Young Filed Surreply

Case: 12-17808, 11/21/2018, ID: 11096529, DktEntry: 193, Page 1 of 110
No. 12-17808
In the United States Court of Appeals

for the Ninth Circuit
George K. Young, Jr.

Plaintiff-Appellant,
v.
State of Hawaii, et al.
Defendants-Appellees.
Appeal from a Judgment of United States District Court

For the District of Hawaii
Civ. No. 12-00336-HG-BMK
United States District Court Judge Helen Gillmor
Sur-Reply in Opposition of Defendants’ Petition for Rehearing En Banc
ALAN BECK STEPHEN D. STAMBOULIEH

Attorney at Law STAMBOULIEH LAW, PLLC
2692 Harcourt Drive P.O. Box 4008
San Diego, California 92123 Madison, MS 39130
Telephone: (619) 905-9105 Telephone: (601) 852-3440
alan.alexander.beck@gmail.com stephen@sdslaw.us
Attorneys for Appellant, George K. Young, Jr.

TABLE OF CONTENTS
Introduction………………………………………………………………..……….1
Argument………………………………………………………………………..….1
I. The Monthly Reports Are Judicially Noticeable and Evidence of Past

Practice…………………………………………………………..…………..3
II. Gloucester is Inapplicable to the Current Situation……………….………...7
Conclusion…………………………………………………………………...……..8
Certificate of Compliance
Certificate of Service
ii
TABLE OF AUTHORITIES
Cases
Gloucester Cty. Sch. Bd. v. G.G. exrel. Grimm, 137 S. Ct. 1239 (2017) ..............7, 8
Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) ....................................................7
Heller v. District of Columbia (Heller II), 670 F.3d 1244 399 U.S. App. D.C. 314
(D.C. Cir. 2011) ......................................................................................................6
Jackson v. City & County of San Francisco, 746 F.3d 953, 961, 2014 U.S. App.
LEXIS 5498, *14, 2014 WL 1193434 ....................................................................6
United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013)...........................................6
Statutes
H.R.S. section 134-9 ................................................................................. 1, 2, 3, 4, 8
Rules
Hawaii Revised Statutes, Police Dep’t of Cty. Of Haw., Rules and Regulations
Governing the Issuance of Licenses 10 (Oct. 22, 1997).....................................1, 2
Other Sources
http://hifico.org/ag-reports/?fbclid=IwAR1UuvuU4Zp41aZXm-
QZZAfKVayWDLYGBvtPeV-udXiYFRPj2xr9xCjqPqk .....................................5
El Larson, "Police Commission reviewing HPD's policies on letting the public
carry guns", September 20th, 2018,
http://www.kitv.com/story/39131297/honolulu-police-commission-reviewing-
hpds-policies-on-letting-the-public-carry-guns .....................................................4
"Firearm Registrations in Hawaii, 2017",
https://ag.hawaii.gov/cpja/files/2018/05/Firearm-Registrations-in-Hawaii-
2017.pdf ..................................................................................................................5
iii
T. Langford, "Police Commission: Why Is It So Hard To Get A Permit To Carry A

