ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU’S MOTION FOR “PARTIAL” DISMISSAL OF THE COMPLAINT, AND GRANTING IN PART AND DENYING IN PART DEFENDANT LOUIS KEALOHA’S MOTION FOR “PARTIAL” DISMISSAL OF THE COMPLAINT
For the following reasons, the Court: (1) GRANTS Defendant City and County of Honolulu’s Motion for “Partial” Dismissal of the Complaint; and (2) GRANTS in part and DENIES in part Defendant
I. PROCEDURAL BACKGROUND
This case concerns Plaintiffs contention that his application for a permit to acquire firearms was wrongly denied based upon his prior conviction for two counts of harassment. See Compl. ¶¶ 2, 4, 25. Plaintiff names the following defendants in his Complaint: Louis Kealoha (as an individual and in his official capacity as Honolulu Chief of Police); Paul Putzulu (as an individual and in his official capacity as former Acting Honolulu Chief of Police); City and County of Honolulu; Honolulu Police Department; and Doe Defendants 1-50 (collectively, the “Defendants”).
The crux of this case is Plaintiffs allegation that Defendants have propagated customs, policies, and practices that violate Plaintiffs rights guaranteed by the Second, Fifth, and Fourteenth Amendments of the United States Constitution. Id. ¶¶ 50, 54. Namely, Plaintiff alleges that he was deprived of his Second Amendment right to bear arms, and of the minimal due process protections guaranteed by the Fifth and Fourteenth Amendments, when Defendants denied his application for a permit to acquire firearms some ten years after he had been convicted of harassment in Hawaii State Court. Id.
There are two separate motions pending: (1) Defendant City and County of Honolulu’s Amended Motion for “Partial” Dismissal of the Complaint (erroneously called a motion for partial dismissal) (hereinafter, the “City Motion to Dismiss”); and (2) Defendant Kealoha’s Motion for “Partial” Dismissal of the Complaint (again, erroneously called a motion for partial dismissal) (hereinafter, “Kealoha’s Motion to Dismiss”). (Doe. Nos. 10,16.)
Plaintiff filed the Complaint on September 28, 2011, alleging deprivation of civil rights and seeking the following relief: an order compelling Defendants to issue a permit authorizing Plaintiff to keep and bear arms; general and special damages; punitive and/or exemplary damages; attorneys’ fees, costs, prejudgment and post-judgment interest; and attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. Compl. at 16. On December 9, 2011, Defendant City and County of Honolulu (hereinafter, “City”) filed a Motion for “Partial” Dismissal of the Complaint, as well as a memorandum in support of the motion. (Doc. No. 6.) On January 4, 2012, City filed an amended motion—the City Motion to Dismiss—as well as a memorandum in support of the motion (Doc. No. 10-1, hereinafter, the “City MTD Mem.”). Defendant Kealoha filed a separate motion—Kealoha’s Motion to Dismiss—on January 24, 2012, as well as a memorandum in support of his motion (Doc. No. 16-1, hereinafter, “Kealoha’s MTD Mem.”).
On March 19, 2012, Plaintiff filed a Memorandum in Opposition to City’s Amended Motion for “Partial” Dismissal of the Complaint (Doc. No. 19, hereinafter “P’s City Opp. Mem.”), as well as a separate Memorandum in Opposition to Defendant Louis Kealoha’s Motion for “Partial” Dismissal of the Complaint (Doc. No. 20, hereinafter “P’s Kealoha Opp. Mem.”). On March 26, 2012, Defendants City and Kealoha submitted a joint Reply Memorandum to Plaintiffs Oppositions to the Motions for “Partial” Dismissal of the Complaint. (Doc. No. 23, hereinafter “Defs’ Joint Reply Mem.”.)
The Court held a hearing on these motions on Monday, April 9, 2012, and addresses the motions together herein.
II. FACTUAL BACKGROUND
The history of this case dates back to November 5, 1997, when Plaintiff was arrested on two counts of harassment in violation of Hawaii Revised Statutes (“H.R.S.”) § 711-1106(1)(a). Compl. ¶ 15.
§ 711-1106 Harassment. (1) A person commits the offense of harassment if, with intent to harass, annoy, or alarm any othеr person, that person:
(a) Strikes, shoves, kicks, or otherwise touches another person in an offensive manner or subjects the other person to offensive physical contact....
H.R.S. § 711—1106(1)(a).
On December 3, 1997, Plaintiff pled guilty to two counts of Harassment in the Family Court of the First Circuit, State of Hawaii, in the case of State of Hawaii v. Kirk C. Fisher, FC-CR No. 97-3233. Id. ¶ 18.
