Status of California Open Carry Lawsuit - Charles Nichols v. Edmund Brown, Jr., et al

cocked&locked · Jan 23, 2017

So, what happened, player?

California Right To Carry said:
My petition for my appeal to be heard before an en banc panel is still pending, 40 days later. The last such petition in a same-sex marriage case out of Alaska was denied 27 days after it was filed with no active judge requesting to hear the case en banc.

The state's time-barred motion for a 60 day extension of time was granted by the Appellate Commissioner who cited no case or rule in support of his decision over my objection which called for sanctions. I will be filing a motion to strike the state's answering brief in whole and in part. That motion is supposed to be decided by the merits panel but we'll see.

Given that there are so very few supporters of Open Carry here, I rarely post updates here. I post frequent updates at my website.

Update by Charles Nichols, President of California Right To Carry – January 17, 2017 – The Answering Brief by Governor Brown and the Attorney General in my California Open Carry appeal was Due on December 19, 2016 which was 29 days ago. In a decision published last Friday by the 9th Circuit Court of Appeals, a man did not get his $99,500 returned from the government because he missed his filing deadline by thirty-five minutes. I filed my opposition to the state’s time-barred motion for an extension on December 20th, well within the ten day limit for me to file my opposition. The state missed its deadline, I have met all of my deadlines. The state’s motion is still pending. It will be interesting to see how this plays out. Hopefully, it will not be a case of “One rule for me and another for thee.”

Unsurprisingly, the state does not have to play by the rules:

Update by Charles Nichols, President of California Right To Carry – January 18, 2017 – Without explanation, the 9th circuit court of appeals Appellate Commissioner granted the state’s time-barred motion for a sixty day extension of time to file its Answering Brief (now due February 17th) and denied my request for sanctions. And so the 9th circuit court of appeals is going to let the state’s attorney violate the rules of the court of appeals just as the district court judge allowed the state’s attorney to violate the Federal district court rules.

34 – Nichols v. Brown – ORDER

Notice of Docket Activity

The following transaction was entered on 01/18/2017 at 10:57:27 AM PST and filed on 01/18/2017

Case Name: Charles Nichols v. Edmund Brown, Jr., et al
Case Number: 14-55873
Document(s): Document(s)

Docket Text:
Filed order (Appellate Commissioner): Before: Peter L. Shaw, Appellate Commissioner Appellees’ opposed late motion (Docket Entry No. [32]) for an extension of time to file the answering brief is granted. The answering brief is due February 17, 2017. The optional reply brief is due within 14 days after service of the answering brief. Appellant’s request (Docket Entry No. [33]) for sanctions is denied. Appellant’s petition for rehearing en banc (Docket Entry No. [31]) will be addressed in a separate order. (Pro Mo) [10269637] (LL)

So, what happened, player? You claim to have this expertise that no other person seems to have. So, explain to us how the great Charlie happens to LOSE at every step of the way.

And please don't tell me 'the system is rigged'. I heard that before.

California Right To Carry · Jan 26, 2017

Feces throwing monkey boys

Have you noticed how others are free to throw their feces at me and yet when I respond my responses are deleted while their posts remain?

solus · Jan 26, 2017

uh, have you noticed you are the only person retaliating with foul and inappropriate language as well as those vulgar & stupid memes...

maybe, just maybe, that is why your silly commentary is booted...

just a thought...ya know!

ipse

ps: btw, the martyr charade just doesn't work for you...sorry

press1280 · Jan 26, 2017

cocked&locked said:
So, what happened, player? You claim to have this expertise that no other person seems to have. So, explain to us how the great Charlie happens to LOSE at every step of the way.

And please don't tell me 'the system is rigged'. I heard that before.

I kind of hate having to defend him, but CA9 was going to let CA get away with it no matter who was the attorney. The courts and the government are 2 sides of the same coin. Both can use the "we're busy" excuse while those in the private sector cannot.

cocked&locked · Jan 26, 2017

You may be right

press1280 said:
I kind of hate having to defend him, but CA9 was going to let CA get away with it no matter who was the attorney. The courts and the government are 2 sides of the same coin. Both can use the "we're busy" excuse while those in the private sector cannot.

You may be right, but the great Charlie has guaranteed us that somehow he was smarter than everyone else and his case was a winner. So I simply ask, if your case is such a winner then why do you continue to lose at every step of the way?

California Right To Carry · Jan 26, 2017

gutshot said:
Because he attempts to do very difficult things. Things that the government of California doesn't want done. If it was easy, it would have been done long ago. You may not like him, but at least he is working for RKBA. Why do you find it necessary to ridicule that? Why don't you file some lawsuits to support RKBA. I don't know Charles and I don't care what kind of person he is, he trying to do things that I think should be done. I support anyone that does that, win or lose. The fight and the effort are what matters.

