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Soveriegn Immunity Brief

Soveriegn Immunity Brief

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Published by Alan Beck
Arguing the ratificatinon of the 14th amendment abrogated the soveriegn immunity of the states as to the bill of rights.
Arguing the ratificatinon of the 14th amendment abrogated the soveriegn immunity of the states as to the bill of rights.

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Published by: Alan Beck on Feb 21, 2013
Copyright:Attribution Non-commercial


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RICHARD L HOLCOMB (HI Bar No. 9177)Holcomb Law, A Limited Liability Law Corporation1136 Union Mall, Suite 808Honolulu, HI 96813 Telephone: (808) 545-4040Facsimile: (808) 356-1954Email: rholcomblaw@live.comALAN BECK (HI Bar No. 9145)Attorney at Law4780 Governor DriveSan Diego, California 92122 Telephone: (619) 971-0414Email: ngord2000@yahoo.comKEVIN O’GRADY (HI Bar No. 8817) The Law Office of Kevin O’Grady, LLC1136 Union Mall, Suite #808Honolulu, HI 96813 Telephone: (808) 521-3367Facsimile: (808) 521-3369Email: Kevin@CriminalAndMilitaryDefenseHawaii.ComAttorneys for Plaintiff Christopher Baker
CHRISTOPHER BAKER,Plaintiff,vs.LOUIS KEALOHA, as an individual andin his official capacity as Honolulu Chief of Police;STATE OF HAWAII;CITY AND COUNTY OF HONOLULU;HONOLULU POLICE DEPARTMENT;NEIL ABERCROMBIE, in his officialcapacity as Hawaii Governor,Defendants. _________________________ )))))))))))))))))CASE NO. CV11-00528 ACK-KSCPLAINTIFF CHRISTOPHERBAKER’S RESPONSE TODEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS
Case 1:11-cv-00528-ACK -KSC Document 39 Filed 02/16/12 Page 1 of 15 PageID #:364
I. IntroductionDefendants State of Hawaii and Governor Neil Abercrombie are not entitledto judgments on the pleadings. The crux of their argument is that sovereignimmunity bars Plaintiff Christopher Baker’s actions against them. And, while Mr.Baker concedes that he is not entitled to
against these defendants, Mr.Baker is entitled to
relief – relief that he has unambiguously requested.Specifically, the State of Hawaii’s assertion of sovereign immunity ismisplaced. Congress, through adoption of the Fourteenth Amendment, hasabrogated sovereign immunity in actions asserting violations of the fundamentalconstitutional rights guaranteed by the first eight amendments of the United StatesConstitution. Accordingly, as this action arises from the State of Hawaiisprohibition of the right to keep and bear arms, the State may not erect sovereignimmunity to bar Mr. Baker’s claims.Further, Defendant Abercrombie also may not avoid accountability throughoperation of the Eleventh Amendment. First, case law clearly identifies GovernorAbercrombie as a “person” contemplated by Title 42, Section 1983 of the UnitedStates Code. Second, Governor Abercrombie argues that he in no way participatedin or had knowledge of any of the acts that led to this lawsuit. In other words,Governor Abercrombie urges this Court to ignore the authority vested upon his
Case 1:11-cv-00528-ACK -KSC Document 39 Filed 02/16/12 Page 2 of 15 PageID #:365
office pursuant to the Hawaii Constitution and, in addition, the ancillaryresponsibilities necessitated by such authority. This Court should not be seducedinto disregarding the obvious role of the Governor in this action or any similarfuture actions. Such actions are, unfortunately, inevitable should this Court declineto compel fundamental change in the current statutory scheme prohibiting thekeeping and bearing of arms in Hawaii.II. ARGUMENTA. In ratifying the Fourteenth Amendment, Congress abrogated sovereignimmunity in actions involving state violations of fundamental constitutional rights The Defendant correctly notes, Congress has the power to abrogate thesovereign immunity of the states pursuant to Section 5 of the FourteenthAmendment to the United States”. See Defendants’ Motion for Judgment on thePleadings at 4. In fact, Congress has effectively done so with ratification of theFourteenth Amendment. The first clause of the Fourteenth Amendment states:All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the Statewherein they reside. No State shall make or enforce any law whichshall abridge the privileges or immunities of citizens of the UnitedStates; nor shall any State deprive any person of life, liberty, orproperty, without due process of law; nor deny to any person withinits jurisdiction the equal protection of the laws.
Case 1:11-cv-00528-ACK -KSC Document 39 Filed 02/16/12 Page 3 of 15 PageID #:366

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