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Case 1:14-cv-00333 Document 6 Filed 07/24/14 Page 1 of 3

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RICHARD L HOLCOMB (HI Bar No. 9177)


Holcomb Law, A Limited Liability Law Corporation
1136 Union Mall, Suite # 808
Honolulu, HI 96813
Telephone: (808) 545-4040
Facsimile: (808) 356-1954
Email: rholcomblaw@gmail.com
ALAN BECK (HI Bar No. 9145)
Attorney at Law
4780 Governor Drive
San Diego, California 92122
Telephone: (808) 295-6733
Email: ngord2000@yahoo.com
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF HAWAII
Steve Fotoudis,

)
)
Plaintiff,
)
vs.
)
)
City and County of Honolulu;
)
)
Lois Kealoha, Chief of the Honolulu
)
Police Department, in his individual
)
capacity;
)
)
David Louie, Attorney General of
)
Hawaii, in his individual and official
)
capacity;
)
)
and, John Does 1-50 in their individual )
or official capacities.
)
)
Defendants.
)
)
)
)
)

CASE NO. 1:14-CV-00333


PLAINTIFFS MOTION FOR
PRELIMINARY INJUNCTIVE
RELIEF; MEMORANDUM IN
SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTIVE
RELIEF; DECLARATION OF
STEVEN FOTOUDIS;
DECLARATION OF RICHARD L.
HOLCOMB; EXHIBITS ONE
THROUGH TWELVE;
CERTIFICATE OF SERVICE
HEARING:
Date:
Time:
Judge: Not Assigned

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PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTIVE RELIEF


COMES NOW the Plaintiff, Steve Fotoudis, by and through undersigned
counsel and pursuant to the Second and Fourteenth Amendments to the United
States Constitution, Title 42 U.S.C. 1983, and Rule 65(a) of the Federal Rules of
Civil Procedure, and request that this Court issue a preliminary injunction
enjoining Defendants and/or their officers, agents, servants, employees, and all
persons in concert or participation with them who receive notice of this injunction,
from enforcing the United States citizenship requirements of Section 134-2(d) of
the Hawaii Revised Statutes and any other Hawaii statutory language that imposes
a United States citizenship requirement which operates to restrict lawfully admitted
permanent resident aliens from exercising Second Amendment rights. Further, Mr.
Fotoudis requests this Court compel the same to:
(a) allow Mr. Fotoudis to apply for a permit pursuant to Section 134-2
of the Hawaii Revised Statutes;
(b) to promptly and meaningfully evaluate, with no more or less
scrutiny than would be applied to a citizen applicant, Mr. Fotoudis
application and background to determine his fitness and qualifications
to lawfully keep firearms; and,
(c) insofar as Mr. Fotoudis is determined to be fit and qualified to
keep firearms, to immediately thereafter issue to Mr. Fotoudis the

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permit contemplated by Section 134-2 of the Hawaii Revised Statutes,


vesting Mr. Fotoudis with the same rights and privileges to keep and
possess firearms as those of a United States citizens who obtains a
permit pursuant to Section 134-2.
In support of this Motion, Mr. Fotoudis relies on the Memorandum in
Support of his Motion for Preliminary Injunction and its attachments, including but
not limited to the Declarations of Plaintiff and of counsel, and all corresponding
exhibits to those Declarations, filed contemporaneously herewith.
DATED: Honolulu, Hawaii; July 24, 2013.
s/Richard L. Holcomb__
Richard L. Holcomb
Attorney for Plaintiff

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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF HAWAII
Steve Fotoudis,

)
)
CASE No. 1:14-CV-00333
Plaintiff,
)
vs.
)
) MEMORANDUM IN SUPPORT OF
City and County of Honolulu;
)
MOTION FOR TEMPORARY
Lois Kealoha, in his individual capacity; ) RESTRAINING ORDER AND IN
and, John Does 1-50 in their individual )
SUPPORT OF MOTION FOR
or official capacities.
)
PRELIMINARY INJUNCTION
)
Defendants.
)
)
)

MEMORANDUM IN SUPPORT OF
MOTION FOR TEMPORARY RESTRAINING ORDER AND
IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS

I.

LEGAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III.

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A.

Mr. Foutodis will likely succeed on the merits. . . . . . . 4


1. Mr. Fotoudis core Second Amendment
rights continue to be violated. . . . . . . . . . . . . . . . . . . 4
2. Mr. Foutodis has been denied equal
protection of the laws. . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. Mr. Fotoudis Due Process Rights
have been violated. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

IV.

B.

Mr. Fotoudis will be irreparably harmed. . . . . . . . . . . 14

C.

The balance of equities tips sharply in


Mr. Fotoudis favor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

D.

The injunction serves the publics interests. . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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TABLE OF AUTHORITIES

Reported Cases

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) . . . . . . . . . 12


Associated General Contractors v. Coalition for Economic Equity,
950 F.2d 1401 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Chan v. City of Troy, 559 N.W.2d 374. (Mich.Ct.App. 1997) . . . . . . 10
Collins v. Brewer, 727 F. Supp. 2d 797 (D. Ariz. 2010) . . . . . . . . . . . 15
District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . .

4, 5, 7

Fletcher v. Haas, 851 F.Supp.2d 287 (D. Mass 2012) . . . . . . . . . . . . . 7, 11, 13


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

18

Graham v. Richardson, 403 U.S. 365 (1971) . . . . . . . . . . . . . . . . . . . 9, 10


Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) . . . . . . . . . . . . . .

McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010) . . . . . . . .

4-5

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

15

People v. Nakamura, 62 P.2d 246 (Colo. 1936) . . . . . . . . . . . . . . . . . 10


People v. Rappard, 28 Cal.App.3d 302,
104 Cal.Rptr. 535 (Cal.App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Sammartano v. First Judicial District Court Carson City,
303 F.3d 959 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 18-19
Sandiford v. Commonwealth, 225 S.E.2d 409 (Va. 1976) . . . . . . . . .

10-11, 13

Smith v. South Dakota, 781 F.Supp.2d 879 (D. S.D. 2011) . . . . . . . . . 11


ii

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State v. Chumphol, 634 P.2d 451 (Nev. 1981) . . . . . . . . . . . . . . . . . . . 11, 13


Takahashi v. Fish & Game Commission, 334 U.S. 410 (1948) . . . . .

Toll v. Moreno, 458 U.S. 1 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


Tom v. Sutten, 533 F.2d 1101 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . 15
United States v. Lopez-Flores, 63 F.3d 1468 (9th Cir. 1995) . . . . . .

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) . . . . . . . .

6-7, 8

Winter v. Natural Resources Defense Council, Inc.,


129 S.Ct. 365 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17, 18

Unreported Cases and Dispositions

Alexander Say v. John Adams, et.al.,


No. 3:07-cv-377-R, 2008 wl 718163 (D. Ky. March 14, 2008) . . . .

11, 15, 17,


18, 19

Carlos Nino de Rivera Lajous v. David Sankey,


No. 4:13-cv-03070 (D. Neb. Oct. 15, 2013) (Exhibit Eight) . . . . . . . 11, 18
John W. Jackson, et. al. v. Gorden E. Eden,
No. 1:12-cv-00421 (D. N.M. March 31, 2014)
(Exhibits Nine and Ten) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18
Martin Pot, et. al. v. Colonel Stan Witt,
No. 3:13-cv-03102 (W.D. Ark. May 8, 2014) (Exhibit Eleven) . . . . 12
National Rifle Association, et. al. v. State of Washington, et. al.,
No. C08-1613 RSM (W.D. Wash. Jan. 27, 2009) (Exhibit Twelve) . . 12
Second Amendment Foundation, Inc., et. al. v. Jim Suttle, et. al.,
No. 8:11CV335 (D. Neb. Nov. 21, 2011) (Exhibit Seven) . . . . . . . . . 11
iii

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Statutes, Rules, and Other Authorities


18 U.S.C. 922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Haw. Rev. Stat. 134-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12, 13,
17, 18
Haw. Rev. Stat. 134-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
8 C.F.R. 316.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

iv

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I. LEGAL BACKGROUND.
In Hawaii, Section 134-2 of the Hawaii Revised Statutes provides the only
means by which any fit and qualified person may lawfully possess a firearm in
their home. Specifically, Section 134-2(a) prohibits any person from acquiring
ownership of a firearm without first obtaining a permit from the appropriate chief
of police. Haw. Rev. Stat. 134-2(a). It is a crime to possess a firearm in Hawaii
without the permit contemplated in Section 134-2. Haw. Rev. Stat. 134-17(c).
Section 134-2(d) vests Defendant Kealoha, as chief of police, with discretion
to issue the permits contemplated in Section 134-2(a) to citizens of the United
States of the age of twenty-one years or more, diplomats, and alien law
enforcement agents on Oahu. Haw. Rev. Stat. 134-2(d). However, the chief is
only vested with discretion to issue severely limited permits to other alien
applicants. Id.

Specifically, the chief may issue a permit that would allow the

alien applicant to possess shotguns or rifles for a maximum of 60 days and, then,
only after the alien has obtained a hunting license.

Id.

The chief also has

discretion to issue a permit to an alien who is training for specific sport-shooting


contests for a maximum of six months. Id. The sport-shooting contest must be
held during the time the permit allows the alien to possess the firearm(s). Id.

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II. FACTUAL BACKGROUND


Mr. Fotoudis is a lawfully admitted permanent resident alien who resides in
Hawaii. Decl. of Steve Fotoudis 2-5. The only reason that Mr. Fotoudis is not a
naturalized citizen is because he has not met the five-year residency requirement.
Decl. of Steve Fotoudis 3; see 8 C.F.R. 316.2(a); . Mr. Fotoudis has a green
card, Exhibit One, and a United States social security card, Exhibit Two. Decl. of
Steve Fotoudis 4.
Mr. Fotoudis wishes to import to Hawaii firearms that he currently owns but
are located in Australia. Decl. of Steve Fortoudis 21, 24, 32, 47-51. Mr.
Fortoudis is fit and qualified to keep firearms under the laws of the United States
and, with the exception of the statutory discriminatory provisions prohibiting
lawfully admitted aliens from acquiring firearms, under the laws of Hawaii. Decl.
of Steve Fortoudis, 4, 6-18, 31.
Australia.

Mr. Fotoudis holds firearms licenses in

Decl. of Steve Fotoudis 8, Exhibit Three.

Mr. Fotoudis even

received a letter of recommendation from the South Australian Police stating that
he is a fit and proper person to keep and possess firearms and identifying several
firearms licenses Mr. Fotoudis holds or has held in Australia. Decl. of Steve
Fotoudis 10, Exhibit Four.
On July 10, 2014, Mr. Fotoudis went to the window at the Honolulu Police
Departments (HPD) main station on Beretania Street. Decl. of Steve Fotoudis
2

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24. The window is the designated place where members of the public may apply
for permits to acquire firearms pursuant to Hawaii law. Decl. of Steve Fotoudis
22. United States citizens are routinely permitted to apply for Section 134-2
permits at the window and, if found fit and qualified, those citizen applicants are
issued the permit. . Decl. of Steve Fotoudis 23.
Mr. Fotoudis was asked for identification by the police officer who was
assisting people at the HPD window. . Decl. of Steve Fotoudis 25. In response
to the request, Mr. Fotoudis presented his green card, United States Social Security
Card, and his Australian passport. . Decl. of Steve Fotoudis 26. Because he was
not a naturalized U.S. citizen, Mr. Fotoudis was not even allowed to apply for any
permit. . Decl. of Steve Fotoudis 27, 29.
In the context of Section 134-2 permits, Defendant Louie has not taken any
action to promulgate rules or otherwise ensure that resident aliens are not
discriminated against. In practice, Defendant Kealoha does not exercise even his
limited statutory discretion in favor of alien applicants. Upon information and
belief, aliens are not permitted to possess firearms even in the severely limited
circumstances identified in Section 134-2(d). No inquiry has ever been made as to
what type of firearm Mr. Fotoudis sought to acquire, whether Mr. Fotoudis had a
hunting license, and/or whether Mr. Fotoudis was training for a sport-shooting
contest. Decl. of Steve Fotoudis 28. In fact, Mr. Fotoudis has been specifically
3

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advised by HPD representatives that he could not possess a firearm in Hawaii.


