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Baird v. Becerra - California handgun Open Carry lawsuit


Charles Nichols

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I thought this was already a forum topic but I did a search on "Baird" and didn't get any relevant hits.

 

As many of you are aware, I filed a lawsuit challenging California's Open Carry bans back in November of 2011, in the Federal Central District of California. My case was stylized as Charles Nichols v. Edmund G. Brown Jr., et al. California has term limits and so Governor Brown was replaced with Governor Newsom on January 7th of this year. My lawsuit challenges California's Loaded Open Carry ban, enacted in July of 1967, as well as the two more recent bans on openly carrying unloaded firearms. My lawsuit also challenges the California handgun licensing laws in their entirety and in the alternative as to the prohibitions on issuing licenses in counties with a population of 200,000 or more people and their being restricted to the county of issuance (they were valid statewide until Governor Schwarzenegger signed a bipartisan bill restricting them to the county of issuance). Oral argument took place in my appeal on February 15, 2018. Submission of my appeal for a decision by the 9th circuit court of appeals is vacated pending the en banc decision in the related case of Young v. Hawaii.

 

On April 9th of this year, Mark Baird and Richard Gallardo filed a lawsuit in the Federal Eastern District of California. Their lawsuit is stylized as Baird et al v. Becerra (Becerra is the California Attorney General).

 

The Baird lawsuit is strictly limited to the Open Carry of handguns.

 

The court had scheduled a hearing for the plaintiffs' motion for a preliminary injunction and the State's motion to dismiss on September 6th but has now rescheduled it for October 8th.

 

I have created a page at my website which contains links to all of the relevant court filings. It can be found here -> https://californiaopencarry.com/baird-et-al-v-becerra-california-handgun-open-carry-lawsuit/

 

I played no part in drafting the Complaint or any of the filings. For that matter, the lead Plaintiff (Mark Baird) had contacted me in August of 2018 after I published an article at NewBlaze pointing out that the then recently (and now vacated) three-judge panel decision in George Young Jr., v. State of Hawaii, et al, was now binding on every Federal judge in the 9th circuit.

 

I gave Mr. Baird a lot of advice, none of which he took.

 

Nonetheless, I still hope he wins.

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  • 1 month later...

I flew up to Sacramento for the rescheduled hearing on the motion to dismiss and the preliminary injunction hearing. Literally just before the time for the hearing to take place, the clerk stepped outside of the (locked) courtroom, yanked the calendar off the wall, and said the hearing was canceled because the judge was "sick."

 

Mark Baird and his lawyer argued on the phone with the judge and she rescheduled fhe hearing for the next day (I did not attend). A tentative transcript how now been made available to the parties in the case.

 

Tuesday, October 29, 2019 32
TRANSCRIPT of Proceedings, Motion to Dismiss, Motion for Preliminary Injunction, Status Conference held on October 9, 2019, before District Judge Kimberly J. Mueller, filed by Court Reporter Kacy Barajas, Phone number 916-426-7640 E-mail kbarajas.csr@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/21/2019. Redacted Transcript Deadline set for 11/29/2019. Release of Transcript Restriction set for 1/27/2020. (Barajas, K) Friday, October 11, 2019 31


TRANSCRIPT REQUEST by Mark Baird for proceedings held on October 9, 2019 before Judge Kimberly J. Mueller. Court Reporter Kacy Barajas. (Barajas, K) Wednesday, October 09, 2019 30

MINUTES for MOTION HEARING and SCHEDULING CONFERENCE held before District Judge Kimberly J. Mueller on 10/9/2019. Plaintiffs' Counsel, Amy Bellantoni, present. Defendant's Counsel, R. Matthew Wise, present. The court heard oral argument as to Defendant's Motion to Dismiss (ECF no.10 ) and Plaintiffs' Motion for Preliminary Injunction (ECF No.14 ). The court and counsel also discussed case scheduling. After careful consideration of the parties' arguments, the court took the matters under submission. A written order will issue. Court Reporter: Kacy Barajas. (Text Only Entry) (Schultz, C) Tuesday, October 08, 2019 29

MINUTE ORDER issued by Courtroom Deputy C. Schultz for District Judge Kimberly J. Mueller: Due to unforseen circumstances and on the court's own motion, the Status (Pretrial Scheduling) Conference and Motion Hearing set for 10/8/2019 is VACATED and RESET for 10/9/2019 at 11:00 AM in Courtroom 3 before District Judge Kimberly J. Mueller. (Text Only Entry)(Schultz, C)

 

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I thought this was already a forum topic but I did a search on "Baird" and didn't get any relevant hits.