On November 4, 1998, the Family Court of the First Circuit, State of Hawaii, issued an Order Permitting Return of Firearms, Ammunition, Permits and Licenses, With Conditions. Id ¶ 20. The order provided:
IT IS HEREBY ORDERED that Honolulu Police Department shall return to [Plaintiff] all firearms and ammunition which were surrendered pursuant to the above-mentioned court order, provided that the provisions of H.R.S. Chapter 134 o/re satisfied and that there are no outstanding state or federal restraining orders, prohibitions under H.R.S. Section 134-7 or the Violence Against Women Act of 1994 (18 U.S.C. Section 2265 et. seq. and section 922(g)(9), or other outstanding federal or state (H.R.S. Section [sic] 804-7.1) court orders against [Plaintiff] which would prohibit [Plaintiff’s] possession or control of firearms and ammunition. In the event that any permits or licenses were revoked, said permits or licenses shall be reissued by the Honolulu Police Department, but only to the extent of the original expiration date of such permits or licenses.
Id. (emphasis added). Following the issuance of this order, HPD promptly returned Plaintiffs firearms. Id ¶ 21.
More than ten years later, in fall 2009, Plaintiff applied to HPD for a permit to acquire an additional firearm. Id ¶22. In a letter dated October 1, 2009, Defendant Paul Putzulu—then Acting Chief of Police—informed Plaintiff that he was disqualified from firearms ownership or possession under the provisions of H.R.S. § 134-7, and directed Plaintiff to voluntarily surrender to the Chief of Police or otherwise lawfully dispose of all firearms and ammunition in his possession within 30 days of receipt of the letter. Id. ¶¶ 23-24. Plaintiff promptly contacted HPD and was informed that the denial was based upon his prior conviction for harassment in State of Hawaii v. Kirk C. Fisher, FC-CR No. 97-3233. Id ¶ 25. Additionally, Plaintiff alleges, HPD informed Plaintiff that it was HPD’s “custom, practice and policy to review the police reports to determine whether or not a defendant’s alleged crime was a crime of violence.” Id. Plaintiff subsequently transferred ownership and possession of all of his firearms to his wife, Collette Fisher, after she obtained permits. Id. ¶ 26. H.R.S. Section 134-7 provides in relevant part:
(b) No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.
H.R.S. § 134-7(b) (emphasis added). The text of Section 134-7(b) has remained unchanged since the time of Plaintiffs guilty plea, sentencing, and the order returning his firearms in 1997-98. See H.R.S. § 134-7(b).
On June 10, 2010, Plaintiff submitted a Motion to Enforce Order Permitting Return of Fireаrms, Ammunition, Permits and Licenses, with Conditions, to the Family Court of the First Circuit, State of Hawaii FC-CR No. 97-3233. Compl. ¶ 32. This motion was denied by the state court on June 22, 2010, and no findings of fact or conclusions of law were entered. See id. ¶33.
On August 31, 2010, Plaintiff wrote to Defendant Kealoha requesting that the HPD grant his application for a permit to acquire firearms and rescind the prior order to surrender or dispose of his firearms. Id. ¶ 34. And on September 29, 2010, Defendant Kealoha replied to Plaintiff by re-affirming Defendant Putzulu’s prior denial of the application. Id. ¶ 35.
Plaintiff contends that he is “fit and qualified to keep and bear arms,” but would be subject to arrest and prosecution should he seek to exercise that right without obtaining a permit; Plaintiff would face a class C felony for unlawful ownership or possession of a firearm under H.R.S. § 134-7. Id. ¶¶ 36-38. Plaintiff further alleges that the Chief of Police is not vested with any discretion to deny a permit if an applicant meets the objective criteria contained in H.R.S. §§ 134-2 and 134-7. Id. ¶ 42.
Plaintiff asserts two causes of actions in his Complaint: (1) violation of Plaintiffs rights guaranteed by the Second and Fourteenth Amendments, in' violation of 42 U.S.C. § 1983; and (2) wrongful denial of his application for a permit to acquire firearms pursuant to H.R.S. § 134-2 without minimal due process protection, as guaranteed by the Second, Fifth and Fourteenth Amendments, and in violation of 42 U.S.C. § 1983. Id. ¶¶ 47-57.
III. STANDARD OF REVIEW
Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) permits dismissal of a complaint that fails' “to state a claim upon which relief can be granted.” Under Rule 12(b)(6), review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors,
On a Rule 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed’n of African Am. Contractors v. City of Oakland,
In summary, to survive a Rule 12(b)(6) motion to dismiss, “[flactual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly,
“Dismissal without leave to amend is improper unless it is clear that the complaint could not be saved by any amendment.” Harris v. Amgen, Inc.,
TV. DISCUSSION
Defendants City and Kealoha have submitted separate Motions for “Partial Dismissal” of the Complaint. (See City Motion to Dismiss, Kealoha’s Motion to Dismiss.) This section will consider each motion in turn.
