IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CITY AND COUNTY OF
HONOLULU; LOUIS KEALOHA,
CHIEF OF THE HONOLULU
POLICE DEPARTMENT IN HIS
OFFICIAL CAPACITY; DAVID
LOUIE, ATTORNEY GENERAL OF
HAWAII, IN HIS OFFICIAL
CIV. NO. 14-00333 JMS-RLP
ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT AND FOR PERMANENT
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT AND FOR PERMANENT INJUNCTIVE RELIEF
Plaintiff Steve Fotoudis (“Plaintiff” or “Fotoudis”) moves for
summary judgment and for permanent injunctive relief in this action challenging
the constitutionality of certain provisions of Hawaii Revised Statutes (“HRS”)
§ 134-2(d) regarding applications for a permit to acquire firearms. Under 42
U.S.C. § 1983, Fotoudis seeks an order: (1) finding violations of constitutional
rights, and (2) permanently enjoining Defendants the City and County of Honolulu
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(the “City”), Louis Kealoha (in his official capacity as Chief of the Honolulu
Police Department) (“Kealoha”), and David Louie (in his official capacity as
Attorney General of the State of Hawaii) (“Louie”) (collectively, “Defendants”)
from refusing to allow Fotoudis (and other lawful permanent residents) to apply
for permits to acquire firearms under HRS § 134-2(d). Based on the following, the
Motion is GRANTED.
A. Factual Background
1. The Parties
Fotoudis is a permanent resident of the United States, living in
Honolulu, Hawaii. Doc. No. 26, Verified First Amended Complaint (“FAC”) ¶ 8.
According to the FAC, [b]efore moving to Hawaii, [Fotoudis] was a competitive
shooter in Australia. [He] was an active member in a club of competitive shooters,
has had extensive training in firearms use and safety, and has safely and lawfully
possessed a number of firearms in Australia for many years.” Id. ¶ 23.
The City is a municipal corporation, incorporated under the laws of
the State of Hawaii. Id. ¶ 9. Kealoha, Chief of the Honolulu Police Department, is
“sued in his official capacity as a City official and/or employee who supervised,
oversaw, and/or participated in the violation of Mr. Fotoudis’ rights” as alleged in
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the FAC; and is “responsible for developing and/or enforcing the City and
[State’s] policies, customs, or practices” at issue. Id. ¶ 10. Similarly, Louie, as
“chief legal officer and chief law enforcement officer for the State of Hawaii . . . is
tasked by Hawaii law to comply with, enforce, and/or defend the laws at issue.”
Id. ¶ 11.
2. The Dispute
The parties have stipulated to the following facts, which the court
considers to be proven for purposes of this action.1 See, e.g., United States v.
Houston, 547 F.2d 104, 107 (9th Cir. 1976) (“Stipulations as to material facts . . .
will be deemed to have been conclusively established.”).
a. Plaintiff is a lawfully admitted permanent resident of the United
States who at all material times has resided in the City and County of Honolulu.
Doc. No. 27, Stip. Facts ¶ 1.
b. Plaintiff holds a Form I-551 green card as well as a United States
Social Security Administration Card. Id. ¶ 2.
1 The FAC alleges other salient details such as Plaintiff’s background, the process by
which he was not allowed to apply for a permit to acquire firearms, the status of his existing
firearms in Australia, and the issuance of a corresponding Australian firearms permit. See Doc.
No. 26, FAC at pp. 5-10. The court need not, however, resolve whether all the factual allegations
in the FAC have been established. For purposes of this Order, the stipulated facts are sufficient
to demonstrate that Plaintiff has standing to make an as-applied challenge to HRS § 134-2(d),
and that he is entitled to a permanent injunction allowing him to submit an application to acquire
firearms, subject to the same conditions and requirements as a United States citizen.
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c. Plaintiff intends to become a naturalized citizen of the United
States. Id. ¶ 3.
d. Plaintiff desires to possess an operational firearm or firearms and
ammunition for lawful purposes, including in his home for self-defense. Id. ¶ 4.
e. On July 10, 2014, Plaintiff went to the Honolulu Police
Department and attempted to apply for a permit to acquire a firearm. Id. ¶ 5.
f. Plaintiff was not allowed to apply for a permit to acquire a firearm
because he is not yet a citizen of the United States. Id. ¶ 6.
g. HRS § 134-2(d) states in pertinent part that, with limited
exceptions that are inapplicable to Plaintiff, the chiefs of police of the counties in
Hawaii may only issue permits to acquire firearms to citizens of the United States.
Id. ¶ 7.2
2 Section 134-2(d) provides in full:
The chief of police of the respective counties may issue permits to
acquire firearms to citizens of the United States of the age of
twenty-one years or more, or duly accredited official
representatives of foreign nations, or duly commissioned law
enforcement officers of the State who are aliens; provided that any
law enforcement officer who is the owner of a firearm and who is
an alien shall transfer ownership of the firearm within forty-eight
hours after termination of employment from a law enforcement
agency. The chief of police of each county may issue permits to
aliens of the age of eighteen years or more for use of rifles and
shotguns for a period not exceeding sixty days, upon a showing
that the alien has first procured a hunting license under chapter
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B. Procedural Background
Plaintiff filed this action on July 24, 2014, seeking a temporary
restraining order (“TRO”) and preliminary injunction. See Doc. Nos. 1 (Verified
Compl.), 5 (Motion for TRO), 6 (Motion for Preliminary Injunction). After a July
30, 2014 status conference with the court, the parties agreed to certain relief that
rendered moot the Motions for TRO and preliminary injuction. The parties also
jointly requested that “the court determine the constitutionality of [HRS] § 134-
2(d)” based on stipulated facts without further briefing or argument. See Doc. No.
24, Aug. 5, 2014 ltr. at 2.
Based on subsequent agreement, on August 22, 2014, Plaintiff filed
the FAC, Stipulated Facts, as well as the current Motion for Summary Judgment
and for Permanent Injunctive Relief. Doc. Nos. 26, 27, 29. On August 29, 2014,
183D, part II. The chief of police of each county may issue permits
to aliens of the age of twenty-one years or more for use of firearms
for a period not exceeding six months, upon a showing that the
alien is in training for a specific organized sport-shooting contest to
be held within the permit period. The attorney general shall adopt
rules, pursuant to chapter 91, as to what constitutes sufficient
evidence that an alien is in training for a sport-shooting contest.
Notwithstanding any provision of the law to the contrary and upon
joint application, the chief of police may issue permits to acquire
firearms jointly to spouses who otherwise qualify to obtain permits
under this section.
Id. HRS Chapter 134, governing “Firearms, Ammunition and Dangerous Weapons,” does not
define the term “alien.”
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Louie filed an Opposition, and the City filed a statement taking no position
regarding the Motion. Doc. Nos. 31, 32. Stipulated proposed language as to the
scope of an injunction was provided to the court on August 29, 2014, and during a
September 16, 2014 status conference the parties agreed to modify that language.
See Doc. Nos. 34-36. The court determines the matter under Local Rule 7.2(d)
without a hearing.
III. STANDARDS OF REVIEW
A. Summary Judgment
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
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Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)], its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and
internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (stating that a party cannot “rest upon the mere
allegations or denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor.” (citations omitted)).
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B. Permanent Injunction
“To be entitled to a permanent injunction, a plaintiff must
demonstrate: (1) actual success on the merits; (2) that it has suffered an irreparable
injury; (3) that remedies available at law are inadequate; (4) that the balance of
hardships justify a remedy in equity; and (5) that the public interest would not be
disserved by a permanent injunction.” Indep. Training & Apprenticeship Program
v. Cal. Dep’t of Indus. Relations, 730 F.3d 1024, 1032 (9th Cir. 2013) (citing eBay
Inc. v. MercExch., LLC, 547 U.S. 388, 391 (2006)); see also W. Watersheds
Project v. Abbey, 719 F.3d 1035, 1054 (9th Cir. 2013).
A. Equal Protection
The undisputed facts establish that Fotoudis, as a lawful permanent
resident alien of the United States (and resident of Hawaii), was denied the
opportunity to apply for a permit to acquire firearms solely because of his
alienage. This classification v 3 iolates the equal protection clause of the U.S.
Constitution. HRS § 134-2(d) is thus unconstitutional as-applied to Fotoudis (and
other lawful permanent resident aliens), and Defendants are therefore permanently
3 “The term ‘lawfully admitted for permanent residence’ means the status of having been
lawfully accorded the privilege of residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having changed.” 8 U.S.C. § 1101(20).
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enjoined from denying Fotoudis the opportunity (1) to apply for a permit to
acquire firearms, and (2) to obtain such a permit, if he otherwise meets the
qualifications of state law, as specifically set forth in the Conclusion of this
Under HRS § 134-2(d), the “chief of police of the respective counties
may issue permits to acquire firearms to citizens of the United States of the age of
twenty-one years or more,” and not to “aliens” (unless the aliens are “duly
4 The FAC, among other relief, seeks a declaration “that the citizenship requirements
contained in Section 134-2(d) of the Hawaii Revised Statutes are unconstitutional.” Doc. No. 26,
FAC ¶ 80. To be clear, the court is not concluding that HRS § 134-2(d) is facially
unconstitutional. A facial challenge requires “establish[ing] that no set of circumstances exists
under which the [challenged statute] would be valid,” Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 (2008) (quoting United States v. Salerno, 481 U.S. 739,
745 (1987)), or that the statute “lacks any ‘plainly legitimate sweep.’” United States v. Stevens,
559 U.S. 460, 472 (2010) (citation omitted). Although § 134-2(d) uses the term “alien,” it does
not distinguish between lawful permanent resident aliens — such as Plaintiff — and illegal or
temporary aliens. That is, § 134-2(d) may well satisfy constitutional scrutiny as to some types of
aliens such that the court cannot conclude that “no set of circumstances exist under which” the
statute would be valid. See, e.g., Fletcher v. Haas, 851 F. Supp. 2d 287, 291 n.7 (D. Mass. 2012)
(distinguishing a facial and as-applied challenge by a lawful permanent resident to a
Massachusetts firearm regulation because “the regime could be constitutionally applied to an
illegal alien or a lawfully admitted alien who does not establish residence in Massachusetts”);
Smith v. South Dakota, 781 F. Supp. 2d 879, 883 (D. S.D. 2011) (rejecting a facial challenge by a
lawful permanent resident to a South Dakota firearms statute because it “could be
constitutionally applied if the applicant were an illegal alien”).
Indeed, many courts have rejected Second Amendment and equal protection challenges
by illegal aliens to alien-in-possession statutes. See, e.g., United States v. Huitron-Guizar, 678
F.3d 1164, 1167-69 (10th Cir. 2012) (rejecting challenge to 18 U.S.C. § 922(g)(5)(A), which
prohibits illegal aliens from shipping, transporting, possessing, or receiving any firearm or
ammunition in interstate or foreign commerce). This Order, however, concerns only lawful
permanent resident aliens such as Plaintiff, and the court has drawn no conclusions as to whether
rights of any other types of aliens are implicated by § 134-2(d).
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commissioned law enforcement officers of the State”). Permits may also be issued
(1) to “aliens of the age of eighteen years or more for use of rifles and shotguns for
a period not exceeding sixty days” if they have a hunting license, or (2) to “aliens
of the age of twenty-one years” for a period not to exceed six months if they are
“in training for a specific organized sport-shooting contest to be held within the
permit period.” Id. But the exceptions for aliens do not apply to Fotoudis.
Section 134-2(d) is thus not “facially neutral legislation.” See Washington v.
Seattle Sch. Dist. No. 1, 458 U.S. 457, 484 (1982) (“[W]hen facially neutral
legislation is subjected to equal protection attack, an inquiry into intent is
necessary[.]”). Rather, the statute explicitly treats “aliens” differently than U.S.
citizens solely because of their status as “aliens.”
Classifications based on alienage are “suspect” for purposes of
analyzing a violation of the Equal Protection clause, and are subject to “strict
judicial scrutiny whether or not a fundamental right is impaired.” Graham v.
Richardson, 403 U.S. 365, 372, 376 (1971); see also, e.g., Nyquist v. Mauclet, 432
U.S. 1, 7 (1977) (“[C]lassifications by a State that are based on alienage are
‘inherently suspect and subject to close judicial scrutiny.’”); Smith v. South
Dakota, 781 F. Supp. 2d 879, 886 (D. S.D. 2011) (granting motion for preliminary
and permanent injunction by lawful permanent resident against enforcement of
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South Dakota citizenship requirement for state permit to carry concealed weapon,
concluding that “the strict scrutiny standard, not the rational basis standard,
applies with regard to Smith’s as applied equal protection claim because the
statute classifies on the basis of a suspect class”). “In order to withstand strict
scrutiny, the law must advance a compelling state interest by the least restrictive
means available.” Bernal v. Fainter, 467 U.S. 216, 219 (1984) (holding that a
Texas statute requiring a notary public be a U.S. citizen did not withstand strict
scrutiny, violating the equal protection clause).
