resident alien preliminary injunction
TRANSCRIPT
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RICHARD L HOLCOMB (HI Bar No. 9177)Holcomb Law, A Limited Liability Law Corporation1136 Union Mall, Suite # 808Honolulu, HI 96813Telephone: (808) 545-4040Facsimile: (808) 356-1954
Email:[email protected]
ALAN BECK (HI Bar No. 9145)Attorney at Law4780 Governor DriveSan Diego, California 92122Telephone: (808) 295-6733Email: [email protected]
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Steve Fotoudis,
Plaintiff,vs.
City and County of Honolulu;
Lois Kealoha, Chief of the HonoluluPolice Department, in his individualcapacity;
David Louie, Attorney General ofHawaii, in his individual and officialcapacity;
and, John Does 1-50 in their individualor official capacities.
Defendants.
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CASE NO. 1:14-CV-00333
PLAINTIFFS MOTION FORPRELIMINARY INJUNCTIVE
RELIEF; MEMORANDUM INSUPPORT OF MOTION FORPRELIMINARY INJUNCTIVERELIEF; DECLARATION OF
STEVEN FOTOUDIS;DECLARATION OF RICHARD L.
HOLCOMB; EXHIBITS ONETHROUGH TWELVE;
CERTIFICATE OF SERVICE
HEARING:
Date:Time:
Judge: Not Assigned
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PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTIVE RELIEF
COMES NOW the Plaintiff, Steve Fotoudis, by and through undersigned
counsel and pursuant to the Second and Fourteenth Amendments to the United
States Constitution, Title 42 U.S.C. 1983, and Rule 65(a) of the Federal Rules of
Civil Procedure, and request that this Court issue a preliminary injunction
enjoining Defendants and/or their officers, agents, servants, employees, and all
persons in concert or participation with them who receive notice of this injunction,
from enforcing the United States citizenship requirements of Section 134-2(d) of
the Hawaii Revised Statutes and any other Hawaii statutory language that imposes
a United States citizenship requirement which operates to restrict lawfully admitted
permanent resident aliens from exercising Second Amendment rights. Further, Mr.
Fotoudis requests this Court compel the same to:
(a) allow Mr. Fotoudis to apply for a permit pursuant to Section 134-2
of the Hawaii Revised Statutes;
(b) to promptly and meaningfully evaluate, with no more or less
scrutiny than would be applied to a citizen applicant, Mr. Fotoudis
application and background to determine his fitness and qualifications
to lawfully keep firearms; and,
(c) insofar as Mr. Fotoudis is determined to be fit and qualified to
keep firearms, to immediately thereafter issue to Mr. Fotoudis the
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permit contemplated by Section 134-2 of the Hawaii Revised Statutes,
vesting Mr. Fotoudis with the same rights and privileges to keep and
possess firearms as those of a United States citizens who obtains a
permit pursuant to Section 134-2.
In support of this Motion, Mr. Fotoudis relies on the Memorandum in
Support of his Motion for Preliminary Injunction and its attachments, including but
not limited to the Declarations of Plaintiff and of counsel, and all corresponding
exhibits to those Declarations, filed contemporaneously herewith.
DATED: Honolulu, Hawaii; July 24, 2013.
s/Richard L. Holcomb__
Richard L. Holcomb
Attorney for Plaintiff
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0
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Steve Fotoudis,
Plaintiff,vs.
City and County of Honolulu;Lois Kealoha, in his individual capacity;and, John Does 1-50 in their individualor official capacities.
Defendants.
)
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CASE No. 1:14-CV-00333
MEMORANDUM IN SUPPORT OFMOTION FOR TEMPORARY
RESTRAINING ORDER AND INSUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION
MEMORANDUM IN SUPPORT OF
MOTION FOR TEMPORARY RESTRAINING ORDER AND
IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
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TABLE OF CONTENTS
I. LEGAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Mr. Foutodis will likely succeed on the merits. . . . . . . 4
1. Mr. Fotoudis core Second Amendment
rights continue to be violated. . . . . . . . . . . . . . . . . . . 4
2. Mr. Foutodis has been denied equalprotection of the laws. . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. Mr. Fotoudis Due Process Rights
have been violated. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
B. Mr. Fotoudis will be irreparably harmed. . . . . . . . . . . 14
C. The balance of equities tips sharply inMr. Fotoudis favor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
D. The injunction serves the publics interests. . . . . . . . . 18
IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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TABLE OF AUTHORITIES
Reported Cases
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) . . . . . . . . . 12
Associated General Contractors v. Coalition for Economic Equity,
950 F.2d 1401 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Chan v. City of Troy, 559 N.W.2d 374. (Mich.Ct.App. 1997) . . . . . . 10
Collins v. Brewer, 727 F. Supp. 2d 797 (D. Ariz. 2010) . . . . . . . . . . . 15
District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . 4, 5, 7
Fletcher v. Haas, 851 F.Supp.2d 287 (D. Mass 2012) . . . . . . . . . . . . . 7, 11, 13
Freminger v. Principi, 422 F.3d 815 (9th Cir. 2005) . . . . . . . . . . . . . 18
Graham v. Richardson, 403 U.S. 365 (1971) . . . . . . . . . . . . . . . . . . . 9, 10
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) . . . . . . . . . . . . . . 6
McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010) . . . . . . . . 4-5
Monterey Mech. Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) . . . . . . 15
People v. Nakamura, 62 P.2d 246 (Colo. 1936) . . . . . . . . . . . . . . . . . 10
People v. Rappard, 28 Cal.App.3d 302,
104 Cal.Rptr. 535 (Cal.App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Sammartano v. First Judicial District Court Carson City,
303 F.3d 959 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18-19
Sandiford v. Commonwealth, 225 S.E.2d 409 (Va. 1976) . . . . . . . . . 10-11, 13
Smith v. South Dakota, 781 F.Supp.2d 879 (D. S.D. 2011) . . . . . . . . . 11
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State v. Chumphol, 634 P.2d 451 (Nev. 1981) . . . . . . . . . . . . . . . . . . . 11, 13
Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948) . . . . . 9
Toll v. Moreno, 458 U.S. 1 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Tom v. Sutten, 533 F.2d 1101 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . 15
United States v. Lopez-Flores, 63 F.3d 1468 (9th Cir. 1995) . . . . . . 9
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) . . . . . . . . 6-7, 8
Winter v. Natural Resources Defense Council, Inc.,
129 S.Ct. 365 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17, 18
Unreported Cases and Dispositions
Alexander Say v. John Adams, et.al.,
No. 3:07-cv-377-R, 2008 wl 718163 (D. Ky. March 14, 2008) . . . . 11, 15, 17,
18, 19
Carlos Nino de Rivera Lajous v. David Sankey,
No. 4:13-cv-03070 (D. Neb. Oct. 15, 2013) (Exhibit Eight) . . . . . . . 11, 18
John W. Jackson, et. al. v. Gorden E. Eden,
No. 1:12-cv-00421 (D. N.M. March 31, 2014)
(Exhibits Nineand Ten) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18
Martin Pot, et. al. v. Colonel Stan Witt,
No. 3:13-cv-03102 (W.D. Ark. May 8, 2014) (Exhibit Eleven) . . . . 12
National Rifle Association, et. al. v. State of Washington, et. al.,
No. C08-1613 RSM (W.D. Wash. Jan. 27, 2009) (Exhibit Twelve). . 12
Second Amendment Foundation, Inc., et. al. v. Jim Suttle, et. al.,
No. 8:11CV335 (D. Neb. Nov. 21, 2011) (Exhibit Seven) . . . . . . . . . 11
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Statutes, Rules, and Other Authorities
18 U.S.C. 922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Haw. Rev. Stat. 134-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12, 13,
17, 18
Haw. Rev. Stat. 134-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
8 C.F.R. 316.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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I. LEGAL BACKGROUND.
In Hawaii, Section 134-2 of the Hawaii Revised Statutes provides the only
means by which any fit and qualified person may lawfully possess a firearm in
their home. Specifically, Section 134-2(a) prohibits any person from acquiring
ownership of a firearm without first obtaining a permit from the appropriate chief
of police. Haw. Rev. Stat. 134-2(a). It is a crime to possess a firearm in Hawaii
without the permit contemplated in Section 134-2. Haw. Rev. Stat. 134-17(c).
