Case 1:24-cv-00248 Document 2-1 Filed 06/08/24 Page 1 of 32 PageID.

201

Kevin Gerard O’Grady

Law Office of Kevin O’Grady, LLC
1164 Bishop Street, Suite 1605
Honolulu, Hawaii 96813
Telephone (808) 521-3367
Facsimile 808-521-3369
Hawaii Bar No. 8817
Kevin@KevinOGradyLaw.Com

Alan Alexander Beck

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

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

JOHN TERRY, )
)
Plaintiff, )
)
v. )
)
HONOLULU CITY AND COUNTY ) Civil Action No. 1:24-cv-00248
) MEMORANDUM IN SUPPORT
Defendant ) OF MOTION FOR
) PRELIMINARY INJUNCTION
)
)
)
)
)
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Contents

Table of Authorities ................................................................................................. ii

Introduction ..............................................................................................................1

Statement of Facts ....................................................................................................2

Standard for Preliminary Injunction .....................................................................3

The County is Liable Pursuant to Monell .............................................................4

Plaintiff Has a Strong Likelihood of Success on the Merits.................................6

Plaintiff’s Conduct is Covered by the Second Amendment’s Plain Text ............7

County’s Policy Violates Procedural Due Process ..............................................18

Plaintiff will suffer irreparable harm ..................................................................20

Granting the PI is in the Public Interest and Serves Equity .............................21

Waiver of Bond is Proper and Appropriate Under These Circumstances ......23

This Court Should Consolidate Pursuant to Rule 65(a)(2) ................................24

Conclusion...............................................................................................................24

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Table of Authorities
Cases

Addington v. Texas, 441 U.S. 418 (1979)........................................................... 19, 20

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .................4

Baird v. Bonta, 81 F.4th 1036 (9th Cir. 2023) ................................................. passim

Cine SK8, Inc. v. Town of Henrietta 507 F.3d 778 (2d Cir. 2007) ...........................17

District of Columbia v. Heller, 554 U.S. 570 (2008) ............................ 7, 8,9, 10, 12

Donald J. Trump for President, Inc. v. Bullock, No. CV 20-66-H-DLC, 2020 U.S.
Dist. LEXIS 169794 (D. Mont. Sep. 16, 2020) ....................................................24

Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014)..............................22

East Bay Sanctuary Covenant v. Trump, 349 F.Supp.3d 838 (N.D. Cal. 2018) .....23

Elliott v. Kiesewetter, 98 F.3d 47 (3d Cir. 1996) .....................................................23

Elrod v. Burns, 427 U.S. 347 (1976) .........................................................................21

Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020) .................. 11

Ezell v. City of Chi., 651 F.3d 684. 700 (7th Cir. 2011) ............................................21

Firearms Policy Coalition, Inc. v. McCraw, No. 4:21-CV1245-P, 2022 WL 3656996,

(N.D. Tex. Aug. 25, 2022) .....................................................................................10

Foucha v. Louisiana, 504 U.S. 71 (1992) .................................................................19

Johnson v. Couturier, 572 F.3d 1067 (9th Cir. 2009) ...................................... 23, 24

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) ...........................................................14

Kennedy v. Louisiana, 554 U.S. 407 (2008) ............................................................ 11

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Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) ..................................22

Koons v. Platkin, No. 22-7464, 2023 WL 3478604, (D.N.J. May 16, 2023) .... 11, 23

Lara v. Comm'r Pa. State Police, No. 21-1832, 2024 U.S. App. LEXIS 1159 (3d Cir.
Jan. 18, 2024) ........................................................................................................10

Mathews v. Eldridge, 424 U.S. 319 (1976) ........................................................ 18, 21

May v. Bonta, 2023 WL 8946212 (C.D. Cal. Dec. 20, 2023) ....................................23

McDonald v. City of Chi., 561 U.S. 742 (2010) ........................................................21

Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012)...................................................21

Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) .............................................4, 6

Monterey Mech. Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) ...................................21

N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022) .................... passim

People of the State of Cal. ex rel. Van De Kamp v. Tahoe Regency Planning
Agency, 766 F.2d 1319 (9th Cir. 1985) ................................................................24

Preminger v. Principi, 422 F.3d 815 (9th Cir. 2005) ................................................22

Riley's Am. Heritage Farms v. Elsasser, 32 F.4th 707 (9th Cir. 2022) .....................4

Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) ...............................................22

Santosky v. Kramer, 455 U.S. 745 (1982) .................................................................19

Santucci v. City and Cnty. of Honolulu, No. 22-CV-00142-DKW-KJM, 2022 WL

17176902 (D. Haw. Nov. 23, 2022) ............................................................... 17, 18

Srour v. New York City, 2023 U.S. Dist. LEXIS 190340 ........................................17

U.S. v. Daniels, 77 F.4th 337 (5th Cir. 2023) ................................................... 13, 14

U.S. v. Duarte, No. 22-50048, 2024 WL 2068016 (9th Cir. May 9, 2024) ..............8

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U.S. v. Harrison, 654 F. Supp. 3d 1191 (W.D. Okla. 2023) ...................................14

U.S. v. Perez-Garcia, 96 F.4th 1166 (9th Cir. 2024) .................................... 10, 14, 15

U.S. v. Veasley, 98 F.4th 906 (8th Cir. 2024) ..........................................................13

United States v. Harrison, No. CR-22-00328-PRW, 2023 WL 1771138 (W.D. Okla.

