Jump to content


Photo

Flanagan et al v. Becerra et al Appeal - Concealed Carry - 9th Circuit


  • Please log in to reply
20 replies to this topic

#1 Charles Nichols

    Member

  • Members
  • PipPipPipPipPip
  • 258 posts
  • Joined: 15-June 16

Posted 09 June 2018 - 03:07 AM

On June 9, 2016, the 9th circuit court of appeals published an en banc decision in the case of Peruta v. San Diego which held that there is no right to concealed carry under the Second Amendment.  The decision said that it was not going to decide if there is a right to carry firearms openly in public because that question was not before the court.

 

The NRA lawyers had argued that states can ban Open Carry in favor of concealed carry, therefore gimme my concealed carry permit.

 

The mandate issued on August 24, 2016.  Peruta v. San Diego had been filed in the Federal Southern District of California with San Diego County and the San Diego County Sheriff named as a defendant.  The lawyer who initially filed the case neglected to list the Attorney General as a defendant or to alternatively file a notice with the AG that a state law was being challenged.

 

On August 17, 2016, the NRA lawyers filed a new lawsuit in the Federal Central District of California with the California Attorney General and Los Angeles County Sheriff named as defendants. 

 

In this case, Flanagan, the NRA lawyers argued that states and local governments can ban Open Carry in favor of concealed carry, therefore gimme my concealed carry permit.

 

As in Peruta, none of the Flanagan plaintiffs sought to openly carry a firearm anywhere in the state, let alone in violation of California's Open Carry bans.  Three of the natural born plaintiffs disavowed any desire to openly carry a firearm, anywhere.  Nor did they challenge the state restriction prohibiting sheriffs of counties with a population of 200,000 or more people from issuing handgun Open Carry licenses.  The NRA did seek in their Complaint to enjoin the subsection of the statute which provides for the issuance of handgun Open Carry licenses in counties with fewer than 200,000 people. In short, despite what the NRA tells the public, the NRA still opposes Open Carry in the courts and, as in Peruta, the Flanagan plaintiffs don't have standing to challenge California's Open Carry bans even if they wanted to.  Which they don't.

 

On February 24, 2017, the judge presiding over the Flanagan case dismissed the Los Angeles County Sheriff because he was not a proper party to the lawsuit given the en banc decision in Peruta.  The Sheriff was supposed to have been dismissed with prejudice but the order said without prejudice.

 

On May 24, 2018, Judge John A. Kronstadt entered final Judgment in the case against the California Attorney General.

 

On June 4, 2018, the NRA filed its notice of appeal against California Attorney General Beccera "et al."

 

On June 5, 2018, the Office of the Clerk for the 9th Circuit Court of Appeals assigned a case number (18-55717) and docketed the case with only Attorney General Becerra listed as an Appellee.

 

One of the parties to the suit must have noticed the omission because on June 7, 2018, the parties filed a stipulation and proposed Amended Judgment which includes a final judgment against the Los Angeles County Sheriff.  Once Judge Kronstadt signs and files the amended judgment, the NRA lawyers will file an amended notice of appeal.

 

The appellate schedule is as follows (it will change):

 

Mediation Questionnaire due on 06/12/2018.
Transcript ordered by 07/05/2018.
Transcript due 08/03/2018.
Appellants California Rifle & Pistol Association, Inc., Michelle Flanagan, Samuel Golden, Dominic Nardone and Jacob Perkio opening brief due 09/12/2018.
Appellee Xavier Becerra answering brief due 10/12/2018.

Appellant’s optional reply brief is due 21 days after service of the answering brief.

