Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 1 of 20 PageID #: 21 Alan Alexander Beck Law Office of Alan Beck 2692 Harcourt Drive San Diego, CA 92123 (619) 905-9105 Hawaii Bar No. 9145 Alan.alexander.beck@gmail.com Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ALANOA NICKEL ) ) Plaintiff, ) ) Civil Action No. 1:20-cv-330 v. ) ) CLARE E. CONNORS, in her Official )MEMORANDUM IN SUPPORT OF Capacity as the Attorney General of the )MOTION FOR PRELIMINARY State of Hawaii and AL CUMMINGS )INJUNCTION in his Official Capacity as the State Sheriff ) Division Administrator; and CITY AND ) Judge: N/A COUNTY OF HONOLULU ) Trial: N/A ) Hearing: N/A Defendants. ) ____________________________________) Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 2 of 20 PageID #: 22 TABLE OF CONTENTS I. Introduction ......................................................................................................1 II. Plaintiff is Likely to Succeed on the Merits .....................................................3 a. H.R.S. § 134-2’s restrictions on noncitizen U.S. Nationals violates the Second Amendment ................................................................................................3 b. H.R.S. § 134-2’s Restrictions on Noncitizen U.S. Nationals violates the Equal Protection Clause of the Fourteenth Amendment ........................................8 III. Plaintiff Will Suffer Irreparable Harm ...........................................................10 IV. Granting Preliminary Injunctive Relief is in the Public Interest ....................11 V. The Balance of Equities Tips Sharply in Plaintiff’s Favor ............................12 VI. The Court Should Enter Final Judgment Awarding a Permanent Injunction 13 VII. Conclusion ......................................................................................................15 ii Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 3 of 20 PageID #: 23 TABLE OF AUTHORITIES Cases Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ...........3, 12 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009) ....2 Application of Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973) .....9 Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097, 1102 (9th Cir.1998), abrogated on other grounds Dream Palace v. County of Maricopa, 384 F.3d 990, 1002 (9th Cir. 2004)......................................................................................14 Baker v. Kealoha, 2012 U.S. Dist. LEXIS 197730 ...................................................3 Curtis 1000, Inc. v. Suess, 24 F.3d 941 (7th Cir. 1994) ..........................................14 DeLeon v. Susquehanna Cmty. Sch. Dist., 747 F.2d 149 n.6 (3d Cir. 1984) ..........13 District of Columbia v. Heller, 554 U.S. 570 (2008) ....................................... 3, 4, 6 Elrod v. Burns, 427 U.S. 347 (1976) .......................................................................10 Ezell v. City of Chi., 651 F.3d 684 7th Cir. 2011) ...................................................11 Farris v. Seabrook, 667 F.3d 1051 (9th Cir. 2012) ...................................................2 Fisher v. Kealoha,855 F.3d 1067 (9th Cir. 2017)................................... 7, 11, 12, 13 Fletcher v. Haas, 851 F. Supp. 2d 287 (D. Mass. 2012) ...........................................9 Fotoudis v. City & County of Honolulu, 54 F. Supp. 3d 1136 ..................... 1, 4, 8, 9 Getzes v. Mackereth, 2013 WL 5882040 (M.D. Pa. Oct. 30, 2013)........................13 Graham v. Richardson, 403 U.S. 365 (1971) ............................................................8 Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir. 2014) ..............6 Kickapoo Traditional Tribe of Texas v. Chacon, 46 F. Supp. 2d 644 (W.D. Tex. 1999) .....................................................................................................................14 Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) ................................11 McDonald v. City of Chi., 561 U.S. 742, 130 S. Ct. 3020 (2010) .......................3, 11 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ................................................10 iii Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 4 of 20 PageID #: 24 Monterey Mech. Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) ................................11 Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) ...................................................15 Morris v. District of Columbia, 38 F. Supp. 3d 57 (D.D.C. 2014) ..........................14 Preminger v. Principi, 422 F.3d 815 (9th Cir. 2005) ..............................................11 Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) .............................................12 Say v. Adams, 2008 U.S. Dist. LEXIS 20183, 2008 WL 718163 (W.D. Ky. Mar. 14, 2008) ...........................................................................................................7, 10 Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016) ..................................................6, 7 Smith v. South Dakota, 781 F. Supp. 2d 879 (D.S.D. 2011) .....................................9 Thomas v. Review Bd. of Ind.do Employment Sec. Div., 450 U.S. 707 (1981) .........9 Tuaua v. United States, 415 U.S. App. D.C. 369, 788 F.3d 300 (2015) ...................4 United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013).......................................6, 7 United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990) ...........................................................................................................4, 5 Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013) ..................................12 Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 102 S. Ct. 3187, 73 L. Ed. 2d 896 (1982) ...............................................................................................................8 Winter v. Nat. Res. Def. Council, Inc., 55 U.S. 7 (2008) ...........................................2 Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017) ....................... 14, 15 Statutes 8 U.S.C. § 1101(a)(22) ...............................................................................................4 H.R.S. 134-2..................................................................................................... passim Other Authorities 11A Charles Alan Wright et al., Federal Practice and Procedure § 2948.1 (2d ed. 1995) .....................................................................................................................10 7 Dep’t of State, Foreign Affairs Manual §§ 1125.1(b), (d), 1141(e), 1320 App.B .5 iv Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 5 of 20 PageID #: 25 Rules FED. R. CIV. P. 65 ....................................................................................................1 FED. R. CIV. P. 65(a)(2) .........................................................................................13 v Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 6 of 20 PageID #: 26 I. Introduction Mr. Alanoa Nickel (“Plaintiff”) moves this Court for a preliminary injunction pursuant to FED R. CIV. P. 65. Six years ago, this Court decided a nearly identical case. In Fotoudis v. City & County of Honolulu, 54 F. Supp. 3d 1136, this Court enjoined H.R.S. 134-2’s prohibition on noncitizen’s owning firearms as applied to permanent resident aliens i.e. green card holders. Since then, Defendants have maintained H.R.S. 134-2’s prohibition on firearm ownership as applied to noncitizen U.S. Nationals such as Plaintiff. People born in the U.S. territory of America Samoa, American Samoans, are the only ones affected by this law because people born in the other territories are considered U.S. citizens. There is no reason for this ban for all the reasons laid out in Fotoudis. Plaintiff is a law-abiding U.S. National, a resident of the State of Hawaii and has no disqualifying factor which would prohibit him from legally and safely owning a firearm apart from being a noncitizen U.S. National. See Verified Complaint ¶ 19. On July 15th, 2020, Plaintiff went to Honolulu Police Department and attempted to apply for a permit to acquire a firearm. Upon discovering that Plaintiff was a noncitizen U.S. National, the officer processing Plaintiff denied him the opportunity to apply for a permit to acquire citing state law. See Verified Complaint ¶ 26. Under HRS § 134-2, the “chief of police of the respective counties may issue permits to acquire firearms to citizens of the United States of the age of twenty-one 1 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 7 of 20 PageID #: 27 years or more” and not to noncitizens. And while state law has been enjoined as to permanent resident alien green card holders, it has not been as to noncitizen U.S. Nationals. As such, because Plaintiff is not a citizen of the United States of America, the chief of police of Honolulu has no discretion in which to even allow the Plaintiff to apply for a permit. Hawaii state law completely forbids anyone who is not a citizen of the United States of America from even applying because the chief of police cannot grant a permit to a non-citizen U.S. National. A preliminary injunction should issue to enjoin Defendants’ unconstitutional law and conduct. To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm absent preliminary relief; (3) that the balance of equities tips in favor of injunction; and (4) that an injunction is in the public interest. Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council, Inc., 55 U.S. 7, 20 (2008)). “The Ninth Circuit also articulated an alternate formulation of the Winter test, pursuant to which ‘serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest’” Farris v. Seabrook, 667 F.3d 1051, 1057 (9th Cir. 2012)(applying 2 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 8 of 20 PageID #: 28 the Cottrell factors as espoused in Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).” See Baker v. Kealoha, 2012 U.S. Dist. LEXIS 197730, *12-13. I. Plaintiff is Likely to Succeed on the Merits a. H.R.S. § 134-2’s restrictions on noncitizen U.S. Nationals violates the Second Amendment The Second Amendment provides that “the right of the people to keep and bear Arms . . . shall not be infringed.” After conducting an extensive textual and historical analysis, the Supreme Court confirmed in District of Columbia v. Heller, 554 U.S. 570, 592 (2008), that the Second Amendment protects an “individual right to possess and carry weapons” for self-defense. And McDonald v. City of Chi., 561 U.S. 742, 791, 130 S. Ct. 3020, 3050 (2010) incorporated the Second Amendment as to the states (“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.”). The text also recognizes that the right is held by “the people.” That language includes, as Heller states, all “law-abiding, responsible” people, Heller, 554 U.S. at 635. Plaintiff is an American Samoa U.S. National. American Samoa is an island in the South Pacific, and a United States territory since 1900, when the traditional leaders of the Samoan Islands of Tutuila and Aunu'u voluntarily ceded their sovereign authority to the United States Government. See Instrument of Cession by the Chiefs of Tutuila Islands to United States Government, U.S.- 3 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 9 of 20 PageID #: 29 Tutuila, Apr. 17, 1900. Today the American Samoan territory is partially self-governed, possessing a popularly elected bicameral legislature and similarly elected governor. Complaint at 13 ¶ 27, Tuaua v. United States, 951 F. Supp. 2d 88 (D.D.C. 2013) (No. 12-cv-01143). The territory, however, remains under the ultimate supervision of the Secretary of the Interior. See Exec. Order No. 10,264 (June 29, 1951) (transferring supervisory authority from the Secretary of the Navy to the Secretary of the Interior). Unlike those born in the United States' other current territorial possessions—who are statutorily deemed American citizens at birth—HN2 section 308(1) of the Immigration and Nationality Act of 1952 designates persons born in American Samoa as non-citizen nationals. See 8 U.S.C. § 1408(1). Tuaua v. United States, 415 U.S. App. D.C. 369, 788 F.3d 300, 302 (2015). American Samoan noncitizen U.S. Nationals, such as Plaintiff, are part of the “people”. “They are ‘a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community,’ United States v. Verdugo- Urquidez, 494 U.S. 259, 265, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990), such that they are “among ‘the people’ of the United States,” id. at 273, for purposes of the Second Amendment. See also District of Columbia v. Heller, 554 U.S. 570, 580, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) (observing that the “provisions of the Constitution that mention ‘the people’ . . . refers to all members of the political community, not an unspecified subset”) (citation omitted). Fotoudis, 54 F. Supp. 3d at 1144. As U.S. Nationals, American Samoans owe “permanent allegiance” to the United States. Tuaua, 788 F.3d at 305; See also 8 U.S.C. § 1101(a)(22) (“The term ‘national of the United States’ means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to 4 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 10 of 20 PageID #: 30 the United States.”) (emphasis added). American Samoa is noted for having the highest rate of military enlistment of any U.S. state or territory. As of September 9, 2014, the local U.S. Army recruiting station in Pago Pago was ranked first in production out of the 885 Army recruiting stations and centers under the United States Army Recruiting Command. https://web.archive.org/web/20150402131529/http://www.samoanews.com/content /en/local-us-army-recruiting-station-ranked-1-world (last visited 7/24/2020). Plaintiff is an honorably discharged veteran of the Air National Guard. See Verified Complaint ¶ 18. Non-citizen nationals born in American Samoa may hold U.S. passports.1 There can be no argument that American Samoan U.S. Nationals are part of “‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments” because they are part of our “national community” and/or “have otherwise developed sufficient connection with this country to be considered part of that community”. United States v. Verdugo-Urquidez, 494 U.S. 259, 265. American Samoans are part of the People and thus have Second Amendment rights. As such, the only question is what level of scrutiny to apply to Hawaii’s ban on them merely owning firearms. 