Section 134-2(d) vests Defendant Kealoha, as chief of police, with discretion
to issue the permits contemplated in Section 134-2(a) to citizens of the United
States of the age of twenty-one years or more, diplomats, and alien law
enforcement agents on Oahu. Haw. Rev. Stat. 134-2(d). However, the chief is
only vested with discretion to issue severely limited permits to other alien
applicants. Id. Specifically, the chief may issue a permit that would allow the
alien applicant to possess shotguns or rifles for a maximum of 60 days and, then,
only after the alien has obtained a hunting license. Id. The chief also has
discretion to issue a permit to an alien who is training for specific sport-shooting
contests for a maximum of six months. Id. The sport-shooting contest must be
held during the time the permit allows the alien to possess the firearm(s). Id.
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II. FACTUAL BACKGROUND
Mr. Fotoudis is a lawfully admitted permanent resident alien who resides in
Hawaii. Decl. of Steve Fotoudis 2-5. The only reason that Mr. Fotoudis is not a
naturalized citizen is because he has not met the five-year residency requirement.
Decl. of Steve Fotoudis 3; see 8 C.F.R. 316.2(a); . Mr. Fotoudis has a green
card, Exhibit One, and a United States social security card, Exhibit Two. Decl. of
Steve Fotoudis 4.
Mr. Fotoudis wishes to import to Hawaii firearms that he currently owns but
are located in Australia. Decl. of Steve Fortoudis 21, 24, 32, 47-51. Mr.
Fortoudis is fit and qualified to keep firearms under the laws of the United States
and, with the exception of the statutory discriminatory provisions prohibiting
lawfully admitted aliens from acquiring firearms, under the laws of Hawaii. Decl.
of Steve Fortoudis, 4, 6-18, 31. Mr. Fotoudis holds firearms licenses in
Australia. Decl. of Steve Fotoudis 8, Exhibit Three. Mr. Fotoudis even
received a letter of recommendation from the South Australian Police stating that
he is a fit and proper person to keep and possess firearms and identifying several
firearms licenses Mr. Fotoudis holds or has held in Australia. Decl. of Steve
Fotoudis 10, Exhibit Four.
On July 10, 2014, Mr. Fotoudis went to the window at the Honolulu Police
Departments (HPD) main station on Beretania Street. Decl. of Steve Fotoudis
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24. The window is the designated place where members of the public may apply
for permits to acquire firearms pursuant to Hawaii law. Decl. of Steve Fotoudis
22. United States citizens are routinely permitted to apply for Section 134-2
permits at the window and, if found fit and qualified, those citizen applicants are
issued the permit. . Decl. of Steve Fotoudis 23.
Mr. Fotoudis was asked for identification by the police officer who was
assisting people at the HPD window. . Decl. of Steve Fotoudis 25. In response
to the request, Mr. Fotoudis presented his green card, United States Social Security
Card, and his Australian passport. . Decl. of Steve Fotoudis 26. Because he was
not a naturalized U.S. citizen, Mr. Fotoudis was not even allowed to apply for any
permit. . Decl. of Steve Fotoudis 27, 29.
In the context of Section 134-2 permits, Defendant Louie has not taken any
action to promulgate rules or otherwise ensure that resident aliens are not
discriminated against. In practice, Defendant Kealoha does not exercise even his
limited statutory discretion in favor of alien applicants. Upon information and
belief, aliens are not permitted to possess firearms even in the severely limited
circumstances identified in Section 134-2(d). No inquiry has ever been made as to
what type of firearm Mr. Fotoudis sought to acquire, whether Mr. Fotoudis had a
hunting license, and/or whether Mr. Fotoudis was training for a sport-shooting
contest. Decl. of Steve Fotoudis 28. In fact, Mr. Fotoudis has been specifically
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advised by HPD representatives that he could not possess a firearm in Hawaii.
Decl. of Steve Fotoudis 20, Exhibit Five. And, when Mr. Fotoudis wrote
Defendant Kealoha to inquire how this unconstitutional prohibition could be
avoided, Chief Kealoha did not even respond. Decl. of Steve Fotoudis 21,
Exhibit Six.
III. ARGUMENT
A plaintiff seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest. Winter v. Natural Resources Defense Council,
Inc., 129 S.Ct. 365, 374 (2008).
A. Mr. Fotoudis will likely succeed on the merits.
1. Mr. Fotoudis core Second Amendment rights continue to be violated.
Although the Second Amendment is not an unlimited right, the Second
Amendment guarantees the right to keep and possess firearms for the purpose of
self-defense. District of Columbia v. Heller, 554 U.S. 570, 580 (2008). [T]he
need for defense of self, family and property is most acute in the home. Id. at
628. Accordingly, a complete prohibition of handguns and other protected arms
is invalid. Id. at 629. [T]he Due Process Clause of the Fourteenth Amendment
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incorporates the Second Amendment right recognized in Heller. McDonald v.
City of Chicago, Ill., 130 S. Ct. 3020, 3050 (2010).
Nevertheless, even if Chief Kealoha routinely permitted permanent residents
to apply for the limited permits contemplated by Section 134-2(d), those permits
do not satisfy the Second Amendment. Despite the questions that Heller left
unresolved and with which courts nationwide are currently struggling, Heller is
abundantly clear that the right to possess firearms within the confines of the home
for the purpose of self-defense is unequivocally protected. Section 134-2(d) does
not allow permanent residents to exercise that core right.
Mr. Fotoudis does not claim that the government may not reasonably
prohibit unfit and/or unqualified persons, fit and qualified illegalaliens, or fit and
qualified temporary non-immigrant aliens from possessing firearms. However, the
absolute prohibition on fit and qualified permanent residents ability to keep and
possess firearms within the confines of their Hawaii homes for the purpose of self-
defense not only obviously burdens Second Amendment rights but also patently
violates the Second Amendment. Heller, 554 U.S. at 580, 629. The prohibition of
Section 134-2(d) fails application of any form of means-end scrutiny.
Thus, the only question before this Court is whether fit and qualified
permanent residents such as Mr. Fotoudis are among the people protected by the
Second Amendment.
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The Bill of Rights is a futile authority for the alien seeking admission
for the first time to these shores. But once an alien lawfully enters
and resides in this country he becomes invested with the rightsguaranteed by the Constitution to all people within our borders.
Such rights include those protected by the First and the Fifth
Amendments and by the due process clause of the Fourteenth
Amendment. None of these provisions acknowledges any
distinction between citizens and resident aliens. They extend their
inalienable privileges to all persons' and guard against any
encroachment on those rights by federal or state authority.Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1455, 89 L.Ed.
2103 (concurring opinion).
The alien, to whom the United States has been traditionally
hospitable, has been accorded a generous and ascending scale ofrights as he increases his identity with our society. Mere lawful
presence in the country creates an implied assurance of safe conduct
and gives him certain rights; they become more extensive and secure
when he makes preliminary declaration of intention to become a
citizen, and they expand to those of full citizenship upon
naturalization. During his probationary residence, this Court has
steadily enlarged his right against Executive deportation except upon
full and fair hearing. * * * And, at least since 1886, we have
extended to the person and property of resident aliens important
constitutional guarantiessuch as the due process of law of the
Fourteenth Amendment.Johnson v. Eisentrager, 339 U.S. 763,
770771, 70 S.Ct. 936, 940, 94 L.Ed. 1255.
Kwong Hai Chew v. Colding, 344 U.S. 590, 596, n. 5 (1953) (emphases added).
In the context of the Second Amendment, the United States Supreme Court
has specifically found:
The Second Amendment protects the right of the people to keep and
bear Arms . . . While this textual exegesis is by no means conclusive,
it suggest that the people protected by the Fourth Amendment, and
by the First and Second Amendments . . . refers to a class of persons
who are part of a national community or who have otherwise
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developed sufficient connection with this country to be considered
part of that community.
United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). More specifically,
aliens receive constitutional protections when they have come within the territory
of the United States and developed substantial connections with this country. Id.
at 271. But once an alien lawfully enters and resides in this country he becomes
invested with the rights guaranteed by the Constitution to all people within our
borders. Id. (citation omitted). Thus, insofar as naturalized citizens are permitted
to keep and bear arms, resident aliens may do the same.