And so there are now two people at OpenCarry.org who support Open Carry.

Any competent computer programmer has the intelligence. All he needs to do then is to learn the law. But the law is arbitrary, irrational and immoral. Lawyers are people who weren't smart enough to get into medical school and judges are failed politicians appointed by successful politicians, most of whom were failures being lawyers and so they went into politics. Therefore there is little reason for the competent, rational and moral men and women to become lawyers.

There is also either little or no money waiting at the end of a successful Second Amendment lawsuit. For me, there is little more awaiting me than a return of my filing fee(s) and a fraction of my printing costs should I prevail on appeal. For a lawyer, the "payday" is his attorney fees which might seem like a lot to most people but are a fraction of what a competent attorney can make for the same effort chasing ambulances, filing class actions or defending deep pocket defendants.

If I lose, I risk having to pay the state's attorney fees and costs, which would be ruinous.

I am the one doing the work. I am the one taking the risk while the only thing that most people in this forum do is to throw their feces around and at me in particular.

You correctly ask of them why they don't file their own Second Amendment lawsuits. The answer is in their posts. They are hollow-men who try to fill that void inside of them by attacking others who make the effort and who take the risks.

HPmatt · Jan 26, 2017

Keep up the good work - CA 9th seem t/b ideologues, not lawyers that adhere to law - don't they have the worst remand% from SCOTUS? Let's see President Trump fix that in next few years - that w/b a blast.

Sent from my iPhone using Tapatalk

cocked&locked · Jan 26, 2017

No ridicule here

gutshot said:
Because he attempts to do very difficult things. Things that the government of California doesn't want done. If it was easy, it would have been done long ago. You may not like him, but at least he is working for RKBA. Why do you find it necessary to ridicule that? Why don't you file some lawsuits to support RKBA. I don't know Charles and I don't care what kind of person he is, he trying to do things that I think should be done. I support anyone that does that, win or lose. The fight and the effort are what matters.[/QUOTEH

No ridicule here. He is the one constantly ridiculing others who, on at least some occasions, have victories to show for their efforts. He has never had one victory in his life! I simply ask him to explain why his guaranteed winner is always losing.

The lessons that Charlie is going to learn the hard way are twofold. One, in litigation you can never guarantee any result. Two, litigation is so much more than "a smart person learning the law". Good litigators are skilled artist and it is an art that involves more than just coloring by numbers (which is all Charlie is doing).

Coloring by numbers has never created a masterpiece, just saying!

Finally, these fake artists usually do more harm than good in the long run.

solus · Jan 26, 2017

California Right To Carry said:
snip...They are hollow-men who try to fill that void inside of them by attacking others who make the effort and who take the risks.

and you have just flushed all good will you might have received with your ego needlessly lambasting others with play ground rhetoric towards anybody who challenge you...

ipse

California Right To Carry · Jan 27, 2017

HPmatt said:
Keep up the good work - CA 9th seem t/b ideologues, not lawyers that adhere to law - don't they have the worst remand% from SCOTUS? Let's see President Trump fix that in next few years - that w/b a blast.

Sent from my iPhone using Tapatalk

It now appears that OpenCarry.org has three supporters of Open Carry. Now if only the moderator would kick the opponents of Open Carry back to CalGuns.nuts where they belong.

The 9th circuit court of appeals has many liberals but the number of remands isn't necessarily because of their ideological bent but because of the relative number of cert petitions filed from the 9th circuit. The judges on the 9th circuit have learned how to write a decision which minimizes chances of a reversal. Case in point is the Peruta v. San Diego en banc decision. By explicitly sidestepping the Second Amendment Open Carry question (which was never before the court), the en banc court avoided creating a SCOTUS Rule 10 split. Had the en banc court held that the Second Amendment does not exist outside the home then its decision would have created multiple Rule 10 splits and virtually guaranteed that the Peruta cert petition would have been granted.

Because the Peruta en banc court limited its decision to concealed carry, its decision did not create a circuit split. And because the NRA has chosen to argue in its cert petition that Open Carry is perverse and that were Heller (and McDonald) said that concealed carry is not a right (but Open Carry is) what they really said is that Open Carry can be banned in favor of concealed carry - Cert denied.

If President Trump is true to his word in appointing judges who will defend the Second Amendment then the 9th circuit will become statistically less liberal. The 9th currently has four vacant circuit court positions to fill and two active circuit judges already in their 80's with a bunch more in their 70's.

If the 9th circuit is a liberal circuit then it is one comprised of old liberals.

Grapeshot · Jan 27, 2017

Having opposition to OC just allows us to hone our skills.......right?

It is so much fun rooting them out from under the bridge.

California Right To Carry · Jan 27, 2017

Grapeshot said:
Having opposition to OC just allows us to hone our skills.......right?

If the opponents of Open Carry were skillful in their opposition then it would be of great value to me. All we have here is as useful as visiting the monkey cage at a zoo.

But its your zoo.

press1280 · Feb 18, 2017

I just read the state's response, sorry can't post but I'm sure CRTC will post shortly.

My takeaway: The state is arguing that the right doesn't extend beyond the home, but is disguising it as an open carry ban (knowing full well CCW is off the table). They also keep throwing in references to CCW-sort of making the same arguments plaintiffs made in Peruta.
Their contention that open carry bans were (or even are) the norm in the US is completely laughable. They only mention Moore once, trying to distinguish the CA law which allows a very narrow exception for imminent danger. Again laughable.
What I'm worried about is a "win" which includes CA9 giving the blueprint of may-issue open carry permits (for all counties), which the state can essentially use to keep things status quo. It was referenced in the brief that Nichols may not be able to prove good cause, and the concurrence in Peruta noted that even if CCW were recognized as protected under the 2A, that good cause is OK by them.

California Right To Carry · Feb 19, 2017

press1280 said:
I just read the state's response, sorry can't post but I'm sure CRTC will post shortly.

My takeaway: The state is arguing that the right doesn't extend beyond the home, but is disguising it as an open carry ban (knowing full well CCW is off the table). They also keep throwing in references to CCW-sort of making the same arguments plaintiffs made in Peruta.
Their contention that open carry bans were (or even are) the norm in the US is completely laughable. They only mention Moore once, trying to distinguish the CA law which allows a very narrow exception for imminent danger. Again laughable.
What I'm worried about is a "win" which includes CA9 giving the blueprint of may-issue open carry permits (for all counties), which the state can essentially use to keep things status quo. It was referenced in the brief that Nichols may not be able to prove good cause, and the concurrence in Peruta noted that even if CCW were recognized as protected under the 2A, that good cause is OK by them.

Just wait until you read my Reply Brief.

As for your fear that the 9th circuit court of appeals will give a "blueprint" for may-issue Open Carry permits, I suggest that you read my Opening Brief. That may very well be the preference of the panel assigned to hear my appeal but the panel is constrained by very longstanding precedents which say that it cannot write legislation. Also, I did not limit my case to the Open Carry of handguns. California does not license the Open Carry of long guns and a handgun Open Carry permit is limited to handguns. The court is going to have to decide whether or not the Second Amendment protects the right to openly carry long guns for the purpose of self-defense.

By the way, as I pointed out in the district court and will do so again in my Appellant's Supplemental Excerpts of Record, Illinois had an affirmative defense to the carrying of a loaded firearm in public and its threshold was a reasonable fear of serious bodily injury. California has a much higher threshold of grave, immediate danger coupled with the very narrow time-frame of notifying the police and their arrival. A limitation that Illinois did not have.

That said, the state has thrown in the towel. Did you notice that despite my Complaint explicitly stating a vagueness challenge to the Loaded Open Carry ban (in its entirety) the state argues that I have raised a vagueness claim for the first time on appeal? The state also claims that my vagueness challenge in my opening brief is only briefly argued. My vagueness and due process argument (vagueness is a violation of Due Process) began on page 80 and ended on page 91 of my opening brief. Crucially, the state does not defend the judgment of the district court that vagueness and due process challenges are not cognizable outside of the First Amendment.

By the way, it is new claims which are forfeited on appeal. New legal arguments are not forfeited on appeal, even if they are raised for the first time in a Reply Brief. A fact the 9th CCA recently repeated in a decision.

As I said, wait until you read my Reply Brief.

press1280 · Feb 26, 2017

California Right To Carry said:
Just wait until you read my Reply Brief.

As for your fear that the 9th circuit court of appeals will give a "blueprint" for may-issue Open Carry permits, I suggest that you read my Opening Brief. That may very well be the preference of the panel assigned to hear my appeal but the panel is constrained by very longstanding precedents which say that it cannot write legislation. Also, I did not limit my case to the Open Carry of handguns. California does not license the Open Carry of long guns and a handgun Open Carry permit is limited to handguns. The court is going to have to decide whether or not the Second Amendment protects the right to openly carry long guns for the purpose of self-defense.