 

As many of you are aware, I have a lawsuit on appeal which challenges California's Open Carry bans and my lawsuit was never limited to the Second Amendment.  Procedurally, my case in the district court was dismissed with prejudice based on a motion for a "judgment on the pleadings."  For the court of appeals to affirm the decision of the district court it would have to hold that there are no facts which I can allege under any legal theory in which I can prevail.  Final judgment in the Flanagan case resulted from a motion for summary judgment in which there does not appear to be disputed facts for a jury to decide which means that for all practical purposes, there is no chance for a remand.  Theoretically, a lawsuit should be allowed to proceed so long as the Complaint can be amended.  But Second Amendment cases are "special."  The rules don't apply to them.

 

There is one other fly in the ointment.  Judge Kronstadt did not decide whether or not there is a right to openly carry a firearm, he said he didn't have to.  But if he had decided then he would conclude that the bans are constitutional because there is an exception for military, police, etc., and for civilians for that brief interval of time between one finding himself in "grave, immediate danger" and the arrival of the police.  By the way, that isn't an exception, it is an affirmative defense which means that even if one were in "grave, immediate danger" and wasn't carrying a loaded firearm before the danger arose or after the police arrived, he can still be convicted by the jury for carrying a loaded firearm.

 

In the long run, the judge's non-decision decision on Open Carry won't matter.  The plaintiffs don't have standing to challenge California's Open Carry bans even if they wanted to, which they don't.

 

Moreover, there will be a decision in my California Open Carry appeal long before the Flanagan appeal is taken under submission for a decision, assuming that the Flangan appeal isn't summarily affirmed.

 

Here is a link to the Flanagan case page at my website -> http://blog.californ...g/?page_id=8151

 



#2 transplant

    Member

  • Members
  • 2,507 posts
  • Joined: 14-May 13

Posted 09 June 2018 - 06:43 AM

Thank you for the update and good luck.

The state of California is known to America to cause many types of cancers in the other states.

#3 springfield shooter

    Member

  • Supporting Members Team
  • PipPip
  • 144 posts
  • Joined: 18-February 16

Posted 09 June 2018 - 09:00 AM

Thank you for the update and good luck.

The state of California is known to America to cause many types of cancers in the other states.

 

I know when I buy Christmas lights (with green wiring) they are known to the state of California to cause cancer. Not the other 49 states mind you. Just California.


Edited by springfield shooter, 09 June 2018 - 09:03 AM.


#4 Charles Nichols

    Member

  • Members
  • PipPipPipPipPip
  • 258 posts
  • Joined: 15-June 16

Posted 15 June 2018 - 09:54 PM

The amended judgment was entered on the 14th.  Today, the 15th, the NRA filed its amended appeal.  We will have to wait and see if the same briefing schedule will apply to the Los Angeles County Sheriff.


Edited by Charles Nichols, 15 June 2018 - 09:54 PM.


#5 Charles Nichols

    Member

  • Members
  • PipPipPipPipPip
  • 258 posts
  • Joined: 15-June 16

Posted 21 June 2018 - 02:36 PM

Today, I received the last of the consents from the attorneys in this appeal consenting to my entering as an Amicus in this case which means I won't have to file a motion.  I suspect that the attorneys representing the Los Angeles County Sheriff will file a motion for summary disposition because the en banc decision in Peruta v. San Diego has resolved the concealed carry question in this circuit.  There is nothing for a three-judge panel to decide on the merits of a concealed carry case against the Sheriff.  If the summary disposition motion is granted then that just leaves one Amicus brief for me to write.  My Amicus brief will be in support of neither party.



#6 kevinmcc

    Member

  • Members
  • 2,399 posts
  • Joined: 16-December 12

Posted 26 June 2018 - 10:04 PM

Hopefully Trump will be allowed to clean up the 9th circus.

The idea being he could remove judges that constantly make bad rulings that get over turned.
Life Member, Gun Owners of America
Life Member, NRA
Life Member, Oath Keepers
Life Member, Second Amendment Foundation

#7 Hipshot Percussion

    Member

  • Members
  • 2,955 posts
  • Joined: 05-February 14

Posted 27 June 2018 - 08:08 AM

Hopefully Trump will be allowed to clean up the 9th circus.

