Charles Kinkaid, Jr. v. Thurston County Sheriff ( 2021 )

FILED
NOT FOR PUBLICATION
APR 21 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES R. KINKAID, JR., No. 20-35581
Plaintiff-Appellant, D.C. No. 3:19-cv-05867-RJB-JRC
v.
MEMORANDUM *
THURSTON COUNTY SHERIFF,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted April 16, 2021* *
Seattle, Washington
Before: GRABER and CALLAHAN, Circuit Judges, and SELNA, Senior District
Judge. * * *
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. 34(a)(2).
* **
The Honorable James V. Selna, Senior District Judge for the Central
District of California, sitting by designation.
1
Charles R. Kinkaid, Jr., timely appeals the district court’s 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 Kinkaid’s 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
2
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 Kinkaid’s 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.
3