A. City’s Amended Motion for “Partial” Dismissal of the Complaint
On January 4, 2012, City submitted the City Motion to Dismiss pursuant to Rule
1. Plaintiff Fails to State a Claim Under 42 U.S.C. § 1983
In its Motion to Dismiss, the City contends that Plaintiff fails to state a claim under 42 U.S.C. § 1983. (City Motion to Dismiss at 11.) For the reasons discussed herein, the Court agrees. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. In order to establish municipal liability under Section 1983, a plaintiff must demonstrate that he was deprived of a constitutional right, and that the constitutional violation “was the product of a policy,- practice, or custom adopted and promulgated by the city’s officials.” Levine v. City of Alameda,
In the past, the Ninth Circuit has not required parties to provide much detail at the pleading stage regarding the “policy or custom”' alleged. Citing Monell, courts have long recognized that “[i]n this circuit, a claim of municipal liability under § 1983 is sufficient to withstand a motion to dismiss even if the claim is based on nothing more than a bare allegation that the individual officers’ conduct conformed to official policy, custom, or practice.” Whitaker v. Garcetti,
However, in Starr v. Baca, the Ninth Circuit acknowledged and addressed the conflicts in the Supreme Court’s recent jurisprudence on the pleading requirements applicable to civil actions. See
[Wjhatever the difference between [Swierkiewicz, Dura Pharmaceuticals,Twombly, Erickson, and Iqbal ], we can at least state the following two principles common to all of them. First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.
Starr,
The City asserts that in order to establish municipal liability under Section 1983, Plaintiff must prove one of the following three things: “that the alleged eonstitutional violation was committed pursuant to a formal policy or custom that constitutes the standard operating procedure; that an official with ‘final policy-making authority committed the constitutional tort, or ‘that an official with final policy-making authority ratified a subordinate’s unconstitutional decision or action and the basis for it.’” (City MTD Mem. at 12 (quoting Gillette v. Delmore,
The City is correct that “a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” (City MTD Mem.(quoting Monell,
Additionally, the City argues, Plaintiff may not assert a Section 1983 claim “merely by identifying conduct properly attributable to the municipality,” but rather “must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.”
In the instant case, Plaintiff alleges that Defendant HPD denied him a permit to obtain a firearm and informed him that he was disqualified because of his prior conviction for harassment. Compl. ¶ 25. Plaintiff claims that HPD informed him that it was HPD’s “custom, practice and policy to review the police reports to determine whether or not a defendant’s alleged crime was a crime of violence.” Id. Moreover, Plaintiff alleges, although the chief of police is vested with the authority to issue permits under H.R.S. § 134-2, he is vested with no discretion to deny an applicant who meets thе objective criteria of the statute. Id. ¶¶ 41-42.
Plaintiff further asserts that Defendants Putzulu and Kealoha and/or their agents or those of HPD, acting under color of law, unlawfully denied his application for a permit to acquire firearms. This action, Plaintiff alleges, was condoned by HPD and the City who “knew or should have known of this illegal deprivation of [Plaintiffs] rights, yet permitted the deprivation to occur and continue to permit [Plaintiffs] rights to be deprived.” Compl. ¶¶ 45-46. Accordingly, Defendants allegedly are “propagating customs, policies, and practices that violate [Plaintiffs] [rights] guaranteed by the Second and Fourteenth Amendments to the United States Constitution, damaging [Plaintiff] in violation of 42 U.S.C. § 1983.” Compl. ¶ 50.
Plaintiff has not presented sufficient allegations to establish Section 1983 municipal liability against the City under any of the three recognized standards. First, Plaintiff has failed to allege that the City has a longstanding policy of wrongly denying permits under Sections 134-2 and 134-7, other than his allegation that he was informed by HPD that it was HPD’s custom, practice and policy of reviewing police reports to determine if an applicant’s alleged crime was a “crime of violence.” (See Compl. ¶ 25.)
Second, Plaintiff has not alleged that either Putzulu or Kealoha was the final policy-maker, or that either was responsible for establishing the municipal policy at issue in this litigation, thereby failing to establish the causal link necessary to cre
For these reasons, the Court will GRANT City’s Motion for “Partial” Dismissal of Counts I and II of the Complaint as against the City. Plaintiff is granted leave to amend the Complaint.