1 But State Department policies require such passports to be imprinted with a stigmatizing disclaimer (“Endorsement Code 09”) stating that “THE BEARER IS A UNITED STATES NATIONAL AND NOT A UNITED STATES CITIZEN.” see 7 Dep’t of State, Foreign Affairs Manual §§ 1125.1(b), (d), 1141(e), 1320 App. B. 5 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 11 of 20 PageID #: 31 The Ninth Circuit “along with the majority of our sister circuits, has adopted a two-step inquiry in deciding Second Amendment cases: first, the court asks whether the challenged law burdens conduct protected by the Second Amendment; and if so, the court must then apply the appropriate level of scrutiny.” See Silvester v. Harris, 843 F.3d 816, 820-821(9th Cir. 2016). “In the first step, we ask ‘whether the challenged law burdens conduct protected by the Second Amendment,’ [United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)], based on a ‘historical understanding of the scope of the [Second Amendment] right,’ Heller, 554 U.S. at 625, or whether the challenged law falls within a ‘well-defined and narrowly limited’ category of prohibitions ‘that have been historically unprotected,’” See Jackson v. City & County of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014). If the challenge survives the first step, the next step is to determine the appropriate level of scrutiny. “In ascertaining the proper level of scrutiny, the court must consider: (1) how close the challenged law comes to the core of the Second Amendment right, and (2) the severity of the law's burden on that right.” Id. at 960- 61. “The result is a sliding scale. A law that imposes such a severe restriction on the fundamental right of self defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny. Id. at 961. That is what was involved in District of Columbia v. Heller, 554 U.S. 570, 628- 629, 128 S. Ct. 2783 (2008). A law that “does not implicate a core of the Second 6 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 12 of 20 PageID #: 32 Amendment, or does not place a substantial burden on the Second Amendment right, the court may apply intermediate scrutiny.” Silvester, 843 F.3d at 821 (citation omitted, punctuation omitted). “Indeed, in Chovan, we applied ‘intermediate’ rather than ‘strict’ judicial scrutiny in part because section 922(g)(9)’s ‘burden’ on Second Amendment rights was ‘lightened’ by those mechanisms.” Fisher v. Kealoha,855 F.3d 1067,1071(9th Cir. 2017). Here, strict scrutiny should apply to H.R.S. § 134-2’s ban on firearm ownership as applied to Plaintiff and other noncitizen U.S. Nationals because as established above noncitizen U.S. Nationals are part of the people protected by the Second Amendment and a ban on their right to own firearms both implicate a core Second Amendment right and imposes a substantial burden on Plaintiff’s Second Amendment rights. However, it is not necessary to determine what level of scrutiny applies. Here, assuming § 134-2(d)'s general permit requirement implements an “important government objective” (intermediate scrutiny) or a “compelling state interest” (strict scrutiny), it is neither “substantially related” nor “narrowly tailored” to such interests. It categorically excludes (as applied in this case) lawful permanent resident aliens, regardless of whether they are otherwise qualified to acquire firearms, and regardless of whether they might pose a threat to others. And “[a]ny classification based on the assumption that lawful permanent residents are categorically dangerous and that all American citizens by contrast are trustworthy lacks even a reasonable basis.” (citation omitted). see also Say, 2008 U.S. Dist. LEXIS 20183, 2008 WL 718163, at *3 (“A blanket prohibition discriminating against aliens is not precisely draw[n] to achieve the goal of facilitating firearms purchases when there exists a nondiscriminatory way to achieve the same goals.”). 7 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 13 of 20 PageID #: 33 Fotoudis v. City & County of Honolulu, 54 F. Supp. 3d 1136, 1144. The same applies here. Under any level of scrutiny this Court could apply, Hawaii’s ban on noncitizen U.S. Nationals owning firearms is unconstitutional. This Court should issue a preliminary injunction. b. H.R.S. § 134-2’s Restrictions on Noncitizen U.S. Nationals violates the Equal Protection Clause of the Fourteenth Amendment Alienage, or the state of being an alien, i.e. a non-citizen of the United States, is a suspect class that triggers strict scrutiny when dealing with state law. Graham v. Richardson, 403 U.S. 365 (1971). While Plaintiff is a U.S. National, he is not a U.S. citizen and the critical issue when discussing alienage is the lack of citizenship. Thus, all citations dealing with permanent resident aliens apply fully to U.S. Nationals. Under HRS § 134-2(d), the “chief of police of the respective counties may issue permits to acquire firearms to citizens of the United States of the age of twenty- one years or more…” While there are exceptions for some aliens and the law has been enjoined as to permanent resident aliens i.e. green card holders by this court’s decision in Fotoudis, these exceptions and