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Thread: Flanagan et al v. Harris et al - NRA Open Carry Lawsuit - But Not Really

  1. #1
    Regular Member California Right To Carry's Avatar
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    Flanagan et al v. Harris et al - NRA Open Carry Lawsuit - But Not Really

    I thought I had created a thread about this case before but I couldn't find it. No matter, as I predicted AG Harris filed a motion to dismiss. The briefs can be found at my website here.

    UPDATE November 2, 2016: The motions to dismiss are now online. Motion hearing set for February 13, 2017.

    This is what is going to happen with this “Open Carry” lawsuit.

    Both of the defendants will file a motion to dismiss. And both did.

    The Sheriff will be dismissed from the lawsuit with prejudice because the concealed carry claims against him are precluded by the en banc decision in Peruta v. San Diego.

    The Attorney General’s motion to dismiss will be granted but the NRA will be granted leave to amend its complaint in order to state a viable claim against California’s Open Carry bans.

    The NRA will file its First Amended Complaint.

    If the amended Complaint states a viable claim against California’s Open Carry bans then the case will move on to discovery after which both sides will file dispositive motions unless there are triable issues of fact for a jury to decide (or be decided in a bench trial).

    If the amended Complaint fails to state a viable claim against California’s Open Carry ban then the case will be dismissed with prejudice without discovery or the filing of dispositive motions.

    The Attorney General will likely file a motion to stay this case pending a decision in my California Open Carry lawsuit which challenges the same state laws. If that motion is filed then it is likely to be filed before discovery and before the filing of any dispositive motions. If the motion to stay is filed then it is likely to be granted.

    If no motion to stay is filed then steps 2-6 will take a year or so. If a judge hostile to the Second Amendment is assigned then it could take two or three years before there is a final decision by the district court judge in this case.

    NO-CCW-FOR-YOU.jpg

    Update by Charles Nichols, President of California Right To Carry – February 14, 2017 – The court entered a Tentative Ruling and Order today. Dated yesterday it states:

    “The Court states its tentative views that it is inclined to grant in part Defendant Harris’ Motion to Dismiss for Declaratory and Injunctive Relief (the “Harris Motion”) and grant Defendant McDonell’s Motion to Dismiss (the “McDonell Motion”). Counsel address the Court. The Court takes the Harris Motion and McDonell Motion UNDER SUBMISSION and an order will be issued.”

    The Court also set a scheduling Order. A key date is the last date for the Plaintiffs to amend their Complaint and add new parties (May 1, 2017).

    Now that the NRA/CRPA’s lawsuit for concealed carry has all but formally been dismissed with prejudice, the NRA/CRPA has one final opportunity to amend its Complaint to actually challenge California’s Open Carry bans. Frankly, I don’t think the NRA/CRPA is capable of filing a lawsuit which seeks to overturn California’s Open Carry bans. On, or before, May 1st we will know for certain when the NRA/CRPA brain trust files its Amended Complaint.

    38 – Flanagan v. Harris Tentative Ruling and Order

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    Last edited by California Right To Carry; 02-14-2017 at 05:56 PM. Reason: delete emoticon from title
    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 California Right To Carry's Avatar
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    Smile Do the plaintiffs have standing to pursue this case?

    In the Joint Report filed today, the state's attorney says that he plans on deposing each of the natural-person plaintiffs as well as the CRPA (an organizational plaintiff). The state's attorney is the same state's attorney who deposed me in the district court. I had an advantage in my deposition in that I knew what to say and what not to say. I doubt that the same can be said of the natural-person plaintiffs.

    From the Complaint:

    15. Plaintiff Michelle Flanagan is a resident of Los Angeles County where she is employed as a realtor...
    17. Plaintiff Samuel (“Thomas”) Golden is a resident of Los Angeles County who is a Certified Carry License Instructor for California, Utah, and Florida.
    18. Plaintiff Dominic Nardone is a 69-year-old resident of Los Angeles County. He is a Vietnam veteran who served in the U.S. Navy as a diver and a shooting instructor in small arms.
    19. Plaintiff Jacob Perkio is a resident of Los Angeles County who applied with Defendant McDonnell for a Carry License. (Sheriff McDonnell is prohibited by state law from issuing handgun Open Carry licenses)

    Neither in the Complaint nor in any declaration do any of the plaintiffs articulate a concrete plan to violate California's Open Carry bans and, of course, their claim that they are entitled to concealed carry licenses is precluded by the en banc decision in Peruta v. San Diego.

    Normally, all that the CRPA would need to have standing is for at least one of the natural-person plaintiffs to have standing. However, the CRPA was also a plaintiff in the Peruta v. San Diego concealed carry lawsuit where it spent the better part of a decade arguing that California can, should and must ban Open Carry. Don't be surprised if the CRPA is kicked off the case even if at least one of the natural-persons has standing.

    You can read today's Joint Report at my website under today's (February 3, 2017) update as well as above the fold.

    The hearing on the motions to dismiss is currently scheduled for December 13, 2017.
    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

  3. #3
    Regular Member California Right To Carry's Avatar
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    Thumbs up Motions to dismiss with prejudice granted.

    Update by Charles Nichols, President of California Right To Carry – February 24, 2017 – The court entered its formal Order on the motions to dismiss by Los Angeles County Sheriff McDonnel and former California Attorney General Harris (Becerra is automatically substituted for Harris). The motion to dismiss with prejudice by Sheriff McDonnel was grated in full. AG Harris did not move to dismiss Flanagan’s Open Carry claim “at this time” but the court granted her motion to dismiss, with prejudice, Flanagan’s concealed carry and equal protection claim.