 

As many of you are aware, I filed a lawsuit challenging California's Open Carry bans back in November of 2011, in the Federal Central District of California. My case was stylized as Charles Nichols v. Edmund G. Brown Jr., et al. California has term limits and so Governor Brown was replaced with Governor Newsom on January 7th of this year. My lawsuit challenges California's Loaded Open Carry ban, enacted in July of 1967, as well as the two more recent bans on openly carrying unloaded firearms. My lawsuit also challenges the California handgun licensing laws in their entirety and in the alternative as to the prohibitions on issuing licenses in counties with a population of 200,000 or more people and their being restricted to the county of issuance (they were valid statewide until Governor Schwarzenegger signed a bipartisan bill restricting them to the county of issuance). Oral argument took place in my appeal on February 15, 2018. Submission of my appeal for a decision by the 9th circuit court of appeals is vacated pending the en banc decision in the related case of Young v. Hawaii.

 

On April 9th of this year, Mark Baird and Richard Gallardo filed a lawsuit in the Federal Eastern District of California. Their lawsuit is stylized as Baird et al v. Becerra (Becerra is the California Attorney General).

 

The Baird lawsuit is strictly limited to the Open Carry of handguns.

 

The court had scheduled a hearing for the plaintiffs' motion for a preliminary injunction and the State's motion to dismiss on September 6th but has now rescheduled it for October 8th.

 

I have created a page at my website which contains links to all of the relevant court filings. It can be found here -> https://californiaopencarry.com/baird-et-al-v-becerra-california-handgun-open-carry-lawsuit/

 

I played no part in drafting the Complaint or any of the filings. For that matter, the lead Plaintiff (Mark Baird) had contacted me in August of 2018 after I published an article at NewBlaze pointing out that the then recently (and now vacated) three-judge panel decision in George Young Jr., v. State of Hawaii, et al, was now binding on every Federal judge in the 9th circuit.

 

I gave Mr. Baird a lot of advice, none of which he took.

 

Nonetheless, I still hope he wins.

 

Any reasoning he presented for not doing so?

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Any reasoning he presented for not doing so?

 

You will need to be specific. If you are referring to his limiting his challenge to the handgun Open Carry bans, he said you eat an elephant one bite at a time. I thought I had explained to him, and his lawyers certainly should have explained to him, he only gets one bite. Issue and claim preclusion prevents his losing this case and then coming back later and challenging the bans as they apply to long guns.

 

Prior to District of Columbia v. Heller, it was very difficult to make the case that handguns as a class are protected by the Second Amendment. The history and tradition of American law was that handguns which are easily or ordinarily concealed are not arms protected under the United States Constitution or state analogues.

 

On the other hand, rifles and muskets have always been held to be arms protected by the Second Amendment, regardless of how the 19th century state courts, and Federal courts until the Heller decision, interpreted the scope of the Second Amendment.

 

For the benefit of those who are new here and/or for whom this comes as a surprise, the one thing I kept from my old website is my virtual law library. Feel free to prove me wrong after you have researched the case law. Telling me that you have an unlimited right to carry any weapon in any manner for any purpose because the plain-English text of the Second Amendment doesn't say you can't proves only that you should not be allowed anywhere near a weapon or a voting booth. Here is the link to my online law library -> https://californiaopencarry.com/law-library-12th-to-20th-centuries-american-and-english/

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Any reasoning he presented for not doing so?

 

You will need to be specific. If you are referring to his limiting his challenge to the handgun Open Carry bans, he said you eat an elephant one bite at a time. I thought I had explained to him, and his lawyers certainly should have explained to him, he only gets one bite. Issue and claim preclusion prevents his losing this case and then coming back later and challenging the bans as they apply to long guns.