Feb. 3, 2023) ..........................................................................................................10

United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S. Ct. 1056, 108 L. Ed.
2d 222 (1990) ..........................................................................................................8

Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013) .....................................22

Vitek v. Jones, 445 U.S. 480, 495, 100 S. Ct. 1254 (1980) ................................. 19, 20

Weaver v. City of Montebello, 370 F.Supp.3d 1130 (C.D. Cal. 2109) ....................23

Wolford v. Lopez, 2023 WL 5043805 (D. Haw. Aug. 8, 2023) .................................23

Worth v. Harrington, 2023 WL 2745673 (D. Minn. Mar. 31, 2023) ........................9

Young v. Hawaii, 896 F.3d 1044 n.21 (9th Cir. 2018) ................................................1

Statutes

42 U.S.C. § 1983 ........................................................................................................4

18 U.S.C. § 922(g)(1)...............................................................................................15

Haw. Rev. Stat. § 134-7 .......................................................................................5, 17

Haw. Rev. Stat. § 134-9 .............................................................................................5

Other Authorities

11A Charles Alan Wright et al., Federal Practice and Procedure § 2948.1 (2d ed.
1995) .....................................................................................................................21

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https://www.atf.gov/firearms/apply-license ...............................................................3

Rules

F.R.C.P. Rule 65(a)(2) .............................................................................................24

F.R.C.P. Rule 65(c) ..................................................................................................23

Treatises

‘Not all History is Created Equal’: In the Post-Bruen World, the Critical Period
for Historical Analogues Is when the Second Amendment Was Ratified in 1791,
and not 1868, SSRN, Oct. 1, 2022, https://bit.ly/3CMSKjw. ................................9

“Hawaii counties appear to have issued only four concealed carry licenses in the
past eighteen years. See 2000 Haw. Att'y Gen. Reps., Firearm Registrations in
Hawaii, 2000 et seq.” ..............................................................................................1

Alcohol use disorders (AUD) are among the most highly stigmatized medical
conditions in the Western World.” Finn, S.W., Mejldal, A. & Nielsen, A.S. Public
stigma and treatment preferences for alcohol use disorders. BMC Health Serv
Res 23, 76 (2023) ..................................................................................................20

Schomerus G, et al. The stigma of alcohol dependence compared with other mental
disorders: a review of population studies. Alcohol and alcoholism (Oxford,
Oxfordshire). 2011;46:105–12. Available at
https://www.researchgate.net/publication/49694296_The_Stigma_of_Alcohol_D
ependence_Compared_with_Other_Mental_Disorders_A_Review_of_Population
_Studies .................................................................................................................20

Regulations

Chapter 15 of the Rules of the Honolulu Chief of Police available at

https://www.honolulupd.org/wp-content/uploads/2022/11/Chapter-15-of-the-
Rules-of-the-Chief-of-Police-1.pdf ........................................................................6

Constitutional Provisions

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U.S.Const. amend. XIV .............................................................................................9

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Introduction

Up until recently, the City and County of Honolulu (“County”) almost never

issued handgun carry permits.1 The Supreme Court’s decision in N.Y. State Rifle &

Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022), compelled the County to issue

permits to carry handguns. This it has done reluctantly. It has put in place a series

of policies which unconstitutionally restrict the rights of county residents. At issue

here is the County’s policy of requiring applicants to be certified that they are not

adversely affected by alcohol even after they have been previously cleared by a

doctor and that clearance is on file with HPD.

Plaintiff John Terry is a law-abiding citizen with a current federal firearm

license. 14 years ago, he determined that he had an issue with alcohol. He

voluntarily sought treatment for this medical condition. He has not had a drink

since seeking treatment. Plaintiff was previously certified by a medical doctor that

he is no longer adversely affected by alcohol as part of purchasing a firearm. This

certification is on file with the Honolulu Police Department (“HPD”). And

pursuant to that certification, he regularly purchases firearms. Despite this, HPD

requires that Plaintiff undergo another medical clearance before he is eligible to

1
“Hawaii counties appear to have issued only four concealed carry licenses in the
past eighteen years. See 2000 Haw. Att'y Gen. Reps., Firearm Registrations in
Hawaii, 2000 et seq.” Young v. Hawaii, 896 F.3d 1044, 1071 n.21 (9th Cir. 2018)

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receive a concealed carry permit. That requirement violates the Second

Amendment, and it is not supported by state law. As shown below, Plaintiff Terry

easily fulfills the standard for a preliminary injunction. A preliminary injunction

should be issued which compels the County to process his application without

additional medical clearance.

Statement of Facts

Plaintiff is an adult male, resident of the City and County of Honolulu and a

citizen of the United States. Complaint ¶ 1. He is currently employed at the Pearl

Harbor Navy Exchange as an Asset Safety Officer. Complaint ¶ 80. In 2010 he

decided to receive treatment for alcohol dependency and entered into a treatment

facility. Complaint ¶ 70. He has not drunk alcohol since then. In 2015, Plaintiff

Terry applied for a permit to acquire with the Honolulu Police Department.

Complaint ¶ 72. He was told that he would need to receive a certification that he

no longer was adversely affected by alcohol addiction. Id. He received a clearance

from a doctor which he submitted to HPD. Id. He was subsequently cleared to

receive a permit to acquire a firearm. Complaint ¶ 81.

Plaintiff Terry can currently purchase firearms without the need to receive a

medical clearance. Plaintiff Terry regularly purchases firearms without medical

clearance. Complaint ¶ 81. Plaintiff Terry currently legally owns firearms.

