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California Open Carry Lawsuit - Nichols v. Brown

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#151 Soutsidr

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Posted 15 February 2018 - 02:39 PM

I listened vtovthe live stream linked on the court's website. There was considerable discussion about the implications of a specific police search -a chamber check to find if a gun was loaded, and they discussed the possibility of an officer finding cocaine hidden in the chamber and if that, falling outside of the specific intent of the search would fall under the scope of the 4th Amendment.

#152 RonOglesby - Now in Texas

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Posted 15 February 2018 - 03:02 PM

I listened vtovthe live stream linked on the court's website. There was considerable discussion about the implications of a specific police search -a chamber check to find if a gun was loaded, and they discussed the possibility of an officer finding cocaine hidden in the chamber and if that, falling outside of the specific intent of the search would fall under the scope of the 4th Amendment.

WTH?


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#153 press1280

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Posted 15 February 2018 - 04:04 PM

I think the 4th Amendment discussion is only relevant if Nichols prevails on the 2A question.

 

It didn't seem to go well. But Young will likely win IMO, and in turn will allow Nichols to win.



#154 Charles Nichols

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Posted 15 February 2018 - 07:20 PM

I think the 4th Amendment discussion is only relevant if Nichols prevails on the 2A question.

 

It didn't seem to go well. But Young will likely win IMO, and in turn will allow Nichols to win.

Try reading my briefs and FRAP 28(j) letters.  Someone should, it is obvious the judges didn't.  Unless the possession of firearms is presumptively unlawful under state law then the mere sight of a firearm does not constitute reasonable suspicion or probable cause that a crime is being committed which means the Fourth Amendment is in full force.

 

The possession of firearms under California law is an innocent act.  If I am openly carrying a firearm in a place where it is legal to openly carry a firearm then there is not a reasonable suspicion or probable cause to believe that the firearm is loaded.

 

Judge Berzon asked the state's attorney if the court should create a firearms exception to the warrant requirement like the one for automobiles?  Given that the US Supreme Court has already said that there isn't one then if the 9th circuit creates one then that might just tip the scale in favor of my cert petition.



#155 Charles Nichols

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Posted 15 February 2018 - 07:22 PM

I listened to the oral arguements. It went in directions I did not expect.

Neither did I.



#156 Soutsidr

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Posted 15 February 2018 - 09:09 PM

I listened to the oral arguements. It went in directions I did not expect.

Neither did I.
We'll see how it goes. The male judge didn't seem to be sympathetic to your case from the get go. He was rejecting what should have been settled previously. I don't think you said anything that could harm your case. The state counsel was a much more polished speaker, but the one female judge pounded him on the 4A issue. She understood how it tied in to the big picture. The cocaine in the chamber stuff was wierd, but it made a solid point. I haven't read the briefs or statutes, but if your written arguments connect the dots clearly enough, you might prevail.

#157 Charles Nichols

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Posted 15 February 2018 - 09:27 PM

 

 

I listened to the oral arguements. It went in directions I did not expect.

Neither did I.
We'll see how it goes. The male judge didn't seem to be sympathetic to your case from the get go. He was rejecting what should have been settled previously. I don't think you said anything that could harm your case. The state counsel was a much more polished speaker, but the one female judge pounded him on the 4A issue. She understood how it tied in to the big picture. The cocaine in the chamber stuff was wierd, but it made a solid point. I haven't read the briefs or statutes, but if your written arguments connect the dots clearly enough, you might prevail.

 

I now see why I was granted oral argument.  The judges wanted me to make a concession which would be fatal to my appeal.  I didn't but the state's attorney did on the Fourth Amendment.

 

I agree about the cocaine in the chamber stuff.  That was very strange and I could make no sense of it because if a search is legal, even if it were for something else (like a bullet) then it doesn't matter if cocaine was found instead because it would be in "plain sight."

 

What the judges ignored, which I argued in my briefs and in my 28(j) letter is that if the initial detention is done without having reasonable suspicion then any evidence of a crime, like a bullet in the firing chamber, can't be used as evidence.  This is the exclusionary rule which did not exist in California prior to Mapp v. Ohio.

 

Moreover, the state statute, PC 25850 states that probable cause for an arrest does not arise until one refuses to be searched.  The US Supreme Court, and the 9th circuit court of appeals, and the California courts have long held that mere refusal cannot constitute probable cause because that would render the Fourth Amendment null and void.

 

I suspect that I will win my Fourth Amendment claim.


Edited by Charles Nichols, 15 February 2018 - 09:28 PM.


#158 ChicagoRonin70

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Posted 15 February 2018 - 10:02 PM

 

 

Neither did I.

We'll see how it goes. The male judge didn't seem to be sympathetic to your case from the get go. He was rejecting what should have been settled previously. I don't think you said anything that could harm your case. The state counsel was a much more polished speaker, but the one female judge pounded him on the 4A issue. She understood how it tied in to the big picture. The cocaine in the chamber stuff was wierd, but it made a solid point. I haven't read the briefs or statutes, but if your written arguments connect the dots clearly enough, you might prevail.