Heller, itself, quotes Verdugo-Urquidez, for the proposition that the phrase
the people is intended to confer individual rights to 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 instead of
merely conferring the right to bear arms only upon male, able bodied [militia
members] within a certain age range. Heller, 554 U.S. at 580 (quotingVerdugo-
Urquidez, 494 U.S. at 265). And, at least Massachusetts United States District
Court has squarely found that permanent residents are included amongst the
people protected by the Second Amendment. Fletcher v. Haas, 851 F.Supp.2d
287, 288, 291-93, 299 (D. Mass 2012) (This case presents the question whether
lawful permanent resident aliens are among the people for whom the Second
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Amendment the United States Constitution provides a right to bear arms. I
conclude they are.).
Mr. Fotoudis is a permanent resident. Mr. Fotoudis has a green card. Mr.
Fotoudis will become naturalized upon the expiration of the five-year waiting
period. And, in the meantime, Mr. Fotoudis lives and works in Honolulu. Mr.
Fotoudis has necessarily developed sufficient connection with this country to be
considered part of [the] community. Verdugo-Urquidez, 494 U.S. at 265; See
Demore, 538 U.S. at 544 (Souter, J., concurring in part and dissenting in part) (the
lives of permanent residents are generally indistinguishable from those of United
States citizens.). Mr. Fotoudi has accepted some societal obligations that places
him among the people of the United States, including but not limited to
running a business and paying taxes in Honolulu. Verdugo-Urquidez, 494 U.S. at
273. Undoubtedly, Mr. Fotoudis has sufficient connection with the United States
to exercise the core of the fundamental right guaranteed by the Second
Amendment, i.e., to keep a firearm(s) within the confines of his home for the
purpose of self-defense.
Mr. Fotoudis is highly likely to prevail on the merits of this issue.
2. Mr. Fotoudis has been denied equal protection of the laws.
Section 134-2(d) of the Hawaii Revised Statutes and Defendants refusal to
issue and/or to allow Mr. Fotoudis to apply for a permit to acquire a firearm(s) to
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keep in his home for the purpose of self-defense and to use for other lawful
purposes violates the equal protection clause of the Fourteenth Amendment. Mr.
Fotoudis is likely prevail on the merits of this claim.
Our Supreme Court has specifically held that the term person in this
[Fourteenth Amendment] context encompasses lawfully admitted resident aliens as
well as citizens of the United States and entitles both citizens and aliens to the
equal protection of the laws of the State in which they reside. Graham v.
Richardson, 403 U.S. 365, 371 (1971) (denial of welfare benefits).
[C]lassifications based on alienage . . . are inherently suspect and subject to close
judicial scrutiny. Id. at 372. And, although here the core protection of
fundamental Second Amendment rights are at stake, the inherent suspicion and
close judicial scrutiny is applied whether or not a fundamental right is
impaired. Id. at 373. Thus, in contrast to federal laws, [s]tate alienage
classifications create a suspect class to which we applystrict scrutiny. United
States v. Lopez-Flores, 63 F.3d 1468, 1473 (9th Cir. 1995).
Not surprisingly, state laws that discriminate against a person based on his
or her alienage have been consistently struck. Takahashi v. Fish & Game
Commission, 334 U.S. 410, 421 (1948) (invalidating a state law excluding aliens
who are lawful residents of the State from making a living by fishing in the ocean
off its shores while permitting others to do so.). Takashiand Grahamstand for
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the broad principle that state regulation not congressionally sanctioned that
discriminates against aliens lawfully admitted to the country is impermissible if it
imposes additional burdens not contemplated by Congress. Toll v. Moreno, 458
U.S. 1, 12-13 (1982) (invalidating state law denying tuition benefits to
nonimmigrant aliens). In other words, absent specific congressional action to the
contrary, lawfully admitted resident aliens, such as Mr. Fotoudis, are entitled to
the full and equal benefit of all state laws for the security of persons and
property. Graham, 403 U.S. at 378 (emphasis added).
Accordingly, each court, known to the undersigned, that has reviewed the
issue sub judice has determined that permanent residents may, at the very least,
keep firearms in their homes for the purpose of self-defense and may enjoy the
same rights or privileges to bear arms as naturalized citizens. Chan v. City of Troy,
559 N.W.2d 374, 379-80, n. 3. (Mich.Ct.App. 1997) (the statute, which prohibits
the purchase of pistols by all noncitizens, fails to distinguish between dangerous
noncitizens and those noncitizens who would pose no particular threat if allowed to
purchase the weapons and [h]ad the statute excluded only illegal aliens, as
opposed to all noncitizens, it may well have passed constitutional muster.);
People v. Nakamura, 62 P.2d 246, 247 (Colo. 1936) (the act wholly disarms
aliens for all purposes. The state . . . cannot disarm any class of persons or deprive
them of the right . . . to bear arms in defense of home, person, and property.);
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Sandiford v. Commonwealth, 225 S.E.2d 409 (Va. 1976) (invalidating presumption
for possession of sawed-off shotgun by alien); State v. Chumphol, 634 P.2d 451
(Nev. 1981) (invalidating prohibition on possession of pistol); People v. Rappard,
28 Cal.App.3d 302, 304-05, 104 Cal.Rptr. 535 (1972) (invalidating prohibition on
possession of concealable firearm); Fletcher,851 Supp.2d 287 (determining that
resident aliens are people as contemplated by the Second Amendment and
holding that resident aliens are entitled to possess firearms); Smith v. South
Dakota, 781 F.Supp.2d 879 (D. S.D. 2011) (permanent injunction on equal
protection grounds for permanent resident who was prohibited from obtaining
conceal carry permit); Alexander Say v. John Adams, et.al., No. 3:07-cv-377-R,
2008 wl 718163 (D. Ky. March 14, 2008) (unreported) (Kentucky law authorizing
citizens but not permanent residents to obtain licenses to carry concealed weapons
violates equal protection); Second Amendment Foundation, Inc., et. al. v. Jim
Suttle, et. al., No. 8:11CV335 (D. Neb. Nov. 21, 2011) (stipulated preliminary
injunction) (attached as Exhibit Seven); Carlos Nino de Rivera Lajous v. David
Sankey, No. 4:13-cv-03070 (D. Neb. Oct. 15, 2013) (Order and Final Judgment
granting permanent injunctive relief prohibiting enforcement of statute that
prohibited issuance of conceal and carry permits to otherwise qualified resident
aliens) (attached as Exhibit Eight); John W. Jackson, et. al. v. Gorden E. Eden,
No. 1:12-cv-00421 (D. N.M. March 31, 2014) (Preliminary Injunction Order and
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Judgment finding that prohibiting resident aliens from obtaining conceal and carry
permits violates the equal protection clause and enjoining the enforcement of such
prohibition) (attached as Exhibits Nine and Ten); Martin Pot, et. al. v. Colonel
Stan Witt, No. 3:13-cv-03102 (W.D. Ark. May 8, 2014) (Order on Motion for
Consent for Judgment) (attached as Exhibit Eleven); National Rifle Association,
et. al. v. State of Washington, et. al. , No. C08-1613 RSM (W.D. Wash. Jan. 27,
2009) (Agreed Order Granting Plaintiffs Motion for Preliminary Injunction)
(attached as Exhibit Twelve).
Strict scrutiny must inevitably be applied to Hawaiis discriminatory
licensing procedure. Thus, the government must carry the burden of proving that
excluding lawful permanent residents who are fit and qualified to keep and possess
firearms is narrowly tailored [and] further[s] compelling governmental interests.
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
Section 134-2 broadly categorizes all persons as either citizens or aliens.
Haw. Rev. Stat. 134-2(d). Thus, permanent residents are illegally deprived of the
same rights as those to which illegal immigrants or other non-immigrant aliens
who are in the United States lawfully but on a temporary visa are deprived. This
broad class-based categorization is not narrow but is, instead, sweeping.
Further, the government has no compelling interest in preventing lawful
permanent residents, who are no more prone to violence or likely to commit crimes
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than the naturalized population, from exercising the core of fundamental Second
Amendment rights. Fletcher, 851 F.Supp.2d at 303 (where statute did not
distinguish between dangerous or non-dangerous aliens or between permanent
residents and temporary non-immigrant residents, the court found [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.).Sandiford, 225 S.E.2d at 411 (We see no rational
connection between a persons place of birth and his disposition to commit
offensive or aggressive acts.); Chumphol, 634 P.2d at 452 ( A person does not
exhibit a tendency toward crime merely because he or she is a noncitizen);People
v. Rappard, 28 Cal.App.3d 302, 304-05, 104 Cal.Rptr. 535 (Cal.App. 1972) (a
person does not . . . show a tendency toward crime simply because he is not a
citizen of this country.).
