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NOT FOR PUBLICATION MAR 20 2014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-