Filed Oppposition To en Banc Baker

No.
12-16258

In The United States Court of Appeals
For The Ninth Circuit
___________

CHRISTOPHER BAKER,

Plaintiff-Appellant,
v.

LOUIS KEALOHA, ET AL.,

Defendants-Appellees.
___________

On Appeal from the United States District Court
For Hawaii, Honolulu
No. 1:11-cv-00528-ACK -KSC
The Honorable Alan C. Kay
United States Senior District Court Judge
___________

OPPOSITION TO PETITION FOR
REHEARING OR REHEARING EN BANC
___________

Richard L. Holcomb Alan Beck
Holcomb Law, LLLC 4780 Governor Drive
1136 Union Mall San Diego, CA 92122
Suite 808 (619) 971-0414
Honolulu, HI 96813
(808) 545-4040

Attorneys for Plaintiff-Appellant

Case: 12-16258 05/02/2014 ID: 9081276 DktEntry: 79 Page: 1 of 24
i

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Peruta applies rather than contravenes Heller. . . . . . . . . . . . . . . . 5
B. This decision survives in any Circuit. . . . . . . . . . . . . . . . . . . . . . . 8
C. Peruta and Chovan are not at odds. . . . . . . . . . . . . . . . . . . . . . . . . 10
D. Irreparable harm is not at issue. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ii

TABLE OF AUTHORITIES

Reported Cases

District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . 1,
5-6,
7, 9,
11,

Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc.,
109 F.3d 1394 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Elrod v. Burns, 427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Espanola Jackson v. San Francisco, __ F. 3d __ (9th Cir. 2014) . . . . . . . . . 13

Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012) . . . . . . . . . . . 8-9

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) . . . . . . . . . . . . . . . . . . 1, 6

Miss Universe, Inc. v. Flesher, 605 F.2d 1130 (9th Cir. 1979) . . . . . . . . . . . . 15

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . 9

Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014) . . . . . . . . . . . 3, 13

Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013) . . . . . . . . . . . . . . . . . . 9

Robertson v. Baldwin, 165 U.S. 275 (1897) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

San Francisco Veteran Police Officers Assn v.
City & Cnty. of San Francisco, __ F. Supp. 2d __ (N.D. Cal. 2014) . . . . . . . 13

United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) . . . . . . . . . . . . . . . . 4, 11,
12, 13

Winter v. Natural Res. Def. Council, Inc., 55 U.S. 7 (2008) . . . . . . . . . . . . . . 14-15

iii

Woollard v. Gallagher,712 F.3d 865 (4th Cir. 2013) . . . . . . . . . . . . . . . . . . . 9

Constitutional Provisions, Statutes, and Rules

Haw. Rev. Stat. 134-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Haw. Rev. Stat. 134-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Haw. Rev. Stat. 134-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6,
7, 12,

Haw. Rev. Stat. 134-23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Haw. Rev. Stat. 134-24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Haw. Rev. Stat. 134-25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Haw. Rev. Stat. 134-26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Other Authorities

11A Charles Alan Wright et al.,
Federal Practice & Procedure 2948.1 (2d ed. 1995) . . . . . . . . . . . . . . . . . . 15

1

I. INTRODUCTION
Mr. Baker enjoys a fundamental constitutional right to bear arms. This right
does not extinguish at the threshold of his front door. Indeed, the Second
Amendment guarantees the right to bear firearms for protected purposes, such as
self-defense, militia training, and hunting which cannot be accomplished within the
confines of a home. This was all previously decided in District of Columbia v.
Heller, 554 U.S. 570, 584 (2008) (we conclude that this natural meaning [of the
term bear in the Second Amendment] was also the meaning that bear arms had
in the 18
th
century. In numerous instances, bear arms was unambiguously used to
refer to the carrying of weapons outside of an organized militia). Indeed, Heller
plainly held that bear arms means to wear, bear, or carry . . . upon the person or
in the clothing or in a pocket, for the purpose . . . of being armed and ready for
offensive or defensive action in a case of conflict with another person. Id. at 584.
The Court justified its conclusion through extensive historical analysis, Id. at 584-
87, and then specifically rejected each of the dissents reasons for urging the term
bear to be interpreted as limited to military service. Id. at 584-90. Accordingly,
the core of the Second Amendment is not to possess a firearm solely within the
home where the need is most acute as urged by Petitioners, but rather to possess a
firearm for the purpose of self-defense. Id. at 571. This right is applicable to the
states. McDonald v. City of Chicago, 130 S. Ct. 3020 (2010).
2