Applying strict scrutiny and assuming that Hawaii has a sufficient
general interest in requiring permits to acquire firearms, denying Fotoudis the
opportunity to apply for (and to obtain) a permit merely because he is a lawful
permanent resident and not a U.S. citizen “is not a narrowly tailored means of
achieving that goal.” Smith, 781 F. Supp. 2d at 886 (citing Application of
Griffiths, 413 U.S. 717, 725 (1973) (rejecting the argument that ‘the possibility
that some resident aliens are unsuited to the practice of law’ could be a
‘justification for a wholesale ban’”)). See also Fletcher v. Haas, 851 F. Supp. 2d
287, 303 (D. Mass. 2012) (“Although Massachusetts has an interest in regulating
firearms to prevent dangerous persons from obtaining firearms . . . the statute here
fails to distinguish between dangerous non-citizens and those non-citizens who
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would pose no particular threat if allowed to possess handguns.”); Say v. Adams,
2008 WL 718163, at *3 (W.D. Ky. Mar. 14, 2008) (granting an injunction against
enforcing a Kentucky law limiting the issuance of a license to carry concealed
weapons to U.S. citizens, reasoning in part that “[a] blanket prohibition
discriminating against aliens is not precisely draw[n] to achieve the goal of
facilitating firearms purchases when there exists a nondiscriminatory way to
achieve the same goals”).
Accordingly, Fotoudis has succeeded in proving a violation of equal
protection — he was denied an opportunity to apply for a permit to acquire
firearms based solely on his status as a lawful permanent resident alien.
B. Second Amendment5
Similarly, interpreting § 134-2(d) to deny Fotoudis the opportunity to
apply for (and to obtain, if otherwise qualified) a permit to acquire firearms, solely
because he is not a U.S. citizen, also violates the Second Amendment.6
5 Given the court’s conclusion regarding a violation of equal protection, Plaintiff is
entitled to an injunction regardless of whether the Second Amendment has also been violated.
Nevertheless, the court proceeds to address the Second Amendment, given that no Circuit court
has addressed this precise equal protection issue, and the many contexts in which aliens have
made equal protection challenges. See Korab v. Fink, 748 F.3d 875, 889 (9th Cir. 2014) (Bybee,
J., concurring) (observing that “the Graham doctrine — while ostensibly clear when issued — has
been, in fact, riddled with exceptions and caveats that make consistent judicial review of alienage
classifications difficult”), petition for cert. filed (U.S. Sept. 9, 2014) (No. 14-281).
6 The Second Amendment is applicable to the States under the Fourteenth Amendment.
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Lawful permanent residents such as Fotoudis “are firmly on the path
to full citizenship,” and “are entitled to a wide array of constitutional rights.”
Fletcher, 851 F. Supp. 2d at 299 (citations omitted). They are “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,” United
States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990), such that they are “among
‘the people’ of the United States,” id. at 273, for purposes of the Second
Amendment. See also District of Columbia v. Heller, 554 U.S. 570, 580 (2008)
(observing that the “provisions of the Constitution that mention ‘the people’ . . .
refers to all members of the political community, not an unspecified subset”)
(citing Verdugo-Urquidez, 494 U.S. at 265).
Heller held that the Second Amendment confers “an individual right
to keep and bear arms,” 554 U.S. at 595, at least “for the purpose of immediate
self-defense.” Id. at 636. But Heller “expressly left for ‘future evaluation’ the
precise level of scrutiny to be applied to laws trenching upon Second Amendment
rights.” United States v. Booker, 644 F.3d 12, 22 (1st Cir. 2011) (citing Heller,
See McDonald v. City of Chicago, 561 U.S. 742, 750 (2010) (holding that “the Due Process
Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in
Heller”). The Second Amendment provides: “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.”
U.S. Const. amend. II (emphasis added).
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554 U.S. at 626, 634-35); see also Nordyke v. King, 681 F.3d 1041, 1045 (9th Cir.
2012) (en banc) (affirming a dismissal of a Second Amendment claim because
“[Plaintiffs] cannot succeed, no matter what form of scrutiny applies to Second
Amendment claims”); id. at 1045 (O’Scannlain, J., concurring) (disagreeing with
“the majority’s approach, which fails to explain the standard of scrutiny under
which it evaluates the ordinance”).
