments designed to inflict bodily injury, they also have “normal or lawful use[s]” and “have recognized uses of a socially acceptable nature.” See Giltner, 56 Haw. at 376, 537 P.2d at 16; Muliufi, 64 Haw. at 488, 643 P.2d at 548. They are used for self-defense, defense of others, or defense of property, as Act 183 recognizes. See Act 183, § 2 at 3. Electric guns are not “closely associated with criminal activity” and they are not “used only in furtherance of crime[.]” See Rackle, 55 Haw. at 537, 523 P.2d at 303; Giltner, 56 Haw. at 376, 537 P.2d at 16; Muliufi, 64 Haw. at 488, 643 P.2d at 548. Consequently, based on a well-established line of Hawai‘i cases, Section 134-51 simply does not apply to electric guns. 22 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 31 of 96 In addition, it is a cardinal rule of statutory construction that when there is a conflict between two statutes, the specific statute prevails over the general one. See Kinkaid v. Bd. of Rev. of City & Cty. of Honolulu, 106 Hawai‘i 318, 323, 104 P.3d 905, 910 (2004); Williamson v. Hawai‘i Paroling Authority, 97 Hawai‘i 183, 191, 35 P.3d 210, 218 (2001). See also Union Cent. Life Ins. Co. v. Wernick, 777 F.2d 499, 501 (9th Cir. 1985). Because Act 183 is a specific statute applicable to electric guns, and Section 134-51 applies to deadly or dangerous weapons generally, Act 183 controls with respect to electric guns. Even assuming for the sake of argument that an electric gun is a “deadly or dangerous weapon,” Section 134-51 expressly states that it prohibits the carrying of deadly or dangerous weapons only for persons “not authorized by law[.]” See § 134-51. Act 183 specifically authorizes people to own, possess, and use electric guns for self-defense, defense of others, and defense of property. See Act 183, § 2 at 3. Therefore, it constitutes express “authoriz[ation] by law,” and persons carrying or possessing electric guns pursuant to Act 183 would be exempt from Section 134-51.5 5 As another example, Section 134-51 expressly applies to “pistol[s].” But pistols are clearly permissible under Hawai‘i law. How is this possible if Section 134-51 bans carrying or possessing them? Pistols fall within the exception in Section 134- 51 for persons “authorized by law[.]” There are numerous other statutes in Hawai‘i Revised Statutes Chapter 134 that legalize the purchase, possession, and use of pistols and revolvers. See, e.g., Haw. Rev. Stat. §§ 134-2(e) & (g), 134- 23 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 32 of 96 Consequently, Plaintiff does not have and has never had a valid claim against Section 134-51, since it does not apply to electric guns in the first place. See Rackle, 55 Haw. at 537, 523 P.2d at 303; Giltner, 56 Haw. at 376, 537 P.2d at 16; Muliufi, 64 Haw. at 488, 643 P.2d at 548. But more importantly, even if it did apply, the enactment of Act 183 not only mooted out Plaintiff’s claim based on Section 134-16 but it also mooted out his claim based on Section 134-51. When the Legislature enacted Act 183, it enacted a specific electric gun statute that controls over the general deadly or dangerous weapon statute. See Kinkaid, 106 Hawai‘i at 323, 104 P.3d at 910; Williamson, 97 Hawai‘i at 191, 35 P.3d at 218; Union Cent. Life Ins. Co., 777 F.2d at 910. The enactment of Act 183 also provided the “authoriz[ation] by law,” that allows electric guns to fit within the express exception in Section 134-51. See § 134-51. Therefore, due to the enactment of Act 183, Plaintiff’s claim based on Section 134-51 is moot (if the statute even applied in the first place). Plaintiff relies on a comment made by State Senator Karl Rhoads to the news media for his argument that Section 134-51 still applies to electric guns. O.B. at 13. However, “even the contemporaneous remarks of a single legislator 4(b), 134-5(c), 134-9, 134-25. These other statutes provide the “authoriz[ation] by law” that places pistols and revolvers within the exception to Section 134-51. The same reasoning applies to Act 183 with respect to electric guns. 24 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 33 of 96 who sponsors a bill are not controlling in analyzing legislative history.” Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980). Of course, a single, off-hand comment to the news media is no substitute for careful legal analysis. And even if this is indeed Sen. Rhoads’ interpretation, it is possible to respectfully disagree with such an interpretation. As discussed above, numerous well-settled Hawai‘i cases, the rules of statutory construction, and the clear statutory text, all support the conclusion that Section 134-51 does not apply to electric guns. Consequently, the weight of authority is clearly against Plaintiff’s assertion. Moreover, interpreting Act 183 as allowing Section 134-51 to ban electric guns would in fact be inconsistent with the intent of the Legislature, as reflected in the preamble to the statute. See Act 183, § 1 at 1. The Legislature as a whole (as opposed to a comment by a single legislator to the news media) clearly intended to legalize electric guns so as to avoid legal challenges such as in Caetano v. Massachusetts, 577 U.S. 411 (2016). See Act 183, § 1 at 1. Plaintiff’s interpretation of Act 183 would allow lawsuits to continue, defeating the purpose of Act 183. Plaintiff’s interpretation also effectively renders Act 183 a nullity, at least in part, contrary to the rules of statutory construction. Courts are required “to reject an interpretation of a statute that renders any part of the statutory language a nullity.” Dejetley v. Kahoʻohalahala, 122 Hawaiʻi 251, 265, 226 P.3d 421, 435 25 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 34 of 96 (2010). See also Leslie v. Comm’r, 146 F.3d 643, 649 (9th Cir. 1998) (rejecting an interpretation that would render a statute “a virtual nullity”). Plaintiff’s interpretation renders Act 183 a nullity because there would be no point in enacting Act 183 if electric guns could continue to be banned through another statute. If this Court has any doubt as to the interpretation of Section 134-51, it can, of course, certify a question to the Hawai‘i Supreme Court pursuant to Hawai‘i Rules of Appellate Procedure Rule 13. See, e.g., Hancock v. Kulana Partners, LLC, 692 F. App’x 329 (9th Cir. 2017) (certifying question to Hawai‘i Supreme Court). However, given the strength of the authorities against Plaintiff’s interpretation, a certified question would be a waste of time for both this Court and the Hawai‘i Supreme Court. Furthermore, even assuming for the sake of argument that Section 134-51 does apply to electric guns, and further assuming that Act 183 does not supersede it, Plaintiff’s lawsuit must fail for another reason. Although Plaintiff claims that he is making both an as-applied and a facial challenge to Hawaii’s electric gun statutes, he never actually tried to purchase or carry an electric gun. He stated only that he “desires to purchase,” “wishes to purchase,” and “desire[s] to possess” electric guns. SER-094-097; ER-053-056. In fact, he said: “I have refrained from purchasing, owning, carrying or otherwise violating Hawaii’s ban on stun guns and Tasers.” SER-100; ER-062. Consequently, he is only able to make a facial 26 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 35 of 96 challenge to Hawaii’s electric gun laws, since he has not actually tried to have them applied to him. But a facial challenge requires proof that “no set of circumstances exists under which [the challenged law] would be valid[.]” See Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1175 (9th Cir. 2018) (internal quotation marks omitted). See also United States v. Salerno, 481 U.S. 739, 745 (1987). However, Section 134-51 only prohibits the “carrying” of deadly or dangerous weapons, concealed or unconcealed. See § 134-51. In other words, it applies only to the concealed carry or open carry of electric guns in public. With the enactment of Act 183, there is no question that ordinary civilians can now own, possess, and use electric guns, at the very least within their homes. Therefore, there is a set of circumstances under which Hawaii’s electric gun laws are clearly valid, and Plaintiff’s facial challenge fails. Moreover, Section 134-51 applies to many other types of weapons, such as blackjacks and metal knuckles, that are “closely associated with criminal activity[.]” See § 134-51; Rackle, 55 Haw. at 537, 523 P.2d at 303. The Supreme Court has stated clearly that “the Second Amendment does not protect those weapons not typically possessed by law- abiding citizens for lawful purposes[.]” District of Columbia v. Heller, 554 U.S. 570, 625-27 (2008) (recognizing “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). Thus, there are other circumstances under 27 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 36 of 96 which Section 134-51 would be valid, and Plaintiff’s facial challenge again