By the way, as I pointed out in the district court and will do so again in my Appellant's Supplemental Excerpts of Record, Illinois had an affirmative defense to the carrying of a loaded firearm in public and its threshold was a reasonable fear of serious bodily injury. California has a much higher threshold of grave, immediate danger coupled with the very narrow time-frame of notifying the police and their arrival. A limitation that Illinois did not have.

That said, the state has thrown in the towel. Did you notice that despite my Complaint explicitly stating a vagueness challenge to the Loaded Open Carry ban (in its entirety) the state argues that I have raised a vagueness claim for the first time on appeal? The state also claims that my vagueness challenge in my opening brief is only briefly argued. My vagueness and due process argument (vagueness is a violation of Due Process) began on page 80 and ended on page 91 of my opening brief. Crucially, the state does not defend the judgment of the district court that vagueness and due process challenges are not cognizable outside of the First Amendment.

By the way, it is new claims which are forfeited on appeal. New legal arguments are not forfeited on appeal, even if they are raised for the first time in a Reply Brief. A fact the 9th CCA recently repeated in a decision.

As I said, wait until you read my Reply Brief.

Looking forward to it. But as you say the court cannot write legislation, it doesn't seem to be much of a stretch that if the OC ban is struck down then the state will take the easy road and may-issue OC permits. I would point to the Moore dissent that did lay out a plan that the state could restrict public carry to an almost unlimited number of places. I expect that CA9 would do the same thing (can't require it, obviously).

Are you responding to the LCAV brief? I'm sick of them using a few obscure Western territory bans (never challenged in court, repealed later, and no 2A incorporation at the time) as "evidence" on the constitutionality of CA's ban. Their sorry asses need to be called out. Edit: one of them was challenged, the Idaho in re Brickey case http://www.guncite.com/court/state/70p609.html Overturned as a violation of the Idaho constitution AND the 2A!

California Right To Carry · Feb 27, 2017

press1280 said:
Looking forward to it. But as you say the court cannot write legislation, it doesn't seem to be much of a stretch that if the OC ban is struck down then the state will take the easy road and may-issue OC permits. I would point to the Moore dissent that did lay out a plan that the state could restrict public carry to an almost unlimited number of places. I expect that CA9 would do the same thing (can't require it, obviously).

Are you responding to the LCAV brief? I'm sick of them using a few obscure Western territory bans (never challenged in court, repealed later, and no 2A incorporation at the time) as "evidence" on the constitutionality of CA's ban. Their sorry asses need to be called out. Edit: one of them was challenged, the Idaho in re Brickey case http://www.guncite.com/court/state/70p609.html Overturned as a violation of the Idaho constitution AND the 2A!

Sorry for the delay in responding but for some reason I don't receive email notifications of replies to this thread.

To answer your first question, I anticipated that scenario which is why my FAC and SAC are worded the way they are.

As to your second question, yes. First I will file an objection pointing out that the Amicus briefs are in violation of the circuit rules. I suspect that my objection will have as much success as my objection to the state's time barred motion for a 60 day extension. While my objection is being considered, I will be writing a response to all three Amicus briefs followed by a motion to strike much of the state's addendum and supplemental excerpts of record.

If Baker is decided favorably, I will seriously consider seeking an injunction pending appeal.

California Right To Carry · Mar 1, 2017

My California Open Carry appeal is now fully briefed.

press1280 said:
Looking forward to it.

My Reply Brief was filed just after midnight today (March 1st) along with my supplemental excerpts of record and accepted as filed by the clerk in the 9:00 hour. The briefs are online at my website here.

As the pdfs of the briefs and excerpts of record are large, I recommend downloading them to you computer and viewing them locally. It seems that the people who design portable devices do not anticipate that people will attempt to view large pdf files online.

Thundar · Mar 3, 2017

Go Charles Go

California Right To Carry said:
My Reply Brief was filed just after midnight today (March 1st) along with my supplemental excerpts of record and accepted as filed by the clerk in the 9:00 hour. The briefs are online at my website here.

As the pdfs of the briefs and excerpts of record are large, I recommend downloading them to you computer and viewing them locally. It seems that the people who design portable devices do not anticipate that people will attempt to view large pdf files online.

Good luck Charles. Thank you for fighting the good fight. It was instructive to read how California constructed then tore down straw men, instead of refuting the case you presented.

Live Free or Die,
Thundar

cocked&locked · Mar 3, 2017

Big Promises, No Delivery!

California Right To Carry said:
Just wait until you read my Reply Brief.

