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Thread: Status of California Open Carry Lawsuit - Nichols v. Brown - March 29, 2015

  1. #1
    Regular Member California Right To Carry's Avatar
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    Thumbs up Status of California Open Carry Lawsuit - Nichols v. Brown - March 29, 2015

    My appeal before the 9th Circuit Court of Appeals had been stayed on January 21, 2015 by the Appellate Commissioner until a decision had been made on whether or not to take the concealed carry case out of Yolo County (Richards v. Prieto) en banc. This made no sense for a number of reasons one of which is the Richards v. Prieto case was disposed of with an unpublished memorandum. As far as other cases are concerned, it doesn't exist. If anything, the stay should have been linked to the Peruta v. San Diego case which is the sole basis the district court judge gave for dismissing (with prejudice) my Second Amendment claims. As you may recall the Peruta Court said that it was not ruling on the Constitutionality of ANY California law. The district court judge concluded that meant that the Peruta Court had upheld EVERY California gun-control law. Of course the district court judge held that persons and their openly carried firearms fall completely outside the scope of Fourth Amendment protections, even in one's home and my personal favorite is that people are not allowed to challenge race based criminal laws unless they allege that the law was enforced against them because of their race. It is longstanding law that a person does not have to wait for a law to be enforced against him for any reason, including race, to challenge its constitutionality. The district court judge carved out an exception to this which I don't see even the most liberal-lefty judge on the 9th Circuit or SCOTUS upholding.

    In any event, both the Richards and Peruta decisions have been vacated and both will be heard before an en banc panel the week of June 15th.

    That both cases were vacated did not come as any surprise to me as anyone who has been following my case or posts well knows. Before the cases had been vacated and en banc oral arguments scheduled, I had planned on filing a motion to have my appeal heard before the same en banc panel as Peruta and Richards. I did not expect the en banc oral arguments to be scheduled at such an earlier date. Logistically, it is impossible for my appeal to be heard alongside Peruta and Richards. This is sad because among all the parties arguing that day, none will be arguing to defend the Second Amendment.

    Instead, I am simply filing a petition for my case to be initially heard en banc which, if granted, means that my appeal will be heard by a separate en banc panel than the one that hears Peruta and Richards and because of the briefing schedule in my appeal, will be heard after the Peruta/Richards en banc.

    My Appellant Opening Brief is due 14 days after the 90 day stay of my appeal expires or 14 days after any subsequent stay. My petition for my appeal to be heard initially en banc is already written and will be filed immediately after I file my opening brief.

    As it now stands, as of April 2, 2015 my opening brief is due on May 5, 2015. The Appellees have until next Thursday to file a status report and a motion to stay or motion for other relief.

    As you can see, by the time my appeal is fully briefed the Peruta/Richards en banc hearing will be a fait accompli.

    The nice thing is that once the en banc panel tosses the Peruta and Richards decisions into the trash, every single concealed carry case in this Circuit fails as well leaving one case left standing - mine.

    https://youtu.be/UaxxuyBvB-M

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    Last edited by California Right To Carry; 04-02-2015 at 07:53 PM. Reason: Corrected due date for opening brief
    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

  2. #2
    Regular Member 77zach's Avatar
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    I admire your efforts here, very impressive. It would tickle me to death if you succeeded, but you won't. "A judge is a law student who marks his own examination papers." And these students hate the 2nd amendment and guns. As with Fl carry, I think there is value in exposing them though.
    “If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? ” -Bastiat

    I don't "need" to openly carry a handgun or own an "assault weapon" any more than Rosa Parks needed a seat on the bus.

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    As a donor to Charles' effort, I too hope he succeeds. I just wish that eventual success in the endeavor will be remembered as a celebration of the Second Amendment and our rights and less about damaging other entities and personalities who have taken a largely pragmatic 2A legal approach (a consequence of the fact that the very Right itself is abhorred by the legal community at large). Although a fair number of 'I told you so" statements would be warranted, I really would rather see Charles keep his ego in check a bit more.

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    Quote Originally Posted by 77zach View Post
    I admire your efforts here, very impressive. It would tickle me to death if you succeeded, but you won't. "A judge is a law student who marks his own examination papers." And these students hate the 2nd amendment and guns. As with Fl carry, I think there is value in exposing them though.
    Always a possibility but keep in mind that the 1967 California ban on carrying loaded firearms in public was copied and pasted from the 1962 Illinois ban which the 7th Circuit struck down in Moore v. Madigan. In the same case, the 7th Circuit struck down the ban on carrying unloaded firearms in public as well. Should I lose before the 9th then it creates a circuit split with the 7th Circuit and we should all know by now that SCOTUS doesn't grant cert petitions to correct mistakes of the lower courts it grants cert petitions in order to resolve circuit splits. Moreover, Illinois exempted private property from its bans but the California courts in 1976 construed the exemption to its ban to mean that one could "have" a loaded gun on his property but not carry it.