 

Prior to District of Columbia v. Heller, it was very difficult to make the case that handguns as a class are protected by the Second Amendment. The history and tradition of American law was that handguns which are easily or ordinarily concealed are not arms protected under the United States Constitution or state analogues.

 

On the other hand, rifles and muskets have always been held to be arms protected by the Second Amendment, regardless of how the 19th century state courts, and Federal courts until the Heller decision, interpreted the scope of the Second Amendment.

 

For the benefit of those who are new here and/or for whom this comes as a surprise, the one thing I kept from my old website is my virtual law library. Feel free to prove me wrong after you have researched the case law. Telling me that you have an unlimited right to carry any weapon in any manner for any purpose because the plain-English text of the Second Amendment doesn't say you can't proves only that you should not be allowed anywhere near a weapon or a voting booth. Here is the link to my online law library -> https://californiaopencarry.com/law-library-12th-to-20th-centuries-american-and-english/

 

 

Not knowing what advice you gave him, or how he disregarded it, that question doesn't really make sense.

 

Rather, in answer, you might provide further examples like the one about filing only about handguns and not long guns. What else did you advise him to do, to the benefit of him possibly being more likely to succeed in his case, that he ignored, and if he told you why he was ignoring them.

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Any reasoning he presented for not doing so?

 

You will need to be specific. If you are referring to his limiting his challenge to the handgun Open Carry bans, he said you eat an elephant one bite at a time. I thought I had explained to him, and his lawyers certainly should have explained to him, he only gets one bite. Issue and claim preclusion prevents his losing this case and then coming back later and challenging the bans as they apply to long guns.

 

Prior to District of Columbia v. Heller, it was very difficult to make the case that handguns as a class are protected by the Second Amendment. The history and tradition of American law was that handguns which are easily or ordinarily concealed are not arms protected under the United States Constitution or state analogues.

 

On the other hand, rifles and muskets have always been held to be arms protected by the Second Amendment, regardless of how the 19th century state courts, and Federal courts until the Heller decision, interpreted the scope of the Second Amendment.

 

For the benefit of those who are new here and/or for whom this comes as a surprise, the one thing I kept from my old website is my virtual law library. Feel free to prove me wrong after you have researched the case law. Telling me that you have an unlimited right to carry any weapon in any manner for any purpose because the plain-English text of the Second Amendment doesn't say you can't proves only that you should not be allowed anywhere near a weapon or a voting booth. Here is the link to my online law library -> https://californiaopencarry.com/law-library-12th-to-20th-centuries-american-and-english/

 

 

Not knowing what advice you gave him, or how he disregarded it, that question doesn't really make sense.

 

Rather, in answer, you might provide further examples like the one about filing only about handguns and not long guns. What else did you advise him to do, to the benefit of him possibly being more likely to succeed in his case, that he ignored, and if he told you why he was ignoring them.

 

 

What question doesn't really make sense?

 

I don't know what you mean by "further examples like the one about filing only about handguns and not long guns." As far as I know, mine is the only lawsuit on appeal with a Second Amendment claim challenging any ban on the carrying of long guns.

 

I gave Mark lots of advice, which I am not going to itemize here. I stressed the importance of his Complaint and his establishing that he has standing. Actually having standing and having the facts and law properly in the record that establish one has standing are two very different things.

 

One thing is certain, the district court judge will grant in part and deny in part the state's motion to dismiss. The plaintiffs will be given leave to amend their complaint, that will give them the opportunity to correct the defects in their complaint. And if the judge follows her modus operandi, she will repeat the process another time or two. Normally, she would end the case after the Second or Third Amended Complaint by ruling in favor of the state but we will likely have an en banc decision in Young v. Hawaii before that happens. The moment there is an en banc decision in Young v. Hawaii, the Order vacating the submission of my appeal for a decision ends. And which ever way it goes, I suspect that the decision in my appeal will quickly follow which will, in turn, be binding on the judge presiding over Mark Baird's case. If I win, his case gets dismissed as moot and he won't be able to collect attorney fees or costs. If I win, I will not be able to collect attorney fees because I am not an attorney and the district court judge (Otero) will likely deny me the lion's share of my costs.