Complaint ¶ 82. Plaintiff has a federal firearm license (“FFL”) to collect curio and

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relics. Complaint ¶ 69. In order to become an FFL, Plaintiff had to pass a federal

background check.2 Plaintiff Terry is not disqualified under Hawaii or federal law

from owning, possessing or carrying a firearm, including in a concealed manner.

Complaint ¶ 84. Plaintiff Terry has completed all requirements under Hawaii law

and County regulations (apart from the medical clearance) to be issued a CCW.

Complaint ¶ 65. Plaintiff Terry applied for a CCW by submitting all necessary

paperwork (apart from the medical clearance) to County on or about April 29th,

2024. Complaint ¶ 86. At the time Plaintiff filed his application, was given a form

by HPD and told that he would need to recertify with a medical doctor that he was

not affected by an alcohol related issue. Complaint ¶ 87.

Standard for Preliminary Injunction

“The appropriate legal standard to analyze a preliminary injunction motion

requires a district court to determine whether a movant has established that (1) he is

likely to succeed on the merits of his claim, (2) he is likely to suffer irreparable harm

absent the preliminary injunction, (3) the balance of equities tips in his favor, and

(4) a preliminary injunction is in the public interest.” Baird v. Bonta, 81 F.4th 1036,

1040 (9th Cir. 2023). “It is well-established that the first factor is especially

important when a plaintiff alleges a constitutional violation and injury. If a plaintiff

in such a case shows he is likely to prevail on the merits, that showing usually

2
https://www.atf.gov/firearms/apply-license
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demonstrates he is suffering irreparable harm no matter how brief the violation.” Id.

“It is "always in the public interest to prevent the violation of a party's constitutional

rights."” Id (quoting Riley's Am. Heritage Farms v. Elsasser, 32 F.4th 707, 731 (9th

Cir. 2022). “An ‘individual's right to carry a handgun for self-defense outside the

home’ under the Second Amendment is one such constitutional right.” Id (quoting

N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111, 2122 (2022). Alternatively,

an “injunction is appropriate when a plaintiff demonstrates that serious questions

going to the merits were raised and the balance of hardships tips sharply in the

plaintiff’s favor.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35

(9th Cir. 2011) (internal citation omitted).

The County is Liable Pursuant to Monell

The City is liable for violating Plaintiffs’ Second Amendment rights. “Local

governing bodies, therefore, can be sued directly under § 1983 for monetary,

declaratory, or injunctive relief where, as here, the action that is alleged to be

unconstitutional implements or executes a policy statement, ordinance, regulation,

or decision officially adopted and promulgated by that body's officers.” Monell v.

Dep't of Soc. Servs., 436 U.S. 658, 690 (1978) (footnotes omitted). Here, the City

has a custom, policy or practice of requiring CCW applicants who have already

been certified by a medical doctor and previously cleared to acquire firearms to

recertify they are no longer adversely affected by alcohol issues when they apply

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for a concealed carry permit. Complaint ¶ 6. This is an independent county policy

which is not tethered to state law. Haw. Rev. Stat. § 134-7 governs the possession

of firearms in Hawaii and Haw. Rev. Stat. § 134-9 governs the issuance of permits

to carry firearms. Haw. Rev. Stat. § 134-7 in relevant part reads:

(c) No person shall own, possess, or control any firearm or

ammunition if the person:
(1) Is or has been under treatment or counseling for addiction
to, abuse of, or dependence upon any dangerous, harmful, or
detrimental drug, intoxicating compound as defined in section 712-
1240, or intoxicating liquor […]
unless the person establishes, with appropriate medical
documentation, that the person is no longer adversely affected by the
criteria or statuses identified in this subsection.
See Haw. Rev. Stat. § 134-7. Haw. Rev. Stat. § 134-9 does not mention treatment

for substance use at all because qualifying under Haw. Rev. Stat. § 134-7 is

required to carry a firearm.3 State law only requires that a person establishes that

he is no longer adversely affected by alcohol once. Thus, the County’s requirement

is an independent county police.4 Pursuant to Monell, the County is liable for this

violation of Plaintiff’s Second Amendment rights.

3
“The chief of police of a county shall grant a license to an applicant to carry a
pistol or revolver and ammunition concealed on the licensee's person within the
State, if the applicant: (1) Satisfies each of the criteria established by or pursuant to
subsection (d); (2) Is not prohibited under section 134-7 from the ownership,
possession, or control of a firearm and ammunition.” Haw. Rev. Stat. § 134-9 (a).
4
The County has promulgated rules which govern the issuance of concealed carry
permit. See Chapter 15 of the Rules of the Honolulu Chief of Police available at
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Plaintiff Has a Strong Likelihood of Success on the Merits

All Americans are presumptively qualified to exercise Second Amendment

rights. The County’s policy violates Plaintiff’s Second Amendment right because it

shifts the burden to Plaintiff to prove that he is not suffering from alcohol abuse

despite already having evidence that he is not. “[T]he Second Amendment

guarantees a general right to public carry,” meaning ordinary, law-abiding citizens

may “‘bear’ arms in public for self-defense.” Bruen, 142 S.Ct. at 2135. Accordingly,

the “general right to public carry” cannot be restricted absent “exceptional

circumstances.” Bruen, 142 S. Ct. at 2156 (emphasis added). To determine whether a

state’s restriction is constitutional, the Court in Bruen explained that “the standard for

applying the Second Amendment is as follows: When the Second Amendment’s

plain text covers an individual’s conduct, the Constitution presumptively protects that

conduct. The government must then justify its regulation by demonstrating that it is

consistent with the Nation’s historical tradition of firearm regulation.” 142 S. Ct. at