It is unfathomable that the government would be able to justify the
sweeping and discriminatory prohibition of Section 134-2(d). Because Section
134-2(d) excludes all fit and qualified permanent residents, it is unconstitutional on
its face. Additionally, Mr. Fotoudis was not permitted to even apply for the permit
because of his status as a permanent resident. Thus, the actions described in the
Complaint and above are unconstitutional as applied to Mr. Fotoudis.
Mr. Fotoudis is also highly likely to prevail on the merits of this claim.
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3. Mr. FotoudisDue Process Rights have been violated.
As shown above, the due process clause of the Fourteenth Amendment
undeniably applies to lawfully admitted aliens.
Hawaiis permitting scheme leaves fit and qualified applicants at the mercy
of the police chiefs discretion to determine whether the applicant may enjoy the
exercise of core Second Amendment rights. Whether such a scheme could satisfy
minimal due process guarantees of the Fourteenth Amendment is, at best,
questionable. However where, as here, an applicant is not even afforded the ability
to subject himself to the dubious procedure, the applicants due process rights have
clearly been violated. Mr. Fotoudis will also undoubtedly prevail on the merits of
Count Three of his Complaint.
B. Mr. Fotoudis will be irreparably harmed.
[A]n alleged constitutional infringement will often alone constitute
irreparable harm. Associated General Contractors v. Coalition for Economic
Equity, 950 F.2d 1401, 1412 (9th Cir. 1991); see Sammartano v. First Judicial
District Court Carson City, 303 F.3d 959, 973 (9th Cir. 2002) (the loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury for purposes of the issuance of a preliminary
injunction). This Court should find irreparable harm solely because Mr. Fotoudis
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will be deprived of his core Second Amendment rights if the injunction is not
issued.
Moreover, all constitutional provisions are of equal dignity. Tom v.
Sutten, 533 F.2d 1101, 1106 (9th Cir. 1976). Thus, the Ninth Circuit has found
that a group of plaintiffs probability of success [in demonstrating irreparable
harm was] much higher after also finding that the challenged statute was
unconstitutional insofar as it classifies by ethnicity and sex. Monterey Mech. Co.
v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997).
At least one of this Courts sister districts has found, in a case where the
plaintiffs showed a likelihood of success on the merits of an equal protection claim
(for discrimination based on sexual orientation), that the plaintiffs had also
demonstrated sufficient irreparable harm. Collins v. Brewer, 727 F. Supp. 2d 797,
812 (D. Ariz. 2010), aff'd sub nom. Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011).
Such constitutional violations cannot be adequately remedied through damages
and therefore generally constitute irreparable harm. Id.
One other district court has specifically found irreparable harm in a case
precisely analogous to this case. Say, supra. There, a permanent resident
demonstrated the likelihood of prevailing on an equal protection claim challenging
a state firearms law. The law discriminated against permanent aliens as does
Section 134-2. Id. And, the court found irreparable harm. Id.
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This Court should find that Mr. Fotoudis is irreparably harmed because of
the continued deprivation of his equal protection rights.
Even if these constitutional violations were somehow an insufficient
demonstration of irreparable harm, the facts of this case present specific irreparable
harm beyond that of the violation of his constitutional rights.
Mr. Fotoudis, who was a regular competitor at numerous Australian sport-
shooting competitions, currently owns seven rifles and two handguns. Decl. of
Steve Fotoudis 31. When he moved to Hawaii and because he could not get a
Section 134-2 permit, Mr. Fotoudis sold the vast majority of his firearms and only
retained those that he finds irreplaceable because of the sentimental value he
attaches to those firearms. Decl. of Steve Fotoudis 34. Because Defendants will
not even allow Mr. Fotoudis to apply for the permit that would allow him to
possess his remaining firearms in Hawaii, Mr. Fotoudis is forced to keep those
firearms in Australia. Decl. of Steve Fotoudis 47.
Those firearms are now stored in a safe at Mr. Fotoudis fathers house.
Decl. of Steve Fotoudis 47. Mr. Fotoudis father wants the safe removed from
his house as soon as possible. Decl. of Steve Fotoudis 48. Moreover, Mr.
Foutodis Australian firearms permit expires on December 31, 2014 Decl. of Steve
Fotoudis 49. Then, Mr. Fotoudis will be forced to either sell the firearms or,
alternatively, pay Australian officials an exorbitant storage fee to keep the firearms
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on Mr. Fotoudis behalf. Decl. of Steve Fotoudis 50. Mr. Fotoudis cannot
afford to pay the fee for each of his remaining firearms. Decl. of Steve Fotoudis
51.
The impending loss of Mr. Fotoudis firearms also constitutes irreparable
harm.
C. The balance of equities tips sharply in Mr. Fotoudis favor.
In this case, the balance of equities tips in [Mr. Fotoudis] favor. Winter,
129 S. Ct. at 374. Being lawfully admitted for permanent residence and by having
previous firearm licenses, Mr. Fotoudis has been subjected to intensive background
checks. No legitimate State interest is served: by denying Mr. Fotoudis an
opportunity to apply for a permit contemplated by Section 134-2; by denying Mr.
Fotoudis a permit contemplated by Section 134-2 which would allow Mr. Fotoudis
to keep his firearms in his home; and/or by applying criminal penalties against Mr.
Fotoudis for not having the permit.
Say found that an injunction would require the state police to conduct a
manual case-by-case background check on alien concealed-carry applicants, as
well as update its electronic database software, amend its forms, and change its
record heck procedures. However, any harm to others caused by the granting of a
preliminary injunction is not substantial enough to justify the violation of
Plaintiffs constitutional rights. Say, 2008 wl 718163, *4.
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Say enjoined enforcement of the state law requiring applicants for a
concealed-carry permit to be U.S. citizens. Say, supra. Defendants were also
ordered to furnish Say with a license application and to accept and process the
application and issue the license in accordance with the established procedures for
processing such application and issuing such license, but without requiring proof
of United States citizenship. Id.; see also Sankey (Exhibit Eight); Jackson,
(Exhibits Nine and Ten).
Any additional administrative burden required for Defendants to issue or
renew permits to acquire to permanent resident aliens who wish to possess firearms
within the confines of their home for the purpose of self-defense would not be
substantial. The balance of equities tips sharply in favor of: enjoining the
enforcement of the discriminatory provision Section 134-2(d) and/or the
discriminatory practices of Defendants; compelling Defendants to allow Mr.
Fotoudis to apply; and compelling issuance of the permit to Mr. Fotoudis absent
some good faith finding that he is either unfit or unqualified.
D. The injunction serves the publics interests.
The injunction sought is in the public interest. Winter, 129 S.Ct. at 374.
Generally, public interest concerns are implicated when a constitutional right has
been violated, because all citizens have a stake in upholding the Constitution.
Freminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005). [I]t is always in the
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public interest to prevent the violation of a partys constitutional rights.
Sammartano, 303 F.3d at 974 (citation omitted). The Say injunction was found to
be in the public interest because Plaintiff is asserting a violation of the Equal
Protection Clause. Say, 2008 wl 718163, *4.
No public interest exists in denying firearm licenses to or prohibition firearm
possession by lawful permanent resident aliens. No such discrimination exists in
the federal Gun Control Act, which prohibits firearm possession only to aliens who
are: 1) illegally or unlawfully in the United States;: or 2) admitted to the United
States under a nonimmigrant visa. 18 U.S.C. 922(g)(5). The latter prohibition
is lifted if the alien is here for lawful hunting or sporting purposes or is in
possession of a hunting license. 18 U.S.C. 922(y)(2)(A).
There is no public interest in prohibiting fit and qualified, lawfully admitted
permanent resident aliens from exercising the core of the rights guaranteed by the
Second Amendment, i.e., to possess a firearm(s) in their home for the purpose of
self-defense.
IV. CONCLUSION
Mr. Fotoudis has strong, if not inevitable, likelihood of prevailing on the
merits of his facial and as applied challenges to Section 134-2(d) of the Hawaii
Revised Statutes. Mr. Fotoudis will suffer irreparable harm in the absence of the
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relief requested. The balance of equities tips in his favor and the requested
injunction is in the public interest. The motion(s) should be granted.
