Professional Documents
Culture Documents
Stephen D. Stamboulieh
Stamboulieh Law, PLLC
P.O. Box 4008
Madison, MS 39130
(601) 852-3440
stephen@sdslaw.us
MS Bar No. 102784
*Admitted pro hac vice
by and through counsel, and for response to Defendants Motion to Dismiss or for
direct nexus between Defendant Cummings and the state law at issue. Secondly,
the Chief of Police of the City & County of Honolulu is not a required party, and
should thus not be required to be joined, because she has no discretion to violate
Respectfully submitted,
3
Case 1:19-cv-00165-DKW-WRP Document 22-1 Filed 06/21/19 Page 1 of 12 PageID #:
76
Stephen D. Stamboulieh
Stamboulieh Law, PLLC
P.O. Box 4008
Madison, MS 39130
(601) 852-3440
stephen@sdslaw.us
MS Bar No. 102784
*Admitted pro hac vice
by and through counsel, and for response to Defendants Motion to Dismiss or for
First it is important to note what Plaintiff seeks. He is simply asking for the
right to have the same opportunity to carry a firearm that a citizen has; i.e. the right
prohibited from even applying for a carry permit due to Hawaii state law. And, as
outside of his home without the proper license which Plaintiff is unable to even
apply for. Thus, there is a direct nexus between Defendant Cummings and the state
law at issue.
country: See Smith v. South Dakota, 781 F.Supp.2d 879 (D. S.D. 2011) (permanent
injunction on equal protection grounds for permanent resident who was prohibited
from obtaining conceal carry permit); Alexander Say v. John Adams, et.al., No.
3:07-cv-377-R, 2008 WL 718163 (D. Ky. March 14, 2008) (unreported) (Kentucky
law authorizing citizens but not permanent residents to obtain licenses to carry
Inc., et. al. v. Jim Suttle, et. al., No. 8:11CV335 (D. Neb. Nov. 21, 2011)
No. 4:13-cv-03070 (D. Neb. Oct. 15, 2013) (Order and Final Judgment granting
issuance of conceal and carry permits to otherwise qualified resident aliens); John
W. Jackson, et. al. v. Gorden E. Eden, No. 1:12-cv-00421 (D. N.M. March 31,
2014) (Preliminary Injunction Order and Judgment finding that prohibiting resident
aliens from obtaining conceal and carry permits violates the equal protection clause
and enjoining the enforcement of such prohibition); Martin Pot, et. al. v. Colonel
Stan Witt, No. 3:13-cv-03102 (W.D. Ark. May 8, 2014) (Order on Motion for
Consent for Judgment); National Rifle Association, et. al. v. State of Washington,
et. al., No. C08-1613 RSM (W.D. Wash. Jan. 27, 2009) (Agreed Order Granting
below, Defendant Cummings is a proper party to this litigation, even if he were not
1
As made clear to Defendants’ counsel during the scheduling conference before
Judge Porter, should Defendant Cummings be an improper party, Plaintiff has no
3
Case 1:19-cv-00165-DKW-WRP Document 22-1 Filed 06/21/19 Page 4 of 12 PageID #:
79
Chief Ballard Does Not Have Statutory Authority to Issue Carry Permits to
Resident Aliens
Id. Thus, contrary to Defendants’ moving papers, Chief Ballard does not have the
legal right to accept Plaintiff’s license to carry application. In light of the fact
Defendants entire joinder argument is based off the premise that Chief Ballard has
the “discretion” to issue Mr. Roberts a handgun carry permit, their joinder
required party to an action under Rule 19 if ‘the court cannot accord complete
relief among existing parties’ in the absence of that party.” Young v. Regence
4
Case 1:19-cv-00165-DKW-WRP Document 22-1 Filed 06/21/19 Page 5 of 12 PageID #:
80
Blueshield, 389 F. App'x 692, 693 (9th Cir. 2010). Nothing suggests that Chief
Ballard can disregard state law and accept Plaintiff’s application as a non-citizen.