Decl. of Steve Fotoudis 20, Exhibit Five.

And, when Mr. Fotoudis wrote

Defendant Kealoha to inquire how this unconstitutional prohibition could be


avoided, Chief Kealoha did not even respond. Decl. of Steve Fotoudis 21,
Exhibit Six.
III. ARGUMENT
A plaintiff seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest. Winter v. Natural Resources Defense Council,
Inc., 129 S.Ct. 365, 374 (2008).
A. Mr. Fotoudis will likely succeed on the merits.
1. Mr. Fotoudis core Second Amendment rights continue to be violated.
Although the Second Amendment is not an unlimited right, the Second
Amendment guarantees the right to keep and possess firearms for the purpose of
self-defense. District of Columbia v. Heller, 554 U.S. 570, 580 (2008). [T]he
need for defense of self, family and property is most acute in the home. Id. at
628. Accordingly, a complete prohibition of handguns and other protected arms
is invalid. Id. at 629. [T]he Due Process Clause of the Fourteenth Amendment

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incorporates the Second Amendment right recognized in Heller. McDonald v.


City of Chicago, Ill., 130 S. Ct. 3020, 3050 (2010).
Nevertheless, even if Chief Kealoha routinely permitted permanent residents
to apply for the limited permits contemplated by Section 134-2(d), those permits
do not satisfy the Second Amendment. Despite the questions that Heller left
unresolved and with which courts nationwide are currently struggling, Heller is
abundantly clear that the right to possess firearms within the confines of the home
for the purpose of self-defense is unequivocally protected. Section 134-2(d) does
not allow permanent residents to exercise that core right.
Mr. Fotoudis does not claim that the government may not reasonably
prohibit unfit and/or unqualified persons, fit and qualified illegal aliens, or fit and
qualified temporary non-immigrant aliens from possessing firearms. However, the
absolute prohibition on fit and qualified permanent residents ability to keep and
possess firearms within the confines of their Hawaii homes for the purpose of selfdefense not only obviously burdens Second Amendment rights but also patently
violates the Second Amendment. Heller, 554 U.S. at 580, 629. The prohibition of
Section 134-2(d) fails application of any form of means-end scrutiny.
Thus, the only question before this Court is whether fit and qualified
permanent residents such as Mr. Fotoudis are among the people protected by the
Second Amendment.
5

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The Bill of Rights is a futile authority for the alien seeking admission
for the first time to these shores. But once an alien lawfully enters
and resides in this country he becomes invested with the rights
guaranteed by the Constitution to all people within our borders.
Such rights include those protected by the First and the Fifth
Amendments and by the due process clause of the Fourteenth
Amendment. None of these provisions acknowledges any
distinction between citizens and resident aliens. They extend their
inalienable privileges to all persons' and guard against any
encroachment on those rights by federal or state authority.
Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1455, 89 L.Ed.
2103 (concurring opinion).
The alien, to whom the United States has been traditionally
hospitable, has been accorded a generous and ascending scale of
rights as he increases his identity with our society. Mere lawful
presence in the country creates an implied assurance of safe conduct
and gives him certain rights; they become more extensive and secure
when he makes preliminary declaration of intention to become a
citizen, and they expand to those of full citizenship upon
naturalization. During his probationary residence, this Court has
steadily enlarged his right against Executive deportation except upon
full and fair hearing. * * * And, at least since 1886, we have
extended to the person and property of resident aliens important
constitutional guarantiessuch as the due process of law of the
Fourteenth Amendment. Johnson v. Eisentrager, 339 U.S. 763,
770771, 70 S.Ct. 936, 940, 94 L.Ed. 1255.
Kwong Hai Chew v. Colding, 344 U.S. 590, 596, n. 5 (1953) (emphases added).
In the context of the Second Amendment, the United States Supreme Court
has specifically found:
The Second Amendment protects the right of the people to keep and
bear Arms . . . While this textual exegesis is by no means conclusive,
it suggest that the people protected by the Fourth Amendment, and
by the First and Second Amendments . . . refers to a class of persons
who are part of a national community or who have otherwise
6

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developed sufficient connection with this country to be considered


part of that community.
United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). More specifically,
aliens receive constitutional protections when they have come within the territory
of the United States and developed substantial connections with this country. Id.
at 271. But once an alien lawfully enters and resides in this country he becomes
invested with the rights guaranteed by the Constitution to all people within our
borders. Id. (citation omitted). Thus, insofar as naturalized citizens are permitted
to keep and bear arms, resident aliens may do the same.
Heller, itself, quotes Verdugo-Urquidez, for the proposition that the phrase
the people is intended to confer individual rights 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 instead of
merely conferring the right to bear arms only upon male, able bodied [militia
members] within a certain age range. Heller, 554 U.S. at 580 (quoting VerdugoUrquidez, 494 U.S. at 265). And, at least Massachusetts United States District
Court has squarely found that permanent residents are included amongst the
people protected by the Second Amendment. Fletcher v. Haas, 851 F.Supp.2d
287, 288, 291-93, 299 (D. Mass 2012) (This case presents the question whether
lawful permanent resident aliens are among the people for whom the Second

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Amendment the United States Constitution provides a right to bear arms.

conclude they are.).


Mr. Fotoudis is a permanent resident. Mr. Fotoudis has a green card. Mr.
Fotoudis will become naturalized upon the expiration of the five-year waiting
period. And, in the meantime, Mr. Fotoudis lives and works in Honolulu. Mr.
Fotoudis has necessarily developed sufficient connection with this country to be
considered part of [the] community. Verdugo-Urquidez, 494 U.S. at 265; See
Demore, 538 U.S. at 544 (Souter, J., concurring in part and dissenting in part) (the
lives of permanent residents are generally indistinguishable from those of United
States citizens.). Mr. Fotoudi has accepted some societal obligations that places
him among the people of the United States, including but not limited to
running a business and paying taxes in Honolulu. Verdugo-Urquidez, 494 U.S. at
273. Undoubtedly, Mr. Fotoudis has sufficient connection with the United States
to exercise the core of the fundamental right guaranteed by the Second
Amendment, i.e., to keep a firearm(s) within the confines of his home for the
purpose of self-defense.
Mr. Fotoudis is highly likely to prevail on the merits of this issue.
2. Mr. Fotoudis has been denied equal protection of the laws.
Section 134-2(d) of the Hawaii Revised Statutes and Defendants refusal to
issue and/or to allow Mr. Fotoudis to apply for a permit to acquire a firearm(s) to
8

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keep in his home for the purpose of self-defense and to use for other lawful
purposes violates the equal protection clause of the Fourteenth Amendment. Mr.
Fotoudis is likely prevail on the merits of this claim.
Our Supreme Court has specifically held that the term person in this
[Fourteenth Amendment] context encompasses lawfully admitted resident aliens as
well as citizens of the United States and entitles both citizens and aliens to the
equal protection of the laws of the State in which they reside.
Richardson,

403 U.S.

365,

371 (1971) (denial of

Graham v.

welfare benefits).

[C]lassifications based on alienage . . . are inherently suspect and subject to close


judicial scrutiny.

Id. at 372.

And, although here the core protection of

fundamental Second Amendment rights are at stake, the inherent suspicion and
close judicial scrutiny is applied whether or not a fundamental right is
impaired.

Id. at 373.

Thus, in contrast to federal laws, [s]tate alienage

classifications create a suspect class to which we apply strict scrutiny. United


States v. Lopez-Flores, 63 F.3d 1468, 1473 (9th Cir. 1995).
Not surprisingly, state laws that discriminate against a person based on his
or her alienage have been consistently struck.

Takahashi v. Fish & Game

Commission, 334 U.S. 410, 421 (1948) (invalidating a state law excluding aliens
who are lawful residents of the State from making a living by fishing in the ocean
off its shores while permitting others to do so.). Takashi and Graham stand for
9

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the broad principle that state regulation not congressionally sanctioned that
discriminates against aliens lawfully admitted to the country is impermissible if it
imposes additional burdens not contemplated by Congress. Toll v. Moreno, 458
U.S. 1, 12-13 (1982) (invalidating state law denying tuition benefits to
nonimmigrant aliens). In other words, absent specific congressional action to the
contrary, lawfully admitted resident aliens, such as Mr. Fotoudis, are entitled to
the full and equal benefit of all state laws for the security of persons and
property. Graham, 403 U.S. at 378 (emphasis added).
Accordingly, each court, known to the undersigned, that has reviewed the
issue sub judice has determined that permanent residents may, at the very least,
keep firearms in their homes for the purpose of self-defense and may enjoy the
same rights or privileges to bear arms as naturalized citizens. Chan v. City of Troy,
559 N.W.2d 374, 379-80, n. 3. (Mich.Ct.App. 1997) (the statute, which prohibits
the purchase of pistols by all noncitizens, fails to distinguish between dangerous
noncitizens and those noncitizens who would pose no particular threat if allowed to
purchase the weapons and [h]ad the statute excluded only illegal aliens, as
opposed to all noncitizens, it may well have passed constitutional muster.);
People v. Nakamura, 62 P.2d 246, 247 (Colo. 1936) (the act wholly disarms
aliens for all purposes. The state . . . cannot disarm any class of persons or deprive
them of the right . . . to bear arms in defense of home, person, and property.);
10

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Sandiford v. Commonwealth, 225 S.E.2d 409 (Va. 1976) (invalidating presumption


for possession of sawed-off shotgun by alien); State v. Chumphol, 634 P.2d 451
(Nev. 1981) (invalidating prohibition on possession of pistol); People v. Rappard,
28 Cal.App.3d 302, 304-05, 104 Cal.Rptr. 535 (1972) (invalidating prohibition on
possession of concealable firearm); Fletcher, 851 Supp.2d 287 (determining that
resident aliens are people as contemplated by the Second Amendment and
holding that resident aliens are entitled to possess firearms); 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, Inc., et. al. v. Jim
Suttle, et. al., No. 8:11CV335 (D. Neb. Nov. 21, 2011) (stipulated preliminary
injunction) (attached as Exhibit Seven); 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) (attached as Exhibit Eight); John W. Jackson, et. al. v. Gorden E. Eden,
No. 1:12-cv-00421 (D. N.M. March 31, 2014) (Preliminary Injunction Order and
11

Case 1:14-cv-00333 Document 6-1 Filed 07/24/14 Page 17 of 25

PageID #: 62

Judgment finding that prohibiting resident aliens from obtaining conceal and carry
permits violates the equal protection clause and enjoining the enforcement of such
prohibition) (attached as Exhibits Nine and Ten); 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) (attached as Exhibit Eleven); 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)
(attached as Exhibit Twelve).
Strict scrutiny must inevitably be applied to Hawaiis discriminatory
licensing procedure. Thus, the government must carry the burden of proving that
excluding lawful permanent residents who are fit and qualified to keep and possess
firearms is narrowly tailored [and] further[s] compelling governmental interests.
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
Section 134-2 broadly categorizes all persons as either citizens or aliens.
Haw. Rev. Stat. 134-2(d). Thus, permanent residents are illegally deprived of the
same rights as those to which illegal immigrants or other non-immigrant aliens
who are in the United States lawfully but on a temporary visa are deprived. This
broad class-based categorization is not narrow but is, instead, sweeping.
Further, the government has no compelling interest in preventing lawful
permanent residents, who are no more prone to violence or likely to commit crimes
12

Case 1:14-cv-00333 Document 6-1 Filed 07/24/14 Page 18 of 25

PageID #: 63

than the naturalized population, from exercising the core of fundamental Second
Amendment rights.

Fletcher, 851 F.Supp.2d at 303 (where statute did not

distinguish between dangerous or non-dangerous aliens or between permanent


residents and temporary non-immigrant residents, the court found [a]ny
classification based on the assumption that lawful permanent residents are
categorically dangerous and that all American citizens by contrast are trustworthy
lacks even a reasonable basis.). Sandiford, 225 S.E.2d at 411 (We see no rational
connection between a persons place of birth and his disposition to commit
offensive or aggressive acts.); Chumphol, 634 P.2d at 452 ( A person does not
exhibit a tendency toward crime merely because he or she is a noncitizen); People
v. Rappard, 28 Cal.App.3d 302, 304-05, 104 Cal.Rptr. 535 (Cal.App. 1972) (a
person does not . . . show a tendency toward crime simply because he is not a
citizen of this country.).
It is unfathomable that the government would be able to justify the
sweeping and discriminatory prohibition of Section 134-2(d).