DATED: Honolulu, Hawaii; July 24, 2014.
s/Richard L. Holcomb____
Richard L. Holcomb
Attorney for Plaintiff
Steve Fotoudis
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IN THE UNITED ST TES DISTRICT COU RTFOR THE DISTR ICT OF H W II
Steven Fotoudis,Plaintiff
vs.City and County of Honolulu;Lois Kealoha, in his individual capacity;and, David Louie, Attorney General ofHawii in his individual and officialcapacity; John Does 1-50 in theirindividual or official capacities.
Defendants. jDECL R TION OF STEVEN FOTOU DIS
1. M y nam e is Steven Fotoud is. I am the Plaintiff in the above-styledcase.
2. 1 am from Australia. I am an Au stralian citizen. How ever, haveimmigrated to the United States.
3 . I am in the process of bec om ing a citizen here. I have taken allnecessary steps to beco me a citizen of the United States. The only requirem ent
that I have n ot met in beco min g a fully naturalized citizen is that have not lived inthe United States continuously for five years.
4. In approxim ately Septem ber of 20011 , 1 disclosed to the Am ericanEmbassy in Sidney an Australian police clearance, a criminal history, fingerprintsand photo identification to assist the United States authorities in conducting the
CASE NO. L14-CV-00333
DECL R TION OF STEVENFOTOUDIS
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background investigation that was necessary for me to become a permanentresident. In Ma y 20 12 ,1 was granted perm anent residency in the United States. Isuccessfully underwent a thorough background investigation before I was grantedperm anent residency in the United States. Currently, I am lawfully admitted to theUnited States as a perm anen t resident alien. I have a green card, a true and exactcopy of my green card is attached as Exhibit One I have a United States socialsecurity card, a true and exact copy of my social security card is attached asExhibit Two
5. M y wife and have lived in Hon olulu, Haw aii since May 5, 201 3. Iam the Hawaii state sales ma nage r for Wash Multi-family L aundry S ystems. I payall applicable local, state and United States taxes. I have no plans of leavingHawaii or the United States.
6. In Australia, I wa s a com petitive shooter. I have participated in anumber of competitive shooting contests, including globally recognized ISSF(International Shooting Sport Federation) contests and IPSC (InternationalPractical Shooting Confed eration) contests. I was an active me mb er of acompetitive shooting club, Torrens Valley Pistol Club ( TVPC ) in Australia from2002 to 201 3. I served as club captain, range officer, instructor and com mitteemember during my membership with TVPC.
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7. I hav e had exten sive trainin g in firearms safety and use. I hav ecompleted a recognized Australian range officer's course where I learned safe way
to emp ty guns and clear a range as well as scoring . I passed the A ustraliangovernment's test that permitted me to become licensed for the ownership of longarms. I also com pleted a six we ek trainin g course w here I learned the safehandling , legalities, range rules, and basic shooting skills. That training allowedme to obtain a license to own firearms in Autstralia.
8. I hold an Au stralian firearms license. A true and exact copy of myAustralian firearms license is attached as Exhibit Three
9. In order to obtain the Au stralian firearms license, I had to un derg o anextensive investigation into my backgrou nd. I also had to dem onstrate my fitnessand qualifications.
10. On February 8, 201 2, Sergeant D. Gibson with the South AustralianPolice wrote a letter on mybehalf A true an exact copy of the letter is attached asExhibit Four The letter correctly states that I am a fit and pro per perso n tohold a firearms license. An d, it identifies several firearms licen ses hold or haveheld in Australia.
11. I have never been convicted of a crime.12. I am not a fugitive.
13 . I hav e no m ental illnesses or defects.
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14. I do not and never had any restraining order issued against me .15 . have never committed domestic or any other act of violence.16 . I am not and have never been addicted to mind -altering substances
and I do not use illegal mind -altering substance s.17 . I am not addicted to nor do use alcohol in excess.18 . I belie ve that I am fit and qualified to poss ess a firearm purs uan t to the
laws of the United States and of Hawaii (with the exception of the discriminatoryprovisions that exclude resident aliens from acquiring firearms in Hawaii).
19. The only reason that has ever been provided to me as to wh y I couldnot lawfully possess firearms in Hawaii is that am disqualified from obtaining apermit pursuant to Section 134-2 of the Hawaii Revised Statutes because I am notyet a fully naturalized citizen.
20. On Dec emb er 6, 20 11 , I received an e-mail from Sergeant D. Paperdof the Honolu lu Police De pa rtm ent s Firearms U nit. The e-mail states, in relevantpart:
You may bring firearms into the State, you must register them within72 hours of your arrival. Ho we ver [sic] Haw aii State law requires youto be a U.S. citizen with a U.S. passport or Naturalization certificate.A true and exact copy of the e-mail is attached as Exhibit Five
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2 1 . On February 2 1 , 2 01 2, I wrote Defendant Lois Kealoha a letterinquiring as to how I could possess my firearms in Haw aii. A true and exact cop yof my letter to Defendant Kealoha is attached as Exhibit Six I received noresponse to this inquiry.
2 2 . At the H PD 's main station on Be retania (and Alapai) Street, there is awindow where the public may obtain forms from HPD representatives and applyfor firearms perm its. During designated ho urs, the window is open to the public.
2 3 . It is my und erstandin g United States citizens are routinely permittedto obtain and/or submit applications at the window at HPD's main station. While Iwa s at the HPD station, I saw others applying and/or subm itting applications. It isalso my understanding that if the citizen applicant is found to be fit and qualifiedpursuant to Hawaii law, the citizen applicant is issued a permit as contemplated bySection 134-2 of the Hawaii Revised Statutes.
2 4. On July 10, 2 01 4 at approx imately 1:00 p.m ., I went to the win dow atthe Ho nolulu Police Dep artmen t. I informed the HP D representative that I wishe dto apply for a permit to acquire a firearm.
2 5 . W hen I informed the HP D representative (who I believe to be OfficerPrado ) that I wished to apply for a permit to acquire, Officer Prado requested
identification from me.
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26. I supplied Officer Pra do with my green card, my social security card,and my Australian passport.
27 . Officer Pra do and/or anothe r officer standin g at the adjacent wind owtold me that I could not apply for the permit because I am not a citizen of theUnited States.
28 . Ne ither officer inqu ired as to wh ether I had a hun ting license or w astraining for a sport-shooting contest.
29. was not permitted to apply for the permit to acquire a firearm30. Withou t the permit, it is my understanding that I am unable to acquire
or poss ess a firearm in Ha wa ii for self-defense or any other lawful purp ose. Infact, it is my understanding that to do so would be a crime.
31 . I hav e safely and lawfully po ssess ed a num ber of firearms in Au straliafor years.
32. wish to possess operational firearms and ammunition in my Hawaiihom e for the pu rpo se of self-defense. I also wish to pos sess firearms that I mayuse to train for and participate in sport-shooting competitions.
33. I currently ow n seven rifles and two handg uns.34. Before I m ove d to Ha wa ii, I sold the vast majority of my firearms and
only retained those that I find irrep lacea ble beca use of the sentim ental value Iattach to those firearms.
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47 . Bec ause I cannot apply for a permit under Haw aii law , I hav e to keepthose firearms in Au stralia. Th ose firearms are no w stored in a safe at my fath er'shouse.
48 . M y father wants the safe remo ved from his house as soon as possible.49. M y Australian firearms perm it expires on Dec emb er 31 , 2014 , at
which time my firearms must be removed from my father's house.50. Up on the expiration of the Australian permit, can no longer own the
firearms in Au stralia. I will be forced to either sell the firearms or, alternative ly,pay Australian officials an exorbitant storage fee to keep the firearms on mybeh lf Based on my experience as a Australian club captain, had to deal withAustralian gun stores to mak e purcha ses for new mem bers. Based on thisexperience, know the storage fees to be approximately $100 AUD per month orapproximately $107 USD.
51. I cann ot afford to pay the storag e fee for each of my rem ain ingfirearms and will likely be forced to sell som e if not all of my irrep lac eab lefirearms.
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I Steven Fotou dis do decla re und er penalty of law that the fore-going is true
and correct to the best of my know ledge.DA TED : Honolulu Hawaii July 24 20 14.
~l^ =Steven Fotoudis
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Steve Fotoudis,
Plaintiff,vs.
City and County of Honolulu;
Lois Kealoha, in his individual capacity;
David Louie, Attorney General ofHawaii in his individual and official
capacity;and, John Does 1-50 in their individualor official capacities.