    Nor did I limit my case to the Second Amendment. The legislative record is clear that the sole motivation for enacting the ban was race which under longstanding SCOTUS and 9th Circuit precedent makes the law unconstitutional even if the law plainly has a "legitimate sweep." I have other challenges as well.

    There is also a procedural obstacle to my losing in the court of appeals. The district court dismissed my case with prejudice pursuant to a Rule 12(c) motion. Procedural law prohibits a lawsuit from being dismissed with prejudice pursuant to a Rule 12(c) motion unless it is frivolous or incapable of amendment.

    Although it is clear from Chief Judge Thomas' dissent in Peruta that were it up to him, he would ban the carrying of handguns altogether, he also made many comments such as this:

    "Although all the nineteenth-century cases cited by the majority cautioned against restrictions on the open carrying of weapons, none of them — except the discredited, outlier Bliss — suggests that restrictions on carrying concealed weapons implicate the Second Amendment. See Chandler, 1 La.Ann. at 490; Nunn, 1 Ga. at 251; Reid, 1 Ala. at 616-17. And nothing in these cases or Chase's Blackstone even hints that a restriction on carrying concealed weapons would become invalid if restrictions were placed on open carry. Rather, they suggest that restrictions on concealed carry are always valid, while there are limits to restrictions on open carry."

    I carefully crafted my lawsuit to avoid any of the presumptively lawful limits defined in Heller. Unlike a California CCW which enables one to carry firearms openly and concealed in most state and local government buildings, and provides for concealed carry of handguns and the Open Carry of loaded long guns in schools and in the "gun free" school zones extending 1,000 feet from a K-12 school; my lawsuit does not seek to carry in any of those areas.

    In short, my lawsuit seeks to restore Open Carry to a relatively small subset of places where hunters are exempt from the bans which also happens to be places where, for the purpose of self-defense, I am limited to the carrying of unloaded antiques which, under pre-Heller California and 9th Circuit Court decisions would not have passed even rational basis review.

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    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

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    Quote Originally Posted by OC4me View Post
    As a donor to Charles' effort, I too hope he succeeds. I just wish that eventual success in the endeavor will be remembered as a celebration of the Second Amendment and our rights and less about damaging other entities and personalities who have taken a largely pragmatic 2A legal approach (a consequence of the fact that the very Right itself is abhorred by the legal community at large). Although a fair number of 'I told you so" statements would be warranted, I really would rather see Charles keep his ego in check a bit more.
    Don't mistake "ego" with my unwillingness to suffer fools gladly. And neither should one mistake the NRA/SAF/CalGuns/etc lawsuits attacking the Second Amendment right, which is the right to Open Carry, as pragmatic. We have three US Supreme Court decisions which said that concealed carry is not a right under the Second Amendment and two of those were recent. We also have state court decisions upholding prohibitions on concealed carry going back over 200 years.

    These so called "gun-rights" groups have predicated their lawsuits on the premise that judges will do what two of the judges on the three judge Peruta panel did. Conclude that where SCOTUS and these state court decisions said that Open Carry is the right guaranteed by the US Constitution and that concealed carry can be prohibited, what those courts really said was the exact opposite. That approach failed in every Federal Circuit and left some pretty bad case law in its wake in the 2nd and 3rd Circuits.

    More than a year before I filed my Open Carry lawsuit I naively approached NRA/CRPA/SAF/CalGuns.nuts lawyers who all turned me down. The response ranged from "perhaps in a few years" from a CalGuns.nuts lawyer to basically I should go f*ck myself from Alan Gura. The GOC response was they aren't allowed to file lawsuits. Not true but a "No" in other words is still a no.

    Like it or not, mine is the only lawsuit seeking to restore the Second Amendment right to Open Carry in California and is the only lawsuit which doesn't argue that California can ban Open Carry.

    Frankly, to defend these so called gun-rights groups is akin to a Jew defending Hitler or a Black defending the KKK and I make no apologies for shining a light on these cockroaches.

