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Case 1:19-cv-00165-DKW-WRP Document 22 Filed 06/21/19 Page 1 of 3 PageID #: 73

Alan Alexander Beck


Law Office of Alan Beck
2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
Hawaii Bar No. 9145
Alan.alexander.beck@gmail.com

Stephen D. Stamboulieh
Stamboulieh Law, PLLC
P.O. Box 4008
Madison, MS 39130
(601) 852-3440
stephen@sdslaw.us
MS Bar No. 102784
*Admitted pro hac vice

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF HAWAII

ANDREW NAMIKI ROBERTS )


)
Plaintiff, )
) Civil No. 1:19-cv-165-DKW-WRP
v. )
)RESPONSE IN OPPOSITION
CLARE E. CONNORS, in her Official )TO DEFENDANTS’ MOTION TO
Capacity as the Attorney General of the )DISMISS OR FOR OTHER
State of Hawaii and AL CUMMINGS )APPROPRIATE RELIEF
in his Official Capacity as the State Sheriff )
Division Administrator )
)
) HEARING ON MOTION:
) September 13, 2019 9:30 AM
Defendants. )
) TRIAL: June 15, 2020
____________________________________)
Case 1:19-cv-00165-DKW-WRP Document 22 Filed 06/21/19 Page 2 of 3 PageID #: 74

Plaintiff’s Response in Opposition to Defendants’ Motion to Dismiss or for


Other Appropriate Relief

COMES NOW the Plaintiff, ANDREW NAMIKI ROBERTS, (“Plaintiff”),

by and through counsel, and for response to Defendants Motion to Dismiss or for

Other Appropriate Relief (“Motion”) and in reliance on the accompanying

Memorandum in Support of Plaintiff’s Opposition, states as follows:

Defendants’ Motion is not well-taken and should be denied. First, there is a

direct nexus between Defendant Cummings and the state law at issue. Secondly,

the Chief of Police of the City & County of Honolulu is not a required party, and

should thus not be required to be joined, because she has no discretion to violate

state law by allowing Plaintiff to apply for a license to carry a firearm.

Dated: June 21st, 2019.

Respectfully submitted,

Andrew Namiki Roberts

/s/ Alan Beck


Counsel for Plaintiff

Alan Alexander Beck


Law Office of Alan Beck
2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
Hawaii Bar No. 9145
Alan.alexander.beck@gmail.com

/s/ Stephen D. Stamboulieh


Stephen D. Stamboulieh
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Stamboulieh Law, PLLC


P.O. Box 4008
Madison, MS 39130
(601) 852-3440
stephen@sdslaw.us
MS Bar No. 102784
*Admitted Pro Hac Vice

3
Case 1:19-cv-00165-DKW-WRP Document 22-1 Filed 06/21/19 Page 1 of 12 PageID #:
76

Alan Alexander Beck


Law Office of Alan Beck
2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
Hawaii Bar No. 9145
Alan.alexander.beck@gmail.com

Stephen D. Stamboulieh
Stamboulieh Law, PLLC
P.O. Box 4008
Madison, MS 39130
(601) 852-3440
stephen@sdslaw.us
MS Bar No. 102784
*Admitted pro hac vice

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF HAWAII

ANDREW NAMIKI ROBERTS )


)
Plaintiff, )
) Civil No. 1:19-cv-165-DKW-WRP
v. )
)MEMORANDUM IN OPPOSITION
CLARE E. CONNORS, in her Official )TO DEFENDANTS’ MOTION TO
Capacity as the Attorney General of the )DISMISS OR FOR OTHER
State of Hawaii and AL CUMMINGS )APPROPRIATE RELIEF
in his Official Capacity as the State Sheriff )
Division Administrator )
)
) HEARING ON MOTION:
) September 13, 2019 9:30 AM
Defendants. )
) TRIAL: June 15, 2020
____________________________________)
Case 1:19-cv-00165-DKW-WRP Document 22-1 Filed 06/21/19 Page 2 of 12 PageID #:
77