Defendants.
)))))))))))
))))))))
CASE NO. 1:14-cv-00333
DECLARATION OF RICHARD L.
HOLCOMB
DECLARATION OF RICHARD L. HOLCOMB
1. My name is Richard L. Holcomb. I am an attorney duly licensed to
practice law in the State of Hawaii and admitted to practice before this Court.
2. I represent the Plaintiff, Steven Fotoudis in the above-styled case.
3. I drafted the foregoing documents and, to the best of knowledge,
believe the factual averments therein to be true.
4. Attached hereto as Exhibits Seven through Twelve are Orders and
Judgments from various other United States District Courts. I obtained each of
those Exhibits from pacer.gov. The Exhibits are true and exact copies of the
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2
documents each purports to be as the documents appear in the record of the
respective case on Pacer.gov.
I, Richard L. Holcomb, do declare under penalty of law that the fore-going is
true and correct to the best of my knowledge.
DATED: Honolulu, Hawaii, July 24, 2014.
s/Richard L. Holcomb____
Richard L. HolcombAttorney for Plaintiff
Steve Fotoudis
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SurnameFOTOUDtSGiven NameS T E V EU S C t t _ CategoryDVCourSr of Btflhustra l ia
CRofKnh Sex
Card Expiree: 5 22 22ResidentSince: 9S 0W12
n ^ 0 6 2 0 3 0 4 4 5 4 S R C ^ < < < < < < < < < f ^ i < < < < i sp t IE I )KS n f emassm e m p t y i ; ' i S t f e j c r r m s e ) o f s t o o d m a Soci*d3 3m f nKig5 Gfig i r o nCLASS C B * KRJttAtJflS:Sen*}r a e ds fc i a s t f s af e s e o j # ; m r f * ^ b u ^ n g myAwhit sk s p t f w f c s s s a fe t r e s s w t e r ts*np*yis1 5 & g o rrave? o r s to red ne o t t e dsmi miz3r c c m .Acsfecwtcrs a f e m y s t t e madeo f ms te f ta i er J U S Q CMt t a t a e s s t o p ta re r r t i t t a n g i s a i y b r o k e n opens*}t r d e s t r s y i s i a r ui n a s i bfffrdu18ifeSnysn r l k i cks f t s t p ro ven rt f ro tnb e im je & % f o r ce d o p e a
CLUB USE. 2. TARGET S OOT a 3. HUMTINQ. 4 PUNT BALLS. PRM AR Y PROOUCTIOM. 8. SECURI TY INDU STRY7. OTHER AS PROVIDED BY REGISTRAR.
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urRefOur efnquiriesTelephoneFacsimile
MM7322 33467322 4182
Firearms Branch8 February 2012
Steven Fotoudis69 East StreetTORRENSVILLE SA5031
To whom itmay concernPlease accept this letter on behalf of the Deputy Registrar to advise that at the dateofwrit ing the following personis a fit and proper persontoholdaSouth Austra l ia FirearmsLicence.
Steven Fotoudis DateofBirth4W1963 of Torrensvil leSteven has heldhisSouth Aus tralia Firea rms Licence since 1996forc lassesAandBfor the purposes ofclub use target shooting andhunt ing. In2003 hewas grantedaclass H l icence for the purpose ofclub us e. His current exp iry dateis31/12/2012.
Yours faithfully
D G i b s o nA / S e r g e a n t 2258 8F i r ea r m s B r a n c h
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StevenFo toud isFrom:Sent :To :Sub jec t :
Paperd Daniel J. [dpaperd@ honolulu.gov]Tuesday 6 December2 1110:18 [email protected]
You may bring firearm s into the State you must register them within 72 hours of your arrival. However Hawa ii Statelaw requires you to be a U.S. citizen with a U.S. passp ort or Naturalization certificate.
If you have any additional questions please feel free to contact the Honolulu Police Department/Firearms Unit directlyat 808-529-3811.
Sgt. D. PaperdHonolulu Police Department/Firearms Unit
m i i f oe
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Steve Fotoudis69 East StreetTORRENSVILLE SA 5031AUSTRALIATelephone: +61407 161 764Email: ,._ a i < > . j
21 February 2012
Mr Louis M KealohaChief of PoliceHonolulu Police Department801 South Beretania StreetHonolulu,HI 96813
Dear Mr KealohaI would like to take this opportunity to introduce ourselves to you as we will soon beperma nent residents of Oahu migrating from AustraliaOur plan when we arrive in Oahu is to buy a home and start to set up businesses. Icurrently have a business in Australia that provides building maintenance services to newhome developers and would be keen to set up a business in a similar field such as supplyingma intenance se rvices to hotels. My wife has significant experience in risk, project andchange management and currently works for South Australia's capital city local government.She is keen to investigate opportunities in setting up a consultancy to provide these servicesin Oahu.In Australia I have been a keen hunter for approximately 30 years and an active memberand competitor of a firearms club where I have been training new member's safe shootingand handling of all firearms . I've been a comm ittee me mbe r for 9 years, club captain andsignificant v olunteering for the benefit of the club and its me mbe rs.My research into H awaii's gun laws has reve aled that until I become a Un ited States citizen Iam unable to own firearms in the state of Hawaii. I am seeking your assistance to hopefullyfind a way that I may be able to bring my firearms collection to Hawaii and continue to hunton a regular monthly basis, participate in my sporting pursuits and compete in local eventssuch as I.P.S.C. and standard club pistol matches . I realize that In accordance withHawa iian law I will be unable to purcha se a nd hold firearms until I become a US citizen, but Iwas hoping that you may be able to guide me to an alternative solution, such as placing thefirearms in storage an d only using them under a local clubs supervision. My collection inAustralia is worth approxim ately 70,000 and while I am currently selling many of thesethere are a few pieces tha t are irreplaceable and I would love to retain.Under the us citizenship requirem ents I am unable to apply for citizenship for five years(although i personally would love to become a US citizen as quickly as possible) and hereinlies my d ilemm a, as I am also u na ble to Leave my collection in Australia for five years.
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Any assistance or guidance that you may be able to provide me with would be greatlyappreciated.To confirm m y involvement in a pistol club and provide information on my Au stralian Gunlicence, I have references from both Torrens Valley Pistol Club and SAPOL SouthAus tralian Police). Direct contact details have been provided should you wish to confirmthese references or require more information.I am hoping to find a way of bringing my collection of firearms to Hawaii so that I can still bean active competitor and member of one of your states club
Yours faithfully
Steve Fotoudis
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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEBRASKA
SECOND AMENDMENTFOUNDATION, INC., NEBRASKA
FIREARMS OWNERS ASSOCIATION,and ARMANDO PLIEGO GONZALEZ,
Plaintiffs,
v.
JIM SUTTLE, individually and in hisofficial capacity as Mayor of Omaha,Nebraska, CITY OF OMAHA,Nebraska, a municipal corporation, and
ALEX HAYES, individually and in hisofficial capacity as Chief of Police ofOmaha, Nebraska,
Defendants.
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8:11CV335
INJUNCTION
This matter is before the court on the plaintiffs motion for a preliminary injunction,
Filing No. 21. The parties have entered into a Stipulation agreeing to the terms of the
preliminary injunction. Filing No. 26.
In the stipulation, the parties agree that individuals have a fundamental right under
the Second Amendment to keep firearms, including handguns, in their homes for lawful
purposes, most notably for self-defense, the right is enforceable against state and local
governments, legal aliens residing in Omaha enjoy fundamental constitutional rights, and
legal aliens also enjoy the right of equal protection of the laws under the Fourteenth
Amendment of the Constitution. Id. the parties agree to the entry of an order enjoining the
enforcement of Omaha Municipal Code 20-253(9), which denies non-citizens the right
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2
to register a concealable firearm with the Omaha Chief of Police, thus denying them the
ability to possess a concealable firearm in their homes. Id.
The stipulation establishes that the plaintiffs are entitled to preliminary injunctive
relief. See Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109,114 (8th Cir. 1981)(en
banc). Pursuant to the stipulation, the court further finds that no security is required as the
defendants will not suffer financial harm by issuance of this order. This injunction shall
remain in place pending the conclusion of this litigation.