 

The only real thing that might happen is in the appeal of the denial of his motion for a preliminary injunction. Appeals of a preliminary injunction are given priority for both oral argument and a decision, and they can be appealed to SCOTUS. The can be appealed once their is a decision. The appeal of the preliminary injunction could be stayed which means Mark would have to file a writ with SCOTUS instead.

 

But Judge Mueller may very well set on the motion or the court of appeals will drag its heals in scheduling briefing and oral argument in the appeal of the preliminary injunction until after the decision in NYSRPA v. NYC.

 

FYI, everything above I discussed with Mark, except the modus operandi of Judge Mueller because neither of us knew who is judge was going to be. I will close by telling him it was extremely important for him to find additional plaintiffs and to find one who would enable him to file in the Federal Southern District of California. I handed him such a plaintiff on a silver platter but he declined.

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Any reasoning he presented for not doing so?

 

You will need to be specific. If you are referring to his limiting his challenge to the handgun Open Carry bans, he said you eat an elephant one bite at a time. I thought I had explained to him, and his lawyers certainly should have explained to him, he only gets one bite. Issue and claim preclusion prevents his losing this case and then coming back later and challenging the bans as they apply to long guns.

 

Prior to District of Columbia v. Heller, it was very difficult to make the case that handguns as a class are protected by the Second Amendment. The history and tradition of American law was that handguns which are easily or ordinarily concealed are not arms protected under the United States Constitution or state analogues.

 

On the other hand, rifles and muskets have always been held to be arms protected by the Second Amendment, regardless of how the 19th century state courts, and Federal courts until the Heller decision, interpreted the scope of the Second Amendment.

 

For the benefit of those who are new here and/or for whom this comes as a surprise, the one thing I kept from my old website is my virtual law library. Feel free to prove me wrong after you have researched the case law. Telling me that you have an unlimited right to carry any weapon in any manner for any purpose because the plain-English text of the Second Amendment doesn't say you can't proves only that you should not be allowed anywhere near a weapon or a voting booth. Here is the link to my online law library -> https://californiaopencarry.com/law-library-12th-to-20th-centuries-american-and-english/

 

 

Not knowing what advice you gave him, or how he disregarded it, that question doesn't really make sense.

 

Rather, in answer, you might provide further examples like the one about filing only about handguns and not long guns. What else did you advise him to do, to the benefit of him possibly being more likely to succeed in his case, that he ignored, and if he told you why he was ignoring them.

 

 

What question doesn't really make sense?

 

I don't know what you mean by "further examples like the one about filing only about handguns and not long guns." As far as I know, mine is the only lawsuit on appeal with a Second Amendment claim challenging any ban on the carrying of long guns.

 

I gave Mark lots of advice, which I am not going to itemize here. I stressed the importance of his Complaint and his establishing that he has standing. Actually having standing and having the facts and law properly in the record that establish one has standing are two very different things.

 

One thing is certain, the district court judge will grant in part and deny in part the state's motion to dismiss. The plaintiffs will be given leave to amend their complaint, that will give them the opportunity to correct the defects in their complaint. And if the judge follows her modus operandi, she will repeat the process another time or two. Normally, she would end the case after the Second or Third Amended Complaint by ruling in favor of the state but we will likely have an en banc decision in Young v. Hawaii before that happens. The moment there is an en banc decision in Young v. Hawaii, the Order vacating the submission of my appeal for a decision ends. And which ever way it goes, I suspect that the decision in my appeal will quickly follow which will, in turn, be binding on the judge presiding over Mark Baird's case. If I win, his case gets dismissed as moot and he won't be able to collect attorney fees or costs. If I win, I will not be able to collect attorney fees because I am not an attorney and the district court judge (Otero) will likely deny me the lion's share of my costs.

 

The only real thing that might happen is in the appeal of the denial of his motion for a preliminary injunction. Appeals of a preliminary injunction are given priority for both oral argument and a decision, and they can be appealed to SCOTUS. The can be appealed once their is a decision. The appeal of the preliminary injunction could be stayed which means Mark would have to file a writ with SCOTUS instead.

