Kirk Fisher v. Louis Kealoha
2017 U.S. App. LEXIS 8007
| 9th Cir. | 2017Background
- In 1997 Fisher was convicted in Hawaii of harassment (Haw. Rev. Stat. § 711‑1106), placed on probation, and surrendered firearms; the state court later returned his firearms after probation ended.
- Over ten years later HPD denied Fisher’s new permit application and ordered him to surrender all firearms, concluding his 1997 conviction made him federally and state‑prohibited from possessing firearms.
- Fisher sued the City and Honolulu’s Chief of Police seeking injunctive and monetary relief, arguing Hawaii Rev. Stat. § 134‑7 (which incorporates federal prohibitions) unconstitutionally prevented him from possessing firearms.
- The district court granted summary judgment to defendants after concluding Fisher’s conviction qualified as a “misdemeanor crime of domestic violence” under federal law (post‑Castleman) and so triggered the prohibition in 18 U.S.C. § 922(g)(9) and § 134‑7(a).
- On appeal Fisher argued (1) § 922(g)(9) should be read to require all four restoration mechanisms listed in § 921(a)(33)(B)(ii) to be available, and (2) applying the prohibition to him is unconstitutional because Hawaii offers only gubernatorial pardon (he had not applied for a pardon).
- The Ninth Circuit affirmed, rejecting Fisher’s statutory‑construction argument and his as‑applied Second Amendment challenge because he failed to avail himself of Hawaii’s available restoration mechanism (gubernatorial pardon) and his factual argument mirrored that rejected in United States v. Chovan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 922(g)(9) requires all four restoration mechanisms in § 921(a)(33)(B)(ii) to be available in a state | Fisher: § 922(g)(9) should not apply where the state lacks expungement, set‑aside, pardon, and civil‑rights restoration | Defendants: § 921(a)(33)(B)(ii) creates exceptions, not preconditions; unavailability of some mechanisms does not bar § 922(g)(9) | Court: Rejected Fisher; the statutory text and precedent treat the listed remedies as exceptions, not prerequisites to § 922(g)(9)’s application |
| Whether applying § 922(g)(9)/Haw. Rev. Stat. § 134‑7 to Fisher violates the Second Amendment as‑applied because his conviction is old and he has no subsequent offenses | Fisher: Long‑ago misdemeanor and no subsequent crimes make application unconstitutional as‑applied | Defendants: Government interest in preventing gun access to domestic abusers and recidivism data justify prohibition; Chovan controls | Court: Rejected Fisher; analogous to Chovan, intermediate scrutiny satisfied and Fisher did not rebut recidivism evidence |
| Whether Hawaii’s availability of only gubernatorial pardon makes application unconstitutional absent other restoration mechanisms | Fisher: Single, discretionary pardon process is insufficient and burdens his rights | Defendants: Availability of pardon suffices; plaintiff must seek available remedy before challenging sufficiency | Court: Rejected Fisher’s challenge because he conceded he had not applied for a gubernatorial pardon and thus failed to exhaust/avail the sole remedy available under Hawaii law |
| Whether the court should reach Fisher’s due process challenge to Hawaii’s pardon process or other provisions of § 134‑7 | Fisher: Raised due process and challenges to § 134‑7(b) on appeal | Defendants: Arguments merit dismissal or were forfeited | Court: Did not reach new due process claim or § 134‑7(b) challenges because the as‑applied ruling disposed of the appeal and the due process claim was raised for first time on appeal |
Key Cases Cited
- United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) (upheld § 922(g)(9) under intermediate scrutiny and rejected challenge based on an old misdemeanor DV conviction)
- Beecham v. United States, 511 U.S. 368 (1994) (interpreting analogous statutory exceptions as not imposing preconditions across jurisdictions)
- Logan v. United States, 552 U.S. 23 (2007) (treating §§ 921(a)(20) and 921(a)(33)(B)(ii) as corresponding provisions and interpreting them in parallel)
- United States v. Castleman, 134 S. Ct. 1405 (2014) (defining elements of misdemeanor crimes of domestic violence and affecting categorical‑analysis determinations)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizing an individual right to possess firearms for lawful purposes and framing modern Second Amendment analysis)
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (prohibiting vesting of unbridled discretion in government officials over rights‑regulating processes)