Because

Section

134-2(d) excludes all fit and qualified permanent residents, it is unconstitutional on


its face. Additionally, Mr. Fotoudis was not permitted to even apply for the permit
because of his status as a permanent resident. Thus, the actions described in the
Complaint and above are unconstitutional as applied to Mr. Fotoudis.
Mr. Fotoudis is also highly likely to prevail on the merits of this claim.
13

Case 1:14-cv-00333 Document 6-1 Filed 07/24/14 Page 19 of 25

PageID #: 64

3. Mr. Fotoudis Due Process Rights have been violated.


As shown above, the due process clause of the Fourteenth Amendment
undeniably applies to lawfully admitted aliens.
Hawaiis permitting scheme leaves fit and qualified applicants at the mercy
of the police chiefs discretion to determine whether the applicant may enjoy the
exercise of core Second Amendment rights. Whether such a scheme could satisfy
minimal due process guarantees of the Fourteenth Amendment is, at best,
questionable. However where, as here, an applicant is not even afforded the ability
to subject himself to the dubious procedure, the applicants due process rights have
clearly been violated. Mr. Fotoudis will also undoubtedly prevail on the merits of
Count Three of his Complaint.
B. Mr. Fotoudis will be irreparably harmed.
[A]n alleged constitutional infringement will often alone constitute
irreparable harm. Associated General Contractors v. Coalition for Economic
Equity, 950 F.2d 1401, 1412 (9th Cir. 1991); see Sammartano v. First Judicial
District Court Carson City, 303 F.3d 959, 973 (9th Cir. 2002) (the loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury for purposes of the issuance of a preliminary
injunction). This Court should find irreparable harm solely because Mr. Fotoudis

14

Case 1:14-cv-00333 Document 6-1 Filed 07/24/14 Page 20 of 25

PageID #: 65

will be deprived of his core Second Amendment rights if the injunction is not
issued.
Moreover, all constitutional provisions are of equal dignity.
Sutten, 533 F.2d 1101, 1106 (9th Cir. 1976).

Tom v.

Thus, the Ninth Circuit has found

that a group of plaintiffs probability of success [in demonstrating irreparable


harm was] much higher after also finding that the challenged statute was
unconstitutional insofar as it classifies by ethnicity and sex. Monterey Mech. Co.
v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997).
At least one of this Courts sister districts has found, in a case where the
plaintiffs showed a likelihood of success on the merits of an equal protection claim
(for discrimination based on sexual orientation), that the plaintiffs had also
demonstrated sufficient irreparable harm. Collins v. Brewer, 727 F. Supp. 2d 797,
812 (D. Ariz. 2010), aff'd sub nom. Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011).
Such constitutional violations cannot be adequately remedied through damages
and therefore generally constitute irreparable harm. Id.
One other district court has specifically found irreparable harm in a case
precisely analogous to this case.

Say, supra.

There, a permanent resident

demonstrated the likelihood of prevailing on an equal protection claim challenging


a state firearms law. The law discriminated against permanent aliens as does
Section 134-2. Id. And, the court found irreparable harm. Id.
15

Case 1:14-cv-00333 Document 6-1 Filed 07/24/14 Page 21 of 25

PageID #: 66

This Court should find that Mr. Fotoudis is irreparably harmed because of
the continued deprivation of his equal protection rights.
Even if these constitutional violations were somehow an insufficient
demonstration of irreparable harm, the facts of this case present specific irreparable
harm beyond that of the violation of his constitutional rights.
Mr. Fotoudis, who was a regular competitor at numerous Australian sportshooting competitions, currently owns seven rifles and two handguns. Decl. of
Steve Fotoudis 31. When he moved to Hawaii and because he could not get a
Section 134-2 permit, Mr. Fotoudis sold the vast majority of his firearms and only
retained those that he finds irreplaceable because of the sentimental value he
attaches to those firearms. Decl. of Steve Fotoudis 34. Because Defendants will
not even allow Mr. Fotoudis to apply for the permit that would allow him to
possess his remaining firearms in Hawaii, Mr. Fotoudis is forced to keep those
firearms in Australia. Decl. of Steve Fotoudis 47.
Those firearms are now stored in a safe at Mr. Fotoudis fathers house.
Decl. of Steve Fotoudis 47. Mr. Fotoudis father wants the safe removed from
his house as soon as possible. Decl. of Steve Fotoudis 48. Moreover, Mr.
Foutodis Australian firearms permit expires on December 31, 2014 Decl. of Steve
Fotoudis 49. Then, Mr. Fotoudis will be forced to either sell the firearms or,
alternatively, pay Australian officials an exorbitant storage fee to keep the firearms
16

Case 1:14-cv-00333 Document 6-1 Filed 07/24/14 Page 22 of 25

on Mr. Fotoudis behalf. Decl. of Steve Fotoudis 50.

PageID #: 67

Mr. Fotoudis cannot

afford to pay the fee for each of his remaining firearms. Decl. of Steve Fotoudis
51.
The impending loss of Mr. Fotoudis firearms also constitutes irreparable
harm.
C. The balance of equities tips sharply in Mr. Fotoudis favor.
In this case, the balance of equities tips in [Mr. Fotoudis] favor. Winter,
129 S. Ct. at 374. Being lawfully admitted for permanent residence and by having
previous firearm licenses, Mr. Fotoudis has been subjected to intensive background
checks.

No legitimate State interest is served:

by denying Mr. Fotoudis an

opportunity to apply for a permit contemplated by Section 134-2; by denying Mr.


Fotoudis a permit contemplated by Section 134-2 which would allow Mr. Fotoudis
to keep his firearms in his home; and/or by applying criminal penalties against Mr.
Fotoudis for not having the permit.
Say found that an injunction would require the state police to conduct a
manual case-by-case background check on alien concealed-carry applicants, as
well as update its electronic database software, amend its forms, and change its
record heck procedures. However, any harm to others caused by the granting of a
preliminary injunction is not substantial enough to justify the violation of
Plaintiffs constitutional rights. Say, 2008 wl 718163, *4.
17

Case 1:14-cv-00333 Document 6-1 Filed 07/24/14 Page 23 of 25

PageID #: 68

Say enjoined enforcement of the state law requiring applicants for a


concealed-carry permit to be U.S. citizens. Say, supra. Defendants were also
ordered to furnish Say with a license application and to accept and process the
application and issue the license in accordance with the established procedures for
processing such application and issuing such license, but without requiring proof
of United States citizenship.

Id.; see also Sankey (Exhibit Eight); Jackson,

(Exhibits Nine and Ten).


Any additional administrative burden required for Defendants to issue or
renew permits to acquire to permanent resident aliens who wish to possess firearms
within the confines of their home for the purpose of self-defense would not be
substantial.

The balance of equities tips sharply in favor of:

enjoining the

enforcement of the discriminatory provision Section 134-2(d) and/or the


discriminatory practices of Defendants; compelling Defendants to allow Mr.
Fotoudis to apply; and compelling issuance of the permit to Mr. Fotoudis absent
some good faith finding that he is either unfit or unqualified.
D. The injunction serves the publics interests.
The injunction sought is in the public interest. Winter, 129 S.Ct. at 374.
Generally, public interest concerns are implicated when a constitutional right has
been violated, because all citizens have a stake in upholding the Constitution.
Freminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005). [I]t is always in the
18

Case 1:14-cv-00333 Document 6-1 Filed 07/24/14 Page 24 of 25

PageID #: 69

public interest to prevent the violation of a partys constitutional rights.


Sammartano, 303 F.3d at 974 (citation omitted). The Say injunction was found to
be in the public interest because Plaintiff is asserting a violation of the Equal
Protection Clause. Say, 2008 wl 718163, *4.
No public interest exists in denying firearm licenses to or prohibition firearm
possession by lawful permanent resident aliens. No such discrimination exists in
the federal Gun Control Act, which prohibits firearm possession only to aliens who
are: 1) illegally or unlawfully in the United States;: or 2) admitted to the United
States under a nonimmigrant visa. 18 U.S.C. 922(g)(5). The latter prohibition
is lifted if the alien is here for lawful hunting or sporting purposes or is in
possession of a hunting license. 18 U.S.C. 922(y)(2)(A).
There is no public interest in prohibiting fit and qualified, lawfully admitted
permanent resident aliens from exercising the core of the rights guaranteed by the
Second Amendment, i.e., to possess a firearm(s) in their home for the purpose of
self-defense.
IV. CONCLUSION
Mr. Fotoudis has strong, if not inevitable, likelihood of prevailing on the
merits of his facial and as applied challenges to Section 134-2(d) of the Hawaii
Revised Statutes. Mr. Fotoudis will suffer irreparable harm in the absence of the

19

Case 1:14-cv-00333 Document 6-1 Filed 07/24/14 Page 25 of 25

relief requested.

PageID #: 70

The balance of equities tips in his favor and the requested

injunction is in the public interest. The motion(s) should be granted.


DATED: Honolulu, Hawaii; July 24, 2014.

s/Richard L. Holcomb____
Richard L. Holcomb
Attorney for Plaintiff
Steve Fotoudis

20

Case 1:14-cv-00333 Document 6-2 Filed 07/24/14 Page 1 of 8

PageID #: 71

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF HAWAII
Steven Fotoudis,

CASE NO. L14-CV-00333

Plaintiff,

vs.
City and County of Honolulu;
Lois Kealoha, in his individual capacity;
and, David Louie, Attorney General of
Hawii in his individual and official
capacity; John Does 1-50 in their
individual or official capacities.
)
Defendants.

DECLARATION OF STEVEN
FOTOUDIS

DECLARATION OF STEVEN FOTOUDIS


1.

My name is Steven Fotoudis. I am the Plaintiff in the above-styled

2.

1 am from Australia. I am an Australian citizen. However, 1 have

case.
immigrated to the United States.
3.

I am in the process of becoming a citizen here. I have taken all

necessary steps to become a citizen of the United States. The only requirement
that I have not met in becoming a fully naturalized citizen is that 1 have not lived in
the United States continuously for five years.
4.

In approximately September of 20011, 1 disclosed to the American

Embassy in Sidney an Australian police clearance, a criminal history, fingerprints


and photo identification to assist the United
States authorities in conducting the
l

Case 1:14-cv-00333 Document 6-2 Filed 07/24/14 Page 2 of 8

PageID #: 72

background investigation that was necessary for me to become a permanent


resident. In May 2012,1 was granted permanent residency in the United States. I
successfully underwent a thorough background investigation before I was granted
permanent residency in the United States. Currently, I am lawfully admitted to the
United States as a permanent resident alien. I have a green card, a true and exact
copy of my green card is attached as Exhibit One. I have a United States social
security card, a true and exact copy of my social security card is attached as
Exhibit Two.
5.

My wife and 1 have lived in Honolulu, Hawaii since May 5, 2013. I

am the Hawaii state sales manager for Wash Multi-family Laundry Systems. I pay
all applicable local, state and United States taxes. I have no plans of leaving
Hawaii or the United States.
6.

In Australia, I was a competitive shooter. I have participated in a

number of competitive shooting contests, including globally recognized ISSF


(International Shooting Sport Federation) contests and IPSC (International
Practical Shooting Confederation) contests. I was an active member of a
competitive shooting club, Torrens Valley Pistol Club ("TVPC") in Australia from
2002 to 2013. I served as club captain, range officer, instructor and committee
member during my membership with TVPC.

Case 1:14-cv-00333 Document 6-2 Filed 07/24/14 Page 3 of 8

7.

PageID #: 73

I have had extensive training in firearms safety and use. I have

completed a recognized Australian range officer's course where I learned safe way
to empty guns and clear a range as well as scoring. I passed the Australian
government's test that permitted me to become licensed for the ownership of long
arms. I also completed a six week training course where I learned the safe
handling, legalities, range rules, and basic shooting skills. That training allowed
me to obtain a license to own firearms in Autstralia.
8.