Gun In This City?"Honolulu Civil Beat, November 2, 2018,
https://www.civilbeat.org/2018/11/police-commission-why-is-it-so-hard-to-get-
a-permit-to-carry-a-gun-in-this-city/ ......................................................................4
iv
Introduction
Mr. Young files this sur-reply to address several material misrepresentations
made in Defendants’ Reply brief1. The relief sought in Mr. Young’s complaint is to
be issued a permit to carry a firearm. See ER 5. The only entity able to issue him a
permit is the County of Hawaii via its Chief of Police. The County’s written
implementation of H.R.S. section 134-9 is to limit open carry permits to security
guards. The extra record evidence Defendants rely on should be ignored because as
shown below it is neither properly before this court nor credible. Defendants’
Petition should be denied.
Argument
The County’s ordinance is not an independent regulation. The “rules and
regulations are promulgated by the Chief of Police for the granting of authorization
for the carrying of weapons as provided by section 134-9, Hawaii Revised Statutes”.
Police Dep’t of Cty. Of Haw., Rules and Regulations Governing the Issuance of
Licenses 10 (Oct. 22, 1997) at *1. It limits open carry permits to “Licensed
Employees” which it defines as “any person employed by a private detective or
1
Mr. Young’s sur-reply focuses on the argument made in Section 1 of Defendants’
Reply. Most of the argument made in Section II and IV rehash argument that was
addressed in the response and thus do not need to be addressed. As to Section III,
Mr. Young directs this Court to San Diego County Gun Owners excellent amicus
brief which thoroughly demonstrates that Defendants and their amici have seriously
misconstrued the history at issue.
1
guard agency”. Police Dep’t of Cty. Of Haw., Rules and Regulations Governing the
Issuance of Licenses 10 (Oct. 22, 1997) at *4, *11. Thus, Hawaii County’s
implementation of state law bans open carry for anyone other than private detectives
or those employed at a guard agency. Even if this Court were to take the Hawaii
Attorney General’s opinion and the Counties’ amicus brief at face value, they have
no probative value because the actual implementation of state law against Mr. Young
by the County of Hawaii bans open carry for private citizens.
However, this Court should not accept Defendants’ new position because it is
inconsistent with their previous briefing. Defendants contend the State position is
not at odds with its previous briefing. However, a faithful review of the record
demonstrates otherwise. Rather than correct the County about the correct
interpretation of state law, the State repeatedly endorsed the County’s
implementation of section 134-9 as correct. In addition to the argument made in its
first amicus brief, the State argued in its supplemental amicus:
Hawai‘i does allow concealed carry for applicants in the "exceptional

case" who "show[] reason to fear injury to the applicant's person or
property." Plaintiff is thus clearly wrong to claim Hawai‘i "completely
ban[s] the carry of firearms, open or concealed." Instead, Hawai‘i
allows public carry (via concealed carry)for those establishing a
concrete self-defense need
See Defendants’ Supplemental Amicus Brief at 7 Docket No. [91].
And later:
Mor[e]over, Hawai‘i's regulation of public carry also does not severely
burden, see id., any purported right to publicly carry firearms for self-
2
defense, because those with a special need to carry for self-defense --

i.e., those who can show "reason to fear injury;" see HRS §134-9 --
have access to concealed carry licenses.
Id at 8 fn. 6.
Based on Defendants’ own representations, the Panel reasonably interpreted
Hawaii law as a ban on open carry for private citizens.
I. The Monthly Reports Are Judicially Noticeable and Evidence of Past

Practice.
Defendants argue that this Court should not consider the monthly reports Mr.
Young submitted with his response because it is non-record evidence. That is ironic
because Defendants heavily rely on three declarations that were attached to an
amicus brief. Those declarations are not properly before this Court. Unlike those
declarations, the monthly reports can be properly considered because they are
judicially noticeable. Rule 201 of the Federal Rules of Evidence allows this Court
to take judicial notice of facts that “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned”. See Rule 201 of the
Federal Rules of Evidence. The monthly reports are judicially noticeable because
they are official government reports whose accuracy cannot be reasonably
questioned.
Defendants do not and could not dispute the veracity of these reports. Equity
requires these reports be considered, especially at this stage, because the Defendants
opened the door to them by introducing extra record “evidence”. The attached
3
reports have been submitted to impeach the credibility of Defendants’ extra record
“evidence”.2
These reports demonstrate that Hawaii’s past practice supports the Panel’s
interpretation of H.R.S. section 134-9. The monthly reports by each County list the
permits as “security” and “citizen”. At the end of the year, the authors of the annual
report tally up all the “security” applications in order to produce a number for open
carry permits issued and denied and then they tally up all the citizen applications
denied producing a concealed carry number. For example, in 2017 the monthly
reports submitted by the Counties to the State show 14 citizen applications were
2
Honolulu’s position is especially suspect. The Honolulu Police Commission has
recently expressed concern that the Honolulu Police Department’s (“HPD”)
licensing scheme violates the Constitution. In September it requested HPD disclose
how it evaluates permits and HPD refuses to do so. Commissioner Sheehan recently
said: “If we don’t have adequate regulations in place, then people’s constitutional
rights could be violated”. T. Langford, “Police Commission: Why Is It So Hard To
Get A Permit To Carry A Gun In This City?” Honolulu Civil Beat, November 2,
2018, https://www.civilbeat.org/2018/11/police-commission-why-is-it-so-hard-to-
get-a-permit-to-carry-a-gun-in-this-city/ (accessed 11/16/2018). See also El Larson,
“Police Commission reviewing HPD's policies on letting the public carry guns”,
September 20th 2018, http://www.kitv.com/story/39131297/honolulu-police-
commission-reviewing-hpds-policies-on-letting-the-public-carry-guns (accessed
11/16/2018) (“Commissioner Steven Levinson says Honolulu needs to be ready
because he expects more cases to come forward. ‘This is our Hurricane Florence. It
is a monster storm. It is out there, and its coming. And it’s coming at us and if we
do not have a defensible mechanism for passing upon applications for permission to
exercise what the United States Supreme Court has now held is a fundamental
individual constitutional right we're going to be in big trouble’”).
4
received3,4. See YoungAdd-127 to 221. The State took this figure to create their
annual report which states:
Hawaii’s county police departments also process license applications