Plaintiff’s Memorandum in Opposition to Defendants’ Motion to Dismiss or


for Other Appropriate Relief

COMES NOW the Plaintiff, ANDREW NAMIKI ROBERTS, (“Plaintiff”),

by and through counsel, and for response to Defendants Motion to Dismiss or for

Other Appropriate Relief, states as follows:

First it is important to note what Plaintiff seeks. He is simply asking for the

right to have the same opportunity to carry a firearm that a citizen has; i.e. the right

to apply for a carry permit. As discussed in greater detail below, Plaintiff is

prohibited from even applying for a carry permit due to Hawaii state law. And, as

it stands, Sherriff Cummings is enforcing this unconstitutional carry regime

because he is the person tasked with arresting Plaintiff if he carries a handgun

outside of his home without the proper license which Plaintiff is unable to even

apply for. Thus, there is a direct nexus between Defendant Cummings and the state

law at issue.

Similar statutory schemes have been found unconstitutional throughout the

country: See 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,


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Inc., et. al. v. Jim Suttle, et. al., No. 8:11CV335 (D. Neb. Nov. 21, 2011)

(stipulated preliminary injunction); 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); John

W. Jackson, et. al. v. Gorden E. Eden, No. 1:12-cv-00421 (D. N.M. March 31,

2014) (Preliminary Injunction Order and Judgment finding that prohibiting resident

aliens from obtaining conceal and carry permits violates the equal protection clause

and enjoining the enforcement of such prohibition); 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); 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).

Defendants’ joinder argument border on the frivolous. And while as shown

below, Defendant Cummings is a proper party to this litigation, even if he were not

that would make no practical difference because Defendants made no argument as

to the propriety of Defendant Connors as a Defendant. Thus, Mr. Roberts claims

will go forward even if Defendant Cumming is no longer a party. 1 For those

1
As made clear to Defendants’ counsel during the scheduling conference before
Judge Porter, should Defendant Cummings be an improper party, Plaintiff has no

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reasons, Defendants’ Motion is an attempt to delay this Court’s ruling on a grossly

unconstitutional statute which unjustifiably discriminates against resident aliens.

Chief Ballard Does Not Have Statutory Authority to Issue Carry Permits to
Resident Aliens

H.R.S. §134-9 in relevant part, states:

§134-9 Licenses to carry. (a) In an exceptional case, when an


applicant shows reason to fear injury to the applicant's person or
property, the chief of police of the appropriate county may grant a
license to an applicant who is a citizen of the United States of the age
of twenty-one years or more or to a duly accredited official
representative of a foreign nation of the age of twenty-one years or
more to carry a pistol or revolver and ammunition therefor concealed
on the person within the county where the license is granted. Where
the urgency or the need has been sufficiently indicated, the respective
chief of police may grant to an applicant of good moral character who
is a citizen of the United States…. (emphasis added)

Id. Thus, contrary to Defendants’ moving papers, Chief Ballard does not have the

legal right to accept Plaintiff’s license to carry application. In light of the fact

Defendants entire joinder argument is based off the premise that Chief Ballard has

the “discretion” to issue Mr. Roberts a handgun carry permit, their joinder

argument fails based on a plain reading of the statute at issue. “A party is a

required party to an action under Rule 19 if ‘the court cannot accord complete

relief among existing parties’ in the absence of that party.” Young v. Regence

problem voluntarily dismissing Defendant Cummings because Defendant Connors


will still be a proper party and the Court can still provide complete relief to
Plaintiff, i.e. giving Plaintiff the ability to apply for a license to carry a firearm.

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Blueshield, 389 F. App'x 692, 693 (9th Cir. 2010). Nothing suggests that Chief

Ballard can disregard state law and accept Plaintiff’s application as a non-citizen.

State law is clear that one must be a “citizen of the United States…” So, because

Plaintiff is not a citizen of the United States, Chief Ballard is precluded from

accepting his application. Thus, the Court can “accord complete relief among

existing parties” because Plaintiff asks this Court to declare the citizenship

requirement unconstitutional and unenforceable. Plaintiff does not ask this Court

to force Chief Ballard to issue him a license to carry.