I hold an Australian firearms license. A true and exact copy of my

Australian firearms license is attached as Exhibit Three.


9.

In order to obtain the Australian firearms license, I had to undergo an

extensive investigation into my background. I also had to demonstrate my fitness


and qualifications.
10. On February 8, 2012, Sergeant D. Gibson with the South Australian
Police wrote a letter on my behalf. A true an exact copy of the letter is attached as
Exhibit Four. The letter correctly states that I am a "fit and proper person" to
hold a firearms license. And, it identifies several firearms licenses 1 hold or have
held in Australia.
11. I have never been convicted of a crime.
12. I am not a fugitive.
13. I have no mental illnesses or defects.
3

Case 1:14-cv-00333 Document 6-2 Filed 07/24/14 Page 4 of 8

PageID #: 74

14. I do not and never had any restraining order issued against me.
15. 1 have never committed domestic or any other act of violence.
16. I am not and have never been addicted to mind-altering substances
and I do not use illegal mind-altering substances.
17. I am not addicted to nor do 1 use alcohol in excess.
18. I believe that I am fit and qualified to possess a firearm pursuant to the
laws of the United States and of Hawaii (with the exception of the discriminatory
provisions that exclude resident aliens from acquiring firearms in Hawaii).
19. The only reason that has ever been provided to me as to why I could
not lawfully possess firearms in Hawaii is that 1 am disqualified from obtaining a
permit pursuant to Section 134-2 of the Hawaii Revised Statutes because I am not
yet a fully naturalized citizen.
20. On December 6, 2011, I received an e-mail from Sergeant D. Paperd
of the Honolulu Police Department's Firearms Unit. The e-mail states, in relevant
part:
You may bring firearms into the State, you must register them within
72 hours of your arrival. However [sic] Hawaii State law requires you
to be a U.S. citizen with a U.S. passport or Naturalization certificate.
A true and exact copy of the e-mail is attached as Exhibit Five.

Case 1:14-cv-00333 Document 6-2 Filed 07/24/14 Page 5 of 8

21.

PageID #: 75

On February 21, 2012, I wrote Defendant Lois Kealoha a letter

inquiring as to how I could possess my firearms in Hawaii. A true and exact copy
of my letter to Defendant Kealoha is attached as Exhibit Six. I received no
response to this inquiry.
22. At the HPD's main station on Beretania (and Alapai) Street, there is a
window where the public may obtain forms from HPD representatives and apply
for firearms permits. During designated hours, the window is open to the public.
23. It is my understanding United States citizens are routinely permitted
to obtain and/or submit applications at the window at HPD's main station. While I
was at the HPD station, I saw others applying and/or submitting applications. It is
also my understanding that if the citizen applicant is found to be fit and qualified
pursuant to Hawaii law, the citizen applicant is issued a permit as contemplated by
Section 134-2 of the Hawaii Revised Statutes.
24. On July 10, 2014 at approximately 1:00 p.m., I went to the window at
the Honolulu Police Department. I informed the HPD representative that I wished
to apply for a permit to acquire a firearm.
25. When I informed the HPD representative (who I believe to be Officer
"Prado") that I wished to apply for a permit to acquire, Officer Prado requested
identification from me.

Case 1:14-cv-00333 Document 6-2 Filed 07/24/14 Page 6 of 8

PageID #: 76

26. I supplied Officer Prado with my green card, my social security card,
and my Australian passport.
27. Officer Prado and/or another officer standing at the adjacent window
told me that I could not apply for the permit because I am not a citizen of the
United States.
28. Neither officer inquired as to whether I had a hunting license or was
training for a sport-shooting contest.
29. 1 was not permitted to apply for the permit to acquire a firearm
30. Without the permit, it is my understanding that I am unable to acquire
or possess a firearm in Hawaii for self-defense or any other lawful purpose. In
fact, it is my understanding that to do so would be a crime.
31. I have safely and lawfully possessed a number of firearms in Australia
for years.
32. 1 wish to possess operational firearms and ammunition in my Hawaii
home for the purpose of self-defense. I also wish to possess firearms that I may
use to train for and participate in sport-shooting competitions.
33. I currently own seven rifles and two handguns.
34. Before I moved to Hawaii, I sold the vast majority of my firearms and
only retained those that I find "irreplaceable" because of the sentimental value I
attach to those firearms.
6

Case 1:14-cv-00333 Document 6-2 Filed 07/24/14 Page 7 of 8

PageID #: 77

47. Because I cannot apply for a permit under Hawaii law, I have to keep
those firearms in Australia. Those firearms are now stored in a safe at my father's
house.
48. My father wants the safe removed from his house as soon as possible.
49. My Australian firearms permit expires on December 31, 2014, at
which time my firearms must be removed from my father's house.
50. Upon the expiration of the Australian permit, 1 can no longer own the
firearms in Australia. I will be forced to either sell the firearms or, alternatively,
pay Australian officials an exorbitant storage fee to keep the firearms on my
behalf. Based on my experience as a Australian club captain, 1 had to deal with
Australian gun stores to make purchases for new members. Based on this
experience, 1 know the storage fees to be approximately $100 AUD per month or
approximately $107 USD.
51.

I cannot afford to pay the storage fee for each of my remaining

firearms and will likely be forced to sell some if not all of my "irreplaceable"
firearms.

Case 1:14-cv-00333 Document 6-2 Filed 07/24/14 Page 8 of 8

PageID #: 78

I, Steven Fotoudis, do declare under penalty of law that the fore-going is true
and correct to the best of my knowledge.
DATED: Honolulu, Hawaii, July 24, 2014.
~l^&&=

Steven Fotoudis

Case 1:14-cv-00333 Document 6-3 Filed 07/24/14 Page 1 of 2

PageID #: 79

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF HAWAII

Steve Fotoudis,

)
CASE NO. 1:14-cv-00333
)
Plaintiff,
)
vs.
)
)
City and County of Honolulu;
)
) DECLARATION OF RICHARD L.
HOLCOMB
Lois Kealoha, in his individual capacity; )
)
David Louie, Attorney General of
)
Hawaii in his individual and official
)
capacity;
)
)
and, John Does 1-50 in their individual )
or official capacities.
)
)
Defendants.
)
)
)
DECLARATION OF RICHARD L. HOLCOMB
1.

My name is Richard L. Holcomb. I am an attorney duly licensed to

practice law in the State of Hawaii and admitted to practice before this Court.
2.

I represent the Plaintiff, Steven Fotoudis in the above-styled case.

3.

I drafted the foregoing documents and, to the best of knowledge,

believe the factual averments therein to be true.


4.

Attached hereto as Exhibits Seven through Twelve are Orders and

Judgments from various other United States District Courts. I obtained each of
those Exhibits from pacer.gov. The Exhibits are true and exact copies of the

Case 1:14-cv-00333 Document 6-3 Filed 07/24/14 Page 2 of 2

PageID #: 80

documents each purports to be as the documents appear in the record of the


respective case on Pacer.gov.

I, Richard L. Holcomb, do declare under penalty of law that the fore-going is


true and correct to the best of my knowledge.
DATED: Honolulu, Hawaii, July 24, 2014.

s/Richard L. Holcomb____
Richard L. Holcomb
Attorney for Plaintiff
Steve Fotoudis

Case 1:14-cv-00333 Document 6-4 Filed 07/24/14 Page 1 of 2

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PageID #: 81

Case 1:14-cv-00333 Document 6-4 Filed 07/24/14 Page 2 of 2

PageID #: 82
t

Case 1:14-cv-00333 Document 6-5 Filed 07/24/14 Page 1 of 1

This card belongs to the Social Security Administration and you must
return it if we ask for it.
.If you'find a card that isn't yours, please return it to:
Social Security Administration
P.O. Box 33008. Baltimore. MD 21290-300X
For any other Social Security business 'information, contact your local
Social Security office. If you write to the above address for any business
other than returning a found card you will not receive a response.
Social Security Administration
Form SSA-3000 (08-2011)

PageID #: 83

Case 1:14-cv-00333 Document 6-6 Filed 07/24/14 Page 1 of 1

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PageID #: 84

Case 1:14-cv-00333 Document 6-7 Filed 07/24/14 Page 1 of 1

PageID #: 85

Your Ref
Our Ref
Enquiries
Telephone
Facsimile

MM
7322 3346
7322 4182

Firearms Branch
8 February 2012

Steven Fotoudis
69 East Street
TORRENSVILLE SA 5031

To whom it may concern,


Please accept this letter on behalf of the Deputy Registrar to advise that at the date of
writing, the following person is a fit and proper person to hold a South Australia Firearms
Licence.
Steven Fotoudis, Date of Birth4W/1963 of Torrensville
Steven has held his South Australia Firearms Licence since 1996 for classes A and B
for the purposes of club use, target shooting and hunting. In 2003 he was granted a
class H licence for the purpose of club use. His current expiry date is 31/12/2012.

Yours faithfully,

D Gibson
A/- Sergeant 2258/8
Firearms Branch

Case 1:14-cv-00333 Document 6-8 Filed 07/24/14 Page 1 of 1

PageID #: 86

Steven Fotoudis
From:
Sent:
To:
Subject:

Paperd, Daniel J. [dpaperd@honolulu.gov]


Tuesday, 6 December 2011 10:18 AM
stevefotoudis@optusnet.com.au
firearms

You may bring firearms into the State, you must register them within 72 hours of your arrival. However Hawaii State
law requires you to be a U.S. citizen with a U.S. passport or Naturalization certificate.

If you have any additional questions please feel free to contact the Honolulu Police Department/Firearms Unit directly
at 808-529-3811.

Sgt. D. Paperd
Honolulu Police Department/Firearms Unit

mi0if

Foe

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PageID #: 87

Steve Fotoudis
69 East Street
TORRENSVILLE SA 5031
AUSTRALIA
Telephone: +61407 161 764
Email: ,._ i a i
<>'. j
(

21 February 2012

Mr Louis M Kealoha
Chief of Police
Honolulu Police Department
801 South Beretania Street
Honolulu, HI 96813

Dear Mr Kealoha
I would like to take this opportunity to introduce ourselves to you as we will soon be
permanent residents of Oahu migrating from Australia
Our plan when we arrive in Oahu is to buy a home and start to set up businesses. I
currently have a business in Australia that provides building maintenance services to new
home developers and would be keen to set up a business in a similar field such as supplying
maintenance services to hotels. My wife has significant experience in risk, project and
change management and currently works for South Australia's capital city local government.
She is keen to investigate opportunities in setting up a consultancy to provide these services
in Oahu.
In Australia I have been a keen hunter for approximately 30 years and an active member
and competitor of a firearms club where I have been training new member's safe shooting
and handling of all firearms. I've been a committee member for 9 years, club captain and
significant volunteering for the benefit of the club and its members.
My research into Hawaii's gun laws has revealed that until I become a United States citizen I
am unable to own firearms in the state of Hawaii. I am seeking your assistance to hopefully
find a way that I may be able to bring my firearms collection to Hawaii and continue to hunt
on a regular monthly basis, participate in my sporting pursuits and compete in local events
such as I.P.S.C. and standard club pistol matches. I realize that In accordance with
Hawaiian law I will be unable to purchase and hold firearms until I become a US citizen, but I
was hoping that you may be able to guide me to an alternative solution, such as placing the
firearms in storage and only using them under a local clubs supervision. My collection in
Australia is worth approximately $70,000 and while I am currently selling many of these
there are a few pieces that are irreplaceable and I would love to retain.
Under the us citizenship requirements I am unable to apply for citizenship for five years
(although i personally would love to become a US citizen as quickly as possible) and herein
lies my dilemma, as I am also unableto Leave my collection in Australia for five years.