for the open and/or concealed carry of firearms in public. Statewide in
2017, 225 employees of private security firms applied for and were
issued carry licenses, and there were no denials. A total of 14 private
citizens applied for a concealed carry license in 2017, including seven
in the City and County of Honolulu, three in Maui County, two in
Hawaii County, and two in Kauai County; all applicants were denied
by the respective county’s police chief.5
The State’s past practice of treating “citizen” applications as interchangeable with
concealed carry applications demonstrates open carry permits have always been
reserved for security guards.
Defendants falsely claim that the Young Panel “established a constitutional
rule that will impose strict scrutiny on any public-carry”. As a preliminary matter,
3
These reports were obtained via a Uniform Information Practices Act request which
is Hawaii’s version of the Freedom of Information Act.
4
The Hawaii Firearms Coalition has uploaded all 18 years of monthly reports from
the Counties onto their website. A review of those monthly reports along with the
publicly available annual reports demonstrates that the past practice of the State of
Hawaii has always been to treat citizen carry applications as interchangeable with
concealed carry permits. See http://hifico.org/ag-
reports/?fbclid=IwAR1UuvuU4Zp41aZXm-QZZAfKVayWDLYGBvtPeV-
udXiYFRPj2xr9xCjqPqk (accessed 11/21/2018).
5
See “Firearm Registrations in Hawaii, 2017”,
https://ag.hawaii.gov/cpja/files/2018/05/Firearm-Registrations-in-Hawaii-
2017.pdf at *9.
5
the Panel did not even apply strict scrutiny. The Young Panel simply applied Circuit
precedent which holds that:
[a] law that imposes such a severe restriction on the core right of self-
defense that it “amounts to a destruction of the [Second Amendment]
right,” is unconstitutional under any level of scrutiny. Heller, 554 U.S.
at 629 (internal quotations omitted). By contrast, if a challenged law
does not implicate a core Second Amendment right, or does not place a
substantial burden on the Second Amendment right, we may apply
intermediate scrutiny. See, e.g., [United States v. ]Chovan, 735 F.3d at
1138-39; cf. Heller v. District of Columbia (Heller II), 670 F.3d 1244,
1257, 399 U.S. App. D.C. 314 (D.C. Cir. 2011) (“[A] regulation that
imposes a substantial burden upon the core right of self-defense
protected by the Second Amendment must have a strong justification,
whereas a regulation that imposes a less substantial burden should be
proportionately easier to justify.”).
See Jackson v. City & County of San Francisco, 746 F.3d 953, 961, 2014 U.S. App.
LEXIS 5498, *14, 2014 WL 1193434.
Abiding by Circuit precedent, the Young Panel applied a categorical approach
because both State law and the County of Hawaii’s implementation of State law
result in a destruction of the Second Amendment right. Further, the hyperbolic
statement that somehow the Ninth Circuit just “established a constitutional rule that
will impose strict scrutiny on any public carry law that Hawaii – or California or
Oregon or any other State – enacts in the future[]” is absurd and farcical. See Reply,
p. 8. As stated previously, no such pronouncement was made. Secondly, the
suggestion that states in other Circuits could somehow be bound by the Panel’s
Opinion is a complete fabrication. It is well-settled law that:
6
an opinion of [this] court is binding within [the Ninth] circuit, not

