FILED
NOT FOR PUBLICATION MAR 20 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER BAKER, No. 12-16258
Plaintiff - Appellant, D.C. No. 1:11-cv-00528-ACK-
KSC
v.
LOUIS KEALOHA, as an individual and MEMORANDUM*
in his official capacity as Honolulu Chief
of Police; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, Senior District Judge, Presiding
Argued and Submitted December 6, 2012
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.
Christopher Baker appeals the district court’s denial of his motion for a
preliminary injunction against several state and local governmental entities and
officials. Baker sought an order enjoining the enforcement of a number of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Hawaii’s firearms statutes or, alternatively, directing the defendants to issue a
license to Baker allowing him to carry (either concealed or openly) operable
firearms. The district court denied the motion, concluding in part that Baker was
not likely to establish that Hawaii’s restrictions on carrying firearms in public were
unconstitutional under the Second Amendment, and therefore, Baker was not likely
to succeed on the merits. We have jurisdiction pursuant to 28 U.S.C. § 1292, and
we vacate and remand.
“We review the district court’s decision to grant or deny a preliminary
injunction for abuse of discretion.” Shell Offshore, Inc. v. Greenpeace, Inc., 709
F.3d 1281, 1286 (9th Cir. 2013) (citation omitted). Although our review is
generally “limited and deferential,” we review the underlying legal principles de
novo “and a district court abuses its discretion when it makes an error of law.” Id.
In Peruta v. County of San Diego,— F.3d —, No. 10-56971, 2014 WL 555862, at
*18 (9th Cir. Feb. 13, 2014), we concluded that the Second Amendment provides a
responsible, law-abiding citizen with a right to carry an operable handgun outside
the home for the purpose of self-defense. In light of our holding in Peruta, the
district court made an error of law when it concluded that the Hawaii statutes did
not implicate protected Second Amendment activity. Accordingly, we vacate the
2
district court’s decision denying Baker’s motion for a preliminary injunction and
remand for further proceedings consistent with Peruta.1
As for Baker’s claim that certain Hawaii statutes forbid the use of handguns
at firing ranges, Baker’s counsel conceded at oral argument that “Mr. Baker has
used those ranges and uses them regularly and does fire handguns” and that “there
is no imminent threat of prosecution” of Baker for his use of handguns at firing
ranges. We may not ignore these concessions. See Hilao v. Estate of Marcos, 393
F.3d 987, 993 (9th Cir. 2004) (“A party . . . is bound by concessions made in its
brief or at oral argument.”). Defendants contend that the use of handguns at these
ranges is common and that there is no reason for Baker to fear prosecution in this
regard. Assuming—without deciding—that Hawaii’s statutes forbid the use of
handguns at firing ranges, Baker has not alleged any injury that would provide him
with standing to challenge such prohibition. See Whitmore v. Arkansas, 495 U.S.
149, 158 (1990) (“Allegations of possible future injury do not satisfy the
requirements of Art. III. A threatened injury must be certainly impending to
1
The district court also granted a motion for judgment on the pleadings as to
all claims against the State of Hawaii and Governor Neil Abercrombie. Baker does
not contest that decision on appeal. On remand, the state attorney general should
be formally notified of, and given an opportunity to intervene in, further
proceedings implicating the constitutionality of the state statutes. See 28 U.S.C. §
2403(b).
3
constitute injury in fact.” (internal quotation marks omitted)); Babbitt v. United
Farm Workers Nat’l Union, 442 U.S. 289, 298–99 (1979). On remand, the district
court must dismiss Baker’s motion for a preliminary injunction with respect to his
allegation that Hawaii’s statutes forbid the use of handguns at firing ranges.
VACATED and REMANDED.
Each side shall bear its own costs.
4
FILED
Baker v. Kealoha, No. 12-16258 MAR 20 2014
MOLLY C. DWYER, CLERK
THOMAS, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent. I agree that, if unaltered by an en banc panel or by the
Supreme Court, Peruta v. County of San Diego, No. 10-56971, — F.3d—, 2014
WL 555862 (9th Cir. Feb. 13, 2014), affects the district court’s analysis of the
likelihood of success as to the merits of Baker’s claims that are founded on the
Second Amendment. However, that does not end the inquiry.
This appeal comes to us in a different posture than Peruta’s. It is an
interlocutory appeal from the district court’s denial of a motion for a preliminary
injunction. Peruta was an appeal from a grant of summary judgment that
terminated the case.
In order to prevail on a motion for a preliminary injunction, the moving
party must establish that: (1) he is likely to succeed on the merits; (2) that he is
likely to suffer irreparable harm in the absence of preliminary relief; (3) that the
balance of equities tips in his favor; and (4) that an injunction is in the public
interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Our
review of a preliminary injunction decision is not de novo, as it would be if we
were reviewing a grant of summary judgment as we did in Peruta. Rather, we
engage in limited review of preliminary injunction decisions under the deferential
abuse of discretion standard. Sports Form, Inc. v. United Press Int'l, Inc., 686
F.2d 750, 752–53 (9th Cir. 1982). Our review of preliminary injunction decisions
is “limited and deferential.” Sw. Voter Registration Educ. Project v. Shelley, 344
F.3d 914, 918 (9th Cir. 2003).
Here, in a sixty-four page, extremely thorough, detailed, and well-reasoned
order, the district court concluded that the plaintiff was not entitled to a
preliminary injunction. The complaint was, in the words of the district court,
“prolix and repetitive” and “at times unclear.” The district court not only rejected
the motion for a preliminary injunction on the basis that Baker was unlikely to
prevail, but also concluded that he had utterly failed to establish irreparable harm.
Baker’s claimed irreparable harm was that he needed a weapon to defend himself
in his job as a process server. However, as the district court pointed out, he had
already voluntarily abandoned that position and was no longer in that business.
His other claimed fear was the possibility of future confrontations. The district
court concluded that Baker had “not shown that any of the alleged harm is likely to
be anything more than mere speculation, which is inadequate to establish
irreparable harm.” That showing, of course, is precisely what the Supreme Court
required in Winter. 555 U.S. at 21-22. The record more than amply supports the
district court’s conclusion that Baker had not shown irreparable harm.
-2-
The district court also concluded that Baker had failed to establish that the
balance of equities tipped in his favor and that an injunction was in the public
interest. Thus, even assuming that the district court’s preliminary analysis of the
likelihood of success must be re-evaluated in light of Peruta, the district court’s
conclusions as to the three remaining preliminary injunction requirements are
clearly supported by the record.
Further, the preliminary injunction sought by the plaintiff was sweeping in
scope, seeking a prohibition on the enforcement of multiple sections of the Hawaii
Revised Statutes. Even assuming application of Peruta, there is simply no
justification for a broadside interference with state law enforcement. As the
Supreme Court has reminded us: “Where, as here, the exercise of authority by state
officials is attacked, federal courts must be constantly mindful of the ‘special
delicacy of the adjustment to be preserved between federal equitable power and
State administration of its own law.’” Rizzo v. Goode, 423 U.S. 362, 375 (1976)
(quoting Stefanelli v. Minard, 342 U.S. 117, 120 (1951)).
Thus, I would hold, even with the new guidance of Peruta, that the district
court did not abuse its discretion in denying the preliminary injunction. It
considered and weighed the appropriate factors. Even if Peruta required a
reassessment of one of the factors, the bottom line would be unaffected.
-3-
I also note that Peruta and this case were argued and submitted on the same
date. Absent Peruta, I would also hold that the district court also did not abuse its
discretion in concluding that Baker was not likely to succeed on the merits of his
claim that Hawaii’s state statutes, and the city of Honolulu’s enforcement of them,
violate a Second Amendment right to carry a firearm outside the home and his due
process rights.
In sum, the district court was entirely correct in its denial of the preliminary
injunction motion. I agree completely with Judge Kay’s thorough and insightful
order. I would affirm the district court, and allow it to proceed to the merits of the
case, now perhaps newly armed with the guidance of Peruta, if it survives further
review.
For these reasons, I respectfully dissent.
-4-