The idea being he could remove judges that constantly make bad rulings that get over turned.

It was my understanding that they couldn't do that - at least not without going through a long and complex route.  I thought they were talking about splitting up the court into two or three smaller circuits - cutting down on the amount of territory they handle - and therefore diluting the liberal judges with the addition of constitutional originalists.


“I have fought the good fight to the end; I have run the race to the finish: I have kept the faith."  Timothy Chapter 4 verse 7

 

"Legitimate self-defense has absolutely nothing to do with the criminal misuse of guns."   Gerald Vernon, veteran firearms instructor

 

New Gunner Journal

 


#8 Charles Nichols

    Member

  • Members
  • PipPipPipPipPip
  • 258 posts
  • Joined: 15-June 16

Posted 27 June 2018 - 08:41 PM

Hopefully Trump will be allowed to clean up the 9th circus.

The idea being he could remove judges that constantly make bad rulings that get over turned.

Congress is responsible for removing judges but that is a moot point as Trump has already caved on his nominees to the lower courts by allowing the Blue State senators to approve of, and even pick, his nominees to the lower courts.



#9 steveTA1983

    Member

  • Supporting Members Team
  • 1,860 posts
  • Joined: 14-December 15

Posted 14 July 2018 - 10:40 PM

Charles, thank you for fighting. You’re a patriot

#10 Charles Nichols

    Member

  • Members
  • PipPipPipPipPip
  • 258 posts
  • Joined: 15-June 16

Posted 15 July 2018 - 12:36 PM

Charles, thank you for fighting. You’re a patriot

Thank you for saying so.



#11 Charles Nichols

    Member

  • Members
  • PipPipPipPipPip
  • 258 posts
  • Joined: 15-June 16

Posted 03 October 2018 - 02:32 AM

The Appellants' Opening Brief was filed ten days ahead of schedule.  I have included it as an attachment.  If the attachment is broken then it can be downloaded for a short time* at my website here -> http://blog.californ...m-115-pages.pdf

 

The document includes the addendum which pushes the page length to 115 pages.  It is best to download the pdf and view it locally rather than to try and view it online.

 

Sooner or later, the NRA's left coast lawyer website will make it available for download here -> http://michellawyers...a-harris-et-al/

 

All parties have consented to my being an Amicus.  My brief is due within seven days of the filing of the opening brief (October 2, 2018).

 

* In less than 10 weeks my CaliforniaRightToCarry.org site will redirect to my CaliforniaOpenCarry.com website which won't host the Flanagan v. Becerra filings, or any other filings except for Young v. Hawaii and, of course, Nichols v. Brown.

Attached Files



#12 Charles Nichols

    Member

  • Members
  • PipPipPipPipPip
  • 258 posts
  • Joined: 15-June 16

Posted 11 October 2018 - 04:01 AM

You no doubt remember that every so-called gun-rights group you had ever heard of, and a few you hadn't, filed an Amicus brief in support of the NRA lawsuit Peruta v. San Diego which claimed that states can ban Open Carry in favor of concealed carry.
 
That claim was shot down, as it were, by an eleven judge en banc panel of the 9th circuit court of appeals.
 
The NRA immediately filed a new lawsuit which once again claims that California can ban Open Carry in favor of concealed carry, Flanagan v. Becerra.
 
The deadline to file an Amicus brief in support of Flanagan v. Becerra has come and gone.
 
Zero Amicus briefs were filed supporting the NRA.
 
The same deadline applied to filing Amicus briefs in support of neither party.
 
Mine was the only Amicus brief filed in support of neither party.
 
My Amicus brief argues that the Flanagan plaintiffs lack standing to challenge California's Open Carry bans and therefore the court of appeals lacks jurisdiction to decide the Open Carry question left open by the en banc Peruta v. San Diego decision but if the court decides the Flanagan plaintiffs do have standing then it would be improper for the court to decide the Open Carry question in light of the fact that both sides claim that Open Carry bans are constitutional.
 