Further, a municipality can only be held liable under §1983 “when

execution of a government's policy or custom, whether made by its lawmakers or

by those whose edicts or acts may fairly be said to represent official policy,

inflicts the injury[.]” Monell v. Dep't of Social Sews. of City of New York, 436

U.S. 658, 694 (1978). The municipal policy or custom must be the “moving

force” behind the unlawful action. See Anderson v. Warner, 451 F.3d 1063,

1070 (9th Cir. 2006). By implication, the City cannot be a necessary party

because it is merely implementing state law and has not established a custom

or policy to discriminate against aliens in their handgun issuance policies.

In Wong v. City & County of Honolulu, 333 F. Supp.2d 942 (2004), this

Court granted the City and County of Honolulu's Motion for Summary

Judgment, where the City was alleged to have violated 42 U. S.C. § 1983 by

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enforcing two allegedly unconstitutional statutes. The Wong Court rejected

the plaintiff's argument that the City is subject to § 1983 liability on the

grounds that a City Ordinance requires officers to enforce provisions of state

vehicle laws See Wong, at 951. The Court held that “mere enforcement of a

state statute is not a sufficient basis for imposing § 1983 liability.” See Wong, at

951. F.R.C.P. 19 only requires joinder if the party is indispensable. In the instant

case, Wong is controlling, and the City (and Chief Ballard) is not a necessary

party as a matter of law because it has not engaged in a policy that would leave

them liable. Thus, Defendants claim must be rejected as a matter of law.

Defendant Cummings is a Proper Party to this Litigation2

Where injunctive relief is sought, a state official acting in his or her official

capacity is a “person” for the purposes of Section 1983 actions. Will, 491 U.S. at

71, n. 10 (citing Kentucky v. Graham, 473 U.S. at 473, n. 14); Ex parte Young, 209

U. S. 123. 159–160 (1908) (...official-capacity actions for prospective relief are not

treated as actions against the State.) (citations omitted). Plaintiff seeks injunctive

2
In direct contradiction to what is argued in Defendants’ Motion, in Andrew
Namiki Roberts v. Russell Suzuki, in his Capacity as the Attorney General of the
State of Hawaii and Al Cummings, in his Official Capacity as the State Sheriff
Division Administrator, Civil No. CV18-00125-HG-KSC, which is a lawsuit
against the State of Hawaii’s ban on electric arms, the Defendants admitted that
both the Attorney General, and specifically Mr. Cummings, were proper parties to
the litigation. See Exhibit “1”, Requests for Admission Nos. 13 & 14.

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relief. Accordingly, Defendant Cummings, in his official capacity, is considered a

person in this instance.

Defendant Cummings may not rely on sovereign immunity to bar this action.

In Ex parte Young, 209 U. S. 123 (1908), the United States Supreme Court created

an exception to the general principle that a State official, sued in their official

capacity, is the same entity as the State. Specifically, where a plaintiff challenges

the constitutionality of a state official's action in enforcing state law, that official is

not considered the State. In Ex Parte Young, supra., the defendant contended that

he was merely acting for the state of Minnesota when he sought to enforce its laws.

The court specifically rejected that argument, holding that when a state official

does something that is unconstitutional, the official is not acting in the name of the

state. Id. at 159.