2129–30. It is the State’s burden to “affirmatively prove that its firearms regulation is

part of the historical tradition that delimits the outer bounds of the right to keep and

bear arms.” Id. at 2127; see also id. at 2150 (“[W]e are not obliged to sift the

https://www.honolulupd.org/wp-content/uploads/2022/11/Chapter-15-of-the-
Rules-of-the-Chief-of-Police-1.pdf . Chapter 15 does not indicate that an applicant
situated as Plaintiff Terry needs to get second clearance. It is unclear on what
authority HPD is requiring Plaintiff to receive a second medical clearance.
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historical materials for evidence to sustain New York’s statute. That is respondents’

burden.”). If the State fails to do so, then the State’s restrictions must be enjoined.

Plaintiff’s Conduct is Covered by the Second Amendment’s Plain

Text

If the plaintiff’s proposed course of conduct falls within the Second

Amendment’s plain text, then “the Constitution presumptively protects that

conduct.” Bruen, 142 S. Ct. at 2126. The Supreme Court has defined all of the

Second Amendment’s key terms. “The people” means “all Americans”; “Arms”

includes “all instruments that constitute bearable arms”; and, most relevant here, to

bear simply means to “carry.” District of Columbia v. Heller, 554 U.S. 570, 580–82,

584 (2008). Here, Plaintiff is part of the people. This cannot seriously be disputed.

Plaintiff is qualified to own guns in Hawaii. Complaint ¶ 63. Therefore, he has

passed Hawaii’s onerous criminal and mental health background checks for firearm

ownership. “Heller explained that the words "the people" in the Second

Amendment have been interpreted throughout the Constitution to "unambiguously

refer[] to all members of the political community, not an unspecified subset." 554

U.S. at 580. Further, "the people" "refer[] 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." Id. (citing United States v.

Verdugo-Urquidez, 494 U.S. 259, 265, 110 S. Ct. 1056, 108 L. Ed. 2d 222

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(1990)). “Our own analysis of the Second Amendment's text, “as informed by [its]

history,” confirms that “the people” included, at a minimum, all American citizens—

without qualification.” U.S. v. Duarte, No. 22-50048, 2024 WL 2068016, at *10 (9th

Cir. May 9, 2024)Error! Bookmark not defined.. Furthermore, Plaintiff’s

proposed course of conduct is protected by the Second Amendment. That is because

he wishes to bear arms for lawful self-defense just like the plaintiffs in Bruen.

The Supreme Court’s binding determination of the text of the Second

Amendment definitively resolves the question of whether Plaintiff’s proposed

conduct is presumptively protected by the Second Amendment. Plaintiff is an

American who seeks to carry bearable arms for self-defense. As in Bruen, these

undisputed facts end the textual inquiry: “the plain text of the Second Amendment

protects [Plaintiffs’] proposed course of conduct—carrying handguns publicly for

self-defense.” 142 S. Ct. at 2134. Accordingly, under Bruen’s unambiguous

directions, “the burden falls on [the City] to show that [the City’s waiting time] is

consistent with this Nation’s historical tradition of firearm regulation.” Id. at 2135;

County “must identify a historical analogue that curtails the right to peaceably

carry handguns openly for self-defense to a comparable degree, with a comparable

severity, and with a comparable blanket enforcement.” Baird v. Bonta, 81 F.4th

1036, 1047 (9th Cir. 2023).

The relevant time period for the historical analogue must be the Founding,

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centering on 1791. Bruen, 142 S.Ct. at 2135–36; see also Mark W. Smith, ‘Not all

History is Created Equal’: In the Post-Bruen World, the Critical Period for

Historical Analogues Is when the Second Amendment Was Ratified in 1791, and

not 1868, SSRN, Oct. 1, 2022, https://bit.ly/3CMSKjw. That is because

“‘[c]onstitutional rights are enshrined with the scope they were understood to have

when the people adopted them.’” Bruen, 142 S. Ct. at 2136, quoting Heller, 554

U.S. at 634–35. Although the Court in Bruen noted an academic debate

surrounding whether courts should look to 1868 and Reconstruction (when the

Fourteenth Amendment was adopted), the Court found no need to address the point

as the result with respect to carry was the same. Bruen, 142 S. Ct. at 2138 (“[T]he

public understanding of the right to keep and bear arms in both 1791 and 1868

was, for all relevant purposes, the same with respect to public carry.” (emphasis

added)). But there can be no doubt that the actual analysis of the Court is focused

on l791. See Worth v. Harrington, 2023 WL 2745673 at *11 (D. Minn. Mar. 31,

2023) (noting the “rather clear signs that the Supreme Court favors 1791 as the

date for determining the historical snapshot of ‘the people’ whose understanding of

the Second Amendment matters”); See also Firearms Policy Coalition, Inc. v.

McCraw, No. 4:21-CV1245-P, 2022 WL 3656996, at *11 (N.D. Tex. Aug. 25,

2022); See also United States v. Harrison, No. CR-22-00328-PRW, 2023 WL

1771138, at *8 (W.D. Okla. Feb. 3, 2023) (quoting Bruen, 597 U.S. at 83 (Barrett, J.,

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concurring) (“[T]oday’s decision should not be understood to endorse freewheeling

reliance on historical practice from the mid-to-late 19th century to establish the

original meaning of the Bill of Rights.”).