 

I now see why I was granted oral argument.  The judges wanted me to make a concession which would be fatal to my appeal.  I didn't but the state's attorney did on the Fourth Amendment.

 

I agree about the cocaine in the chamber stuff.  That was very strange and I could make no sense of it because if a search is legal, even if it were for something else (like a bullet) then it doesn't matter if cocaine was found instead because it would be in "plain sight."

 

What the judges ignored, which I argued in my briefs and in my 28(j) letter is that if the initial detention is done without having reasonable suspicion then any evidence of a crime, like a bullet in the firing chamber, can't be used as evidence.  This is the exclusionary rule which did not exist in California prior to Mapp v. Ohio.

 

Moreover, the state statute, PC 25850 states that probable cause for an arrest does not arise until one refuses to be searched.  The US Supreme Court, and the 9th circuit court of appeals, and the California courts have long held that mere refusal cannot constitute probable cause because that would render the Fourth Amendment null and void.

 

I suspect that I will win my Fourth Amendment claim.

 

 

So, ultimately, what will that mean in the overall argument and ability to open carry, both in California and in a national sense? Can you encapsulate and distill it down?


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#159 Charles Nichols

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Posted 15 February 2018 - 10:38 PM

 


 

So, ultimately, what will that mean in the overall argument and ability to open carry, both in California and in a national sense? Can you encapsulate and distill it down?

 

A decision in my case won't be applicable nationwide unless it goes before the US Supreme Court.  The 9th circuit court of appeals has already held that there is no right of the general public to concealed carry.  Ultimately, we are going to have to wait and see what the two panels decide in my appeal and in the Young v. Hawaii appeal and then wait and see if either, or both, decision go before an en banc court or to SCOTUS.



#160 ChicagoRonin70

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Posted 16 February 2018 - 10:16 AM

 

 


 

So, ultimately, what will that mean in the overall argument and ability to open carry, both in California and in a national sense? Can you encapsulate and distill it down?

 

A decision in my case won't be applicable nationwide unless it goes before the US Supreme Court.  The 9th circuit court of appeals has already held that there is no right of the general public to concealed carry.  Ultimately, we are going to have to wait and see what the two panels decide in my appeal and in the Young v. Hawaii appeal and then wait and see if either, or both, decision go before an en banc court or to SCOTUS.

 

 

Well, that's interesting. What is the likelihood that if it goes against the 9th Circuit that they will do something like what D.C. did with Wrenn v. District of Columbia and not appeal an adverse decision in order to avoid a nationally reaching decision that they are fearful of losing?

 

As well, if they do something like that, is there any way to force the issue and have the good side (carriers) be able to push the case to the Supreme Court and get a "once and for all" decision to stop this kind of nonsense?


"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
 
 

 
 
 
 


#161 Charles Nichols

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Posted 16 February 2018 - 10:51 AM

 

 

 


 

So, ultimately, what will that mean in the overall argument and ability to open carry, both in California and in a national sense? Can you encapsulate and distill it down?

 

A decision in my case won't be applicable nationwide unless it goes before the US Supreme Court.  The 9th circuit court of appeals has already held that there is no right of the general public to concealed carry.  Ultimately, we are going to have to wait and see what the two panels decide in my appeal and in the Young v. Hawaii appeal and then wait and see if either, or both, decision go before an en banc court or to SCOTUS.

 

 

Well, that's interesting. What is the likelihood that if it goes against the 9th Circuit that they will do something like what D.C. did with Wrenn v. District of Columbia and not appeal an adverse decision in order to avoid a nationally reaching decision that they are fearful of losing?

 

As well, if they do something like that, is there any way to force the issue and have the good side (carriers) be able to push the case to the Supreme Court and get a "once and for all" decision to stop this kind of nonsense?

 

I have no way of knowing what California will do.  There is no way to force SCOTUS to take a case short of Congress passing a law requiring SCOTUS to take Second Amendment cases.


Edited by Charles Nichols, 16 February 2018 - 10:52 AM.


#162 jagt48

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Posted 16 February 2018 - 02:15 PM

Wouldn't that violate the separation of powers of the different branches of government?

#163 Charles Nichols

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Posted 16 February 2018 - 03:34 PM

Wouldn't that violate the separation of powers of the different branches of government?

No.  The Congress creates the rules of the court, which SCOTUS accepts especially if it means less work for the courts as in the case of Congress'  enacting AEDPA.  If Congress wanted to, it could abolish all of the lower Federal courts and require the Supreme Court justices to ride the circuit on horseback to hear cases.



#164 borgranta

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Posted 16 February 2018 - 10:29 PM

So, ultimately, what will that mean in the overall argument and ability to open carry, both in California and in a national sense? