FILED
NOT FOR PUBLICATION
MAR 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
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 ORDER*
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, District Judge, Presiding
Argued and Submitted December 6, 2012
San Francisco, California
Before: THOMAS, Chief Judge, and O’SCANNLAIN and CALLAHAN, Circuit
Judges.
The petition for rehearing is granted, our March 20, 2014 memorandum
disposition is vacated, the district court’s denial of plaintiff’s motion for a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
preliminary injunction is vacated, and this matter is remanded to the District Court
without prejudice to the District Court granting or denying a preliminary injunction
or otherwise considering the case in light of Peruta v. City of San Diego, 824 F.3d
919, 924 (9th Cir. 2016) (en banc), and other intervening Ninth Circuit opinions.
Each side shall bear its own costs.
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FILED
Baker v. Kealoha, No. 12-16258
MAR 10 2017
THOMAS, Chief Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. First, Baker lacks standing to assert his claims.
Second, the district court did not abuse its discretion in denying the plaintiff’s
motion for preliminary injunction, and, though it is not dispositive of all the issues,
our recent en banc decision in Peruta v. City of San Diego, 824 F.3d 919 (9th Cir.
2016) (en banc) bolsters this conclusion. Thus, I would affirm the district court in
its entirety.
I
“It is a long-established rule ‘that a plaintiff lacks standing to challenge a
rule or policy to which he has not submitted himself by actually applying for the
desired benefit.’” Friery v. Los Angeles Sch. Dist., 448 F.3d 1146, 1149 (9th Cir.
2006) (per curiam) (quoting Madsen v. Boise State Univ., 976 F.2d 1219, 1220–21
(9th Cir. 1992) (per curiam)). Here, there is no evidence in the record that Baker
sought an open carry license or that Kealoha considered Baker’s fitness for an open
carry license by determining whether Baker had established a sufficient “urgency”
or “need” for one, as required by the provision. H.R.S. § 134-9. Nor has Baker
provided any evidence that submitting an application for an open-carry license
would be futile. Compare Friery, 448 F.3d at 1149–50 (concluding there was
insufficient evidence to determine futility) with Taniguchi v. Schultz, 303 F.3d 950,
957 (9th Cir. 2002) (concluding that the face of the challenged statute established
futility). In the absence of standing to challenge the open-carry aspect of Hawaii’s
statutes, Baker could not succeed on the merits of his claim that Hawaii’s state
statutes, and the city of Honolulu’s enforcement of them, violate his Second
Amendment right to carry a firearm outside the home and his due process rights.
II
The district court properly denied the motion for a preliminary injunction.
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) he is likely to suffer
irreparable harm in the absence of preliminary relief; (3) the balance of equities
tips in his favor; and (4) an injunction is in the public interest. Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
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 district court thoroughly and correctly analyzed the
Supreme Court’s holdings in District of Columbia v. Heller, 554 U.S. 570 (2008)
and McDonald v. City of Chicago, 561 U.S. 742 (2010), as well as cases from
federal appellate and district courts addressing the issue of firearms restrictions.
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From this analysis, the district court reasonably concluded that Baker was not
likely to succeed in establishing on his Second Amendment challenge.
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.
The district court also reasonably 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. In reaching this conclusion, the district court properly
rejected Baker’s argument that Hawaii would suffer no harm from an injunction
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because his argument ignored the serious safety risk associated with increased
firearm possession. The court also properly rejected Baker’s argument that
criminal prohibitions on firearms possession are an adequate substitute for the
Hawaii statutes because Baker failed to provide evidence in support of this
proposition. Thus, even absent consideration of the likelihood of Baker’s success
on the merits, the district court’s conclusions as to the three remaining preliminary
injunction requirements—and therefore its decision to deny injunctive relief—are
clearly supported by the record.
Nonetheless, in holding that the Second Amendment does not protect a right
for members of the general public to carry concealed firearms in public, Peruta has
now foreclosed the possibility of Baker succeeding on the merits of his challenge
at least to the concealed-carry aspect of Hawaii’s statutes. 824 F.3d at 927. The en
banc panel in Peruta explicitly declined to address the issue of whether the Second
Amendment protects a right to openly carry firearms in public. Id. Therefore, a
question remains as to whether Baker is likely to succeed on the merits of a
challenge to the open-carry aspect of Hawaii’s statutes.
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. There is simply no justification for a broadside interference with
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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)).
“We review the district court's grant of a preliminary injunction for abuse of
discretion, reviewing findings of fact for clear error and conclusions of law de
novo.” Americans for Prosperity Foundation v. Harris, 809 F.3d 536, 539 (9th
Cir. 2015). The district court did not make any errors of law and certainly did not
abuse its discretion in its thorough order.
Thus, assuming Baker even has standing to pursue his claims, I would hold
that the district court did not abuse its discretion in denying the preliminary
injunction. It considered and weighed the appropriate factors and 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.
For these reasons, I respectfully dissent.
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