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Any assistance or guidance that you may be able to provide me with would be greatly
appreciated.
To confirm my involvement in a pistol club and provide information on my Australian Gun
licence, I have references from both Torrens Valley Pistol Club and SAPOL (South
Australian Police). Direct contact details have been provided should you wish to confirm
these references or require more information.
I am hoping to find a way of bringing my collection of firearms to Hawaii so that I can still be
an active competitor and member of one of your states club

Yours faithfully

Steve Fotoudis

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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEBRASKA
SECOND AMENDMENT
FOUNDATION, INC., NEBRASKA
FIREARMS OWNERS ASSOCIATION,
and ARMANDO PLIEGO GONZALEZ,
Plaintiffs,
v.
JIM SUTTLE, individually and in his
official capacity as Mayor of Omaha,
Nebraska, CITY OF OMAHA,
Nebraska, a municipal corporation, and
ALEX HAYES, individually and in his
official capacity as Chief of Police of
Omaha, Nebraska,
Defendants.

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8:11CV335

INJUNCTION

This matter is before the court on the plaintiffs motion for a preliminary injunction,
Filing No. 21. The parties have entered into a Stipulation agreeing to the terms of the
preliminary injunction. Filing No. 26.
In the stipulation, the parties agree that individuals have a fundamental right under
the Second Amendment to keep firearms, including handguns, in their homes for lawful
purposes, most notably for self-defense, the right is enforceable against state and local
governments, legal aliens residing in Omaha enjoy fundamental constitutional rights, and
legal aliens also enjoy the right of equal protection of the laws under the Fourteenth
Amendment of the Constitution. Id. the parties agree to the entry of an order enjoining the
enforcement of Omaha Municipal Code 20-253(9), which denies non-citizens the right

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to register a concealable firearm with the Omaha Chief of Police, thus denying them the
ability to possess a concealable firearm in their homes. Id.
The stipulation establishes that the plaintiffs are entitled to preliminary injunctive
relief. See Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109,114 (8th Cir. 1981)(en
banc). Pursuant to the stipulation, the court further finds that no security is required as the
defendants will not suffer financial harm by issuance of this order. This injunction shall
remain in place pending the conclusion of this litigation.
IT IS ORDERED:
1. Defendants Jim Suttle, individually and in his official capacity as Mayor of
Omaha, Nebraska; the City of Omaha, Nebraska, a municipal corporation; Alex Hayes,
individually and in his official capacity as Chief of Police of Omaha, Nebraska; their
officers, agents, servants, employees, and all persons in active concert or participation with
them who receive actual notice of the injunction are preliminarily enjoined from enforcing
Omaha Municipal Code 20-253(9), pending resolution of this action.
2. Defendants Jim Suttle, individually and in his official capacity as Mayor of
Omaha, Nebraska; the City of Omaha, Nebraska, a municipal corporation; Alex Hayes,
individually and in his official capacity as Chief of Police of Omaha, Nebraska; their
officers, agents, servants, employees, and all persons in active concert or participation with
them who receive actual notice of the injunction shall allow plaintiffs and other legal aliens
residing in Omaha to register concealable firearms for possession in their homes,
provided they are otherwise-qualified to possess a firearm.
3. The hearing scheduled for November 22, 2011 at 2:00 p.m. is canceled.

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4. This matter is referred to the United States Magistrate Judge for expedited
progression.
DATED this 21st day of November, 2011.
BY THE COURT:

s/Joseph F. Bataillon
UNITED STATES DISTRICT JUDGE

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
3

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92

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEBRASKA
CARLOS NINO DE RIVERA
LAJOUS, et al,
Plaintiffs,
v.
DAVID SANKEY, in his official capacity
as Superintendent of the Nebraska
State Patrol,
Defendant.

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Case No. 4:13-CV-3070

ORDER AND
FINAL JUDGMENT

This matter is before the Court upon the parties Joint Stipulation to Entry of Final
Judgment and Permanent Injunction (Filing No. 26). The parties stipulated to an Order of
the Court enjoining Defendant from enforcing Neb. Rev. Stat. 69-2433(10) as applied to
the application of lawful permanent residents to obtain a permit to carry a concealed
handgun, provided they are otherwise-qualified.(Filing No. 26).
The Court concludes that the Stipulation should be approved, and judgment should
be entered in favor of Plaintiffs. Accordingly,
IT IS ORDERED:
1.

For the reasons set forth in the Courts Order on Motion to Dismiss of August 30,
2013 (Filing No. 22),
a.
b.
c.

2.

Count I of Plaintiffs Complaint is dismissed with prejudice.


Plaintiffs claims against the Nebraska Attorney General are dismissed with
prejudice.
Count III of Plaintiffs Complaint is voluntarily dismissed pursuant to
F.R.Civ.P. 41(a)(1)(A)(ii).

Pursuant to Plaintiffs as-applied Fourteenth Amendment Equal Protection claim in


Count II, Defendant is permanently enjoined from taking any action to enforce Neb.
Rev. Stat. 69-2433(10) as applied to the application of lawful permanent residents
to obtain a permit to carry a concealed handgun, provided they are otherwisequalified. Upon entry of the final order and permanent injunction, Defendant shall
allow Plaintiffs and other lawful permanent residents residing in Nebraska to apply
for, and obtain, a permit to carry a concealed handgun, provided they are otherwisequalified to obtain such a permit pursuant to the Nebraska Concealed Handgun
Permit Act.

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3.

Plaintiffs shall file an application for attorneys fees and expenses on or before
November 5, 2013.
Dated this 15th day of October, 2013.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEW MEXICO

JOHN W. JACKSON and SECOND


AMENDMENT FOUNDATION,
INC.,
Plaintiffs,
vs.

No. 2:12-CV-00421-MCA-RHS

GARY KING, in his Official Capacity


as Attorney General of the State of New
Mexico, and BILL HUBBARD, in his
Official Capacity as Director of the
Special Investigations Division of the
New Mexico Department of Public
Safety,
Defendants.

MEMORANDUM OPINION AND ORDER


THIS MATTER is before the Court on Plaintiffs Motion for Preliminary
Injunction. [Doc. 18] The Court conducted oral argument on Plaintiffs motion on
December 18, 2012. [Doc. 27] Having considered the submissions, the relevant case law,
and otherwise being fully advised in the premises, the Court grants Plaintiffs motion.
I.

BACKGROUND
On April 24, 2012, Plaintiffs John W. Jackson and the Second Amendment

Foundation, Inc. (SAF), filed their Complaint [Doc. 1] pursuant to 42 U.S.C. 1983 for
deprivation of civil rights under color of law, [seeking] equitable, declaratory, and
injunctive relief challenging the State of New Mexicos prohibition on otherwise

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qualified non-U.S. citizens who legally reside in New Mexico from obtaining a concealed
carry permit, pursuant to section NMSA 1978, 29-19-4(A)(1) of the New Mexico
Concealed Handgun Carry Act. [Doc. 1 at 1] Plaintiffs allege that the citizenship
requirement in Section 29-19-4(A)(1) violates the equal protection clause of the United
States Constitution, the right to keep and bear firearms in the Second Amendment to the
United States Constitution, and is preempted by federal immigration law. [Doc. 1 at 6-7]
On May 17, 2012, Defendants Gary King, Attorney General of the State of New
Mexico, and Bill Hubbard, Director of the Special Investigations Division of the New
Mexico Department of Public Safety, filed their Answer to Plaintiffs Complaint. [Doc.
10] In their Answer Defendants admitted that legal resident aliens are prohibited from
carrying concealed weapons and that only citizens may carry concealed weapons.
[Doc. 10 at 2]
On August 9, 2012, Plaintiffs filed Plaintiffs Motion for Preliminary Injunction.
[Doc. 18] In support of their motion, Plaintiffs submitted the Declaration of John W.
Jackson, who averred that he is a permanent legal resident of the United States residing in
Rio Rancho, Sandoval County, New Mexico, and that he is prohibited by NMSA 1978,
29-19-4A(1) from obtaining a concealed carry permit, and thus carrying a handgun in a
concealed manner for self-defense. [Doc. 19] Plaintiffs also submitted the Declaration
of Julianne Versnel, who is the Director of Operations of SAF. Ms. Versnel averred that
SAF has individual members and supporters who are adversely impacted by NMSA
1978, 29-19-14(A)(1) and that [b]ut for criminal enactments challenged in this
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complaint, SAF members who are legal aliens residing within New Mexico would obtain
concealed carry permits and carry concealed firearms for their own defense. [Doc. 19]
Plaintiffs contend that they are entitled to preliminary injunctive relief because [t]he
deprivations of constitutional rights subject Plaintiffs to irreparable harm, and is such a
clear-cut constitutionally-inflicted harm that Plaintiffs are likely to succeed on the merits
by the conclusion of this litigation. [Doc. 19 at 6] Plaintiffs further contend that the
balance of the equities and the public interest would be served by awarding them the
preliminary injunctive relief that they seek.
Defendants do not dispute that permanent resident aliens are entitled to Second
Amendment rights under the equal protection clause of the Fourteenth Amendment.
[Doc. 20 at 4] Defendants contend, however, that no Second Amendment rights are at
issue in this case because the concealed carry of a firearm is not a constitutional right.
[Id.] Defendants point out that Plaintiffs are free to carry firearms openly and to carry
concealed firearms in their own home, on their own property, and in their own vehicle.
Because there is no constitutional violation, Defendants argue that Plaintiffs motion for a
preliminary injunction should be denied.
On September 19, 2012, the Court held a telephonic status conference regarding
Plaintiffs motion. At the status conference, the parties agreed that an evidentiary hearing
was unnecessary, but requested oral argument. [Doc. 25] Oral argument on Plaintiffs
motion was held on Tuesday, December 18, 2012. [Doc. 27]
Following oral argument, Defendant King moved to dismiss Plaintiffs Complaint
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for failure to state a claim upon which relief can be granted and for lack of standing,
alleging that he is not responsible for the execution and administration of the Concealed
Handgun Carry Act, NMSA 1978, 29-19-1, et seq. and, therefore, Plaintiffs injuries are
not traceable to him, nor redressable by him. [Doc. 28] The Court agreed and granted
Defendant Kings motion to dismiss. [Doc. 41] Accordingly, Defendant King is no
longer a party to this case.
II.

STANDARD
The decision to grant a preliminary injunction is within the Courts discretion. See

Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202, 1205 (10th Cir. 2003).
Because a preliminary injunction is an extraordinary remedy, the right to relief must be
clear and unequivocal. Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256
(10th Cir. 2003). To obtain a preliminary injunction, the moving party must
demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the movant
will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of
equities tips in the movants favor; and (4) that the injunction is in the public interest.
Attorney Gen. of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)
(internal quotation marks and citation omitted). Generally, where the moving party has
established that the [latter] three harm factors tip decidedly in its favor, the probability of
success requirement is somewhat relaxed and the movant need only show questions going
to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground
for litigation. Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1298 n.6 (10th Cir.
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2006) (internal quotation marks and citations omitted). However, this relaxed standard
does not apply to the three types of disfavored injunctions, which are:
(1) preliminary injunctions that alter the status quo; (2) mandatory
preliminary injunctions; and (3) preliminary injunctions that afford the
movant all the relief that it could recover at the conclusion of a full trial on
the merits. When a preliminary injunction falls into one of these categories,
it must be more closely scrutinized to assure that the exigencies of the case
support the granting of a remedy that is extraordinary even in the normal
course. A district court may not grant a preliminary injunction unless the
moving party makes a strong showing both with regard to the likelihood of
success on the merits and with regard to the balance of harms.
Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012) (internal quotation marks and
citation omitted).
Plaintiffs contend that the relaxed standard is applicable to this case because the
latter three elements weigh heavily in its favor. [Doc. 19 at 10 (internal quotation marks
and citation omitted)]. However, in Nova Health Systems, the Tenth Circuit Court of
Appeals held that where . . . the plaintiff seeks to enjoin the enforcement of a statute, a
showing that the questions are fair ground for litigation is not enough; the plaintiff must
meet the traditional substantial likelihood of success standard. 460 F.3d at 1298 n.6;
see also Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)
([w]here ... a preliminary injunction seeks to stay governmental action taken in the
public interest pursuant to a statutory or regulatory scheme, the less rigorous
fair-ground-for-litigation standard should not be applied. (internal quotation marks and
citation omitted)). Accordingly, the Court concludes that the relaxed standard is
inapplicable to this case.
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Defendant Hubbard contends that Plaintiffs seek a disfavored injunction and,