2. The DOE Defendants
For the reasons described herein, the Court will GRANT the Motion to Dismiss the Doe Defendants from the instant action. The City alleges that “[pjleading fictitious Doe defendants is improper in federal court.” (City MTD Mem. at 14 (quoting State Farm Mut. Auto. Ins. Co. v. Ireland, Civ No. 2:07-CV-01541-RCJRJJ,
Courts in the Ninth Circuit have recognized that “[gjenerally, ‘Doe’ pleading is improper in federal court” and is disfavored. See, e.g., Buckheit v. Dennis, 713 F.Supp.2d. 910, 918 n. 4 (N.D.Cal.2010) (quoting Bogan v. Keene Corp.,
However, when situations arise “where the identity of alleged defendants will not be known prior to the filing of a complaint .... [t]he plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.” Wakefield v. Thompson,
Other than including the Doe Defendants in the caption of his Complaint, Plaintiff has provided no information as to the basis for Plaintiffs claims against them. Accordingly, in its discretion, the Court will GRANT the motion to dismiss all Doe Defendants named in the Complaint. Plaintiff is granted leave to amend the Complaint.
3. HPD is Not a Separate Legal Entity From the City
The Court will GRANT the City’s Motion for “Partial” Dismissal of both claims against HPD because HPD is not a proper party to this action. In its Motion to Dismiss, the City asserts that HPD “is not an independent legal entity that is subject to suit.” (City MTD Mem. at 15) (citing Dowkin v. Honolulu Police Dep’t, Civ. No. 10-00087 SOM-LEK,
The City is correct. Courts in the Ninth Circuit generally have treated police departments as part of a municipality.
B. Defendant Kealoha’s Motion for “Partial” Dismissal of the Complaint
On January 24, 2012, Defendant Kealoha submitted Kealoha’s Motion to Dismiss and a memorandum in support of the motion. (Kealoha’s MTD Mem.) Kealoha presents three bases upon which he sеeks dismissal: (1) the official capacity claims against Kealoha should be dismissed as duplicative of those against the City; (2) Plaintiff fails to allege a violation of his constitutional or statutory rights; and (3) Kealoha is entitled to qualified immunity. (Kealoha’s MTD Mem. at 2-14.) The Court will consider each of Kealoha’s arguments in turn.
1. Official Capacity Claims Against Kealoha
For the reasons described herein, the Court GRANTS Kealoha’s motion to dismiss all official capacity claims against
Kealoha asserts that “when both an officer and the local government entity are named in a lawsuit and the officer is named in his official capacity, the officer named in his official capacity is a redundant defendant and may be dismissed.” (Kealoha’s MTD Mem. at 5 (quoting Cramer v. City & County of Honolulu, Civ. No. 09-00223 SOM-KSC,
Kealoha is correct. The Supreme Court ruled decades ago, and it is well settled, that “[tjhere is no longer a need to bring official-capacity actions against local government officials, for under Monell, ... local government units cаn be sued directly for damages and injunctive or declaratory relief.” Kentucky v. Graham,
. However, as counsel for Defendant Kealoha conceded during the April 9, 2012 hearing, Defendants have not yet adequately briefed the issue of injunctive relief and the parties are scheduled to address this issue at a separate hearing on Plaintiffs Motion for a Preliminary Injunction, scheduled for June 4, 2012. (See Doc. No. 18.) Accordingly, the Court declines to dismiss Plaintiffs claim for injunctive
In light of the foregoing, the Court GRANTS Kealoha’s Motion to Dismiss all official-capacity claims insofar as they seek money damages; Plaintiff may obtain this relief directly from the City. See Wong,
2. Failure to Allege Violation of Plaintiffs Constitutional or Statutory Rights
Kealoha also attacks Plaintiffs Section 1983 claims based upon failure to allege a violation of Plaintiffs underlying constitutional or statutory rights. Kealoha correctly asserts that in order to state a claim under Section 1983, “ ‘a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right.’ ” (Kealoha MTD Mem. at 6 (quoting Jensen v. City of Oxnard,
Section 1983 “does not create any substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by govеrnment officials.” Cholla Ready Mix, Inc. V. Civish,
Additionally,’ “[a]n individual defendant is not liable on a civil rights claim unless the facts establish the defendant’s personal involvement in the constitutional deprivation or a causal connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.” See Hansen v. Black,
In the instant Complaint, Plaintiff alleges that Kealoha and Putzulu, as well as their agents or those of HPD, were “acting under color of law.” See Compl. ¶¶ 45^16. Plaintiff also presents allegations of Kealoha’s personal involvement in the alleged constitutional deprivation. See id. ¶¶ 35, 46 (alleging that Kealoha re-affirmed Putzulu’s denial of Plaintiffs application). However, Kealoha’s attack on the Complaint focuses upon Plaintiffs purported failure to adequately allege deprivation of a constitutional or statutory right upon which relief can be granted under Section 1983. (Kealoha’s MTD Mem. at 6-7.) This section addresses whether Plaintiff sufficiently alleges deprivation of a constitutional or statutory under the Second, Fifth, and Fourteenth Amendments, respectively.