Nevertheless, HRS § 134-2(d), as applied to Fotoudis fails to “pass
constitutional muster regardless of whether intermediate scrutiny or strict scrutiny
applies.” Fletcher, 851 F. Supp. 2d at 303. See United States v. Chester, 628 F.3d
673, 683 (4th Cir. 2010) (applying intermediate scrutiny — “substantially related to
an important government objective”– to a Second Amendment challenge); United
States v. Reese, 627 F.3d 792, 800-02 (10th Cir. 2010) (observing that Heller
“indicated only that the rational basis test is not appropriate” and that “we must
apply some level of heightened scrutiny”).
Here, assuming § 134-2(d)’s general permit requirement implements
an “important government objective” (intermediate scrutiny) or a “compelling
state interest” (strict scrutiny), it is neither “substantially related” nor “narrowly
tailored” to such interests. It categorically excludes (as applied in this case) lawful
permanent resident aliens, regardless of whether they are otherwise qualified to
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acquire firearms, and regardless of whether they might pose a threat to others.
And “[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.” Fletcher, 851 F. Supp. 2d at 303; see
also Say, 2008 WL 718163, at *3 (“A blanket prohibition discriminating against
aliens is not precisely draw[n] to achieve the goal of facilitating firearms
purchases when there exists a nondiscriminatory way to achieve the same goals.”).
C. Permanent Injunction
It follows that Fotoudis is entitled to a permanent injunction
prohibiting Defendants from denying him the opportunity to apply for a permit to
acquire firearms, and (if he otherwise qualifies) to obtain such a permit.
He has demonstrated “actual success on the merits.” Indep. Training
& Apprenticeship Program, 730 F.3d at 1032. He has also suffered “an
irreparable injury” — he has been deprived of a constitutionally-protected right.
See, e.g., Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013)
(reiterating that “an alleged constitutional infringement will often alone constitute
irreparable harm”) (citation omitted); Ariz. Dream Act Coalition v. Brewer, —
F.3d —-, 2014 WL 3029759, at *11 (9th Cir. July 7, 2014) (upholding finding of
likelihood of irreparable harm upon violation of equal protection, and stating that
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“[i]rreparable harm is traditionally defined as harm for which there is no adequate
legal remedy, such as an award of damages”) (citation omitted). Fotoudis has also
demonstrated the other requirements for issuance of a permanent injunction. “[I]t
is clear that it would not be equitable or in the public’s interest to allow the
state . . . to violate the requirements of federal law, especially when there are no
adequate remedies available.” Ariz. Dream Act Coalition, 2014 WL 3029759, at
*12 (quoting Valle del Sol, 732 F.3d at 1029). “[T]he public interest and the
balance of the equities favor ‘prevent[ing] the violation of a party’s constitutional
rights.” Id. (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)).
Plaintiff’s Motion for Summary Judgment and for Permanent
Injunctive Relief, Doc. No. 29, is GRANTED.7
Defendants and/or their officers, agents, servants, employees, and all
persons in active concert or participation with them who receive actual notice of
this injunction, are enjoined from precluding lawful permanent resident aliens
7 The precise scope of the injunction was agreed to by the parties. See Doc. Nos. 34-36.
That is, although Defendants have opposed, or taken no position, on the Motion, all parties have
agreed to the scope of this injunction (if the court concludes, as it does, that HRS § 134-2(d) is
unconstitutional as-applied to Fotoudis and other lawful permanent resident aliens).
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residing in the State of Hawaii from applying for a permit to acquire firearms as
set forth in HRS § 134-2(d). Defendants must also:
(a) allow Fotoudis to apply for a permit pursuant to and consistent
with all requirements set forth in HRS § 134-2;
(b) evaluate in the normal course, with no more or less scrutiny than
would be applied to a citizen applicant, Fotoudis’ application and background to
determine his fitness and qualifications to acquire firearms lawfully; and,
(c) insofar as Fotoudis is determined to be fit and qualified to acquire
firearms, to thereafter issue in the normal course to Fotoudis the permit
contemplated by HRS § 134-2, vesting Fotoudis with the same rights and
privileges to acquire firearms as those of United States citizens who obtain
permit(s) pursuant to § 134-2.
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Accordingly, the Clerk of Court shall issue judgment in favor of
Plaintiff, and close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 17, 2014
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Fotoudis v. City & Cnty. of Honolulu, et al., Civ. No. 14-00333 JMS-RLP, Order Granting
Plaintiff’s Motion for Summary Judgment and for Permanent Injunctive Relief
Case 1:14-cv-00333-JMS-RLP Document 37 Filed 09/17/14 Page 18 of 18 PageID #:
Hat Tip Knight!