therefore, the heightened standard must be applied. [Doc. 20 at 3] The status quo is
defined as
the last uncontested status between the parties which preceded the
controversy until the outcome of the final hearing. In determining the status
quo for preliminary injunctions, [the Tenth Circuit] looks to the reality of
the existing status and relationship between the parties and not solely to the
parties legal rights.
Schrier v. Univ. Of Colorado, 427 F.3d 1253, 1260 (10th Cir. 2005) (internal quotation
marks and citations omitted). In Nova Health Systems, the Court expressed no opinion as
to whether a preliminary injunction seeking to enjoin the enforcement of a statute would
alter the status quo and, therefore, be a disfavored injunction subject to the heightened
standard of review. 460 F.3d at 1298 n.5.
The District of Kansas addressed this issue, however, in American Civil Liberties
Union of Kansas and Western Missouri v. Praeger, 815 F.Supp.2d 1204 (D. Kan. 2011).
In that case, the plaintiff sought declaratory and injunctive relief to halt the enforcement
of a Kansas statute which took effect on July 1, 2011. Id. at 1207. The Court held that,
because the statute was newly enacted, the last uncontested status between the parties
before the dispute arose would be that which existed prior to the challenged statute taking
effect. Id. at 1208. In arriving at this conclusion, the Court relied on the concurrence in
O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th
Cir. 2004), which noted that [w]hen a statute is newly enacted, and its enforcement will
restrict rights citizens previously had exercised and enjoyed, it is not uncommon for
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district courts to enjoin enforcement pending a determination of the merits of the


constitutional issue. Conversely, [w]hen a statute has long been on the books and
enforced, . . . it is exceedingly unusual for a litigant who challenges its constitutionality to
obtain (or even to seek) a preliminary injunction against its continued enforcement. Id.
Because the statute at issue in Praeger was newly enacted, the Court concluded that the
heightened standard for injunctions that alter the status quo [did] not apply to plaintiffs
request for a preliminary injunction. Praeger, 815 F.Supp.2d at 1209.
The citizenship requirement in New Mexicos Concealed Handgun Carry Act is
not newly enactedit has been a part of the statutory scheme since its enactment in 2003.
See 2003 New Mexico Laws Ch. 255 (S.B. 23). Because the citizenship requirement has
long been on the books and enforced, O Centro Espirita Beneficiente Uniao Do Vegetal,
389 F.3d at 977, the Court concludes that the requested relief seeks to alter the status quo.
Cf. American Ass'n of People With Disabilities v. Herrera, 580 F.Supp.2d 1195, 1247 (D.
N.M. 2008) (denying the plaintiffs request for a preliminary injunction enjoining the
enforcement of New Mexicos voter-registration laws in relevant part because it would
upset the status quo that has existed for three years). Accordingly, the heightened
standard of review applicable to disfavored injunctions applies to Plaintiffs motion for a
preliminary injunction.
III.

DISCUSSION
It is undisputed that Plaintiffs may openly carry a loaded firearm in accordance

with Article II, Section 6 of the New Mexico Constitution. See N.M. Const. art. II, 6
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(No law shall abridge the right of the citizen to keep and bear arms for security and
defense, for lawful hunting and recreational use and for other lawful purposes, but
nothing herein shall be held to permit the carrying of concealed weapons. No
municipality or county shall regulate, in any way, an incident of the right to keep and bear
arms.). However, New Mexicos Concealed Handgun Carry Act does not permit nonUnited States citizens to carry a loaded concealed firearm. Specifically, Section 29-19-4
provides, in relevant part, as follows:
A.
The department shall issue a concealed handgun license to an
applicant who:
(1)
is a citizen of the United States;
(2)
is a resident of New Mexico or is a member of the armed
forces whose permanent duty station is located in New Mexico or is a
dependent of such a member;
(3)
is twenty-one years of age or older;
(4)
is not a fugitive from justice;
(5)
has not been convicted of a felony in New Mexico or in any
other state or pursuant to the laws of the United States or any other
jurisdiction;
(6)
is not currently under indictment for a felony criminal offense
in New Mexico or any other state or pursuant to the laws of the United
States or any other jurisdiction;
(7)
is not otherwise prohibited by federal law or the law of any
other jurisdiction from purchasing or possessing firearms;
(8)
has not been adjudicated mentally incompetent or committed
to a mental institution;
(9)
is not addicted to alcohol or controlled substances; and
(10) has satisfactorily completed a firearms training course
approved by the department for the category and the largest caliber of
handgun that the applicant wants to be licensed to carry as a concealed
handgun.
Although noncitizens cannot obtain a concealed handgun license, they may nonetheless
carry a concealed loaded firearm in the following limited circumstances:
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(1)
in the personss residence or on real property belonging to him as
owner, lessee, or licensee;
(2)
in a private automobile or other private means of conveyance, for
lawful protection of the persons or anothers person or property.
NMSA 1978, 30-7-2. In any other circumstance, carrying a loaded concealed firearm
without a valid concealed handgun license issued . . . by the department of public safety
pursuant to the provisions of the Concealed Handgun Carry Act is a petty
misdemeanor. Id.
A.

Second Amendment
Plaintiffs contend that the citizenship requirement in New Mexicos Concealed

Handgun Carry Act violates their fundamental right to keep and bear arms under the
Second Amendment to the United States Constitution. Defendant Hubbard responds that
there is no fundamental right to carry a concealed firearm under the Second Amendment.
The Second Amendment provides as follows: A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear Arms,
shall not be infringed. This provision is fully applicable to the States. McDonald v.
City of Chicago, 130 S. Ct. 3020, 3026 (2010) (citations omitted).
In District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States
Supreme Court held that the Second Amendment guarantees the individual right to
possess and carry weapons in case of confrontation. However, the Court cautioned that
the right [is] not a right to keep and carry any weapon whatsoever, in any manner
whatsoever and for whatever purpose. Id. at 626. For example, the majority of 19th-

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century courts to consider the question held that prohibitions on carrying concealed
weapons were lawful under the Second Amendment or state analogues. Id. Although
the Court did not undertake an exhaustive historical analysis . . . of the full scope of the
Second Amendment, the Court stated that nothing in its opinion should be taken to cast
doubt on longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or law imposing conditions and qualifications on the
commercial sale of arms. Id. at 626-27.
After examining the history and text of the Second Amendment, the Heller Court
held that the District of Columbias total ban on handgun possession in the home was
unconstitutional. The Court reasoned that:
the inherent right of self-defense has been central to the Second
Amendment right. The handgun ban amounts to a prohibition on an entire
class of arms that is overwhelmingly chosen by American society for that
lawful purpose. The prohibition extends, moreover, to the home, where the
need for defense of self, family, and property is most acute. Under any of
the standards of scrutiny that we have applied to enumerated constitutional
rights, banning from the home the most preferred firearm in the nation to
keep and use for protection of ones home and family, . . . would fail
constitutional muster.
Id. at 628-29 (citation omitted)
Following Heller, the Tenth Circuit Court of Appeals adopted a two-pronged
approach to Second Amendment challenges. United States v. Reese, 627 F.3d 792, 800
(10th Cir. 2010) (internal quotation marks and citation omitted); see also Peterson v.
Martinez, 707 F.3d 1197, (10th Cir. 2013).
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Under this approach, a reviewing court first ask[s] whether the challenged
law imposes a burden on conduct falling within the scope of the Second
Amendment's guarantee. If it does not, [the court's] inquiry is complete. If it
does, [the court] must evaluate the law under some form of means-end
scrutiny. If the law passes muster under that standard, it is constitutional. If
it fails, it is invalid.
Reese, 627 F.3d at 800 (alterations in original) (internal quotation marks and citations
omitted).
Defendant Hubbard concedes that permanent resident aliens have a Second
Amendment right to keep and bear arms for self-defense. [Doc. 20 at 4] See United
States v. Huitron-Guizar, 678 F.3d 1164, 1169 (10th Cir. 2012) (assuming, without
deciding, that the Second Amendment right of the people includes at least some aliens
unlawfully here); see also Fletcher v. Haas, 851 F. Supp. 2d 287, 301 (D. Mass. 2012)
(finding no justification for refusing to extend the Second Amendment to lawful
permanent residents). Defendant Hubbard contends, however, that the Second
Amendment right does not encompass the right to keep and bear concealed firearms.
In Peterson, the Tenth Circuit Court of Appeals addressed the issue of whether the
Second Amendment protects the right to keep and bear concealed firearms. In that case,
the plaintiff challenged a Colorado statute that required Colorado residency for the
issuance of a concealed carry permit. However, the statute did not affect the ability of
non-residents to openly carry firearms in the state.1 Id. at 1209. The Court noted that, in

The Court noted that a municipal ordinance in the Denver Revised Municipal Code
prohibited individuals from carrying firearmsconcealed or notunless the individuals holds a
valid [concealed handgun license] or is carrying the weapon concealed within a private
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Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897), the United States Supreme Court
stated that the right of the people to keep and bear arms (article 2) is not infringed by
laws prohibiting the carrying of concealed weapons. Although this statement was
plainly obiter dicta the Court noted that it was bound by Supreme Court dicta almost
as firmly as by the Courts outright holdings, particularly when the dicta is recent and not
enfeebled by later statements. Peterson, 707 F.3d at 1210 (quoting United States v.
Serawop, 505 F.3d 1112, 1122 (10th Cir. 2007). Although not recent, the Supreme
Courts contemporary Second Amendment jurisprudence does nothing to enfeeblebut
rather strengthensthe statement that concealed carry restrictions do not infringe the
Second Amendment right to keep and bear arms. Id.
The Court observed that [t]here can be little doubt that bans on the concealed
carrying of firearms are longstanding. Id. Indeed, in Heller, the Supreme Court held
that [g]iven this lengthy history of regulation, restrictions on concealed carry qualify as
longstanding and thus presumptively lawful regulatory measures. Id. at 1211
(quoting Heller, 554 U.S. at 626 & n.26). In light of Robertson and Heller, the Court
concluded that the plaintiffs Second Amendment claim fails at step one of our two-step
analysis: the Second Amendment does not confer a right to carry concealed weapons.
Id.
automobile or other private means of conveyance, for hunting or for lawful protection of such
persons or another persons person or property, while traveling. Peterson, 707 F.3d at 1202
(quoting Denver Rev. Mun. Code 38-117(a), (b) & (f)). However, the plaintiff did not
challenge the constitutionality of the municipal ordinance and, therefore, the Court did not
address it. Id. at 1208-09.
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Pursuant to Peterson, the Second Amendment does not confer a right to carry
concealed weapons. Accordingly, Plaintiffs have failed to demonstrate a substantial
likelihood of success on the merits of their Second Amendment claim.
B.

Equal Protection
Alternatively, Plaintiffs contend that New Mexicos Concealed Handgun Carry

Act violates the Equal Protection Clause of the Fourteenth Amendment because it
discriminates on the basis of alienage. Plaintiffs further contend that the citizenship
requirement cannot survive strict scrutiny because it is not narrowly tailored to further a
compelling government interest. Defendant Hubbard responds that the Act does not
violate the Equal Protection Clause because [t]here is no constitutional right at issue
here. [Doc. 20 at 5] Defendant Hubbard further contends that strict scrutiny is
inapplicable to this case because the regulation of concealed firearms rests firmly within
a States constitutional prerogative and does not impact economic rights. [Id.]
1.

