Charles Kinkaid, Jr. v. Thurston County Sheriff

Opinion

FILED NOT FOR PUBLICATION APR 21 2021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.