fails. Plaintiff’s lawsuit is therefore moot.6 For all of these reasons, Act 183 controls with respect to electric guns, Section 134-51 does not apply, and Section 134-51 does not prevent this case from being moot.7 B. This Court Does Not Have Appellate Jurisdiction Over this Issue. Although the Ninth Circuit’s May 13, 2021 Order held that Plaintiff’s Motion for Summary Disposition was supported by sufficient appellate jurisdiction, see DktEntry 11, the Ninth Circuit’s subsequent August 11, 2021 Order redirected the parties to address the appellate jurisdiction issue in their 6 Of course, should it turn out that Plaintiff is actually denied the ability to own, possess, or use electric guns when Act 183 is implemented, he can file a new lawsuit asserting an as-applied challenge based on his unsuccessful attempt. That would have the advantage of focusing the lawsuit on whatever aspect of Act 183 actually causes a problem, if any. The current lawsuit, however, should be dismissed. 7 Plaintiff also criticizes the fact that that Act 183 does not go into effect until January 1, 2022. See O.B. at 12 n.8. However, when Governor Ige signed Act 183, it became a valid law of the State of Hawai‘i. Nothing short of a special session of the Legislature will stop it from going into effect. And there is zero likelihood of a special session being called to repeal Act 183. Either the Governor would have to call a special session himself or two-thirds of the Legislature would have to vote to call a special session. Haw. Const. art. III, § 10. The Governor is not going to call a special session to repeal Act 183 because Act 183 was originally proposed in the Governor’s own legislative package at the beginning of the 2021 session. See HB891 Measure Status (“Package: Governor”). The Legislature is not going to call a special session because they worked hard on Act 183 over the course of several months and ultimately passed it. Id. For all practical purposes, it is simply a matter of time before Act 183 goes into effect. 28 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 37 of 96 briefs, see DktEntry 14. State Defendants’ position is that this Court does not have appellate jurisdiction over the stay issue in the present case. “Ordinarily, a stay is not considered a final decision for purposes of [28 U.S.C.] section 1291.” United States v. Gen. Dynamics Corp., 828 F.2d 1356, 1360 (9th Cir. 1987). Since the general policy of the law is to permit an appeal only from final judgments or decisions, in the absence of a statute or rule specifically providing otherwise, merely interlocutory decisions are, as a rule, held not appealable. In line with this view, most courts have held that an order or decree staying, or refusing to stay, an action because another action was then pending is not reviewable by appeal or writ of error, although a few cases have held, under particular factual situations, that such an order is appealable. See R.F. Chase, Annotation, Appealability of order staying, or refusing to stay, action because of pendency of another action, 18 A.L.R.3d 400, § 2 (1968) (updated Westlaw version) (footnotes omitted). “However, a stay order is appealable if it places the plaintiff ‘effectively out of court.’” Blue Cross & Blue Shield of Ala. v. Unity Outpatient Surgery Ctr., Inc., 490 F.3d 718, 723 (9th Cir. 2007). “A party is effectively out of court in either of two distinct situations. One is where the district court turns over decision-making to a state court, effectively giving up its jurisdiction over a legal question.” George v. Manheim Investments, Inc., 731 F. App’x 624, 626 (9th Cir. 2018). The 29 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 38 of 96 other situation is “where proceedings are stayed for a lengthy and indefinite period of time.” Id. (citing Blue Cross & Blue Shield of Ala., 490 F.3d at 724). The present case does not turn over decision-making to a state court. Instead, the stay is pending decisions of the U.S. Supreme Court and legislative action by the Hawai‘i Legislature and Governor. As for the second situation, the stay will not be lengthy or indefinite inasmuch as the actions that the District Court is awaiting have definite finish lines. The stay based on the Supreme Court decisions will end when the Supreme Court decides the NYSRPA case and either denies the petition for a writ of certiorari in Young or grants it and issues a decision. Both matters will likely be resolved during