Nevertheless, Hawaii has maintained a stringent system of prior restraint
designed to limit the exercise of the fundamental constitutional right to bear arms
a prior restraint that has proven so successful that there is effectively no right of an
average citizen to bear arms in Hawaii. This prior restraint is accomplished
through the wholesale prohibition on the bearing of arms.
The only exception to this wholesale prohibition is found in Section 134-9 of
the Hawaii Revised Statutes. And although Petitioners conveniently omit key
provisions of this statute, Pet. 1, 3-4, the statute contemplates the issuance of carry
permits only when an applicant shows that his or hers is an exceptional case and
when the applicant can show reason to fear injury to [his or her] person or
property. Section 134-9 further vests unbridled discretion in the Chief of Police
to determine whether a permit should issue without providing any judicial or even
administrative review to aggrieved applicants. Moreover, it fails to define what
constitutes an exceptional case or what proof an applicant must present to satisfy
the Chief that the applicant has reason to fear such injury.
Thus, the Chief is left to arbitrarily choose those applicants that may
exercise their rights and those that may not. In practice, this is an easy decision as
all applications submitted by those who are not engaged in the protection of life
and property, i.e., security guards or armored truck attendants, are routinely
3

denied without explanation as was Mr. Bakers. ER 94-105 (showing all permits
issued were security related and none were issued for citizens).
While the government may impose reasonable time, place, and manner
restrictions, the current restrictions are plainly unconstitutional. Yet, this Court
need not decide the propriety of each facet of the statute in this case. This appeal
was an interlocutory appeal of an application for preliminary injunction.
1
And,
although Mr. Baker framed the dispositive issue as the lower court having both
abused its discretion and/or based its decision on an erroneous legal standard, see
Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1397, n. 2
(9th Cir. 1997), Brief of Appellant, p. 2, the panel, relying on Peruta v. County of
San Diego, 742 F.3d 1144 (9th Cir. 2014) correctly found that:
[i]n 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.

Christopher Baker v. Louis Kealoha, et. al., No. 12-16258, __ Fed.Appx. __ , 2014
wl 1087765 at *1 (9th Cir. Mar. 20, 2014) (unpublished) (attached to petition).
Accordingly, this case should be remanded to the lower court, to allow that court to

1
Mr. Baker informed the parties and the lower court that he would no longer seek
a preliminary injunction before Petitioners filed the instant Petition. However, the
overall litigation is still pending as Mr. Baker continues to seek the remaining
relief requested in the Complaint.
4

apply the correct law, i.e., that Second Amendment rights are not extinguished at
the threshold of the front door.
2

II. ARGUMENT
Nevertheless, Petitioners urge this Court rehear this case for three equally
spurious reasons:
A. Ignoring the plain holding and succinct meaning of Heller, Petitioners urge this
Court to find somehow find that Peruta, upon which this decision relies, somehow
contradicts Heller. Peruta is entirely consistent with Heller and the panel properly
applied Heller in reaching its finding in both Peruta and in this case;

B. While again misconstruing Hawaii as a good cause state and again ignoring
the record that demonstrates an absolute ban, Petitioners somehow contend that
this decision publicly conflicts with decisions from this Courts sister circuits.
Nevertheless, if the analysis of any of the Circuit Courts that have decided this
issue were applied, the panels holding in this case would survive.

C. Petitioners also claim that Peruta, supra. conflicts with United States v.
Chovan, 735 F.3d 1127 (9th Cir. 2013). Peruta applies rather than conflicts with
Chovan. Moreover, Chovan analyzed a reasonable time, manner, or place
restriction and not an absolute ban as is challenged in this case.

2
Notably, the lower court also recognized the plain meaning of Heller. The court
acknowledged that Mr. Baker emphasi[zed] that the Supreme Court dedicated
eight pages [in Heller] to analyzing the meaning of the phrase bear arms,
concluding that it is the right to carry weapons in case of confrontation. ER
237. But the court join[ed] other courts in awaiting direction from the Supreme
Court with respect to the outer bounds of the Second Amendment, instead of
making a decision consistent with Heller. ER 236-37 n. 20.

