Fisher v. Kealoha, No. 14-16514 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit affirmed the grant of summary judgment to defendants in plaintiff's suit challenging the constitutionality of section 134-7 of the Hawaii Revised Statutes, which prohibit plaintiff from owning or possessing firearms because of his 1997 state law conviction for harassment. Although plaintiff stated that he challenged only section 134-7, that statute, in relevant part, merely incorporates federal law. Therefore, plaintiff's argument focuses on the latter federal statutes. The Ninth Circuit held that, as a matter of statutory construction, the unavailability of a procedure for either expungement, set-aside, pardon, or civil rights restoration does not remove plaintiff from the ambit of 18 U.S.C. 922(g)(9)'s prohibition or, by extension, section 134-7(a)'s prohibition. In regard to plaintiff's Second Amendment challenge, the Ninth Circuit held that, under intermediate scrutiny, the statute addressed a substantial governmental interest and was tailored sufficiently to satisfy intermediate scrutiny. In this case, section 922(g)(9) was not unconstitutionally applied to plaintiff where his argument that his harassment conviction occurred many years ago, and he has not committed any other crimes since that time, was not meaningfully distinguishable from the one the court rejected in United States v. Chovan. Furthermore, plaintiff failed to avail himself of the one restoration mechanism that was available to him under Hawaii law, and he was in no position to argue that Hawaii's restoration mechanisms were constitutionally insufficient.
Court Description: Civil Rights. The panel affirmed the district court’s summary judgment in an action challenging the constitutionality of section 134-7 of the Hawaii Revised Statues, which prohibit plaintiff from owning or possessing firearms because of his 1997 state law conviction for harassment. The panel determined that although plaintiff stated that he challenged only section 134-7 of the Hawaii Revised Statute, that statute, in relevant part, merely incorporated federal law. Analyzing the federal statutes, the panel rejected plaintiff’s contention that 18 U.S.C. § 922(g)(9) was unconstitutional as applied to him. The panel first held that plaintiff’s argument that his harassment conviction occurred many years ago, and that he has not committed any other crimes since that time, was not meaningfully distinguishable from the argument that this court rejected in United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). The panel also rejected plaintiff’s argument that section 922(g)(9) is unconstitutional as applied to him because Hawaii law provides for only one of the four restoration mechanisms listed in section 921(a)(33)(B)(ii): gubernatorial pardon. The panel held that although this argument was not foreclosed by Chovan, plaintiff conceded that he had not applied for a gubernatorial pardon for his 1997 conviction. Thus, the panel concluded that plaintiff failed to avail himself FISHER V. KEALOHA 3 of the one restoration mechanism that was available to him under Hawaii law, and therefore he was in no position to argue that Hawaii’s restoration mechanisms were constitutionally insufficient. Ruminating, Judge Kozinksi stated that Hawaii’s procedure for restoring Second Amendment rights by way of a gubernatorial pardon was notably slender and vested unbridled discretion in a government official. Judge Kozinski stated that while plaintiff’s case did not require a review of Hawaii’s restoration procedure, other cases will raise the issue.
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