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    Concealed carry is of no use to me, I don't carry a purse. Besides, Open Carry is the right guaranteed by the Constitution, concealed carry can be banned.

    http://CaliforniaRightToCarry.org

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

    "[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons..." Robertson v. Baldwin, 165 US 275 - Supreme Court (1897) at 282.

    "In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the "natural right of self-defence" and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right...Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251..." District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816
    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

  6. #6
    Regular Member 77zach's Avatar
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    Potentially restoring the right to 30 million people would be the most significant civil rights legal victory of our time, I think, and huge boost for the gun culture. Permitless OC would eventually lead to easy shall issue permits to conceal. OC is much worse than CC to most anti lawmakers.

    What the big gun groups are going after in Ca is for the birds. Even if they won it takes forever to get the permit in some jurisdictions and it's only good for two years. Contrast this with, say, Georgia, where the permit is to carry openly or concealed and takes a few days to get.
    “If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? ” -Bastiat

    I don't "need" to openly carry a handgun or own an "assault weapon" any more than Rosa Parks needed a seat on the bus.

  7. #7
    Regular Member California Right To Carry's Avatar
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    Quote Originally Posted by 77zach View Post
    Potentially restoring the right to 30 million people would be the most significant civil rights legal victory of our time, I think, and huge boost for the gun culture. Permitless OC would eventually lead to easy shall issue permits to conceal. OC is much worse than CC to most anti lawmakers.

    What the big gun groups are going after in Ca is for the birds. Even if they won it takes forever to get the permit in some jurisdictions and it's only good for two years. Contrast this with, say, Georgia, where the permit is to carry openly or concealed and takes a few days to get.
    Oregon, where I lived for 12 years, was similar to Georgia except that Open Carry is legal by default statewide but a state CCW permit preempts the laws in five or six cities which requires Unloaded Open Carry. Also, the time to get the permit varied by County. As I recall, state law gave the Sheriff's two weeks which they interpreted as the time they started processing permits, not the time they received them. It took me two months to get mine and Multnomah County (i.e., Portland) would take 6-9 months to issue. As I recall, the permit cost $50 and was good for five years.

    As to OC being worse than CC to most anti lawmakers, the DC City council has certainly taken that view and there are certainly many in the California legislature of that view as well although I suspect that they would try to revert back to Unloaded Open Carry should I prevail in my Open Carry lawsuit before going shall-issue CCW.
    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

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    Charles, I still wish you well. I just wish the sniping would stop, that is all!

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    Quote Originally Posted by OC4me View Post
    Charles, I still wish you well. I just wish the sniping would stop, that is all!
    Sniping is when the NRA filed a motion to stay the appeal of my preliminary injunction in a brief within which it claimed to be "neutral." I don't snipe at my opponents, I hit them with a full frontal assault.
    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

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    wish you the best of luck.

    OC is my god given right. Thank you for fighting our fight

  11. #11
    Regular Member California Right To Carry's Avatar
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    Thumbs up Status of California Open Carry Lawsuit - Nichols v. Brown - April 13, 2015

    Update by Charles Nichols, President of California Right To Carry – April 13, 2015 - This is funny. Appellees Governor Brown and Attorney General Harris filed an unopposed motion to stay my appeal until June 30, 2014. A motion which I did not oppose for the reason given in the April 9, 2015 update. Instead, the court let me decide when I want to terminate the stay by filing my Appellate opening brief. Unfortunately, the Appellees have until September 14, 2015 to file their answering brief and therefore I am going to choose door number two – file a status report and an appropriate motion just before August 14, 2015. My motion will be for summary reversal which, if successful, will result in an Open Carry win far faster than the usual routes. Either way, no more stays of my appeal after this (barring Peruta being granted cert by SCOTUS in which case every 2A case in this Circuit will be stayed).

    Text:
    04/13/2015 13 Filed clerk order (Deputy Clerk: LBS): Appellant’s unopposed motion to stay appellate proceedings pending disposition of two en banc cases, Peruta v. County of San Diego, case no. 10-56791, and Richards v. Prieto, case no. 11-16255, is granted. This case is stayed until August 14, 2015. On or before the expiration of the stay, appellant shall file the opening brief or file a status report and an appropriate motion. If appellant files the opening brief, the answering brief will be due September The optional reply brief is due within 14 days after service of the answering brief. The filing of the opening brief or failure to file a status report shall terminate the stay. [9493503] (SM) [Entered: 04/13/2015 03:19 PM]

    http://blog.californiarighttocarry.org/?page_id=739
    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

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