A. Claims Based Upon the Second Amendment
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. In his Complaint, Plaintiff alleges that he was dеprived of his Second Amendment
Kealoha responds that Plaintiff has not been deprived of his Second Amendment right because he is clearly barred from possessing firearms by H.R.S. § 134-7. (Kealoha’s MTD Mem. at 9.) Moreover, even if Plaintiff were not lawfully barred from firearm ownership under state law, Kealoha argues that Plaintiff is nevertheless barred under federal law pursuant to 18 U.S.C. § 922(g)(9) (the “Lautenberg Amendment”).
i. Prohibitions Based Upon State Law
A violation of state law “can serve as the basis of a [S]ection 1983 action ‘[wjhere the violation of state law causes the deprivation of rights protected by the Constitution.’” Draper v. Coombs,
In District of Columbia v. Heller, the Supreme Court recognized that the Second Amendment protects the individual right to keep and bear arms for self-defense.
Nevertheless, the Supreme Court also stated that its decision in Heller should not call into question “longstanding prohibitions on the possession of firearms” by certain classes of persons, such as the mentally ill and convicted felons, and in certain places constituting security concerns. Id. at 626-27 & n. 26,
That said, Plaintiff correctly notes that numerous courts to have considered the issue have held that harassment is not a categorical crime of violence.
Additionally, the State of Hawaii Intermediate Court of Appeals has held, albeit in a. case that is distinguishable, that harassment and contempt of court conviсtions did not authorize a district court to order a defendant to relinquish his firearms. See State v. Char,
ii Prohibitions Based Upon Federal Law
Kealoha asserts that even if Plaintiff were not lawfully barred from firearms ownership pursuant to Hawaii state law, he is nevertheless barred pursuant to the Lautenberg Amendment, which “prohibits firearm ownership by any person that ‘has been convicted in any court of a misdemeanor crime of domestic violence.’ ” (See Kealoha’s MTD Mem. at 9 (quoting 18 U.S.C. § 922(g)(9))).
The Lautenberg Amendment is a provision of the Gun Control Act of 1968 (18 U.S.C.A. § 921 et seq.), added in 1996, which prohibits any person who “has been convicted in any court of a misdemeanor crime of domestic violence” from owning a firearm. 18 U.S.C. § 922(g)(9). Under this federal statute, “misdemeanor crime of violence” is defined as a crime that is “a
The Court acknowledges the significant policy concerns that animated the legislature’s intent in passing the Lautenberg Amendment. When Congress amended the 1968 Gun Control Act to add a prohibition against anyone convicted of a “misdemeanor crime of domestic violence” from possessing a firearm, it “did so for a compelling reason: the protection of victims of domestic violence.” Koll v. Dep’t of Justice,
The Court of Appeals for the Ninth Circuit has held that the phrase “physical force” pursuant to 18 U.S.C. § 921(a)(33)(A)(i) means “the violent use of force against the body of another individual.” See United States v. Belless,
If there is no categorical match, courts in the Ninth Circuit in some circumstances apply a modified categorical approach, pursuant to which the inquiry is limited to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States,
As Plaintiff asserts, numerous courts to have considered the issue have held that harassment is not a categorical crime of violence. See supra, n. 25. In applying the categorical approach, harassment will not be a categorical “match” with the federal statute if its statutory definition includes both conduct that is of a non-violent nature and conduct that is of a violent nature. It appears that generally, under a modified categorical approach, the outcome depends upon whether the underlying conduct—as it can be determined by reliable documents—is of a violent nature.
The Court concludes that Plaintiffs Section 1983 claim for violation of his Second Amendment rights withstands the Motion to Dismiss. The Court recognizes that there are important policy issues to support the prohibition of gun ownership among individuals convicted of misdemean- or domestic violence crimes. However, Plaintiffs Complaint sufficiently alleges that he was not prohibited under federal or state law from gun ownership when Defendants denied his permit to acquire a firearm under H.R.S. § 134-7, and consequently sufficiently alleges that Plaintiffs Second Amendment right to bear arms was infringed.