the current Supreme Court term. As for the stay based on H.B. 891, the Governor has already signed the bill and it has been enacted as Act 183. Therefore, this Court can determine this case to be moot and resolve it immediately. The stays at issue in the present case are not at all similar to the stays that have been overruled in other cases. In Blue Cross and Blue Shield of Alabama, the district court stayed a civil fraud case based on the claim that the defendants were facing criminal prosecution, and discovery in the civil case would implicate their Fifth Amendment rights. Blue Cross & Blue Shield of Ala., 490 F.3d at 723. Apparently, none of the defendants had actually been indicted at the time the stay 30 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 39 of 96 was requested. Id. The Ninth Circuit found appellate jurisdiction, holding that “[t]he stays [were] both indefinite and expected to be lengthy. They could easily last as long as the five- or six-year limitations period in the criminal cases, or even longer[.]” Id. at 724. “[A]n indefinite delay amounts to a refusal to proceed to a disposition on the merits.” Id. In the present case, the District Court is not refusing to proceed to a disposition on the merits. If the case is not dismissed on mootness grounds, the stay will be lifted and the proceedings can resume as soon as the Supreme Court decides NYSRPA and Young. And it certainly will not take five or six years for the Supreme Court proceedings to be resolved. Plaintiff also cites Hines v. D’Artois, 531 F.2d 726, 730 (5th Cir. 1976), for the proposition that “when a plaintiff’s action is effectively dead, the order which killed it must be viewed as final. Effective death should be understood to comprehend any extended state of suspended animation.” See O.B. at 6. However, this case is not effectively dead. If the mootness issue is not sufficient to resolve the case, the stay will only last as long as the Supreme Court proceedings are pending, then the case may proceed. Plaintiff also relies on Yong v. Immigration and Naturalization Service, 208 F.3d 1116 (9th Cir. 2000), which did in fact permit appeal of an order that stayed district court proceedings during the pendency of a federal appeal in another case. See O.B. at 8-9. However, Yong was a habeas corpus case and the appellant was 31 Case: 21-15562, 11/15/2021, ID: 12287311, DktEntry: 22, Page 40 of 96 held in INS custody at a half-way house and was subject to significant restrictions. Yong, 208 F.3d at 1118 & n.1. More importantly, the Yong decision explicitly relied on the special considerations associated with habeas proceedings: [H]abeas proceedings implicate special considerations that place unique limits on a district court’s authority to stay a case in the interests of judicial economy. “The application for the writ usurps the attention and displaces the calendar of the judge or justice who entertains it and receives prompt action from him within the four corners of the application.” Ruby v. United States, 341 F.2d 585, 587 (9th Cir. 1965). Special solicitude is required because the writ is intended to be a “‘swift and imperative remedy in all cases of illegal restraint or confinement.’” Fay v. Noia, 372 U.S. 391, 400, 83 S .Ct. 822, 9 L.Ed.2d 837 (1963); see also Johnson v. Avery, 393 U.S. 483, 485, 89 S. Ct. 747, 21 L.Ed.2d 718 (1969) (noting that the Supreme Court has constantly emphasized the fundamental importance of the writ). Accordingly, the statute itself directs courts to give petitions for habeas corpus “special, preferential consideration to insure expeditious hearing and determination.” Van Buskirk v. Wilkinson, 216 F.2d 735, 737–38 (9th Cir. 1954). A district court is explicitly directed to “summarily hear and determine the facts, and dispose of [a habeas petition] as law and justice require.” 28 U.S.C. § 2243; see also id. (“A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted . . .”). Yong, 208 F.3d at 1120 (emphases added). The present case is not a habeas corpus case and the “special considerations,” “unique limits,” and “special solicitude” that are important when a party is in custody do not apply here. Plaintiff further argues that the stay is lengthy and indefinite because it could be extended to include proceedings on remand after the Supreme Court decides NYSRPA and Young. See O.B. at 7, 9. However, that is not what the District Court 32
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