5

Further, although not enumerated in its proposed reasons initially set forth in
the Petition, Petitioners claim that Mr. Baker failed to show irreparable harm. This
does not justify a rehearing of this case, even if it were true. Fed.R.App.P., Rule
35. Nonetheless, because the lower court was unwilling to apply Heller, no
appropriate Winter analysis has ever been conducted.
Each of these issues is discussed below.
A. Peruta applies rather than contravenes Heller.
Petitioners erroneously insist that Heller stands for the proposition that the
core of the Second Amendment was the right to carry in the home. Pet., p. 5.
Petitioners entire argument rests upon this disingenuous reading of Heller,
wherein Petitioners urge this Court to ignore eight pages of analysis and instead
find that Hellers admonition that the right to defend oneself is most acute in the
home somehow undermines the Second Amendments dual guarantee that citizens
may keep and bear firearms. This Court should affirm its consistent rejection of
this specious argument and deny rehearing for at least three reasons.
First, Petitioners simply misstate Heller. Heller neither held nor repeatedly
emphasized that the core of the Second Amendment was the right to carry in the
home. Pet., p. 5. To so hold or even emphasize would eviscerate the Second
Amendments dual guarantee that citizens may keep and bear arms. Accordingly,
three separate times Heller specifically defined the core or central component
6

of the Second Amendment as the right of self-defense. Heller, 554 U.S. at 599,
628, 630 (emphasis added). Even if Petitioners could somehow persuade this
Court that Heller is somehow unclear as to this holding, Petitioners cannot possibly
explain the plain description of the Heller holding in McDonald: in [Heller], we
held that the Second Amendment protects the right to keep and bear arms for the
purpose of self-defense, and we struck down a District of Columbia law that
banned the possession of handguns in the home. McDonald, 130 S.Ct. 3026
(emphasis added). Clearly, Heller held that the core protection of the Second
Amendment was that of self-defense and the so-called emphasis on the home is
merely a byproduct of the facts that were being reviewed in Heller facts not
present here.
Second, Petitioners note that Peruta did not disturb Californias
unchallenged restrictions on open carry. Pet., p. 7. Much like San Diego (which
was apparently inconsistent with the remainder of California), Hawaiis legislature
chose only to permit open-carry permits to citizens engaged in the protection of
life and property, i.e., armored car attendants and security guards. Haw. Rev.
Stat. 134-9. Average citizens, who are not so employed but nevertheless wish to
exercise their inherent right to defend themselves, are restricted to concealed carry
permits. Id. Thus, when the Chief effectively imposes a ban on concealed carry
permits, as this record demonstrates, there is no right for average citizens to bear
7

firearms whatsoever. Such a ban is inconsistent with any strained reading of
Heller or any other authority that genuinely applies Heller.
If Heller could conceivably be read to condone the extinguishment of
Second Amendment rights at the threshold of the front door, which it cannot, why
would the Court possibly clarify that prohibitions forbidding the carrying of
firearms in sensitive places such as schools and government buildings are likely
reasonable? See Heller, 554 U.S. at 626. Clearly, sensitive places cannot
encompass all public places without abrogating the right altogether. And, if the
Court had intended to abrogate the right in all public places, there is no feasible
explanation for why the Court would have distinguished sensitive from non-
sensitive places and even less explanation as to why it would have devoted eight
pages of the opinion to the conclusion that bear means to carry. Yet, absent the
issuance of a permit pursuant to Section 134-9, permits which are not issued as a
matter of course, Hawaii has enacted criminal statutes prohibiting the carrying of
operable firearms, ammunition, and even non-lethal weapons in all public places.
See Haw. Rev. Stat. 134-2, 134-5, 134-9(c), 134-23, 134-24, 134-25, 134-26.
Clearly, absent some meaningful exception, these prohibitions (at least insofar as
firearms are concerned) are neither consistent with Heller nor the plain language of
the Second Amendment.
8