The Third Circuit agrees with this analysis and holds “that the Second

Amendment should be understood according to its public meaning in 1791.” Lara v.

Comm'r Pa. State Police, No. 21-1832, 2024 U.S. App. LEXIS 1159, at *16 (3d Cir.

Jan. 18, 2024) (Footnotes omitted). In Bruen “the Court saw particular relevance in

“English history dating from the late 1600s, along with American colonial views

leading up to the founding.” Id at 20, 142 S.Ct. 2111 (emphasis omitted) (quoting

Heller, 554 U.S. at 592, 128 S.Ct. 2783). “The Bruen court also found post-ratification

practices from the late 18th and early 19th centuries as bearing on this question. See

id. at 35-36, 142 S.Ct. 2111. We focus on sources from those same historical time

periods.” U.S. v. Perez-Garcia, 96 F.4th 1166, 1182 (9th Cir. 2024)

Moreover, in Bruen, the Court noted that its past precedents had “assumed

that the scope of the protection applicable to the Federal Government and States is

pegged to the public understanding of the right when the Bill of Rights was adopted

in 1791.” Bruen, 142 S. Ct. at 2137. Bruen’s characterization of the Court’s

precedents as assuming that 1791 is the proper answer is an understatement. In

Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), for example,

the Court held that “more than 30” provisions of state law enacted “in the second

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half of the 19th Century” could not “evince a tradition that should inform our

understanding of the Free Exercise Clause” when those provisions lacked grounding

in Founding Era practice. Id. at 2258–59 (emphasis added). And even if modern laws

alone could demonstrate a broad tradition of a regulation, there must at least be a

strong showing that such laws are common in the states, i.e., many more than six

states. See Kennedy v. Louisiana, 554 U.S. 407, 423–26 (2008) (only six states

permitting death penalty for child rapists shows national consensus against it).

The historical analogues the State points to must be “representative.”

Historical “outlier” requirements of a few jurisdictions or of territorial governments

are to be disregarded. Bruen, 142 S. Ct. at 2133, 2153, 2147 n.22 & 2156. This means

regulations from only a handful of states or those that cover only a small portion of

the population are not enough to demonstrate that modern regulations are consistent

with the Second Amendment. Id. at 2155 (rejecting regulations applying to only 1%

of the American population); see also Koons v. Platkin, No. 22-7464, 2023 WL

3478604, (D.N.J. May 16, 2023) (finding regulations covering 10% and 15% of

American population insufficient). Bruen also categorically rejected reliance on laws

enacted in the Territories, including expressly “Arizona, Idaho, New Mexico,

Oklahoma,” holding that such laws “are most unlikely to reflect ‘the origins and

continuing significance of the Second Amendment’ and we do not consider them

‘instructive.’” Bruen, 142 S. Ct. at 2154 (quoting Heller, 554 U.S. at 614).

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The historical analogues must be “relevantly similar,” which is to say that they

must burden ordinary, law-abiding citizens’ right to carry for self-defense in a

similar manner and for similar reasons. Bruen, 142 S. Ct. at 2132. Bruen held that

the inquiry into whether an analogue is proper is controlled by two “metrics” of “how

and why” any restriction was historically imposed during the Founding era. Id. at

2133. “[W]hether modern and historical regulations impose a comparable burden on

the right of armed self-defense and whether that burden is comparably justified are

‘central’ considerations when engaging in an analogical inquiry.” Id. (emphasis in

original). In attempting the “affirmatively prove” that its restrictions on public carry

are consistent with the Nation’s historical tradition, the County may refer to

historical analogues at the Founding and claim those meet Bruen’s “how” and “why”

standard. 142 S. Ct. at 2127, 2133.

Plaintiff has not had a drink in years. See Complaint___. He is medically

documented to not have an issue with alcohol and that documentation is on file

with HPD. Complaint ____. “Alcohol and drug abuse have been “general societal

problem[s]”, for thousands of years.” U.S. v. Veasley, 98 F.4th 906, 910 (8th Cir.

2024) (citations omitted) (quoting Bruen, 597 U.S. at 26). “Colonial times were no

exception.” Id. Therefore, it is not a modern problem. Thus, the test the Court

must apply is “did these historical examples, we must ask, “impose a comparable

burden on the right of armed self-defense” (Bruen's “how”) that was “comparably

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justified” (Bruen's “why”) as compared to” HPD’s current policy. U.S. v. Duarte,

No. 22-50048, 2024 WL 2068016, at *13 (9th Cir. May 9, 2024)

There is no historical tradition of placing restrictions on Second Amendment

rights due to a decade old issue treatment for alcohol use especially when the

government knows the reasons for that treatment has lapsed. “Just as there was no

historical justification for disarming a citizen of sound mind, there is no tradition

that supports disarming a sober citizen who is not currently under an impairing

influence.” U.S. v. Daniels, 77 F.4th 337, 349 (5th Cir. 2023). Here, the County is

placing restrictions on Plaintiff’s Second Amendment right despite previously

receiving documentation that he is no longer adversely affected by alcohol.

As a threshold matter, there is no historical tradition of prohibiting regular

drinkers from carrying firearms while sober. “Although a few states after the Civil

War prohibited carrying weapons while under the influence, none barred gun

possession by regular drinkers.” U.S. v. Daniels, 77 F.4th 337, 345 (5th Cir. 2023).

[T]he intoxicated kept their civil liberties, including the right to possess firearms.”