State law is clear that one must be a “citizen of the United States…” So, because
Plaintiff is not a citizen of the United States, Chief Ballard is precluded from
accepting his application. Thus, the Court can “accord complete relief among
existing parties” because Plaintiff asks this Court to declare the citizenship
requirement unconstitutional and unenforceable. Plaintiff does not ask this Court
by those whose edicts or acts may fairly be said to represent official policy,
inflicts the injury[.]” Monell v. Dep't of Social Sews. of City of New York, 436
U.S. 658, 694 (1978). The municipal policy or custom must be the “moving
force” behind the unlawful action. See Anderson v. Warner, 451 F.3d 1063,
1070 (9th Cir. 2006). By implication, the City cannot be a necessary party
because it is merely implementing state law and has not established a custom
In Wong v. City & County of Honolulu, 333 F. Supp.2d 942 (2004), this
Court granted the City and County of Honolulu's Motion for Summary
Judgment, where the City was alleged to have violated 42 U. S.C. § 1983 by
5
Case 1:19-cv-00165-DKW-WRP Document 22-1 Filed 06/21/19 Page 6 of 12 PageID #:
81
the plaintiff's argument that the City is subject to § 1983 liability on the
vehicle laws See Wong, at 951. The Court held that “mere enforcement of a
state statute is not a sufficient basis for imposing § 1983 liability.” See Wong, at
951. F.R.C.P. 19 only requires joinder if the party is indispensable. In the instant
case, Wong is controlling, and the City (and Chief Ballard) is not a necessary
party as a matter of law because it has not engaged in a policy that would leave
Where injunctive relief is sought, a state official acting in his or her official
capacity is a “person” for the purposes of Section 1983 actions. Will, 491 U.S. at
71, n. 10 (citing Kentucky v. Graham, 473 U.S. at 473, n. 14); Ex parte Young, 209
U. S. 123. 159–160 (1908) (...official-capacity actions for prospective relief are not
treated as actions against the State.) (citations omitted). Plaintiff seeks injunctive
2
In direct contradiction to what is argued in Defendants’ Motion, in Andrew
Namiki Roberts v. Russell Suzuki, in his Capacity as the Attorney General of the
State of Hawaii and Al Cummings, in his Official Capacity as the State Sheriff
Division Administrator, Civil No. CV18-00125-HG-KSC, which is a lawsuit
against the State of Hawaii’s ban on electric arms, the Defendants admitted that
both the Attorney General, and specifically Mr. Cummings, were proper parties to
the litigation. See Exhibit “1”, Requests for Admission Nos. 13 & 14.
6
Case 1:19-cv-00165-DKW-WRP Document 22-1 Filed 06/21/19 Page 7 of 12 PageID #:
82
Defendant Cummings may not rely on sovereign immunity to bar this action.
In Ex parte Young, 209 U. S. 123 (1908), the United States Supreme Court created
an exception to the general principle that a State official, sued in their official
capacity, is the same entity as the State. Specifically, where a plaintiff challenges
the constitutionality of a state official's action in enforcing state law, that official is
not considered the State. In Ex Parte Young, supra., the defendant contended that
he was merely acting for the state of Minnesota when he sought to enforce its laws.
The court specifically rejected that argument, holding that when a state official
does something that is unconstitutional, the official is not acting in the name of the
The answer to all this is the same as made in every case where an
official claims to be acting under the authority of the State. The act to
be enforced is alleged to be unconstitutional, and if it be so, the use of
the name of the State to enforce an unconstitutional act to the injury of
complainants is a proceeding without the authority of and one which
does not affect the State in its sovereign or governmental capacity. It
is simply an illegal act upon the part of a state official in attempting
by the use of the name of the State to enforce a legislative enactment
which is void because unconstitutional. If the act which the state
Attorney General seeks to enforce be a violation of the Federal
Constitution, the officer in proceeding under such enactment comes
into conflict with the superior authority of that Constitution, and he is
7
Case 1:19-cv-00165-DKW-WRP Document 22-1 Filed 06/21/19 Page 8 of 12 PageID #:
83
Defendant Cummings, is not against the State, but merely against the individual
officer, who is not acting as the State when enforcing an unconstitutional law.
individual person who can have suit brought against him. And, it is appropriate to
laws. Frew v. Hawkins, 540 US 431 (2004) (“to ensure the enforcement of federal
law, however, the Eleventh Amendment permits suits for prospective injunctive
relief against state officials acting in violation of federal law.”); Will, 491 U.S. at
71 n.10 ("official-capacity actions for prospective relief are not treated as actions
against the State."); Wilbur, 423 F.3d at 1111 (holding that “under the doctrine
established in Ex parte Young, 209 U.S. 123 (1908), the Eleventh Amendment
does not bar a suit ’for prospective declaratory and injunctive relief against state
federal law.’”) (quoting Agua Caliente Band of Cahuilla Indians v. Hardin, 223
F.3d 1041, 1045 (9th Cir. 2000)); Young, 548 F. Supp. 2d at 1162.