Finally, insofar as the Petitioners contend that Peruta stands for the
proposition that the Second Amendment requires conceal carry where open carry is
otherwise available, Mr. Baker takes no position on that issue. While such a
challenge misreads Peruta, it is wholly inapplicable to this case. Mr. Baker did not
insist that he must be issued a concealed carry permit where an open carry permit
may have otherwise been available. This Court correctly recognized the extent of
Mr. Bakers challenges, stating Baker sought an order enjoining the enforcement
of a number of Hawaiis firearms statutes or, alternatively, directing the defendants
to issue a license to Baker allowing him to carry (either concealed or openly)
operable firearms. Christopher Baker v. Louis Kealoha, et. al., No. 12-16258, __
Fed.Appx. __ , 2014 wl 1087765 at *1 (9th Cir. Mar. 20, 2014) (unpublished)
(attached to petition). And, as stated above, Hawaii chose to limit open carry
permits to security guards or armored car attendants, leaving concealed carry as the
alternative for the average citizen.
The petition should be denied.
B. This decision survives in any Circuit.
Petitioners claim that Perutas holding that American citizens do not have to
show good cause to defend their lives should be overturned. If so, this Court would
join three other Circuit Courts who have upheld so-called good cause
requirements. Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89 (2d Cir. 2012),
9

cert. denied, 133 S. Ct. 1806 (U.S. 2013); Drake v. Filko, 724 F.3d 426, 431 (3d
Cir. 2013), cert. pending, No. 13-827; Woollard v. Gallagher,712 F.3d 865, 882
(4th Cir. 2013), cert. denied, 134 S. Ct. 422 (U.S. 2013). Yet, all three of those
Sister Circuits found that there is a right to keep and bear arms outside the home.
Their holdings were derived from an application of intermediate scrutiny in
determining the constitutionality of the respective statutes at issue. The Seventh
Circuit has also held the right to bear arms extends beyond the threshold of the
front door in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). Thus, every Circuit
Court in the nation that has ruled on this issue has found there is right to bear arms
outside the home.
Further, the Tenth Circuit, reviewing a challenge by a non-resident who
demanded to carry a concealed firearm, found that the Plaintiff had waived any
challenge to an open carry restriction. Peterson v. Martinez, 707 F.3d 1197, 1211-
12 (10th Cir. 2013). While the Tenth Circuit found no affirmative right to conceal
carry, the dicta upon which the Court relied (derived from Robertson v. Baldwin,
165 U.S. 275 (1897)) plainly alludes to the common law tradition that open carry
was presumptively permissible.
3
Id. at 1210 (quoting Robertson, 165 U.S. at 281-
82). Thus, had Mr. Peterson asserted rather than waived his challenge to the

3
Such dicta is also present in Heller. 554 U.S. at 626.
10

Denver ordinance, his result would have been identical to that of Peruta, where the
challenge to open carry was clearly not waived.
Accordingly, the result in this case is not only consistent with those other
Circuit Courts, but would also remain the same had this panel specifically adopted
any of those other rulings. Hawaii allows neither open nor concealed carry without
a permit permits which are not issued to the average citizen. This panel found,
consistent with Heller, in both Peruta and in this case that the right extends outside
the home. Even more narrowly, in this case, the holding is simply that Hawaiis
prohibitions do implicate the Second Amendment. Christopher Baker v. Louis
Kealoha, et. al., No. 12-16258, __ Fed.Appx. __ , 2014 wl 1087765 at *1 (9th Cir.
Mar. 20, 2014) (unpublished) (attached to petition). And therefore, the lower
court in this case applied an erroneous legal standard. Id. This decision would
survive even if this Court decided to adopt any other possible standard as all courts
have held the right extends beyond the home.
C. Peruta and Chovan are not at odds.
Preliminarily, Petitioners entire argument pertaining to this issue relies
entirely upon two false pretenses: 1) that Chovan somehow limited the Second
Amendment to the home; and 2) that this case would somehow be affected by the
purported confusion Peruta created by finding that Second Amendment rights
11