B. Claims Based Upon the Fifth Amendment
Kealoha correctly asserts that Plaintiff cannot state a claim upon which relief may be granted based upon alleged violations of the Fifth Amendment’s due process clause. (Kealoha’s MTD Mem. at 10.) Plaintiffs counsel conceded this issue at the April 9, 2012 hearing. The Ninth Circuit has plainly held that “[t]he Due Process Clause of the Fifth Amendment ... [applies] only to actions of the federal government—not to those of state or local governments.” Lee v. City of Los Angeles,
Here, Plaintiff has only named a municipality, its police department, and local HPD employees as defendants, and has not alleged that the federal government or any federal actor played a role in the events giving rise to Plaintiffs due process claim. See Low v. City of Sacramento, No. 2:10-cv-01624 JAM KJN PS,
C. Claims Based Upon the Fourteenth Amendment
The Fourteenth Amendment provides: “nor shall any State deprive any person of life, liberty, or property, without due process of law....” U.S. Const, amend. XIV. Plaintiff asserts that he was wrongfully denied a permit pursuant to H.R.S. § 134— 2 without being afforded minimal due process protection as guaranteed by the Fourteenth Amendment, including a mеaningful opportunity to be heard and an opportunity to have the decision reviewed. Compl. ¶ 54. Plaintiff alleges that Defendants maintain and enforce “a set of customs, practices, and policies prohibiting Mr. Fisher from keeping and bearing firearms despite properly applying for a permit to acquire, which was unconstitutionally and arbitrarily denied.” Compl. ¶ 57.
The Fourteenth Amendment guards against the deprivation of property or liberty without procedural due process. See, e.g., Carey v. Piphus,
In his Complaint, Plaintiff alleges that he made an inquiry after his permit application was denied, and was told that the denial was “not reviewable”; this, Plaintiff contends, deprived Plaintiff of the minimal protection of due process of law under the Fifth and Fourteenth Amendments. Cоmpl. ¶ 4. Plaintiff alleges that there are no means by which an applicant can seek review of the police chiefs denial of a permit, nor any means by which the applicant may participate in the decision-making process or demonstrate his fitness and/or qualifications. Id. ¶¶ 43-44. Plaintiff states that he was wrongfully denied a permit under H.R.S. 134-2 without being afforded minimal due process protection such as a meaningful opportunity to be heard and to have the decision reviewed; consequently, he contends that he was deprived of liberty and property that is protected under the United States Constitution. Id. ¶¶ 54-55.
Kealoha responds that because Plaintiff does not have an actionable Second Amendment claim, his Fourteenth Amendment claim fails. (Kealoha’s MTD Mem. at 10.) Additionally, Kealoha contends that Plaintiffs “conclusory” statement that he was denied a meaningful opportunity to be heard regarding the denial of his firearm permit is “incorrect.” Id. at 11. Kealoha argues that Plaintiffs procedural due process claim against Kealoha should be dismissed because “Kealoha was not involved in creating the procedural requirements under H.R.S. 134-7 or the Lautenberg Amendment ...” and Plaintiff fails to allege that “Kealoha disregarded procedural requirements promulgated by [these] statutes.” Id. Rather, Kealoha contends, the “crux” of Plaintiffs claim is that Kealoha “issued an erroneous decision (based upon such statutes).” Id.
The Court concludes that, taking all allegations of material fact as true and construed in the light most favorable to Plaintiff, Plaintiff has stated a claim upon which relief may be granted for violations of minimal due process protections under the Fourteenth Amendment. In order to state a claim for violation of the right to procedural due process, a plaintiff must allege facts showing: “(1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections.” Kildare v. Saenz,
Plaintiff alleges that he has been deprived of his fundamental constitutional right to bear operational firearms and ammunition, as guaranteed by the Second Amendment. Compl. ¶¶ 3, 48. Plaintiff
3. Qualified Immunity for Individual Capacity Claims
Kealoha also asserts that he is shielded from individual liability based upon qualified immunity. (Kealoha’s MTD Mem. at 11.)
Government officials are immune from damages claims “as long as their actions could reasonably have been thought consistent with the rights they are alleged to hаve violated.” Anderson v. Creighton,
Defendants correctly assert that there is “no case law or legislative action invalidating H.R.S. § 134-7.” (Kealoha’s MTD Mem. at 13.) Additionally, there is no Hawaii case law or legislative action establishing that Plaintiff is entitled to own a firearm under state law despite his conviction for harassment under H.R.S. § 711-1106(1)(a). The Court also agrees that a reasonable official in Kealoha’s position would understand his actions to be lawful under the Lautenberg Amendment considering that a “crime of violence” is defined as “the use or attempted use of force,” аnd the case law does not explicitly rule out crimes such as harassment from inclusion in the prohibition. (Kealoha’s MTD Mem. at 14 (citing 18 U.S.C. § 921(a)(33)(A)(i))).