The deadline to file an Amicus brief in support of the Appellees, California Attorney General Becerra and Los Angeles County Sheriff McDonnell is 7 days after they file their Answering briefs, which are currently due by 12/13/2018.


#13 Davey

    Member

  • Members
  • 3,247 posts
  • Joined: 02-November 10

Posted 11 October 2018 - 04:24 PM

Why is NRA claiming that concealed carry can be banned?

#14 Euler

    Member

  • Members
  • PipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPipPip
  • 924 posts
  • Joined: 26-February 18

Posted 11 October 2018 - 05:51 PM

Why is NRA claiming that concealed carry can be banned?


They're not.

...
The NRA immediately filed a new lawsuit which once again claims that California can ban Open Carry in favor of concealed carry, Flanagan v. Becerra.
...


The welfare of the people in particular has always been the alibi of tyrants, and it provides the further advantage of giving the servants of tyranny a good conscience.
- Albert Camus, Resistance, Rebellion, and Death, 1960.

#15 ChicagoRonin70

    The Landlord of the Flies!

  • Supporting Members Team
  • 3,382 posts
  • Joined: 02-August 14

Posted 11 October 2018 - 06:02 PM

So, how is this going to affect the case for legal open carry, in plain terms?


"A well educated Media, being necessary for the preservation of a free State, the right of the people to keep and read books, shall not be infringed."

 

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

 

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

Gb1XExdm.jpg
 
 

 
 
 
 


#16 cope

    Member

  • Members
  • PipPipPip
  • 174 posts
  • Joined: 20-October 14

Posted 11 October 2018 - 06:47 PM

If I read this correctly. What your saying is you are attempting to torpedo a case that may insure concealed carry simply for the reason that you prefer open carry?

 

I personally prefer 'constitutional carry' in so much as its used to describe ANY form of carry in common vernacular. However I dont see anywhere in the constitution where it says all forms, it merely says the right to bare. If an anti state rules in favor of one form or the other it satisfies the right.

 

Personally I think attempting to sabotage a case which can progress the empowerment of the right in either form of carry only to further your personal preferred method is merely one step removed from an anti.

 

Again, assuming I read you correctly

 

I despise the NRA... but they are right on this one



#17 gangrel

    Member

  • Members
  • 3,079 posts
  • Joined: 13-April 11

Posted 11 October 2018 - 08:47 PM

If I read this correctly. What your saying is you are attempting to torpedo a case that may insure concealed carry simply for the reason that you prefer open carry?
 
I personally prefer 'constitutional carry' in so much as its used to describe ANY form of carry in common vernacular. However I dont see anywhere in the constitution where it says all forms, it merely says the right to bare. If an anti state rules in favor of one form or the other it satisfies the right.
 
Personally I think attempting to sabotage a case which can progress the empowerment of the right in either form of carry only to further your personal preferred method is merely one step removed from an anti.
 
Again, assuming I read you correctly
 
I despise the NRA... but they are right on this one

That's been his MO from the first day he posted here.

Sent from my SM-G965U using Tapatalk


NRA Life Member

NRA Certified Range Safety Officer

NRA Certified Instructor - Basic Pistol, PPIH, PPOH, Rifle, Shotgun, Home Firearm Safety
ISP Approved Firearm Concealed Carry Instructor

Utah CCW Instructor


#18 Charles Nichols

    Member

  • Members
  • PipPipPipPipPip
  • 258 posts
  • Joined: 15-June 16

Posted 12 October 2018 - 11:21 PM

Why is NRA claiming that concealed carry can be banned?