As for your fear that the 9th circuit court of appeals will give a "blueprint" for may-issue Open Carry permits, I suggest that you read my Opening Brief. That may very well be the preference of the panel assigned to hear my appeal but the panel is constrained by very longstanding precedents which say that it cannot write legislation. Also, I did not limit my case to the Open Carry of handguns. California does not license the Open Carry of long guns and a handgun Open Carry permit is limited to handguns. The court is going to have to decide whether or not the Second Amendment protects the right to openly carry long guns for the purpose of self-defense.

By the way, as I pointed out in the district court and will do so again in my Appellant's Supplemental Excerpts of Record, Illinois had an affirmative defense to the carrying of a loaded firearm in public and its threshold was a reasonable fear of serious bodily injury. California has a much higher threshold of grave, immediate danger coupled with the very narrow time-frame of notifying the police and their arrival. A limitation that Illinois did not have.

That said, the state has thrown in the towel. Did you notice that despite my Complaint explicitly stating a vagueness challenge to the Loaded Open Carry ban (in its entirety) the state argues that I have raised a vagueness claim for the first time on appeal? The state also claims that my vagueness challenge in my opening brief is only briefly argued. My vagueness and due process argument (vagueness is a violation of Due Process) began on page 80 and ended on page 91 of my opening brief. Crucially, the state does not defend the judgment of the district court that vagueness and due process challenges are not cognizable outside of the First Amendment.

By the way, it is new claims which are forfeited on appeal. New legal arguments are not forfeited on appeal, even if they are raised for the first time in a Reply Brief. A fact the 9th CCA recently repeated in a decision.

As I said, wait until you read my Reply Brief.

I have read your briefs. They are a disaster and serve as a case-study on why a pro-se litigant should not be handling appeals of constitutional issues.
Where to begin?
1) You failed to address the main issue of your case. See #3;
2) You spent more time arguing why your case should be the seminal case than you did arguing your case. (Arguing why your case is a better case than someone else’s is a big no-no);
3) Nothing you cite supports your ridiculous proposition that it is open carry, and only open carry, which is protected by the Constitution. (Carefully read the 2nd Amendment again);
4) You do not know how to write a proper complaint (which is a basic requirement of litigation);
5) Too many more reasons. Unlike you and your complaint, I will not bore my audience.

Although I am usually loath to get in the prediction business regarding litigation, I seriously doubt you will get either oral argument or an en banc hearing. Those are usually reserved to litigants that have demonstrated that they know what they are doing. I do not see the Court wasting their time with this ********.

You promised a lot Charlie, and delivered nothing!

California Right To Carry · Mar 3, 2017

Thundar said:
Good luck Charles. Thank you for fighting the good fight. It was instructive to read how California constructed then tore down straw men, instead of refuting the case you presented.

Live Free or Die,
Thundar

Thank you.

My critics here, the feces throwing self-proclaimed lawyer/astronauts, seemed to have slept through their classes in law school (not to mention missed a mountain of case law) regarding what the court of appeals can and cannot consider on appeal (especially when it is an appeal of a judgment on the pleadings).

First of all, everything in my Complaint is accepted to be true. The state is not allowed to introduce new evidence on appeal and the court is prohibited from considering the new evidence.

Importantly, the state did not challenge the finding of the district court that all I have to do in order to effectuate my plan to violate the law is to step outside the door to my home. And of course my being denied a state license always constitutes an Article III injury in fact, which the state does not contest.

Intermediate scrutiny is a double edged sword. If the court of appeals decides that intermediate scrutiny applies to my case then the burden of proof shifts to the state to justify the bans and the denial of my handgun Open Carry license. More importantly, the state was required to submit that proof in the trial court below. It did not. The state did not file any evidence justifying the Open Carry bans or the denial of my license. The state did not even file a declaration (expert or otherwise) in support of the bans.

Many years ago a wise lawyer told me that cases are won or lost because of procedural reasons regardless of what the law says. A fact which is going to bite the state's attorney in the ass.

Moreover, the state's argument in the district court wasn't that my lawsuit conflicted in any way with Heller, the state's argument in the court below was that the Open Carry right defined in Heller does not apply until SCOTUS rules on an Open Carry case.

If you have read the state's answering brief, you will see that state now asks for the court of appeals to ignore the Heller decision and the McDonald Decision and the Caetano decision and the Baldwin decision and to ignore even the en banc Peruta decision which is binding in this circuit.

The state, by its own incompetence, has forced the court of appeals to either rule in my favor or rule that the Second Amendment does not exist even in the curtilage of my home.

The court of appeals is well aware that my loss will create multiple SCOTUS Rule 10 splits.

And I only need one for my cert petition.

Status of California Open Carry Lawsuit - Charles Nichols v. Edmund Brown, Jr., et al

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