 

But Judge Mueller may very well set on the motion or the court of appeals will drag its heals in scheduling briefing and oral argument in the appeal of the preliminary injunction until after the decision in NYSRPA v. NYC.

 

FYI, everything above I discussed with Mark, except the modus operandi of Judge Mueller because neither of us knew who is judge was going to be. I will close by telling him it was extremely important for him to find additional plaintiffs and to find one who would enable him to file in the Federal Southern District of California. I handed him such a plaintiff on a silver platter but he declined.

 

 

That's literally the kind of information I was hoping to get about this. Much appreciated.

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  • 2 months later...

The transcript for the hearing on the preliminary injunction/motion to dismiss which took place on October 9, 2019, has now been released to the public (see attached).

 

I can say one thing about Baird's attorney and that is she handled herself very well in the hearing.
The one thing I would have done had I been in her shoes is what I did in the argument section of my opening brief in my California #OpenCarry appeal and that is to point out that in the en banc oral argument in Peruta v. San Diego/Richards v. Prieto, the State of California not only conceded that the Heller decision said that we have the right to openly carry firearms beyond the curtilage of our home for the purpose of self-defense but the Court must read the Heller decision to say that concealed carry is not a right.
I even provided a link to the Court's official video and cited exactly where the State of California began its concession.
Given that the State of California prevailed in Peruta v. San Diego, the State of California is procedurally barred from now arguing that there is no right to openly carry a firearm beyond the curtilage of our homes. And, unlike Illinois, there is no residential property exemption for carrying a firearm. If you are in an incorporated city and step outside the door to your home with a loaded firearm or a non-antique unloaded firearm then you are in violation of the law. The California court of appeals is split on whether or not those whose property is fully enclosed by a tall fence or other substantial barrier to entry can carry on their property.
On Baird's procedural due process claim (which is stated and argued in my lawsuit as well), the district court judge's comment is baffling. The fact that there is no administrative appeal available in California's handgun Open Carry licensing laws is THE procedural due process violation.
And yet the judge said this:
"THE COURT: So what's the best case? What's your best case to support your argument that you have a procedural due process claim when the statutes provide no procedure, if that's the right way to read the statute?
MS. BELLANTONI: The statutes provide no procedure which is the violation in and of itself because they, by virtue of their existence, remove from my clients the ability to wear their firearms whether exposed or concealed. They remove the ability of my clients to travel outside of their county and/or travel to an area of more than 200,000 people."
Although there is no administrative appeal of the denial of a handgun Open Carry license on the face of the two licensing statutes, I pleaded futility as well.
FYI, except for prisoner appeals, and perhaps an isolated area of the law, here and there, we do not have to exhaust administrative appeals in order to challenge the denial of a license.
Although, much like chicken soup, it may not help but it certainly does not hurt to plead futility if for no other reason than the only way the issuing authority can prove it is not futile in your case is to issue you the license.

Baird v. Becerra - Official Transcript.pdf

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^^^ putting THIS guy on my list of - Seek Advise From - should I ever get jacked in 2A legal issue!

If by "THIS guy" you mean me, I am not an attorney, and I have zero knowledge about Illinois criminal court procedures. The only "advice" I can give to you is don't get jacked on any issue, the courts are not your friend.

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^^^ putting THIS guy on my list of - Seek Advise From - should I ever get jacked in 2A legal issue!

If by "THIS guy" you mean me, I am not an attorney, and I have zero knowledge about Illinois criminal court procedures. The only "advice" I can give to you is don't get jacked on any issue, the courts are not your friend.

Unfortunately, that is something that too many of us have known for way too long a time.

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  • 2 weeks later...

Sunday marks four months since the judge said she would quickly issue her order on the motion for a preliminary injunction. Other than government work, I can't think of anywhere in the private sector where one can get away with "quickly" being the same thing as four months..

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Sunday marks four months since the judge said she would quickly issue her order on the motion for a preliminary injunction. Other than government work, I can't think of anywhere in the private sector where one can get away with "quickly" being the same thing as four months..

It takes quite a while to polish a turd before it can be publicly displayed as a gem.

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