U.S. v. Veasley, 98 F.4th 906, 913 (8th Cir. 2024. “Just as there was no historical

justification for disarming a citizen of sound mind, there is no tradition that

supports disarming a sober citizen who is not currently under an impairing

influence.” Daniels, 77 F.4th 337, 345. Restrictions on alcohol users “only applied

while an individual was actively intoxicated or actively using intoxicants.” U.S. v.

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Harrison, 654 F. Supp. 3d 1191, 1200 (W.D. Okla. 2023).

Moreover, precedent requires that an individual must receive a judicial

determination of dangerousness in order to remove his firearm rights. In this case, a

determination that one’s issue with alcohol is currently severe enough that it makes

him a danger to oneself or others. In Perez-Garcia the Ninth Circuit only upheld the

prohibition on the litigants there has been a judicial determination that they were

dangerous. First it endorsed then Judge Barret’s dissent in Kanter v. Barr. First, the

Bail Reform Act's firearm condition is a clear exercise of Congress' historical

legislative power to disarm those who are “judged to be a threat to the public safety.”

U.S. v. Perez-Garcia, 96 F.4th 1166, 1189 (9th Cir. 2024) (quoting Kanter v. Barr, 919

F.3d 437, 458 (7th Cir. 2019) (Barrett, J., dissenting), abrogated by Bruen, 597 U.S.

at 17, 142 S.Ct. 2111) (emphasis added). And in doing so endorsed the proposition

that only those judged to be dangerous can have their firearm rights removed.

“Relatedly and importantly, the firearm condition at issue here is individually tailored

and applied only after consideration by a judicial officer.” U.S. v. Perez-Garcia, 96

F.4th 1166, 1189 (9th Cir. 2024). “In short, regulations that authorize disarmament

only after individualized findings of dangerousness by public officials are within the

heartland of legislative power to disarm those who are not law-abiding, responsible

citizens.” Id at 1190. The Ninth Circuit then upheld the government’s restrictions on

pretrial detainees because;

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The Government in this case acted in accordance with this historical

tradition. The Government established an individualized need for
applying the firearm condition against each Appellant in adversarial
proceedings before two sets of neutral judicial officers. Those neutral
judicial officers determined based on the evidence presented that
Appellants posed a risk while on bail and that the firearm condition
was the least restrictive way to assure the safety of the community as
well as their appearances in court.

Id.

Here, the County’s policy does not bear any of the hallmarks of judicial

process which made the Ninth Circuit find that firearms restrictions on certain pretrial

detainees constitutional. Furthermore, there is no argument that Plaintiff Terry poses

“an unusual danger, beyond the ordinary citizen, to themselves or others” as required

by Perez-Garcia. Id at 1191. Plaintiff Terry is currently an FFL who legally owns

firearms in Hawaii. Thus, he has demonstrated that he is safe to handle firearms.

Honolulu’s policy is the type of regulation the Ninth Circuit warned would violate the

Second Amendment because it “prevent[s] law-abiding citizens with ordinary self-

defense needs from exercising their right to keep and bear arms.” Id at 1189.

Similarly, the Ninth Circuit just found that 18 U.S.C.A. § 922(g)(1) which is

the federal felon in possession ban unconstitutional as applied to the litigant. U.S. v.

Duarte, No. 22-50048, 2024 WL 2068016 (9th Cir. May 9, 2024). It did so because

the government has not offered a historical justification for removing the litigant’s

Second Amendment rights. Among them was drug possession. “As for Duarte's

remaining convictions—drug possession and evading a peace officer—we do not

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know whether either crime traces back to an analogous, Founding-era predecessor

because the Government failed to proffer that evidence.” U.S. v. Duarte, No. 22-

50048, 2024 WL 2068016, at *24 (9th Cir. May 9, 2024). If a conviction for drug

possession is insufficient to remove Second Amendment rights, then assuredly

seeking treatment for alcohol decades earlier is insufficient after having been

medically cleared already. Furthermore, the regulation does not differentiate between

people who had had an issue with alcohol which makes them dangerous and those

who do not. Therefore, the regulation restricts individuals who are not dangerous

solely because they received treatment for alcohol. Historically, those with mental

illness and substance abuse issues “who posed no danger stayed at home with their

families, and their civil liberties remained intact.” U.S. v. Veasley, 98 F.4th 906, 913

(8th Cir. 2024). There is no historical tradition of placing restrictions on Second

Amendment rights for those who have not drank in decades and have already been

certified to not have an issue with alcohol consumption. The County’s policy violates

the Second Amendment.

The County’s policy also violates the Second Amendment because it is ultra

vires. HPD derives its authority to regulate firearms use from state law. Haw. Rev.

Stat. § 134-7 only restricts firearms rights until a person is medically cleared that

he “is no longer adversely affected” from alcohol use. Thus, HPD’s conduct is

ultra vires. Ultra vires conduct is inherently arbitrary. See Cine SK8, Inc. v. Town of

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Henrietta 507 F.3d 778, 790 (2d Cir. 2007).

Bruen commands that the government may not act in an arbitrary manner in

making determinations on Second Amendment rights. See Bruen, 142 S. Ct. at

2138 n.9. (Prohibiting governments from engaging in the “appraisal of facts, the

exercise of judgment, and the formation of an opinion”.) See also Srour v. New

York City, 2023 U.S. Dist. LEXIS 190340 (finding portions of New York City’s

administrative code unconstitutional because it confers officials “unfettered

discretion” to determine whether firearm applicants had sufficient good moral

character to possess firearms).