The NRA's argument is that states can ban Open Carry and that states can ban concealed carry, but they cannot ban both, and since California has banned Open Carry this somehow requires the state to issue concealed carry permits.  That is exactly what they argued in Peruta v. San Diego -> https://youtu.be/z7SJe9TH2VA

 

Of course if there is no right to Open Carry or concealed carry then there is no right to carry.  That is Logic 101.

 

Citing the en banc decision in Peruta v. San Diego, 824 F.3d 919 (2016) at 942:

 

"As the uncontradicted historical evidence overwhelmingly shows, the Second Amendment does not protect, in any degree, the right of a member of the general public to carry a concealed weapon in public. The Second Amendment may or may not protect to some degree a right of a member of the general public to carry a firearm in public. If there is such a right, it is only a right to carry a firearm openly. But Plaintiffs do not challenge California's restrictions on open carry; they challenge only restrictions on concealed carry.

 
If there is a Second Amendment right of a member of the general public to carry a firearm openly in public, and if that right is violated, the cure is to apply the Second Amendment to protect that right. The cure is not to apply the Second Amendment to protect a right that does not exist under the Amendment."


#19 Charles Nichols

    Member

  • Members
  • PipPipPipPipPip
  • 258 posts
  • Joined: 15-June 16

Posted 13 October 2018 - 12:38 AM

So, how is this going to affect the case for legal open carry, in plain terms?

In plain terms, judges love to kick cases for lack of standing as it saves them from having them and their clerks do the work necessary to decide the case.  The foremost standing issue is that this is a pre-enforcement challenge, assuming there is even an Open Carry challenge to be found in the Flanagan case.  By failing to articulate a concrete plan to violate any Open Carry ban, the Flanagan plaintiffs lack standing to challenge any Open Carry ban, even if they were actually challenging an Open Carry ban, which they aren't.  This particular insurmountable standing problem is a high procedural bar, specifically 9th circuit judge made law as cited in my Amicus brief.

 

That leaves concealed carry, which it is highly doubtful the Flanagan plaintiffs have standing to challenge for two reasons.  The first of these two is their legal argument that states can ban concealed carry.  If states can ban concealed carry, as the NRA claims in Flanagan (and in Peruta) then there is no "case or controversy" regarding concealed carry.  The second of these two standing problems is the Article III requirement that a Federal issue is before the court.  If there is no Second Amendment right to concealed carry then there is no "injury" to the plaintiffs.  In Peruta, the court skated over the first of these two parts but a party need only fail one of the three prongs of the Article III standing requirements to lose.

 

Normally, the denial of a state license constitutes standing but the en banc Peruta Court, like the Heller, McDonald and Yes, the Robertson v. Baldwin decision from 1897 all said that there is no right to concealed carry under the Second Amendment.  There are those who argue that SCOTUS did not mean what it said about concealed carry, or dismiss it as meaningless dicta, and there are those with the loony argument (such as the NRA lawyers in Flanagan and Peruta, and the SAF and CalGuns.nuts attorneys in Richards v. Prieto) who argue that when SCOTUS said in Heller that Open Carry is the right guaranteed by the Constitution and said that concealed carry is not a right, that really means that states can ban Open Carry in favor of concealed carry.

 

Even if SCOTUS had been silent in regards to concealed carry, whatever three-judge panel is assigned to the Flanagan case is still bound by the eleven-judge en banc panel decision in Peruta, which held that there is no concealed carry right under the Second Amendment or equal protection violation under the 14th Amendment.  Only an en banc court of the 9th circuit or SCOTUS can overturn an en banc decision, which means that any concealed carry claim in the 9th circuit loses.

 

There are only two cases pending in the 9th circuit which have standing to bring an Open Carry challenge, mine (Nichols v. Brown) and Young v. Hawaii.  Mr. Young has won before a three-judge panel.  If his case goes before an en banc panel and his lawyers argue that states can ban Open Carry then Mr. Young could lose his en banc appeal without the en banc court every having to decide whether or not there is a right under the Second Amendment to openly carry a handgun in public.  Of course, if Mr. Young's attorneys make that argument, that would be a textbook example of malpractice.  Whether or not there is a right to openly carry a long gun in public won't be decided by the en banc panel because Mr. Young did not have standing to challenge Hawaii's prohibitions/restrictions on the carrying of long guns in public.  Why?  Because he did not articulate any plan, let alone a concrete plan, to violate those prohibitions/restrictions.