This is because the Supremacy Clause of the United States Constitution

operates to invalidate any unconstitutional state laws:

The answer to all this is the same as made in every case where an
official claims to be acting under the authority of the State. The act to
be enforced is alleged to be unconstitutional, and if it be so, the use of
the name of the State to enforce an unconstitutional act to the injury of
complainants is a proceeding without the authority of and one which
does not affect the State in its sovereign or governmental capacity. It
is simply an illegal act upon the part of a state official in attempting
by the use of the name of the State to enforce a legislative enactment
which is void because unconstitutional. If the act which the state
Attorney General seeks to enforce be a violation of the Federal
Constitution, the officer in proceeding under such enactment comes
into conflict with the superior authority of that Constitution, and he is
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in that case stripped of his official or representative character and is


subjected in his person to the consequences of his individual conduct.
The State has no power to impart to him any immunity from
responsibility to the supreme authority of the United States.
Ex Parte Young, 209 U.S. at 159-160. Thus, this suit, insofar as it names

Defendant Cummings, is not against the State, but merely against the individual

officer, who is not acting as the State when enforcing an unconstitutional law.

Therefore, Defendant Cummings is both a representative of the state and an

individual person who can have suit brought against him. And, it is appropriate to

seek injunctive relief against his future enforcement of Hawaii’s unconstitutional

laws. Frew v. Hawkins, 540 US 431 (2004) (“to ensure the enforcement of federal

law, however, the Eleventh Amendment permits suits for prospective injunctive

relief against state officials acting in violation of federal law.”); Will, 491 U.S. at

71 n.10 ("official-capacity actions for prospective relief are not treated as actions

against the State."); Wilbur, 423 F.3d at 1111 (holding that “under the doctrine

established in Ex parte Young, 209 U.S. 123 (1908), the Eleventh Amendment

does not bar a suit ’for prospective declaratory and injunctive relief against state

officers, sued in their official capacities, to enjoin an alleged ongoing violation of

federal law.’”) (quoting Agua Caliente Band of Cahuilla Indians v. Hardin, 223

F.3d 1041, 1045 (9th Cir. 2000)); Young, 548 F. Supp. 2d at 1162.

Defendant Cummings’ argument in this case is the exact argument raised by

the Ex Parte Young defendant; and, therefore, should be summarily rejected. This

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conclusion is inevitable following a “’straightforward inquiry into whether [the]

complaint alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective.”’ Verizon Maryland, Inc. v. Public Service

Commission of Maryland, 535 U.S. 635, 645 (2002). The Hawai‘i Revised Statute

at issue violate Mr. Roberts constitutional rights. Furthermore, the complaint asks

for equitable relief in the form of a declaration that the citizenship requirement is

unconstitutional and an order enjoining the defendants from enforcing said laws.

Unless the Fourteenth Amendments is to be ignored, it is clear that this complaint

fulfills the Ex Parte Young standard and avoids the Eleventh Amendment bar to

suit.

Nevertheless, Defendant Cummings argues that he has no nexus to the Equal

Protection violation alleged in Mr. Roberts complaint and has played no role in the

violations of Mr. Robert’s constitutional rights. Indeed, Ex Parte Young requires

that the named official “must have some connection with the enforcement of the

[allegedly unconstitutional] act.” Ex Parte Young 209 U. S. at 453. The nexus

between the issues in this case and Defendant Cummings in his role as State

Sherriff, is both obvious and pervasive. Defendant Cummings, as State Sherriff, is

a state officer who is in direct control of State Sheriff’s Department. In Hawaii,

sheriffs “serve various types of arrest warrants and other documents, and execute

writs of possession. Deputy sheriffs conduct criminal and civil investigations on

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cases that occur within the jurisdiction of State entities.”

http://dps.hawaii.gov/about/divisions/law-enforcement-division/sheriff-division/

(last visited 6/3/2019). Thus, Defendant Cummings, as head of the State Sheriff’s

Department is the state official ultimately responsible for enforcing the laws – even

the unconstitutional laws at issue in this suit on state property. There is a direct

nexus between the state law barring Mr. Roberts from obtaining a license to carry a

firearm and Defendant Cummings. This is because if Mr. Roberts were to carry a

firearm without a license that under Hawaii state law he cannot receive due to his

citizenship, he would face arrest by Defendant Cummings or one of the Sheriffs

Defendant Cummings is directly in charge of.