Substantial Likelihood of Success on the Merits


The Equal Protection Clause of the Fourteenth Amendment provides as follows:

No State shall ... deny to any person within its jurisdiction the equal protection of the
laws. U.S. Const. amend. XIV, 1. Equal protection is essentially a direction that all
persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985). Governmental classifications are subject to strict scrutiny
under the Equal Protection Clause if they burden a fundamental right or target a suspect
class. Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1210 (10th Cir. 2002). To
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survive strict scrutiny, the government must show that its classification is narrowly
tailored to achieve a compelling government interest. KT.& G Corp v. Attorney General
of State of Okla., 535 F.3d 1114, 1137 (10th Cir. 2008).
Although New Mexicos Concealed Handgun Carry Act does not burden a
fundamental right, it nonetheless may be subject to strict scrutiny if it targets a suspect
class. See 16B Am. Jur. 2d Constitutional Law 834 (The plaintiff need not prove that
another fundamental right was trampled, as the right to equal protection of the laws is
itself fundamental . . .). Alienage is a suspect classification and state statutes that
discriminate on the basis of alienage are subject to strict scrutiny. See Graham v.
Richardson, 403 U.S. 365, 371-72 (1971) (holding that classifications based on alienage,
like those based on nationality or race, are inherently suspect and subject to close judicial
scrutiny. Aliens as a class are a prime example of a discrete and insular minority . . . for
whom such heightened judicial solicitude is appropriate) (citation and footnotes
omitted); Soskin v. Reinertson, 353 F.3d 1242, 1254 (10th Cir. 2004) (recognizing that
Supreme Court precedents establish . . . [that] states on their own cannot treat aliens
differently from citizens without a compelling justification). New Mexicos Concealed
Handgun Carry Act discriminates on the basis of alienage and, therefore, strict scrutiny is
the applicable standard. Indeed, in Huitron-Guizar, the Tenth Circuit Court of Appeals
recognized that, under the Equal Protection Clause, state laws regulating the possession of
firearms that discriminate against permanent resident aliens must survive strict scrutiny.
678 F.3d at 1170 (Recently some state statutes that burden gun possession by lawful
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permanent aliens . . . have been declared invalid under the Equal Protection Clause, which
requires that strict scrutiny be applied to state laws that impose restrictions based on
alienage.).
Defendant Hubbard contends, however, that pursuant to Sugarman v. Dougall, 413
U.S. 634, 648 (1973), the Courts scrutiny should not be so demanding because the
concealed carrying of a firearm is a matter resting firmly within a States constitutional
prerogative. The Court disagrees. In Sugarman, the plaintiffs, who were federally
registered aliens, challenged a New York statute that restricted civil service to United
States citizens. Id. at 635-36. Applying strict scrutiny, the United States Supreme Court
held that the indiscriminate citizenship requirement in the civil service law violated the
Equal Protection Clause of the United States Constitution. Id. at 643. In arriving at its
conclusion, the Court recognized that the State may in an appropriately defined class of
positions, require citizenship as qualification for office. Id. at 647. Such power inheres
in the State by virtue of its obligation . . . to preserve the basic conception of a political
community. Id. (Internal quotation marks and citations omitted.). Although such state
action, particularly with respect to voter qualifications is not wholly immune from
scrutiny under the Equal Protection Clause, the Court noted that its scrutiny will not be
so demanding where we deal with matters resting firmly within a States constitutional
prerogatives. Id. at 648. The Court explained as follows:
This is no more than a recognition of a States historical power to exclude
aliens from participation in its democratic political institutions . . . and a
recognition of a States constitutional responsibility for the establishment
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and operation of its own government, as well as the qualification of an


appropriately designated class of public office holders. . . This Court has
never held that aliens have a constitutional right to vote or to hold high
public office under the Equal Protection Clause. Indeed, implicit in many
of this Courts voting rights decisions is the notion that citizenship is a
permissible criterion for limiting such rights. . . . A restriction on the
employment of noncitizens, narrowly confined, could have particular
relevance to this important state responsibility, for alienage itself is a factor
that reasonably could be employed in defining political community.
Id. (Internal quotation marks and citations omitted).
New Mexicos Concealed Handgun Carry Act does not seek to preserve the basic
conceptions of a state political community. See Chan v. City of Troy, 559 N.W. 2d 374,
376 (Mich. App. 1997) (per curiam) (applying strict scrutiny to Michigans concealed
handgun statute because [t]he purchase or possession of a pistol clearly is not a function
bound up with the operation of a State as a governmental entity, nor does it otherwise
involve the implementation of the sovereign powers of a state (internal quotation marks
and citations omitted)). Nor does the Act affect the States constitutional responsibility
for the establishment and operation of its own government or the qualification of its
voters or a designated class of public office holders. Therefore, the Court concludes that
the Act does not pertain to matters resting firmly within the States constitutional
prerogative, as defined by Sugarman.
Alternatively, Defendant Hubbard contends that strict scrutiny is inapplicable
because New Mexicos Concealed Handgun Carry Act does not deprive aliens of an
economic benefit. [Doc. 20 at 5] Defendant Hubbard fails to cite any case law indicating
that strict scrutiny is only applicable to state economic legislation that discriminates on
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the basis of alienage. In the seminal case of City of Cleburne, the United States Supreme
Court observed that strict scrutiny is the appropriate standard to be used when social or
economic legislation discriminates on the basis of alienage. 473 U.S. at 440 (emphasis
added). Indeed, courts typically apply strict scrutiny to state social legislation, such as
New Mexicos Concealed Handgun Carry Act, that restricts the possession of concealed
firearms on the basis of alienage. See, e.g.,Smith v. South Dakota, 781 F. Supp. 2d 879,
884 (D. S.D. 2011); State v. Ibrahim, 269 P.3d 292, 296-97 (Wa. App. 2011); People v.
Bounasri, 31 Misc. 3d 304, 2011 WL 356059, at * 2 (N.Y. City Ct. 2011).
Applying the strict scrutiny test, Defendant Hubbard contends that the state of
New Mexico has a compelling interest in protecting the public from concealed carry of
firearms because of the inherent danger that unregulated concealed weapons pose to the
public. [Doc. 20 at 7] As the Second Circuit Court of Appeals recognized in Kachalsky
v. County of Westchester, 701 F.3d 81, 97 (2d Cir. 2012), the states have a substantial,
indeed compelling, government interest[] in public safety and crime prevention. See
also Fletcher, 851 F. Supp. 2d at 303 (recognizing that Massachusetts has an interest in
regulating firearms to prevent dangerous persons from obtaining firearms). The Court
therefore agrees with Defendant Hubbard that the state has a compelling interest in
protecting the public from concealed firearms. The question remains, however, whether
the citizenship requirement is narrowly tailored to serve this interest.
The purpose of the narrow tailoring requirement is to ensure that the means
chosen fit th[e] compelling goal so closely that there is little or no possibility that the
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motive for the classification was illegitimate . . . prejudice or stereotype. Grutter v.


Bollinger, 539 U.S. 306, 333 (2003) (quoting Richmond v. J.A. Croson Co., 488 U.S.
469, 493 (1989) (plurality opinion)). Defendant Hubbard has failed to demonstrate a
close fit between the means chosen and the states compelling interest. There is no
argument made, much less any evidence proffered, that a permanent resident alien, such
as Mr. Jackson, who resides in this country legally, poses a greater danger by virtue of his
or her status alone, when carrying a concealed loaded firearm, than do United States
citizens. Indeed, [a]ny classification which treats all aliens as dangerous and all United
States citizens as trustworthy rests upon a very questionable basis. People v. Rappard,
28 Cal. App. 3d 302, 305 (Cal. Ct. App. 1972); see also Fletcher, 851 F.Supp.2d at 303
(Any classification based on the assumption that lawful permanent residents are
categorically dangerous and that all American citizens by contrast are trustworthy lacks
even a reasonable basis.). For this reason, various courts have concluded that state laws,
like New Mexicos Concealed Handgun Carry Act, which impose an indiscriminate ban
precluding all legal resident aliens from carrying concealed firearms violate the Equal
Protection Clause of the United States Constitution. See, e.g., Smith v. South Dakota,
781 F. Supp. 2d 879, 886 (2011); Rappard, 28 Cal. App. 3d at 305; State v. Chumphol,
634 P.2d 451, 452 (Nev. 1981); Bounasri, 2011 WL 356059, at *3; Chan, 559 N.W. 2d at
376; Ibrahim, 269 P.3d at 296-97.
During oral argument before this Court, Defendant Hubbard argued for the first
time that the citizenship requirement is narrowly tailored to further the states compelling
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interest in public safety because a non-citizens immigration status is subject to change at


the will of the federal government, without notice to the state. The Court is not persuaded
by this argument. The Concealed Handgun Carry Act prohibits all non-citizens,
regardless of their immigration status, from obtaining a concealed carry permit. The Act
does not attempt to distinguish between lawful permanent residents, such as Plaintiff
Jackson, and illegal aliens. Moreover, the Act does not attempt to distinguish between
non-citizens whose immigration status changes during the course of the application
process and permit holding period and those whose immigration status does not. Thus,
the citizenship requirement is overinclusive; it encompasses a large number of noncitizens who, by virtue of their status alone, pose no greater risk of harm to public safety.
Because Defendant Hubbard has failed to demonstrate a close fit between the citizenship
requirement and the states compelling interest in public safety, the Court concludes that
Plaintiffs have made a strong showing of a substantial likelihood of success on the merits
of their Equal Protection claim.
2.

Irreparable Harm
As previously explained, Plaintiffs have made a strong showing that the citizenship

requirement in New Mexicos Concealed Handgun Carry Act violates the Equal
Protection Clause. When an alleged constitutional right is involved, most courts hold
that no further showing of irreparable injury is necessary. Kikumura v. Hurley, 242 F.3d
950, 963 (10th Cir. 2001) (quoting 11A Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure 2948.1 (2d ed.1995)); see also Heideman,
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348 F.3d at 1189-90 (holding that the plaintiffs had established irreparable harm because
the statute at issue deprived them of their First Amendment Rights). Plaintiffs
constitutional injury cannot be adequately redressed by post-trial relief and, therefore, the
Court concludes that they will suffer irreparable harm in the absence of preliminary
injunctive relief.
3.

Balance of the Harms


Because Plaintiffs seek a disfavored injunction, they must make a strong showing

that the balance of the harms supports the issuance of preliminary injunctive relief. As
previously explained, Plaintiffs have demonstrated that the continued enforcement of the
citizenship requirement in New Mexicos Concealed Handgun Carry Act violates their
right to equal protection of the laws and constitutes an irreparable harm. Thus, the harm
to Plaintiffs is significant. In contrast, the harm to Defendant Hubbard is minimal.
Although Defendant Hubbard may incur some administrative costs if he is forced to grant
concealed carry permits to noncitizens that must later be revoked after a full trial on the
merits,2 these costs pale in comparison to the deprivation of Plaintiffs constitutional
rights. Accordingly, the Court concludes that the balance of the harms factor supports the
issuance of preliminary injunctive relief.
4.

Public Interest
2

Defendant Hubbard also argues that the public welfare and safety will be put at risk if
concealed carry permits are issued to noncitizens. [Doc. 20 at 11] This arguments is rejected
because, as previously explained, Defendant Hubbard has failed to establish that permanent
resident aliens such as Mr. Jackson pose a greater risk of danger, by virtue of their status alone,
than citizens with respect to the carrying of concealed firearms.
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Defendant Hubbard does not have an interest in enforcing a law that is likely
constitutionally infirm. Chamber of Commerce of the United States v. Edmondson, 594
F.3d 742, 771 (10th Cir. 2010). Additionally, it is always in the public interest to
prevent the violation of a party's constitutional rights. Awad, 670 F.3d at 1132 (internal
quotation marks and citation omitted); see also Chamber of Commerce of the United
States, 594 F.3d at 771 (holding that the public interest will perforce be served by
enjoining the enforcement of the invalid provisions of state law. (internal quotation
marks and citation omitted)). The public interest is served by granting Plaintiffs request
for preliminary injunctive relief.
C.