 

What Mr. Young's attorneys can do is argue before an en banc panel that Mr. Young has a Second Amendment right to both Open and concealed carry.  If he loses his concealed carry claim before an en banc panel but wins his Open Carry claim then he could file a cert petition for the claim he lost (concealed carry) but there is a "vehicle problem" with his doing so.  Mr. Young did not state in his Complaint that he wanted both a handgun Open Carry license and a concealed carry license, he asked to be issued one or the other.  In any event, if the en banc petition is denied, Mr. Young will have to file a timely cert petition with SCOTUS, which at least one of his attorneys doesn't seem to keen on doing.

 

If I were a betting man then I would bet that Mr. Young's appeal does not go before an en banc panel.  If the three-judge panel decision stands, his case goes back to the district court for further proceedings.  Proceedings in which he could still lose either on the merits or because his attorneys make some procedural error.

 

But if Mr. Young goes before an en banc panel then the only ways for my appeal to be heard alongside his is for me to file a motion (which I won't) or for the en banc court to sua sponte take jurisdiction of my appeal away from my three-judge panel and an en banc panel can only do that while there is a decision pending by my three-judge panel.  This has happened before but it is extremely rare. So rare that I have found only one 9th circuit decision where this actually happened.

 

You might have noticed that the Flanagan plaintiffs are likewise saying that the en banc Peruta panel did not say what it actually said.  They argue that the en banc Peruta decision did not decide whether or not there is a "right to carry" in any manner despite the explicit holding of the en banc court that concealed carry is not a Second Amendment right and the court did not decide the Open Carry question because that question was not before the court.

 

Long story short, the Flanagan appeal is a nuisance which my Amicus brief has hopefully disposed of.



#20 kevinmcc

    Member

  • Members
  • 2,399 posts
  • Joined: 16-December 12

Posted 13 October 2018 - 10:46 AM

Why is NRA claiming that concealed carry can be banned?


NRA saying states have choice Open Carry or Concealed Carry with permit.

Again this on of those NRA ideas I can not agree with.

You should not be required to have a license to exercise a right that shall not be infringed.
Life Member, Gun Owners of America
Life Member, NRA
Life Member, Oath Keepers
Life Member, Second Amendment Foundation

#21 Charles Nichols

    Member

  • Members
  • PipPipPipPipPip
  • 258 posts
  • Joined: 15-June 16

Posted 15 November 2018 - 01:36 AM

It seems that I neglected to post a link to my Amicus brief.  Here it is -> http://michellawyers...ither-Party.pdf

 

The Appellants' opening brief was filed on October 12, 2018.  Anyone who wanted to file an Amicus brief in support of the Flanagan case had 10 days from the filing of the opening brief to file their Amicus brief or motion to file an Amicus brief.  

 

Nobody did.

 

My Amicus brief is in support of neither party as all of the parties oppose Open Carry.

 

The Appellees, Xavier Becerra and James McDonnell, answering brief is due on 12/13/2018. Given that the usual suspects who file Amicus briefs in opposition to the Second Amendment (Brady Center, Everytown, LCPGV) pretty much file the same Amicus briefs in every case, it won't take much effort to change the cover sheets and upload them in this appeal.  Their briefs are also due within 10 days of the filing of the answering briefs.

 

The optional reply brief is due 21 days from the date of service of the answering brief.

 

My new website no longer tracks the Flanagan case.  http://CaliforniaOpenCarry.com






0 user(s) are reading this topic

0 members, 0 guests, 0 anonymous users