    A dismissal with prejudice means that the Flanagan plaintiffs may not file an amended complaint which realleges that the plaintiffs have a right to carry “in some manner” or to carry concealed. The NRA/CRPA will have to now file an Amended Complaint which challenges only California’s Open Carry bans (and establishes that they have standing to challenge California’s Open Carry bans) or they can voluntarily dismiss their lawsuit or they can have their lawsuit dismissed with prejudice in its entirety if they do not file an Amended Complaint which raises a proper legal challenge to California’s Open Carry bans.

    My bet is that the NRA/CRPA will not amend its Complaint to properly challenge California’s Open Carry bans. They will either: 1) voluntarily dismiss their lawsuit or 2) file a substantially identical amended complaint which argues that they have a right to carry in “some manner” or 3) file an amended complaint which fails to establish that the plaintiffs have standing to challenge California’s Open Carry bans which would result with a dismissal with prejudice of their complaint leaving them only with an appeal.

    39 – Flanagan v Becerra -Order on motion to dismiss


    So far this case is going exactly the way I predicted:


    This is what is going to happen with this “Open Carry” lawsuit.

    Both of the defendants will file a motion to dismiss. And both did.

    The Sheriff will be dismissed from the lawsuit with prejudice because the concealed carry claims against him are precluded by the en banc decision in Peruta v. San Diego. And that is exactly what happened.

    The Attorney General’s motion to dismiss will be granted but the NRA will be granted leave to amend its complaint in order to state a viable claim against California’s Open Carry bans. And that is exactly what happened.

    The NRA will file its First Amended Complaint.

    If the amended Complaint states a viable claim against California’s Open Carry bans then the case will move on to discovery after which both sides will file dispositive motions unless there are triable issues of fact for a jury to decide (or be decided in a bench trial).

    If the amended Complaint fails to state a viable claim against California’s Open Carry ban then the case will be dismissed with prejudice without discovery or the filing of dispositive motions.

    The Attorney General will likely file a motion to stay this case pending a decision in my California Open Carry lawsuit which challenges the same state laws. If that motion is filed then it is likely to be filed before discovery and before the filing of any dispositive motions. If the motion to stay is filed then it is likely to be granted.

    If no motion to stay is filed then steps 2-6 will take a year or so. If a judge hostile to the Second Amendment is assigned then it could take two or three years before there is a final decision by the district court judge in this case.
    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

  4. #4
    Regular Member California Right To Carry's Avatar
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    Cool Still no amended complaint.

    Well, it has been over a month now since the Los Angeles County Sheriff was dismissed with prejudice along with any concealed carry argument or claim. The NRA/CRPA has not filed an Amended Complaint.

    As you may recall from reading the briefs the plaintiffs argued that they have a right to carry a handgun in some manner and since Open Carry was banned they are entitled to concealed carry permits. The state did not contest the plaintiffs' "some manner" argument which is not surprising given that in my California Open Carry appeal the state asserts that my appeal is defective because I seek to vindicate my right to openly carry firearms and in no way do I seek to carry a firearm concealed anywhere or at any time.

    The district court would have none of that nonsense and shot down the right to carry argument "in some manner" and told the plaintiffs that they would have to file an actual Open Carry lawsuit. I, of course, filed a FRAP Rule 28(j) letter with the court in my Open Carry appeal.

    I don't think the NRA/CRPA is capable of that. In any event, the district court judge did not order the plaintiffs to file an amended complaint within 30 days which is invariably what happens when a complaint is dismissed. Consequently, the previous order setting a May 1st deadline stands.

    As a practical matter, the plaintiffs would have been unable to file a Second Amended complaint in time to meet the deadline because they dragged their feet in arguing their initial complaint.

    I have added countdown timers to all of the deadlines the court set in its previous order at my website. As of this writing the deadlines are:

    May 1, 2017: Last day to amend or add parties – 35 days 57 minutes 48 seconds
    Not Set: Last day to participate in a settlement conference/mediation
    Not Set: Last day to file notice of settlement / joint report re settlement
    Not Set: Post Mediation Status Conference
    June 1, 2017: Non-Expert Discovery Cut-Off – 66 days 57 minutes 48 seconds
    June 1, 2017: Initial Expert Disclosures – 66 days 57 minutes 48 seconds
    June 30, 2017: Rebuttal Expert Disclosures – 95 days 57 minutes 48 seconds
    July 28, 2017: Expert Discovery Cut-Off – 123 days 57 minutes 48 seconds
    August 14, 2017: Last day to file motions (including discovery motions) – 140 days 57 minutes 48 seconds
    November 6, 2017: Last day to hear motions (including discovery motions) – 224 days 57 minutes 48 seconds
    December 4, 2017: Anticipated ruling on all motions – 251 days 9 hours 28 minutes 48 seconds
    December 11, 2017: Last day to file direct testimony declarations – 259 days 57 minutes 48 seconds
    December 15, 2017: Last day to file objections to direct testimony declarations – 263 days 57 minutes 48 seconds
    December 19, 2017: Anticipated ruling on direct testimony declarations/objections – 267 days 57 minutes 48 seconds
    January 2, 2018: Last day to file a status conference regarding any pretrial issues – 281 days 57 minutes 48 seconds
    January 8, 2018 at 3:00 p.m.: Final Pretrial Conference – 286 days 15 hours 58 minutes 48 seconds
    February 6, 2018 at 9:00 a.m.: Court Trial (est. tbd days) – 315 days 9 hours 58 minutes 48 seconds

    Federal Judge Tells NRA to Put Up or Shut Up in Open Carry Lawsuit
    Last edited by California Right To Carry; 03-28-2017 at 07:43 PM.
    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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