are destroyed, rather than merely regulated, by a regime that allows firearms to
be openly carried in many unincorporated places and carried concealed by lawful
permit holders. Pet. p. 11. Each of these false pretenses is discussed below.
First, Chovan did not limit the Second Amendment to the home. Chovan
analyzes the federal criminal prohibition disallowing citizens convicted of
domestic violence misdemeanors from possessing firearms both outside and inside
their homes. Chovan, 735 F.3d at 1129-30 (citing 18 U.S.C. 922(g)(9)).
4
This
Court concluded that by prohibiting domestic violence misdemeanants from
possessing firearms, 922(g)(9) burdens rights protected by the Second
Amendment. Id. at 1137. And, although the Court did cite only the phrase the
right of law-abiding, responsible citizens to use arms in defense of hearth and
home from Heller, it was necessary to extract this phrase from Heller to reach the
Courts ultimate conclusion, i.e., that Mr. Chovan was not law-abiding or
responsible. Id. at 735 F.3d at 1138 (quoting Heller, 554 U.S. at 635).
It was not necessary in Chovan, however, to further extrapolate the fact that
Heller definitively concluded that the core and central component of the
Second Amendment is for the purpose of self-defense and/or that Heller also
clearly found that bearing or carrying outside the home is also protected.
Chovan could never avail himself of the rights to keep or to bear arms due to

4
Guns were, in fact, seized from Chovans home. Id. at 1131.
12

Congress intent that domestic violent misdemeanants be treated more harshly than
felons who in some cases may have that right restored. Chovan, 735 F.3d at 1132-
33. Moreover, the phrase hearth and home does not implicate a limitation to the
confines of a home. Indeed, soldiers went out to protect hearth and home, a
phrase still used to refer to the home and family. See
http://www.mamillandictionary.com/us/dictionary/american/hearth.
As to their second pretense, Petitioners, again, misstate the regime that
the panel confronted in Peruta. And, more importantly to Mr. Baker, certainly
such a regime is not present in Hawaii. Again, where California (at least outside
of San Diego) may allow open carry while restricting concealed carrying of
firearms, Hawaii allows open carry permits only to those engaged in the
protection of life and property, leaving average citizens to plead with the Chief
for a concealed carry permit. Haw. Rev. Stat. 134-9. Moreover, average citizens
must show that theirs is an exceptional case and show reason to fear injury to
the [his or her] person or property. Haw. Rev. Stat. 134-9. No citizen was able
to meet this onerous and undefined burden to the Chiefs satisfaction. ER 94-105.
Nevertheless, Peruta applied rather than departed from Chovan. In sum, the
Chovan analysis requires the Court to first determine whether or not the restriction
substantially burdens the Second Amendment and, if so, the Court may apply
intermediate scrutiny. Chovan, 735 F.3d at 1138-39. However, consistent with
13

Heller, if a restriction totally destroys Second Amendment rights, then no level of
scrutiny can justify the restriction and an application of intermediate scrutiny is
obviously unnecessary. See Peruta, 742 F.3d at 1168 (noting that Heller dispensed
with means-end scrutiny in striking a ban on handguns). This is entirely consistent
with Chovan, which also allows the avoidance of means-end scrutiny at step one
if, instead of totally destroying the Second Amendment, the restriction does not
implicate the Second Amendment at all. Chovan, 735 F.3d at 1136. It makes no
sense to apply means-end scrutiny where a right is not implicated or, conversely,
where no level of scrutiny could possibly justify the restriction.
Petitioners cite San Francisco Veteran Police Officers Assn v. City & Cnty.
of San Francisco, __ F. Supp. 2d __, 2014 WL 644395 (N.D. Cal. 2014) and its
sister case as examples of confusion. Such confusion is unwarranted as this
Court has consistently applied the same standard not only in Chovan and Peruta,
but most recently in Espanola Jackson v. San Francisco, No. 12-17803, 2014 wl
1193434, __ F. 3d __ (9th Cir. Mar. 25, 2014) (attached). In Jackson, this Court
determined that two separate regulations implicated the Second Amendment, and
then analogizing the regulations to time, manner, and scope First Amendment
regulations, this Court upheld each regulation after applying intermediate scrutiny.
2014 wl 1193434 at *7-8, 12-13.
14

This Court has consistently applied the same standard in each of these cases.
It is difficult to discern how rehearing or en banc review of this case, where the
same standard would again be applied with the same result, would mitigate the
purported confusion. Notably, in this case, the panel simply found that the first
prong of the Chovan test was met. Due to the posture of this case, it did not
continue its analysis by applying the second prong of the test. The petition should
be denied as the lower court is properly charged with that duty.
D. Irreparable harm is not at issue.
It is highly doubtful that in any circumstance, a failure to show irreparable
harm would justify rehearing or especially en banc review when the case has been
remanded to the lower court to make that determination. Indeed, in this case, that
issue was not even broached by the majority of this panel. The majority carefully
and specifically held:
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 district courts decision denying
Bakers motion for a preliminary injunction and remand for further
proceedings consistent with Peruta.