Accordingly, Defendant Cummings’ role is analogous to the roles of the

defendant, California Governor Wilson, in Los Angeles County Bar Ass’n v EU,

979 F.2d 697 (9th Cir. 1992). There, the Ninth Circuit found a sufficient nexus

where the Governor, in his official capacity, has a duty to appoint judges. Id. at

704. Civil trials were being delayed due to a state statute which limited the number

of judges in Los Angeles County. Id. at 700. Because the Governor was obliged to

“appoint judges to any newly-created judicial positions,” the Ninth Circuit

specifically found that this was sufficient to include the Governor as a party to the

suit. Id. at 704. Such a duty to appoint is precisely the role Defendant Cummings

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plays in this case. There is a sufficient nexus with Defendant Cummings and

enforcement of the challenged laws to fulfill the Ex Parte Young standard.

Conclusion

Defendants’ Motion to Dismiss or for Other Appropriate Relief must be

denied as Defendant Cummings is a proper party in this action and the Chief

of Police of the City and County of Honolulu is not. In the alternative, if

Defendant Cummings is not a proper party, Defendant Connors is and this

lawsuit continues in any event.

Dated: June 21st, 2019.

Respectfully submitted,

Andrew Namiki Roberts

/s/ Alan Beck


Counsel for Plaintiff

Alan Alexander Beck


Law Office of Alan Beck
2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
Hawaii Bar No. 9145
Alan.alexander.beck@gmail.com

/s/ Stephen D. Stamboulieh


Stephen D. Stamboulieh
Stamboulieh Law, PLLC
P.O. Box 4008
Madison, MS 39130
(601) 852-3440
stephen@sdslaw.us
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MS Bar No. 102784


*Admitted Pro Hac Vice

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Exhibit "1"
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Case 1:19-cv-00165-DKW-WRP Document 22-3 Filed 06/21/19 Page 1 of 3 PageID #: 95

Alan Alexander Beck


Law Office of Alan Beck
2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
Hawaii Bar No. 9145
Alan.alexander.beck@gmail.com

Stephen D. Stamboulieh
Stamboulieh Law, PLLC
P.O. Box 4008
Madison, MS 39130
(601) 852-3440
stephen@sdslaw.us
MS Bar No. 102784
*Admitted pro hac vice

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF HAWAII

ANDREW NAMIKI ROBERTS )


)
Plaintiff, )
) Civil No. 1:19-cv-165-DKW-WRP
v. )
)
CLARE E. CONNORS, in her Official ) CERTIFICATE OF SERVICE
Capacity as the Attorney General of the )
State of Hawaii and AL CUMMINGS )
in his Official Capacity as the State Sheriff )
Division Administrator )
)
) HEARING ON MOTION:
) September 13, 2019 9:30 AM
Defendants. )
) TRIAL: June 15, 2020
____________________________________)
Case 1:19-cv-00165-DKW-WRP Document 22-3 Filed 06/21/19 Page 2 of 3 PageID #: 96

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on the date indicated below, a copy of

the foregoing document was filed electronically and served through CM/ECF on

the following at their last-known address as follows:

STATE OF HAWAII
CLARE E. CONNORS
Attorney General of the State of Hawaii
JOHN M. CREGOR, JR.
Deputy Attorney General
Attorney for Clare E. Connors, in her Official Capacity as the Attorney General of
the State of Hawaii, and Al Cummings, in his Official Capacity as the State Sheriff
Division Administrator

Dated: June 21st, 2019.

Respectfully submitted,

Andrew Namiki Roberts

/s/ Alan Beck


Counsel for Plaintiff

Alan Alexander Beck


Law Office of Alan Beck
2692 Harcourt Drive
San Diego, CA 92123
(619) 905-9105
Hawaii Bar No. 9145
Alan.alexander.beck@gmail.com

/s/ Stephen D. Stamboulieh


Stephen D. Stamboulieh
Stamboulieh Law, PLLC
P.O. Box 4008
Madison, MS 39130
(601) 852-3440
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stephen@sdslaw.us
MS Bar No. 102784
*Admitted Pro Hac Vice