Also, importantly, the Court observes that Putzulu’s June 10, 2009 denial of Plaintiffs permit occurred before the right to bear arms was even recognized as extending to the states in McDonald v. City of Chicago, which was decided in June of 2010. - U.S. -,
The Court reiterates the significant policy concerns surrounding the passage of the Lautenberg Amendment, particularly Senator Frank Lautenberg’s statement that “[t]here is no question that the presence of a gun dramatically increases the likelihood that domestic violence will escalate into murder. According to one study, for example, in households with a history of battering, the presence of a gun increases the likelihood that a woman will be killed threefold.” See 142 Cong. Rec. S11227 (Daily ed. Sept. 25, 1996).
The Court concludes that Kealoha is entitled to qualified immunity because a reasonable official in his position would not have understood that his conduct violated the Second Amendment. Anderson,
V. CONCLUSION
For the foregoing reasons, the Court: (1) GRANTS Defendant City’s Amended Motion for “Partial” Dismissal of the Complaint; and (2) GRANTS in part and DENIES in part Defendant Kealoha’s Motion for “Partial” Dismissal of the Complaint.
IT IS SO ORDERED.
Notes
. The Court observes that Defendant Putzulu has not yet been served with the Complaint and is not represented in this action; accordingly, he is not addressed in this Order.
. The facts as recited in this order are for the purpose of disposing of these motions and are not to be construed as findings of fact that the parties may rely on in future proceedings in this case.
. The Court takes judicial notice of the December 3, 1997 judgment in State of Hawaii v. Kirk C. Fisher, FC-CR No. 97-3233, pursuant to Fed.R.Evid. 201. See Skilstaf, Inc. v. CVS Caremark Corp.,
. The Commentary regarding H.R.S. § 711-1106 states that "Subsection (1)(a) is a restatement of the common-law crime of battery, which was committed by any slight touching of another person in a manner which is known to be offensive to that person." (Emphasis added.)
. Notably, although Plaintiff was convicted of harassment under § 711—1106(1)(a), the statute provides for other means by which an individual commits the offense of harassment, some of which—unlike subsection (a)—do not explicitly require physical contact. For example, pursuant to subsection (b), a person "commits the offense of harassment if, with intent to harass, annoy, or alarm any other person, that person" ... "(b) [ijnsults, taunts, or challenges another person in a manner likely to provoke an immediate violent response or that would cause the other person to reasonably believe that the actor intends to cause bodily injury to the recipient or another or damage to the property of the recipient or another...." H.R.S. § 711-1106(1)(b).
. The legislative history for H.R.S. § 134-7 reveals that although the language of subsection (b) has not been amended between 1997 and today, the legislature did amend subsection (a) in 2006. This subsection provides: "No person who is a fugitive from justice or is a person prohibited from possessing firearms or ammunition under federal law shall own, possess, or control any firearm or ammunition therefor.” H.R.S. § 134-7(a). The phrase "or is a person prohibited from possessing firearms or ammunition under federal law” was added in a 2006 amendment effective April 25, 2006. See H.R.S. § 134-7, Ed. note.
. Based upon the plain language of the statute, "injury” and "threat of injury” are not elements of harassment as it is defined in H.R.S. § 711-1106.
. The parties did not submit a copy of this Order. At the April 9, 2012 hearing, Plaintiff’s counsel stated that Plaintiff did not appeal the State Court order’s denial of June 22, 2010.
. H.R.S. § 134-2 provides, in relevant part: Permits to acquire, (a) No person shall acquire the ownership of a firearm, whether usablе or unusable, serviceable or unserviceable, modem or antique, registered under pri- or law or by a prior owner or unregistered, either by purchase, gift, inheritance, bequest, or in any other manner, whether procured in the State or imported by mail, express, freight, or otherwise, until the person has first procured from the' chief of police of the county of the person’s place of business or, if there is no place of business, the person's residence or, if there is neither place of business nor residence, the person’s place of sojourn, a permit to acquire the ownership of a firearm as prescribed in this section.
. As the Supreme Court explained in Bd. of the County of Comm’rs of Bryan County, Oklahoma v. Brown,
. Morеover, City asserts that "[t]he mere enforcement of state law on the part of local government, in the absence of express incorporation or adoption of state law into local regulations, has been found insufficient to sustain a federal action under § 1983.” (City MTD Mem. at 13 (citing Surplus Store & Exchange, Inc. v. City of Delphi,
. Although there is no allegation that Kealoha relied on a police report in denying Plaintiff's application for a gun permit nor that Kealoha did not review other documents which provided the specific nature of the conduct for which Plaintiff was convicted.