that decision do not apply to Plaintiff. Section 134-2(d) is thus not “facially neutral legislation.” See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 484, 102 S. Ct. 3187, 73 L. Ed. 2d 896 (1982) (“[W]hen facially neutral legislation is subjected to equal protection attack, an 8 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 14 of 20 PageID #: 34 inquiry into intent is necessary[.]”). Rather, the statute explicitly treats “aliens” differently than U.S. citizens solely because of their status as “aliens.” Classifications based on alienage are “suspect” for purposes of analyzing a violation of the Equal Protection clause and are subject to “strict judicial scrutiny whether or not a fundamental right is impaired.” See Fotoudis, 54 F. Supp. 3d at 1142. Thus, strict scrutiny applies, and the State of Hawaii must demonstrate a compelling government interest 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.”). Applying strict scrutiny, denying Plaintiff the opportunity to apply for (and to obtain) a permit merely because he is a U.S. National and not a U.S. citizen “is not a narrowly tailored means of achieving that goal.” Smith v. South Dakota, 781 F. Supp. 2d 879, 886 (D.S.D. 2011) (citing Application of Griffiths, 413 U.S. 717, 725, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973) (rejecting the argument that ‘the possibility that some resident aliens are unsuited to the practice of law’ could be a ‘justification for a wholesale ban’”). See also Fletcher v. Haas, 851 F. Supp. 2d 287, 303 (D. Mass. 2012) (“Although Massachusetts has an interest in regulating firearms to prevent dangerous persons from obtaining firearms . . . the statute here fails to distinguish between dangerous non-citizens and those non-citizens who would pose 9 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 15 of 20 PageID #: 35 no particular threat if allowed to possess handguns.”); Say v. Adams, 2008 U.S. Dist. LEXIS 20183, 2008 WL 718163, at *3 (W.D. Ky. Mar. 14, 2008) (granting an injunction against enforcing a Kentucky law limiting the issuance of a license to carry concealed weapons to U.S. citizens, reasoning in part that “[a] blanket prohibition discriminating against aliens is not precisely draw[n] to achieve the goal of facilitating firearms purchases when there exists a nondiscriminatory way to achieve the same goals”). H.R.S. § 134-2’s restrictions on noncitizen U.S. Nationals is unconstitutional under the Equal Protection Clause for all the reasons listed above. Thus, Plaintiff is likely to succeed on the merits of his claim. The preliminary injunction should issue. II. Plaintiff Will Suffer Irreparable Harm If this Court concludes that Plaintiff is likely to succeed on one or both of his alleged constitutional violations, the remaining preliminary injunction factors follow readily. “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); 11A Charles Alan Wright et al., Federal Practice and Procedure § 2948.1 (2d ed. 1995) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”) The Ninth Circuit has imported the First Amendment “irreparable-if-only-for-a-minute” rule to other 10 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 16 of 20 PageID #: 36 rights and, in doing so, has held deprivation of those rights is irreparable harm per se. Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997). The Second Amendment should be treated no differently. See McDonald, 561 U.S. at 780; see also Ezell v. City of Chi., 651 F.3d 684, 700 (7th Cir. 2011) (a deprivation of the right to arms is “irreparable and having no adequate remedy at law”). The Court should conclude “that Plaintiff has established a likelihood of irreparable harm [… and that] Plaintiff is being deprived of a liberty and property interest, and deprivation of that constitutional right requires a finding of irreparable injury. At issue in this litigation is the alleged infringement of Plaintiff's right to bear arms for self-defense within the home, the very right that the Ezell court considered.” Fisher v. Kealoha, 2012 U.S. Dist. LEXIS 90734, *40. III. Granting Preliminary Injunctive Relief is in the Public Interest For similar reasons, granting preliminary injunctive relief is clearly in the public interest. When challenging government action that affects the exercise of constitutional rights, “[t]he public interest . . . tip[s] sharply in favor of enjoining the” law. Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009). As the Ninth Circuit has made clear, “all citizens have a stake in upholding the 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 Plaintiffs’ favor. Klein, 584 F.3d at 1208. 