Severability
[A] court sustaining an equal protection challenge has two remedial alternatives:

it may either declare the statute a nullity and order that its benefits not extend to the class
that the legislature intended to benefit, or it may extend the coverage of the statute to
include those who are aggrieved by the exclusion. Petrella v. Brownback, 697 F.3d
1285, 1296 (10th Cir. 2012) (quoting Heckler v. Mathews, 465 U.S. 728, 738 (1984)).
In order to determine whether partial invalidation of a state statute is appropriate, federal
courts look to state law. Citizens for Responsible Govt State Political Action Comm. v.
Davidson, 236 F.3d 1174, 1195 (10th Cir. 2000); see Leavitt v. Jane L., 518 U.S. 137,
139 (1996) (Severability is of course a matter of state law.) (per curiam).
It is well established in [New Mexico] that a part of a law may be invalid
and the remainder valid, where the invalid part may be separated from the
other portions, without impairing the force and effect of the remaining
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parts, and if the legislative purpose as expressed in the valid portion can be
given force and effect, without the invalid part, and, when considering the
entire act it cannot be said that the legislature would not have passed the
remaining part if it had known that the objectionable part was invalid.
Bradbury & Stamm Const. Co. v. Bureau of Revenue, 372 P.2d 808, 811 (N.M. 1962).
However, the Court cannot rewrite or add language to a statute in order to make it
constitutional. State v. Frawley, 172 P.3d 144, 155 (N.M. 2007).
The Court concludes that the citizenship requirement in subsection (1) of section
29-19-4(A) may be severed without impairing the remainder of the Acts force and effect.
If subsection (1) is removed, the statute nonetheless provides for the issuance of a
concealed carry permit to an applicant who satisfies the remainder of the statutory
requirements, subsections (2) through (10). Because the severance of subsection (1) in
no way affects the enforceability of the other portions of the statute, Bradbury & Stamm
Const. Co., 372 P.2d at 814, the first prong of the severability test is satisfied.
Additionally, severance of the citizenship provision will not impair the legislative
purpose as expressed in the remainder of the Act. The manifest purpose of the Act is to
permit the issuance of concealed handgun licenses to qualified members of the public
who satisfy the requisite education and training. New Mexico Voices for Children v.
Denko, 90 P.3d 458, 459 (N.M. 2004). Severance of the citizenship provision will not
impair this purpose, nor will it require the issuance of concealed carry permits to illegal
aliens. Section 29-19-4(A)(7) of the Act prohibits the issuance of concealed carry permits
to applicants who are otherwise prohibited from federal law or the law of any other

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jurisdiction from purchasing or possessing firearms. Title 18 of the United States Code,
Section 922(g)(5) prohibits any person who is illegally or unlawfully in the United
States from ship[ping] or transport[ing] in interstate or foreign commerce, or
possess[ing] in or affecting commerce, any firearm or ammunition; or [receiving] any
firearm or ammunition which has been shipped or transported in interstate or foreign
commerce. See Huitron-Guizar, 678 F.3d at 1170 (10th Cir. 2012) (upholding the
constitutionality of Section 922(g)(5)). Because illegal aliens are prohibited from
purchasing or possessing firearms under federal law, they are not eligible to obtain a
concealed carry permit under the Concealed Handgun Carry Act. Accordingly, the
second prong of the severability test weighs in favor of severance.
The foregoing analysis is also dispositive of the third prong of the severance test,
namely, whether the legislature would have passed the Act if it had known that the
citizenship provision was unconstitutional. Because the Legislature did not articulate a
specific purpose in the Act, we look to the entire Act to ascertain whether the Legislature
would have passed the Act if it had known that the citizenship provision was
unconstitutional. Baca v. New Mexico Dept of Public Safety, 47 P.3d 441, 445 (N.M.
2002) (per curiam). As previously explained, severance of the citizenship provision
preserves the legislative purpose of the Act and does not require the issuance of concealed
carry permits to illegal aliens. Considering the Act as a whole, the Court concludes that
the Legislature would have passed the Act if it had known that the citizenship provision
was unconstitutional.
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For the foregoing reasons, the Court concludes that the proper remedy for the
alleged Equal Protection violation is to sever the citizenship provision in Section 29-1914(A)(1) from the remainder of the Concealed Handgun Carry Act.
IV.

CONCLUSION
The Court, applying the heightened standard applicable to disfavored injunctions,

finds that Plaintiffs have satisfied each of the requirements for obtaining preliminary
injunctive relief.
Defendant Hubbard has failed to establish that a legal permanent resident alien
such as Mr. Jackson poses a greater risk of danger by virtue of his or her status alone,
than do citizens, with respect to the carrying of concealed weapons.
The Court further concludes that the citizenship provision in Section 29-1914(A)(1) is severable from the remainder of the Concealed Handgun Carry Act.
IT IS THEREFORE HEREBY ORDERED that Plaintiffs Motion for
Preliminary Injunction is GRANTED and Defendant Hubbard is preliminarily enjoined
from enforcing the citizenship provision in Section 29-19-14(A)(1) of the Concealed
Handgun Carry Act pending resolution of this action.
SO ORDERED this 30th day of March, 2013 in Albuquerque, New Mexico.

_________________________
M. CHRISTINA ARMIJO
Chief United States District Judge

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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEW MEXICO

JOHN W. JACKSON and SECOND


AMENDMENT FOUNDATION, INC.,
Plaintiffs,
vs.

No. 2:12-CV-00421-MCA-RHS

GORDEN E. EDEN,
Defendant.
JUDGMENT
In accordance with the Courts Findings of Fact and Conclusions of Law entered
contemporaneously herewith, [Doc. 59], Judgment is hereby entered as follows:
IT IS HEREBY ORDERED that Plaintiffs Motion for Permanent Injunction
[Doc. 44] is GRANTED;
IT IS FURTHER ORDERED and DECLARED that NMSA 1978, Section 2919-14(A)(1), which provides that an applicant for a concealed handgun license is only
qualified if he or she is a citizen of the United States violates the Equal Protection
Clause of the United States Constitution as applied to permanent resident aliens, like
Plaintiff Jackson, who are otherwise qualified to obtained a concealed handgun license;
IT IS FURTHER ORDERED that Defendant and his officers, agents, servants,
employees, and attorneys are enjoined from enforcing Section 29-19-14(A)(1), which

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provides that an applicant for concealed handgun license is only qualified if he or she is
a citizen of the United States, against permanent resident aliens, like Plaintiff Jackson,
who are otherwise qualified to obtain a concealed handgun license.
SO ORDERED this 31st day of March, 2014 in Albuquerque, New Mexico.

___________________________
M. CHRISTINA ARMIJO
Chief United States District Judge

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Case 1:14-cv-00333
Case 2:08-cv-01613-RSM
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The Honorable Ricardo S. Martinez

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3
4
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7
8

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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NATIONAL RIFLE ASSOCIATION OF


AMERICA, INC., SECOND AMENDMENT
FOUNDATION, INC., ADRIAN J.
COOMBES, ROELOF KROES, PHILIP
GRADY,

13

16

AGREED ORDER GRANTING


PLAINTIFFS MOTION FOR A
PRELIMINARY INJUNCTION

Plaintiffs

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15

No. C08-1613RSM

v.
STATE OF WASHINGTON, LIZ LUCE,
DIRECTOR, DEPARMENT OF LICENSING
and PAUL D. AYERS, CHIEF OF POLICE
ISSAQUAH POLICE DEPARTMENT,

17

Defendants.
18

This matter came before the Court on the Plaintiffs Motion for a Preliminary

19
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Injunction. All of the parties hereto having by their signatures below indicated their

21

agreement to the entry of the following Order,

22
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ORDER GRANTING MOTION


FOR PRELIMINARY INJUNCTION (C08-1613) Page 1
ua210103 12/30/08

Stephen P. Halbrook
Attorney at Law
3925 Chain Bridge Road, Suite 403
Fairfax, VA 22030
Tel. (703) 352-7276 Fax (703) 359-0938

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IT IS HEREBY ORDERED THAT:


2

1. Defendant Director of Licensing Liz Luce and any persons acting on behalf of the
3

Department of Licensing shall:


4

a.

promptly resume processing applications for alien firearm licenses;

b.
issue alien firearms licenses to otherwise qualified applicants notwithstanding
the Departments or any local law enforcement agencys inability to perform or
complete a background and/or fingerprint check required by RCW 9.41.170.

6
7

c.
upon application, renew or issue alien firearm licenses to Plaintiffs Adrian J.
Coombes, Philip Grady, and such other lawful permanent resident aliens, including
members of Plaintiffs NRA and SAF, who may apply pursuant to RCW 9.41.170 if
they are otherwise qualified for licensure.

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2. There being no objection by the enjoined parties to the entry of this order, and there

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being no evidence suggesting that the enjoined parties will incur any costs or damages as the

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result of being wrongfully enjoined, it is proper that the moving party gives security in the

13

amount of $0.
3. Plaintiffs have abandoned their request in this motion for an injunction against

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Defendant Paul D. Ayers, City of Issaquah Chief of Police, and no injunction or other form of

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relief is granted against said defendant.


3. Unless repealed or modified by order of this Court, this Order shall remain in full

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force and effect until: (a) a final judgment is entered following a trial of this case on the

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merits; or (b) dismissal of this action.


Dated this 27 day of January , 2009.

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER GRANTING MOTION


FOR PRELIMINARY INJUNCTION (C08-1613) Page 2
ua210103 12/30/08

Stephen P. Halbrook
Attorney at Law
3925 Chain Bridge Road, Suite 403
Fairfax, VA 22030
Tel. (703) 352-7276 Fax (703) 359-0938

Case 1:14-cv-00333
Case 2:08-cv-01613-RSM
Document 6-15
Document
Filed 07/24/14
32 Filed 01/27/09
Page 3 of 3Page
PageID
3 of 3 #: 124

1
2

Presented by:

s/_Carl J. Carlson_______
WSBA No. 7157
Carlson & Dennett, P.S.
1601 Fifth Avenue, Suite 2150
Seattle, WA 98101
Tel. (206) 621-1320; fax (206) 621-1151
Email: carl@carlsonlaw.com
Attorneys for Plaintiffs

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Agree to and approved for entry:


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s/_Wayne D. Tanaka____
WSBA #6303
Ogden, Murphy Wallace
1601 Fifth Avenue, Suite 2100
Seattle, WA 98101-1686
Tel. (206) 447-7000; Fax (206) 447-0215
Email: wtanaka@omwlaw.com
Attorneys for Paul D. Ayers

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ROBERT M. MCKENNA
Washington State Attorney General
By: s/ Jerald R. Anderson____
WSBA #8734
Senior Counsel
P.O. Box 40110
Olympia, WA 98504-0110
Tel. (360) 753-6987; Fax (360) 664-0174
Email: jerryal@atg.wa.gov

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And by: s/ Toni Hood________


WSBA #26473
Assistant Attorney General
Tel. (360) 586-2644
Email: tonih@atg.wa.gov

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Attorneys for Liz Luce, Director, Washington


State Department of Licensing
ORDER GRANTING MOTION
FOR PRELIMINARY INJUNCTION (C08-1613) Page 3

ua210103 12/30/08

Stephen P. Halbrook
Attorney at Law
3925 Chain Bridge Road, Suite 403
Fairfax, VA 22030
Tel. (703) 352-7276 Fax (703) 359-0938

Case 1:14-cv-00333 Document 6-16 Filed 07/24/14 Page 1 of 2

PageID #: 125

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF HAWAII
Steve Fotoudis,

)
)
Plaintiff,
) ____CASE NO. 1:14-CV-00333
vs.
)
)
City and County of Honolulu;
)
)
Lois Kealoha, Chief of the Honolulu
)
Police Department, in his individual
)
CERTIFICATE OF SERVICE
capacity;
)
)
David Louie, Attorney General of
)
Hawaii, in his individual and official
)
capacity;
)
)
and, John Does 1-50 in their individual )
or official capacities.
)
)
Defendants.
)
)
)

CERTIFICATE OF SERVICE
I hereby certify that on the date first stated below, and/or in compliance with
the rules of this Court, I did serve a true and exact copy of the foregoing document
via hand-delivery or first class United States mail, postage prepaid, upon the
following:

Case 1:14-cv-00333 Document 6-16 Filed 07/24/14 Page 2 of 2

City and County of Honolulu


c/o Department of Corporation Counsel
530 S. King St.
Room 110
Honolulu, HI 96813

PageID #: 126

Chief Louis Kealoha


Honolulu Police Department
801 S. Beretania Dr.
Honolulu, HI 96813

David Louie
Department of the Attorney General
425 Queen St.
Honolulu, HI 96813
DATED: Honolulu, HI 96813; July 25, 2014.

s/Richard L. Holcomb
Richard L. Holcomb