Christopher Baker v. Louis Kealoha, et. al., No. 12-16258, __ Fed.Appx. __ , 2014
wl 1087765 at *1 (9th Cir. Mar. 20, 2014) (unpublished) (attached to petition).
The panel did not order the lower court to issue a preliminary injunction. It
did not rule on whether Mr. Baker satisfied the irreparable harm prong (or any
15

other prong) of the test articulated in Winter v. Natural Res. Def. Council, Inc., 55
U.S. 7, 19 (2008). It only held the lower court applied an erroneous legal standard
as to whether the right to keep and bear arms extends beyond the threshold of the
front door.
While the application of the erroneous legal standard dictated the remainder
of the lower courts analysis of the Winter test, ER 247-56, remand was clearly
proper to permit the lower court to make the appropriate findings, should Mr.
Baker further pursue such relief. See Miss Universe, Inc. v. Flesher, 605 F.2d
1130, 1133 (9th Cir. 1979) ([t]he Court of Appeals does review factual findings;
however, we do not generally serve as fact-finders of first instance. . . . [Because
parties have not had an opportunity to develop a complete record at the granting or
denial of a preliminary injunction,] [t]hat is one reason why this court generally
limits its review to the more general determination as to whether the court below
abused its discretion.).
Despite Mr. Bakers belief that irreparable harm should be presumed as his
fundamental rights are at stake, Elrod v. Burns, 427 U.S. 347 (1976); 11A Charles
Alan Wright et. al., Federal Practice and Procedure 2948.1 (2d ed. 1995), the
lower court is the proper forum in which that determination should be made. If
either party is aggrieved by such finding, that party may seek relief from this
Court. But, in bringing this appeal, neither party raised the issue of irreparable
16

harm. Indeed, Mr. Baker specifically argued that the irreparable harm prong of
Winter w[as] dependent upon the initial erroneous finding that there was no right
to bear arms outside the home and [a]s a result, no meaningful Winter analysis
was conducted. Brief of Appellant, p. 35. No cross-appeal was filed.
III. CONCLUSION
Petitioners request rehearing or rehearing en banc in order to revisit
Peruta. Pet., p. 1. Peruta is a narrowly tailored constitutional challenge to a
California countys (San Diego) good cause policy. This case is a constitutional
challenge to a number of state statutes and a police chiefs subjective policy which,
together, operate as an absolute ban on open or concealed carrying of firearms in
Honolulu. Procedurally, the posture of this case is very different than that of
Peruta. These are simply two very separate appeals dealing with two different
prohibitive regulatory schemes in two separate jurisdictions. As evidenced by the
caption of the Petition, Petitioners make little effort to distinguish Hawaii from
California and this case from Peruta or from Richards, et. al. v. Prieto et. al., No.
11-16255 (which also has a very similar petition pending before this Court). See
Petition Caption (On Appeal from the United States District Court for the
Northern District of California).
17

Moreover, Peruta is consistent with both Heller and Chovan. And even if,
somehow, Peruta were overturned, the limited holding of this case, i.e., that
Hawaiis prohibitions and licensing scheme implicate the Second Amendment
survives the analysis of any the decisions of this Court and/or this Courts
applicable sister circuits. The petition should be denied and this case remanded.
Respectfully submitted this 2nd day of May, 2014.

s/Richard L. Holcomb
Richard L. Holcomb (HI 9177)

s/Alan Beck
` Alan Beck (HI 9145)

Attorneys for Plaintiff Christopher Baker

18

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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 this brief has
been prepared in proportionately spaced typeface using Microsoft Word 2007 in 14
point Times New Roman font.

s/ Richard L. Holcomb
Richard L. Holcomb
Counsel for Appellant

Dated: May 2, 2014.

19

CERTIFICATE OF SERVICE

On this, the 26th day of June 2012, I served the foregoing Brief by electronically
filing it with the Courts CM/ECF system, which generated a Notice of Filing and
effects service upon counsel for all parties in the case.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this the 2
nd
day of May, 2014

s/Alan Beck
Alan Beck
i


Filed Oppposition To en Banc Baker

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