11 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 17 of 20 PageID #: 37 Moreover, the City has no plausible argument that enjoining enforcement of its denial will unduly endanger public safety. The Court should conclude “that it is in the public interest to uphold Plaintiff's Constitutional right to bear arms in self- defense within the home, and accordingly finds that this factor weighs in favor of granting the preliminary injunction”. Fisher v. Kealoha, 2012 U.S. Dist. LEXIS 90734, *44, 2012 WL 2526923. IV. The Balance of Equities Tips Sharply in Plaintiff’s Favor Finally, the balance of hardships tips sharply in Plaintiff’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 Plaintiff’s and other noncitizen U.S. Nationals’ injuries, the State will suffer no concrete harm from a preliminary injunction. The State “cannot suffer harm from an injunction that merely ends an unlawful practice or reads a statute as required to avoid constitutional concerns.” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013); see Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013) (“[I]t is clear that it would not be equitable . . . to allow the state . . . to violate the requirements of federal law.” (citations omitted)). On the other hand, granting an injunction will end the ongoing violation of Plaintiff’s rights, allowing him the freedom to exercise his rights without fear of prosecution. 12 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 18 of 20 PageID #: 38 In ruling on a preliminary injunction in Fisher v Kealoha, this Court found that “in the absence of a preliminary injunction, Plaintiff will be denied the use and enjoyment of firearms and will be unable to exercise his Second Amendment right to bear arms for self-defense within the home when he has demonstrated a likelihood of success in establishing his statutory qualification under state and federal law. For these reasons, the Court concludes that the balance of the equities tip in Plaintiff's favor”. Fisher v. Kealoha, 2012 U.S. Dist. LEXIS 90734, *46-47. This Court should find the same here V. The Court Should Enter Final Judgment Awarding a Permanent Injunction For the foregoing reasons, Plaintiff is entitled to a preliminary injunction restraining the enforcement of H.R.S. § 134-2; and because the claims in this case require no further factual development, permanent injunctive relief is likewise appropriate. FED. R. CIV. P. 65(a)(2) authorizes a court considering a motion for preliminary injunctive relief to “advance the trial on the merits and consolidate it with the hearing” on the motion for preliminary relief in appropriate cases. See also DeLeon v. Susquehanna Cmty. Sch. Dist., 747 F.2d 149, 152 n.6 (3d Cir. 1984) (“[A] preliminary injunction hearing may be combined with a hearing on the merits, pursuant to FED. R. CIV. P. 65(a)(2), if it is accompanied by notice to the parties sufficient to enable them to present all of their evidence.”); Getzes v. Mackereth, 2013 WL 5882040, at *2 (M.D. Pa. Oct. 30, 2013) (consolidating the merits with the 13 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 19 of 20 PageID #: 39 preliminary injunction proceeding where the preliminary relief sought by the plaintiff “is the same which he hopes to ultimately obtain following a trial on the merits”). Courts have repeatedly held that such consolidation is appropriate where “no factual or legal disputes will remain once the Court resolves the preliminary injunction motion,” Morris v. District of Columbia, 38 F. Supp. 3d 57, 62 n.1 (D.D.C. 2014), such that “the eventual outcome on the merits is plain at the preliminary injunction stage,” Curtis 1000, Inc. v. Suess, 24 F.3d 941, 945 (7th Cir. 1994); accord Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097, 1102 (9th Cir.1998), abrogated on other grounds Dream Palace v. County of Maricopa, 384 F.3d 990, 1002 (9th Cir. 2004); Kickapoo Traditional Tribe of Texas v. Chacon, 46 F. Supp. 2d 644, 648–49 (W.D. Tex. 1999). That is the case here. The only “fact” relevant to Plaintiff’s challenge—that state law bans noncitizen U.S. Nationals from applying for permits to acquire, is not plausibly in dispute. Rather, whether Plaintiff’s challenge will prevail turns entirely on this Court’s resolution of the questions of law presented above—questions that, as Plaintiff has explained, the Court is bound to resolve in Plaintiff’s favor as a matter of law. Accordingly, “the merits of the plaintiffs’ challenge are certain and don’t turn on disputed facts,” and the Court should enter final judgment and permanent, not merely preliminary, injunctive relief. See Wrenn v. District of 14 Case 1:20-cv-00330 Document 5-1 Filed 07/27/20 Page 20 of 20 PageID #: 40 Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012). VI. Conclusion For the foregoing reasons, the Court should enjoin the enforcement of Hawaii law as applied to the Plaintiff and other noncitizen U.S. Nationals to the extent it prohibits them from purchasing and owning firearms based on their status as noncitizen U.S. Nationals. Respectfully submitted, this the 27th of July, 2020, /s/Alan Alexander Beck Alan Alexander Beck 15
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