elsewhere in the country. The courts of appeals, and even the lower
courts of other circuits, may decline to follow the rule we announce--
and often do. This ability to develop different interpretations of the law
among the circuits is considered a strength of our system. It allows
experimentation with different approaches to the same legal problem,
so that when the Supreme Court eventually reviews the issue it has the
benefit of “percolation” within the lower courts.
Hart v. Massanari, 266 F.3d 1155, 1172-73 (9th Cir. 2001). Despite Defendants
categorically false misreading of the Panel’s Opinion, this Court is still free to apply
intermediate scrutiny to carry restrictions which do not impose a substantial burden
on the right to self-defense.
II. Gloucester is Inapplicable to the Current Situation.
Defendants claim that Courts often vacate and remand opinions in light of
formal interpretations rendered by executive agencies. However, the only case
Defendants cite to support that proposition is completely inapposite to Mr. Young’s
case. In Gloucester Cty. Sch. Bd. v. G.G. exrel. Grimm, 137 S. Ct. 1239 (2017), the
Fourth Circuit was acting on a “guidance document” to resolve an ambiguity in the
law. The Fourth Circuit stated:
[W]e conclude that the Department's interpretation of its own

regulation, § 106.33, as it relates to restroom access by transgender
individuals, is entitled to Auer deference and is to be accorded
controlling weight in this case. We reverse the district court's contrary
conclusion and its resultant dismissal of G.G.'s Title IX claim.
See G. G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 722-723, 2016 U.S. App.
LEXIS 7026, *27-28.
7
Subsequently, the “guidance document” was withdrawn and the basis for the
Fourth Circuit’s decision was nullified. For that reason, the Supreme Court
remanded the case to the Fourth Circuit for panel reconsideration. But in Mr.
Young’s case, there was no ambiguity, nor did Mr. Young’s Panel rely on any
“guidance document”. The law is clear on who is entitled to an open carry license in
Hawaii: security guards, i.e. persons protecting life and property. The Attorney
General’s belated opinion is just a new and convenient litigation position.
Defendants’ attempt to interpret state law in a manner inconsistent with the express
wording of the statute and their prior representations to this Court and the County’s
implementation of the statute should be ignored.
Even if section 134-9 were vague, G.G. v. Gloucester does not support remand
to the trial court. In G.G. v. Gloucester, the Supreme Court remanded the case back
to the Fourth Circuit to give the panel an opportunity to reconsider the case in light
of the new guidelines. At best, G.G. v. Gloucester supports panel rehearing which
Defendants conspicuously have not requested.
Conclusion
Defendants’ Petition is a concession that Hawaii law cannot be justified.
Rather than ask for rehearing en banc based upon Hawaii’s actual implementation
of its laws, Defendants have gone to great lengths to create a fantasy where all three
judges on Mr. Young’s Panel misread Hawaii law. There is absolutely no reason for
8
this Court rehear Mr. Young’s appeal based on a post-hoc fiction. Defendants’
Petition should be denied.
Respectfully submitted, this the 21st day of November, 2018.
s/ Alan Beck
ALAN BECK (HI Bar No. 9145)
Attorney at Law
2692 Harcourt Drive
San Diego, California 92123
Telephone: (619) 905-9105
Email: alan.alexander.beck@gmail.com
s/ Stephen D. Stamboulieh
STEPHEN D. STAMBOULIEH
Stamboulieh Law, PLLC
P.O. Box 4008
Madison, MS 39130
Telephone: (601) 852-3440
Email: stephen@sdslaw.us
9
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitations of Fed. R. App. P. 5(c)(1)
and 32(c)(2) because, excluding the parts of the document exempted by Fed. R. App.
P. 5(c) and 32(f), it contains 2,104 words.
2. This brief complies with the typeface requirements of Fed. R. App. P.32(a)(5)
and the type-style requirements of Fed. R. App. P. 32(a)(6) because it has been
prepared in a proportionally spaced typeface using Microsoft Word 365 in 14-point
Times New Roman.
/s/ Alan Alexander Beck