IT IS ORDERED:
1. Defendants Jim Suttle, individually and in his official capacity as Mayor of
Omaha, Nebraska; the City of Omaha, Nebraska, a municipal corporation; Alex Hayes,
individually and in his official capacity as Chief of Police of Omaha, Nebraska; their
officers, agents, servants, employees, and all persons in active concert or participation with
them who receive actual notice of the injunction are preliminarily enjoined from enforcing
Omaha Municipal Code 20-253(9), pending resolution of this action.
2. Defendants Jim Suttle, individually and in his official capacity as Mayor of
Omaha, Nebraska; the City of Omaha, Nebraska, a municipal corporation; Alex Hayes,
individually and in his official capacity as Chief of Police of Omaha, Nebraska; their
officers, agents, servants, employees, and all persons in active concert or participation with
them who receive actual notice of the injunction shall allow plaintiffs and other legal aliens
residing in Omaha to register concealable firearms for possession in their homes,
provided they are otherwise-qualified to possess a firearm.
3. The hearing scheduled for November 22, 2011 at 2:00 p.m. is canceled.
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http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109http://www.westlaw.com/find/default.wl?rs=CLWP3.0&vr=2.0&cite=640+F.2d+109 -
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*This opinion may contain hyperlinks to other documen ts or Web sites. The U.S. District Court forthe District of Nebraska does not endorse, recom mend, approve, or guarantee any third parties or the services
or products they provide on their Web sites. Likewise, the court has no agreem ents with any of these third
parties or their Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect
the opinion of the court.
3
4. This matter is referred to the United States Magistrate Judge for expedited
progression.
DATED this 21st day of November, 2011.
BY THE COURT:
s/Joseph F. Bataillon IUNITED STATES DISTRICT JUDGE
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CARLOS NINO DE RIVERALAJOUS, et al,
Plaintiffs,
v.
DAVID SANKEY, in his official capacityas Superintendent of the NebraskaState Patrol,
Defendant.
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Case No. 4:13-CV-3070
ORDER AND
FINAL JUDGMENT
This matter is before the Court upon the parties Joint Stipulation to Entry of FinalJudgment and Permanent Injunction (Filing No. 26). The parties stipulated to an Order ofthe Court enjoining Defendant from enforcing Neb. Rev. Stat. 69-2433(10) as applied tothe application of lawful permanent residents to obtain a permit to carry a concealedhandgun, provided they are otherwise-qualified.(Filing No. 26).
The Court concludes that the Stipulation should be approved, and judgment shouldbe entered in favor of Plaintiffs. Accordingly,
IT IS ORDERED:
1. For the reasons set forth in the Courts Order on Motion to Dismiss of August 30,2013 (Filing No. 22),
a. Count I of Plaintiffs Complaint is dismissed with prejudice.b. Plaintiffs claims against the Nebraska Attorney General are dismissed with
prejudice.c. Count III of Plaintiffs Complaint is voluntarily dismissed pursuant to
F.R.Civ.P. 41(a)(1)(A)(ii).
2. Pursuant to Plaintiffs as-applied Fourteenth Amendment Equal Protection claim inCount II, Defendant is permanently enjoined from taking any action to enforce Neb.Rev. Stat. 69-2433(10) as applied to the application of lawful permanent residentsto obtain a permit to carry a concealed handgun, provided they are otherwise-qualified. Upon entry of the final order and permanent injunction, Defendant shallallow Plaintiffs and other lawful permanent residents residing in Nebraska to applyfor, and obtain, a permit to carry a concealed handgun, provided they are otherwise-qualified to obtain such a permit pursuant to the Nebraska Concealed HandgunPermit Act.
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2
3. Plaintiffs shall file an application for attorneys fees and expenses on or beforeNovember 5, 2013.
Dated this 15thday of October, 2013.
BY THE COURT:
s/ Richard G. KopfSenior United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOHN W. JACKSON and SECOND
AMENDMENT FOUNDATION,INC.,
Plaintiffs,
vs. No. 2:12-CV-00421-MCA-RHS
GARY KING, in his Official Capacity
as Attorney General of the State of New
Mexico, and BILL HUBBARD, in his
Official Capacity as Director of theSpecial Investigations Division of the
New Mexico Department of Public
Safety,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiffs Motion for Preliminary
Injunction. [Doc. 18] The Court conducted oral argument on Plaintiffs motion on
December 18, 2012. [Doc. 27] Having considered the submissions, the relevant case law,
and otherwise being fully advised in the premises, the Court grants Plaintiffs motion.
I. BACKGROUND
On April 24, 2012, Plaintiffs John W. Jackson and the Second Amendment
Foundation, Inc. (SAF), filed their Complaint [Doc. 1] pursuant to 42 U.S.C. 1983 for
deprivation of civil rights under color of law, [seeking] equitable, declaratory, and
injunctive relief challenging the State of New Mexicos prohibition on otherwise
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qualified non-U.S. citizens who legally reside in New Mexico from obtaining a concealed
carry permit, pursuant to section NMSA 1978, 29-19-4(A)(1) of the New Mexico
Concealed Handgun Carry Act. [Doc. 1 at 1] Plaintiffs allege that the citizenship
requirement in Section 29-19-4(A)(1) violates the equal protection clause of the United
States Constitution, the right to keep and bear firearms in the Second Amendment to the
United States Constitution, and is preempted by federal immigration law. [Doc. 1 at 6-7]
On May 17, 2012, Defendants Gary King, Attorney General of the State of New
Mexico, and Bill Hubbard, Director of the Special Investigations Division of the New
Mexico Department of Public Safety, filed their Answer to Plaintiffs Complaint. [Doc.
10] In their Answer Defendants admitted that legal resident aliens are prohibited from
carrying concealed weapons and that only citizens may carry concealed weapons.
[Doc. 10 at 2]
On August 9, 2012, Plaintiffs filed Plaintiffs Motion for Preliminary Injunction.
[Doc. 18] In support of their motion, Plaintiffs submitted the Declaration of John W.
Jackson, who averred that he is a permanent legal resident of the United States residing in
Rio Rancho, Sandoval County, New Mexico, and that he is prohibited by NMSA 1978,
29-19-4A(1) from obtaining a concealed carry permit, and thus carrying a handgun in a
concealed manner for self-defense. [Doc. 19] Plaintiffs also submitted the Declaration
of Julianne Versnel, who is the Director of Operations of SAF. Ms. Versnel averred that
SAF has individual members and supporters who are adversely impacted by NMSA
1978, 29-19-14(A)(1) and that [b]ut for criminal enactments challenged in this
2
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complaint, SAF members who are legal aliens residing within New Mexico would obtain
concealed carry permits and carry concealed firearms for their own defense. [Doc. 19]
Plaintiffs contend that they are entitled to preliminary injunctive relief because [t]he
deprivations of constitutional rights subject Plaintiffs to irreparable harm, and is such a
clear-cut constitutionally-inflicted harm that Plaintiffs are likely to succeed on the merits
by the conclusion of this litigation. [Doc. 19 at 6] Plaintiffs further contend that the
balance of the equities and the public interest would be served by awarding them the
preliminary injunctive relief that they seek.
Defendants do not dispute that permanent resident aliens are entitled to Second
Amendment rights under the equal protection clause of the Fourteenth Amendment.
[Doc. 20 at 4] Defendants contend, however, that no Second Amendment rights are at
issue in this case because the concealed carry of a firearm is not a constitutional right.
[Id.] Defendants point out that Plaintiffs are free to carry firearms openly and to carry
concealed firearms in their own home, on their own property, and in their own vehicle.
Because there is no constitutional violation, Defendants argue that Plaintiffs motion for a
preliminary injunction should be denied.
On September 19, 2012, the Court held a telephonic status conference regarding
Plaintiffs motion. At the status conference, the parties agreed that an evidentiary hearing
was unnecessary, but requested oral argument. [Doc. 25] Oral argument on Plaintiffs
motion was held on Tuesday, December 18, 2012. [Doc. 27]
Following oral argument, Defendant King moved to dismiss Plaintiffs Complaint
3
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for failure to state a claim upon which relief can be granted and for lack of standing,
alleging that he is not responsible for the execution and administration of the Concealed
Handgun Carry Act, NMSA 1978, 29-19-1, et seq. and, therefore, Plaintiffs injuries are
not traceable to him, nor redressable by him. [Doc. 28] The Court agreed and granted
Defendant Kings motion to dismiss. [Doc. 41] Accordingly, Defendant King is no
longer a party to this case.
II. STANDARD
The decision to grant a preliminary injunction is within the Courts discretion. See
Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202, 1205 (10th Cir. 2003).
