KINKAID v. THURSTON COUNTY SHERIFF (2021)

United States Court of Appeals, Ninth Circuit.2021-04-21No. No. 20-35581

Summary · law.co

Holding. The court affirmed the district court's dismissal, holding that the federal statute barring concealed pistol licenses for individuals subject to protection orders lawfully applied to Kinkaid because the 1996 order against him was issued after a hearing at which he received actual notice and had an adequate opportunity to participate.

Charles Kinkaid appealed a district court decision dismissing his lawsuit challenging whether federal law prohibited him from obtaining a concealed pistol license. Kinkaid sought a declaration that 18 U.S.C. § 922(g)(8), which bars gun licenses for people subject to certain protection orders, did not apply to him. The court rejected his challenge, finding that a permanent protection order issued against him in 1996 lawfully barred him from getting the license.

The court concluded that the 1996 protection order satisfied the statute's requirements. Although Kinkaid did not physically attend that hearing, he received actual notice of it and had a meaningful opportunity to be heard—he requested to be present and submitted written documents to the court. The statute does not demand that someone actually appear or participate; it only requires that they have the chance to do so. The court noted that Kinkaid never sought to challenge the order based on his absence from the hearing, and in fact requested a modification the following month.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether § 922(g)(8) barring gun licenses for people subject to protection orders applied to Kinkaid
Whether the 1996 protection order hearing satisfied the 'actual notice' requirement despite Kinkaid's non-attendance
Whether the statute requires actual participation or merely an opportunity to participate in the hearing

Procedural posture

Kinkaid timely appealed the district court's dismissal of his declaratory judgment action challenging the applicability of the federal statute to his situation.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Charles R. Kinkaid, Jr., timely appeals the district courts dismissal of this declaratory-judgment action against Thurston County Sheriff and the United States of America, in which Kinkaid seeks a judgment that 18 U.S.C. § 922(g)(8) does not apply to him. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

The district court correctly held that § 922(g)(8) prohibited Kinkaid from receiving a concealed pistol license because he is subject to a permanent protection order issued in September 1996. Contrary to Kinkaids arguments, the order “was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate.” 18 U.S.C. § 922(g)(8)(A). The record clearly establishes that he received “actual notice,” because he requested to be present at the hearing. “The statute does not require notice of the fact that a restraining order would issue, nor does it require any other form of ‘advance’ notice.” United States v. Young, 458 F.3d 998, 1006 (9th Cir. 2006)

The record also demonstrates that he “had an opportunity to participate” in the hearing, because he was able to submit written documents to the court pertaining to the hearing. Actual participation is not necessary, because “the statute requires only the mere ‘opportunity to participate.’ ” Id. at 1009 (quoting 18 U.S.C. § 922(g)(8)(A)). That requirement is a “minimal one.” Id.; see also id. at 1003 (“[a]n opportunity to respond is afforded when a party has the opportunity to present reasons, either in person or in writing, why proposed action should not be taken.” (internal quotation marks omitted)). Although Kinkaid did not attend, the September 1996 hearing was “a proceeding during which the defendant could have objected to the entry of the order or otherwise engaged with the court as to the merits of the restraining order.” Id. at 1009.

Nothing in the record suggests that Kinkaids absence at the hearing deprived him of a meaningful opportunity to participate. For example, Kinkaid has not alleged that he sought reconsideration or a new hearing on the ground that he was absent and therefore lacked the ability to participate. To the contrary, the next month, Kinkaid sought, and was granted, a modification to the order.

AFFIRMED.