Recently, this Court ruled on a similar challenge. In Santucci v. City and

Cnty. of Honolulu, this Court found that HPD’s requirement that the plaintiff in

Santucci seek medical clearance for receiving counseling was ultra vires. No. 22-

CV-00142-DKW-KJM, 2022 WL 17176902 (D. Haw. Nov. 23, 2022). “Santucci

argues that he is not precluded from firearm ownership under Hawai'i law–

specifically, Hawai'i Revised Statutes (HRS) Section 134-7.” Id at*5. “[T]he Court

agrees that, pursuant to Section 134-7, Santucci is not precluded from registering

his firearms.” Id. Like Santucci, HPD’s requirement that Plaintiff seek medical

clearance is outside of the scope of Hawaii law. Arbitrary government action is

caused by unfettered discretion and thus violates the Second Amendment. Plaintiff

is likely to succeed on his Second Amendment claim.

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County’s Policy Violates Procedural Due Process

The County has violated Plaintiff’s Due Process Right. This is because the

County’s requirement that Plaintiff must get an additional medical clearance is

sufficiently arbitrary to violate due process. To demonstrate a claim for procedural

due process a litigant must fulfill the test laid out in Mathews v. Eldridge, 424 U.S.

319, 335 (1976). This test requires that we balance: "(1) the private interest at stake;

(2) the risk of an erroneous deprivation of that interest through the procedures used

and the probable value (if any) of alternative procedures; (3) the government's

interest, including the possible burdens of alternative procedures." Id. Here, Bruen

expressly holds that Plaintiff has a constitutional right to carry a firearm for lawful

self-defense. Thus, Plaintiff has a protected liberty interest at stake in this litigation.

There is a great risk of erroneous deprivation because the County has no basis

to form a determination that Plaintiff currently is suffering from alcohol abuse. And it

already has evidence that Plaintiff is not suffering from alcohol abuse in the form of

the medical clearance it already has on file. Thus, the County policy of shifting the

burden to Plaintiff to prove he is qualified to exercise a constitutional right is

sufficiently arbitrary to violate due process. The procedures used by the County are

woefully inadequate in light of the constitutional right at stake. The County labeled

Plaintiff unsuitable to exercise a constitutional right without any of the other

hallmarks required “when the individual interests at stake in a state proceeding are

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both ‘particularly important’ and ‘more substantial than mere loss of money.’”

Santosky v. Kramer, 455 U.S. 745, 756 (1982) (holding that termination of parental

rights must be supported by clear and convincing evidence rather than a “fair

preponderance”) (quoting Addington v. Texas, 441 U.S. 418, 424 (1979)).

“In Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552

(1980)Error! Bookmark not defined., we held that a convicted felon serving his

sentence has a liberty interest, not extinguished by his confinement as a criminal, in

not being transferred to a mental institution and hence classified as mentally ill

without appropriate procedures to prove that he was mentally ill.” Foucha v.

Louisiana, 504 U.S. 71, 78–79 (1992) (emphasis added). “The interest of the prisoner

in not being arbitrarily classified as mentally ill and subjected to unwelcome

treatment is also powerful, however; and as the District Court found, the risk of error

in making the determinations required by § 83-180 is substantial enough to warrant

appropriate procedural safeguards against error.” Vitek v. Jones, 445 U.S. 480, 495,

100 S. Ct. 1254, 1265 (1980).

Importantly the Supreme Court has found that the there is a liberty interest at

play in being labeled mentally ill. “It is indisputable that involuntary commitment to

a mental hospital after a finding of probable dangerousness to self or others can

engender adverse social consequences to the individual. Whether we label this

phenomena “stigma” or choose to call it something else is less important than that we

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recognize that it can occur and that it can have a very significant impact on the

individual.” Addington v. Texas, 441 U.S. 418, 425–26 (1979); See also Vitek v.

Jones, 445 U.S. 480, 492 (1980) (reaffirming holding). Being labeled dependent on

alcohol has similar social consequences.5 Thus, similar protections should apply.

Here, Plaintiff was provided inadequate procedure before the County labeled him

presumptively disqualified from firearm carry. The County’s policy has a high risk of

erroneous determination. Moreover, the government has no interest at stake here.

The County already has a medical clearance letter on file for Plaintiff. Thus, the

County has no evidence that Plaintiff is currently suffering from alcohol related

issues. Therefore, they have no interest in presumptively labeling Plaintiff addicted to

alcohol and placing the burden on Plaintiff to prove that he is not. Pursuant to

Mathews, the County has violated Plaintiff’s Due Process rights. This court should

find Plaintiff has demonstrated a likelihood of success on the merits.

Plaintiff will suffer irreparable harm

5
“Alcohol use disorders (AUD) are among the most highly stigmatized medical
conditions in the Western World.” Finn, S.W., Mejldal, A. & Nielsen, A.S. Public
stigma and treatment preferences for alcohol use disorders. BMC Health Serv Res
23, 76 (2023) at *2. https://doi.org/10.1186/s12913-023-09037-y (citing
Schomerus G, et al. The stigma of alcohol dependence compared with other mental
disorders: a review of population studies. Alcohol and alcoholism (Oxford,
Oxfordshire). 2011;46:105–12. Available at
https://www.researchgate.net/publication/49694296_The_Stigma_of_Alcohol_Dep
endence_Compared_with_Other_Mental_Disorders_A_Review_of_Population_St
udies
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Here, Plaintiff suffers irreparable harm every moment his concealed carry

application goes unprocessed. “It is well established that the deprivation of

constitutional rights ‘unquestionably constitutes irreparable injury.” Melendres v.

Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347,

373 (1976)); 11A Charles Alan Wright et al., Federal Practice and Procedure §

2948.1 (2d ed. 1995) (“When an alleged deprivation of a constitutional right is

involved, most courts hold that no further showing of irreparable injury is

necessary.”). The Ninth Circuit has imported the First Amendment “irreparable-if-

only-for-a-minute” rule to other rights and, in doing so, has held deprivation of those

rights is irreparable harm per se. Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715

(9th Cir. 1997). “This analysis does not change where the constitutional violation at

issue is a Second Amendment violation because the right to peaceably bear arms to

defend oneself is not "a second-class right, subject to an entirely different body of

rules than the other Bill of Rights guarantees."” Baird v. Bonta, 81 F.4th 1036, 1046

(9th Cir. 2023). (quoting McDonald v. City of Chi., 561 U.S. 742, 780 (2010). See

also Ezell v. City of Chi., 651 F.3d 684. 700 (7th Cir. 2011) (a deprivation of the right

to arms is “irreparable and having no adequate remedy at law.”).

Granting the PI is in the Public Interest and Serves Equity

The last two preliminary injunction elements merge when the government is

the defendant. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014)

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(citation omitted). When challenging government action that affects the exercise of

constitutional rights, “[t]he public interest . . . tip[s] sharply in favor of enjoining the”

law. Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009). As the Ninth

Circuit has made clear, “all citizens have a stake in upholding the Constitution” and

have “concerns [that] are implicated when a constitutional right has been violated.”

Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005). The State “cannot suffer

harm from an injunction that merely ends an unlawful practice or reads a statute as

required to avoid constitutional concerns.” Rodriguez v. Robbins, 715 F.3d 1127,

1145 (9th Cir. 2013); See Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir.

2013) (“[I]t is clear that it would not be equitable . . . to allow the state . . . to violate

the requirements of federal law.” (citations omitted). “[W]e presume that a

constitutional violation causes a preliminary injunction movant irreparable harm and

that preventing a constitutional violation is in the public interest.” Baird v. Bonta, 81

F.4th 1036, 1046 (9th Cir. 2023). On the other hand, granting an injunction will end

the ongoing violation of Plaintiff’s rights. Americans with concealed carry permits are

an overwhelmingly law-abiding demographic, as three courts have recently

confirmed, including in this district. See May v. Bonta, 2023 WL 8946212, at *19

(C.D. Cal. Dec. 20, 2023) (“Simply put, CCW permitholders are not the gun wielders

legislators should fear”); Wolford v. Lopez, 2023 WL 5043805, at *32 (D. Haw. Aug.

8, 2023) (“the vast majority of conceal carry permit holders are law-abiding”); and

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Koons v. Platkin, 2023 WL 3478604, at *108 (D.N.J. May 16, 2023) (“despite ample

opportunity for an evidentiary hearing, the State has failed to offer any evidence that

law-abiding responsible citizens who carry firearms in public for self-defense are

responsible for an increase in gun violence”). It is in the public interest to compel the

County to remove its medical clearance policy.

Waiver of Bond is Proper and Appropriate Under These Circumstances

“Notwithstanding its seemingly mandatory language,” stating that the movant

must provide “security in an amount that the court considers proper to pay the costs

and damages sustained by any party found to have been wrongfully enjoined or

restrained,” “Rule 65(c) invests the district court with discretion as to the amount of

security required, if any.” Weaver v. City of Montebello, 370 F.Supp.3d 1130, 1139

(C.D. Cal. 2109) (quoting Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir.

2009)). The court may properly dispense with any such bond requirement when “the

balance of ... equities weighs overwhelmingly in favor of the party seeking the

injunction,” East Bay Sanctuary Covenant v. Trump, 349 F.Supp.3d 838, 869 (N.D.

Cal. 2018) (quoting Elliott v. Kiesewetter, 98 F.3d 47, 60 (3d Cir. 1996)), when “there

is no realistic likelihood of harm to the defendant from enjoining his or her conduct,”

Johnson at 1086 (internal quotations omitted), and where the plaintiffs have a

“likelihood of success on the merits,” People of the State of Cal. ex rel. Van De Kamp

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v. Tahoe Regency Planning Agency, 766 F.2d 1319, 1326 (9th Cir. 1985). All these

factors are true here, thus rendering a waiver both proper and appropriate.

This Court Should Consolidate Pursuant to Rule 65(a)(2)

Rule 65(a)(2) of the Federal Rules of Civil Procedure state “[b]efore or after

beginning the hearing on a motion for a preliminary injunction, the court may

advance the trial on the merits and consolidate it with the hearing. This Court should

do so here because “[g]iven the expedited and predominately legal nature of the

questions presented by this litigation,” the “evidence presented by the parties through

the briefing and hearing on the motions for preliminary injunctions will be relevant

to adjudicating the Plaintiffs' claims on the merits.” Donald J. Trump for President,

Inc. v. Bullock, No. CV 20-66-H-DLC, 2020 U.S. Dist. LEXIS 169794, at *2 (D.

Mont. Sep. 16, 2020). Plaintiff Terry is currently suffering irreparable harm and

would thus benefit from a consolidated hearing.

Conclusion

A preliminary injunction should be issued which compels County to

immediately process Plaintiff Terry’s concealed carry application without medical

clearance.

Dated: June 9, 2024.

Respectfully submitted,

/s/ Alan Beck

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/s/ Kevin O’Grady

Counsel for Plaintiffs

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