the Ex Parte Young defendant; and, therefore, should be summarily rejected. This
8
Case 1:19-cv-00165-DKW-WRP Document 22-1 Filed 06/21/19 Page 9 of 12 PageID #:
84
complaint alleges an ongoing violation of federal law and seeks relief properly
Commission of Maryland, 535 U.S. 635, 645 (2002). The Hawai‘i Revised Statute
at issue violate Mr. Roberts constitutional rights. Furthermore, the complaint asks
for equitable relief in the form of a declaration that the citizenship requirement is
unconstitutional and an order enjoining the defendants from enforcing said laws.
fulfills the Ex Parte Young standard and avoids the Eleventh Amendment bar to
suit.
Protection violation alleged in Mr. Roberts complaint and has played no role in the
that the named official “must have some connection with the enforcement of the
between the issues in this case and Defendant Cummings in his role as State
sheriffs “serve various types of arrest warrants and other documents, and execute
9
Case 1:19-cv-00165-DKW-WRP Document 22-1 Filed 06/21/19 Page 10 of 12 PageID #:
85
http://dps.hawaii.gov/about/divisions/law-enforcement-division/sheriff-division/
(last visited 6/3/2019). Thus, Defendant Cummings, as head of the State Sheriff’s
Department is the state official ultimately responsible for enforcing the laws – even
the unconstitutional laws at issue in this suit on state property. There is a direct
nexus between the state law barring Mr. Roberts from obtaining a license to carry a
firearm and Defendant Cummings. This is because if Mr. Roberts were to carry a
firearm without a license that under Hawaii state law he cannot receive due to his
defendant, California Governor Wilson, in Los Angeles County Bar Ass’n v EU,
979 F.2d 697 (9th Cir. 1992). There, the Ninth Circuit found a sufficient nexus
where the Governor, in his official capacity, has a duty to appoint judges. Id. at
704. Civil trials were being delayed due to a state statute which limited the number
of judges in Los Angeles County. Id. at 700. Because the Governor was obliged to
specifically found that this was sufficient to include the Governor as a party to the
suit. Id. at 704. Such a duty to appoint is precisely the role Defendant Cummings
10
Case 1:19-cv-00165-DKW-WRP Document 22-1 Filed 06/21/19 Page 11 of 12 PageID #:
86
plays in this case. There is a sufficient nexus with Defendant Cummings and
Conclusion
denied as Defendant Cummings is a proper party in this action and the Chief
Respectfully submitted,
12
Case 1:19-cv-00165-DKW-WRP Document 22-2 Filed 06/21/19 Page 1 of 7 PageID #: 88
Exhibit "1"
Case 1:19-cv-00165-DKW-WRP Document 22-2 Filed 06/21/19 Page 2 of 7 PageID #: 89
Case 1:19-cv-00165-DKW-WRP Document 22-2 Filed 06/21/19 Page 3 of 7 PageID #: 90
Case 1:19-cv-00165-DKW-WRP Document 22-2 Filed 06/21/19 Page 4 of 7 PageID #: 91
Case 1:19-cv-00165-DKW-WRP Document 22-2 Filed 06/21/19 Page 5 of 7 PageID #: 92
Case 1:19-cv-00165-DKW-WRP Document 22-2 Filed 06/21/19 Page 6 of 7 PageID #: 93
Case 1:19-cv-00165-DKW-WRP Document 22-2 Filed 06/21/19 Page 7 of 7 PageID #: 94
Case 1:19-cv-00165-DKW-WRP Document 22-3 Filed 06/21/19 Page 1 of 3 PageID #: 95
Stephen D. Stamboulieh
Stamboulieh Law, PLLC
P.O. Box 4008
Madison, MS 39130
(601) 852-3440
stephen@sdslaw.us
MS Bar No. 102784
*Admitted pro hac vice
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date indicated below, a copy of
the foregoing document was filed electronically and served through CM/ECF on
STATE OF HAWAII
CLARE E. CONNORS
Attorney General of the State of Hawaii
JOHN M. CREGOR, JR.
Deputy Attorney General
Attorney for Clare E. Connors, in her Official Capacity as the Attorney General of
the State of Hawaii, and Al Cummings, in his Official Capacity as the State Sheriff
Division Administrator
Respectfully submitted,
stephen@sdslaw.us
MS Bar No. 102784
*Admitted Pro Hac Vice