Because a preliminary injunction is an extraordinary remedy, the right to relief must be
clear and unequivocal. Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256
(10th Cir. 2003). To obtain a preliminary injunction, the moving party must
demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the movant
will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of
equities tips in the movants favor; and (4) that the injunction is in the public interest.
Attorney Gen. of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)
(internal quotation marks and citation omitted). Generally, where the moving party has
established that the [latter] three harm factors tip decidedly in its favor, the probability of
success requirement is somewhat relaxed and the movant need only show questions going
to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground
for litigation. Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1298 n.6 (10th Cir.
4
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2006) (internal quotation marks and citations omitted). However, this relaxed standard
does not apply to the three types of disfavored injunctions, which are:
(1) preliminary injunctions that alter the status quo; (2) mandatory
preliminary injunctions; and (3) preliminary injunctions that afford themovant all the relief that it could recover at the conclusion of a full trial on
the merits. When a preliminary injunction falls into one of these categories,
it must be more closely scrutinized to assure that the exigencies of the case
support the granting of a remedy that is extraordinary even in the normal
course. A district court may not grant a preliminary injunction unless the
moving party makes a strong showing both with regard to the likelihood of
success on the merits and with regard to the balance of harms.
Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012) (internal quotation marks and
citation omitted).
Plaintiffs contend that the relaxed standard is applicable to this case because the
latter three elements weigh heavily in its favor. [Doc. 19 at 10 (internal quotation marks
and citation omitted)]. However, in Nova Health Systems, the Tenth Circuit Court of
Appeals held that where . . . the plaintiff seeks to enjoin the enforcement of a statute, a
showing that the questions are fair ground for litigation is not enough; the plaintiff must
meet the traditional substantial likelihood of success standard. 460 F.3d at 1298 n.6;
see also Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)
([w]here ... a preliminary injunction seeks to stay governmental action taken in the
public interest pursuant to a statutory or regulatory scheme, the less rigorous
fair-ground-for-litigation standard should not be applied. (internal quotation marks and
citation omitted)). Accordingly, the Court concludes that the relaxed standard is
inapplicable to this case.
5
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Defendant Hubbard contends that Plaintiffs seek a disfavored injunction and,
therefore, the heightened standard must be applied. [Doc. 20 at 3] The status quo is
defined as
the last uncontested status between the parties which preceded the
controversy until the outcome of the final hearing. In determining the status
quo for preliminary injunctions, [the Tenth Circuit] looks to the reality of
the existing status and relationship between the parties and not solely to the
parties legal rights.
Schrier v. Univ. Of Colorado, 427 F.3d 1253, 1260 (10th Cir. 2005) (internal quotation
marks and citations omitted). In Nova Health Systems, the Court expressed no opinion as
to whether a preliminary injunction seeking to enjoin the enforcement of a statute would
alter the status quo and, therefore, be a disfavored injunction subject to the heightened
standard of review. 460 F.3d at 1298 n.5.
The District of Kansas addressed this issue, however, in American Civil Liberties
Union of Kansas and Western Missouri v. Praeger, 815 F.Supp.2d 1204 (D. Kan. 2011).
In that case, the plaintiff sought declaratory and injunctive relief to halt the enforcement
of a Kansas statute which took effect on July 1, 2011. Id. at 1207. The Court held that,
because the statute was newly enacted, the last uncontested status between the parties
before the dispute arose would be that which existed prior to the challenged statute taking
effect. Id. at 1208. In arriving at this conclusion, the Court relied on the concurrence in
O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th
Cir. 2004), which noted that [w]hen a statute is newly enacted, and its enforcement will
restrict rights citizens previously had exercised and enjoyed, it is not uncommon for
6
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district courts to enjoin enforcement pending a determination of the merits of the
constitutional issue. Conversely, [w]hen a statute has long been on the books and
enforced, . . . it is exceedingly unusual for a litigant who challenges its constitutionality to
obtain (or even to seek) a preliminary injunction against its continued enforcement. Id.
Because the statute at issue in Praeger was newly enacted, the Court concluded that the
heightened standard for injunctions that alter the status quo [did] not apply to plaintiffs
request for a preliminary injunction. Praeger, 815 F.Supp.2d at 1209.
The citizenship requirement in New Mexicos Concealed Handgun Carry Act is
not newly enactedit has been a part of the statutory scheme since its enactment in 2003.
See 2003 New Mexico Laws Ch. 255 (S.B. 23). Because the citizenship requirement has
long been on the books and enforced, O Centro Espirita Beneficiente Uniao Do Vegetal,
389 F.3d at 977, the Court concludes that the requested relief seeks to alter the status quo.
Cf. American Ass'n of People With Disabilities v. Herrera, 580 F.Supp.2d 1195, 1247 (D.
N.M. 2008) (denying the plaintiffs request for a preliminary injunction enjoining the
enforcement of New Mexicos voter-registration laws in relevant part because it would
upset the status quo that has existed for three years). Accordingly, the heightened
standard of review applicable to disfavored injunctions applies to Plaintiffs motion for a
preliminary injunction.
III. DISCUSSION
It is undisputed that Plaintiffs may openly carry a loaded firearm in accordance
with Article II, Section 6 of the New Mexico Constitution. See N.M. Const. art. II, 6
7
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(No law shall abridge the right of the citizen to keep and bear arms for security and
defense, for lawful hunting and recreational use and for other lawful purposes, but
nothing herein shall be held to permit the carrying of concealed weapons. No
municipality or county shall regulate, in any way, an incident of the right to keep and bear
arms.). However, New Mexicos Concealed Handgun Carry Act does not permit non-
United States citizens to carry a loaded concealed firearm. Specifically, Section 29-19-4
provides, in relevant part, as follows:
A. The department shall issue a concealed handgun license to an
applicant who:(1) is a citizen of the United States;
(2) is a resident of New Mexico or is a member of the armed
forces whose permanent duty station is located in New Mexico or is a
dependent of such a member;
(3) is twenty-one years of age or older;
(4) is not a fugitive from justice;
(5) has not been convicted of a felony in New Mexico or in any
other state or pursuant to the laws of the United States or any other
jurisdiction;
(6) is not currently under indictment for a felony criminal offensein New Mexico or any other state or pursuant to the laws of the United
States or any other jurisdiction;
(7) is not otherwise prohibited by federal law or the law of any
other jurisdiction from purchasing or possessing firearms;
(8) has not been adjudicated mentally incompetent or committed
to a mental institution;
(9) is not addicted to alcohol or controlled substances; and
(10) has satisfactorily completed a firearms training course
approved by the department for the category and the largest caliber of
handgun that the applicant wants to be licensed to carry as a concealedhandgun.
Although noncitizens cannot obtain a concealed handgun license, they may nonetheless
carry a concealed loaded firearm in the following limited circumstances:
8
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(1) in the personss residence or on real property belonging to him as
owner, lessee, or licensee;
(2) in a private automobile or other private means of conveyance, for
lawful protection of the persons or anothers person or property.
NMSA 1978, 30-7-2. In any other circumstance, carrying a loaded concealed firearm
without a valid concealed handgun license issued . . . by the department of public safety
pursuant to the provisions of the Concealed Handgun Carry Act is a petty
misdemeanor. Id.
A. Second Amendment
Plaintiffs contend that the citizenship requirement in New Mexicos Concealed
Handgun Carry Act violates their fundamental right to keep and bear arms under the
Second Amendment to the United States Constitution. Defendant Hubbard responds that
there is no fundamental right to carry a concealed firearm under the Second Amendment.
The Second Amendment provides as follows: 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. This provision is fully applicable to the States. McDonald v.
City of Chicago, 130 S. Ct. 3020, 3026 (2010) (citations omitted).
In District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States
Supreme Court held that the Second Amendment guarantees the individual right to
possess and carry weapons in case of confrontation. However, the Court cautioned that
the right [is] not a right to keep and carry any weapon whatsoever, in any manner
whatsoever and for whatever purpose. Id. at 626. For example, the majority of 19th-
9
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century courts to consider the question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or state analogues. Id. Although
the Court did not undertake an exhaustive historical analysis . . . of the full scope of the
Second Amendment, the Court stated that nothing in its opinion should be taken to cast
doubt on longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or law imposing conditions and qualifications on the
commercial sale of arms. Id. at 626-27.
After examining the history and text of the Second Amendment, the Heller Court
held that the D