Alan Alexander Beck
10
CERTIFICATE OF SERVICE
I hereby certify that on November 21st, 2018, I filed the foregoing Sur-Reply
in Opposition of Petition for Rehearing En Banc with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF
system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
/s/ Alan Alexander Beck

Alan Alexander Beck
11
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Case: 12-17808, 11/21/2018, ID: 11096529, DktEntry: 193, Page 1 of 110

In the United States Court of Appeals

George K. Young, Jr.

Appeal from a Judgment of United States District Court

ALAN BECK STEPHEN D. STAMBOULIEH

Attorneys for Appellant, George K. Young, Jr.

I. The Monthly Reports Are Judicially Noticeable and Evidence of Past

II. Gloucester is Inapplicable to the Current Situation……………….………...7

H.R.S. section 134-9 ................................................................................. 1, 2, 3, 4, 8

T. Langford, "Police Commission: Why Is It So Hard To Get A Permit To Carry A

Mr. Young files this sur-reply to address several material misrepresentations

implementation of H.R.S. section 134-9 is to limit open carry permits to security

Petition should be denied.

The County’s ordinance is not an independent regulation. The “rules and

Employees” which it defines as “any person employed by a private detective or

by the County of Hawaii bans open carry for private citizens.

interpretation of state law, the State repeatedly endorsed the County’s

implementation of section 134-9 as correct. In addition to the argument made in its

first amicus brief, the State argued in its supplemental amicus:

Hawai‘i does allow concealed carry for applicants in the "exceptional

defense, because those with a special need to carry for self-defense --

Hawaii law as a ban on open carry for private citizens.

I. The Monthly Reports Are Judicially Noticeable and Evidence of Past

because Defendants heavily rely on three declarations that were attached to an

they are official government reports whose accuracy cannot be reasonably

annual report which states:

Hawaii’s county police departments also process license applications

The State’s past practice of treating “citizen” applications as interchangeable with

reserved for security guards.

Defendants falsely claim that the Young Panel “established a constitutional

precedent which holds that:

LEXIS 5498, *14, 2014 WL 1193434.

Abiding by Circuit precedent, the Young Panel applied a categorical approach

result in a destruction of the Second Amendment right. Further, the hyperbolic

p. 8. As stated previously, no such pronouncement was made. Secondly, the

Opinion is a complete fabrication. It is well-settled law that:

an opinion of [this] court is binding within [the Ninth] circuit, not

intermediate scrutiny to carry restrictions which do not impose a substantial burden

on the right to self-defense.

II. Gloucester is Inapplicable to the Current Situation.

formal interpretations rendered by executive agencies. However, the only case

Defendants cite to support that proposition is completely inapposite to Mr. Young’s

Fourth Circuit was acting on a “guidance document” to resolve an ambiguity in the

law. The Fourth Circuit stated:

[W]e conclude that the Department's interpretation of its own

LEXIS 7026, *27-28.

General’s belated opinion is just a new and convenient litigation position.

implementation of the statute should be ignored.

Defendants conspicuously have not requested.

Defendants’ Petition is a concession that Hawaii law cannot be justified.

Petition should be denied.

Respectfully submitted, this the 21st day of November, 2018.

P. 5(c) and 32(f), it contains 2,104 words.

prepared in a proportionally spaced typeface using Microsoft Word 365 in 14-point

Times New Roman.

/s/ Alan Alexander Beck

that service will be accomplished by the appellate CM/ECF system.

/s/ Alan Alexander Beck

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