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Fisher MSJ Decesion

Fisher MSJ Decesion

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Published by Alan Beck
Well looks like this thing is going to full trial
Well looks like this thing is going to full trial

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Published by: Alan Beck on Oct 02, 2013
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01/17/2014

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF HAWAIIKIRK C. FISHER,Plaintiff,vs.LOUIS KEALOHA, as an individualand in his official capacity asHonolulu Chief of Police, PAULPUTZULU, as an individual and inhis official capacity as formeracting Honolulu Chief of Police,and CITY AND COUNTY OF HONOLULU,Defendants.)))))))))))))))))Civ. No. 11-00589 ACK-BMK
 
ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT AND (2) DENYING PLAINTIFF’S MOTION FOR PERMANENT INJUNCTION
On September 28, 2011, Plaintiff Kirk C. Fisher(“Plaintiff”) filed his Complaint against Defendants LouisKealoha, Paul Putzulu, the City and County of Honolulu (“City”),the Honolulu Police Department (“HPD”), and Doe Defendants 1-50.Plaintiff asserted two claims against Defendants for allegedviolations of his Second, Fifth, and Fourteenth Amendment rightsregarding his firearms and attempts to obtain a firearms permit.Compl. ¶¶ 47-57, ECF No. 1. The City and Kealoha filed motions for partialdismissal of Plaintiffs Complaint. ECF Nos. 6 & 16-1. After
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The record indicates that Defendant Putzulu has not beenserved with the Amended Complaint or appeared in this action.See ECF No. 31-2 and ECF Nos. 31-108. At the hearing onSeptember 17, 2013, Plaintiffs counsel voluntarily dismissedDefendant Putzulu fromthis lawsuit.
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The Complaint also references the Fifth Amendment in its Jurisdiction statement. Am. Compl. at 5 11, ECF No. 31. TheCourt previously dismissed Plaintiffs Fifth Amendment claimswith prejudice in its Order re Defendants’ Motions to Dismiss.ECF No. 25 at 40 (dismissing Fifth Amendment claims on the basisthat the Due Process Clause of the Fifth Amendment only applies(continued...)-2-receiving the briefs and conducting a hearing, this Court issuedan order that (1) dismissed the claims against the City withoutprejudice, (2) dismissed part of Plaintiffs claims againstKealoha without prejudice, (3) dismissed all claims against theHPD with prejudice, and (4) dismissed Plaintiffs Fifth Amendmentclaims with prejudice (“Order re Defendants’ Motions toDismiss”). ECF No. 25.Plaintiff subsequently filed an Amended Complaintagainst Louis Kealoha as an individual and in his officialcapacity, Paul Putzulu as an individual and in his officialcapacity, and the City (collectively, “Defendants”).
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ECF No.31. The Amended Complaint contains the following two counts:Count I - The Second and Fourteenth Amendments to the UnitedStates Constitution and 42 U.S.C. § 1983 Against All Defendants,and “Count II - The Fourteenth Amendments [sic] to the UnitedStates Constitution and 42 U.S.C. § 1983 Against AllDefendants.
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Id.
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(...continued)to the actions of the federal government, not state or localgovernments). At the hearing held on August 12, 2013,Plaintiffs counsel clarified that Plaintiff is not alleging aFifth Amendment claimin the Amended Complaint; the reference tothe Fifth Amendment in the Jurisdiction statement was atypographical error.-3-On March 19, 2012, Plaintiff filed a Motion forPreliminary Injunction. ECF No. 18. After receiving the briefsand holding a hearing, the Court issued its “Order GrantingPlaintiff Kirk C. Fishers Motion for a Preliminary Injunctionon June 29, 2012 (“2012 Preliminary Injunction Order”). ECF No.35. The Court issued an injunction to Defendant Kealoha to“rescind the prior denial of Plaintiffs permit to acquirefirearms and to issue a permit authorizing Plaintiff to acquirefirearms.Id. at 36. Kealoha and the City (collectively, “CityDefendants”) filed a Motion for Reconsideration of the 2012Preliminary Injunction Order (ECF No. 39), which the Courtsubsequently denied in its “Order Denying Defendants’ Motion forReconsideration” (“Reconsideration Order re PlaintiffsPreliminary Injunction”). ECF No. 50.On February 25, 2013, Plaintiff filed a Motion forSummary Judgment (“MSJ”) and a Motion for Permanent Injunction(“MPI”). ECF Nos. 75 & 77. Plaintiff also filed a ConciseStatement of Facts in support of his MSJ. ECF No. 78. The CityDefendants filed their Memorandumin Opposition and ConciseStatement of Facts on July 22, 2013. ECF Nos. 89 & 90. Included
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