. Plaintiff asserts in his Opposition that Kealoha and Putzulu “are and were municipal officials with final decision-making authority,” and that both “made deliberate choices, [] from among various alternatives, to follow a course of action-denial of [Plaintiff's] application for a permit to acquire.” (P’s City. Opp. Mem., at 15.) However, Plaintiff does not make any such allegations in the Complaint.
. The Court notes that Plaintiff did not respond to the City’s Motion to Dismiss the Doe Defendants in his Opposition (see P's City Opp. Mem.), nor did the City present any additional arguments on this subject in its Reply (Defs' Joint Reрly Mem.).
. See, e.g., Headwaters Forest Def. v. County of Humboldt, et al.,
. Kealoha also argues that Plaintiff’s claim against Kealoha in his official capacity should be dismissed as duplicative because " 'neither a State nor its officials acting in their official capacities are’ persons 'under § 1983,' ” (Kealoha’s MTD Mem. at 4 (quotations omitted)). The Court observes that Kealoha is incorrectly relying upon law that applies to states and state officials, rather than municipalitiеs and local officials which do not face Eleventh Amendment issues when sued under Section 1983. The term "person" under Section 1983 does in fact encompass municipalities, although it does not encompass states. See Pittman v. Oregon,
. Plaintiff does not offer any opposition to dismissal of his claim for monetary damages against Kealoha in his official capacity. (See P’s Kealoha Opp. Mem.)
. In light of the fact that the parties have not yet briefed the issue of injunctive relief, they have not addressed whether it is necessary to maintain an action against Kealoha in his official capacity in order to enforce the injunction, in the event that Plaintiffs are unable to establish municipal liability against the City.
. The Lautenberg Amendment prohibits any person who "has been convicted in any court of a misdemeanor crime of domestic viоlence” from owning a firearm. 18 U.S.C. § 922(g)(9). This is discussed in greater detail in subsection (ii).
. Two year later, in McDonald v. City of Chicago, the Supreme Court held that the Second Amendment right to keep and bear arms is fully applicable to the states by virtue of the Fourteenth Amendment. -U.S.-,
. See, e.g., Singh v. Ashcroft,
. The Court also recognizes that the Chief of Police may rely upon bases other than a prior conviction for a "crime of violence" in rejecting an application for a permit pursuant to H.R.S. § 134-7, such as a diagnosis of significant behavior, emotional or mental disorders or treatment for addiction to drugs. See H.R.S. § 134-7.
. This is the only available case analyzing whether harassment qualifies as an offense that prohibits' individuals from firearm ownership pursuant to Section 134-7. In that case, the court concluded that the defendant was prohibited from possessing firearms pursuant to another subsection of H.R.S. § 134-7(f), which prohibits those under a restraining/protective order. The Court observes, however, that the court in Char considered the crime of harassment pursuant to H.R.S. § 711-1106(b), rather than (a). See Char,
. Although, as counsel conceded at the April 9, 2012 hearing, it is possible that HPD did so erroneously, given thаt the court’s order provided that reinstatement of Plaintiff's firearms and ammunition also hinged on Plaintiff qualifying under Section 134-7 and applicable federal law provisions.
. The United States Supreme Court has held that the predicate offense need not have the “domestic relationship” as an element under the Lautenberg Amendment. United States v. Hayes,
. The Courts of Appeal for the Fourth, Seventh and Tenth Circuits have also concluded that the "touching” element of common law battery is not "physical force” as contemplated in 18 U.S.C. § 921(a)(33)(A) or similar statutes. See United States v. White,
. This is the so-called Taylor rule, espoused by the Supreme Court in Taylor v. United States,
. This conclusion, of course, is made iri the absence of considering certain appropriate documents such as the written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented, which might shed some light on the nature of the underlying conduct for which Plaintiff'was convicted; as the parties have not provided such docu
. The United States Supreme Court, in the case of Mathews v. Eldridge, set forth a three
. Defendants add, in their joint Reply, that Kealoha "was in no way involved in creating the procedural requirements of H.R.S. 134-7 and cannot be liable to Plaintiff based upon a mere enforcement of said statute.” (Defs' Joint Reply Mem. at 5.)
. Plaintiff responds that municipal employees sued in their official capacity may not claim qualified immunity in a Section 1983 action. (P's Kealoha Opp. Mem. at 21 (citing Eng v. Cooley,
. See Hunter v. Bryant,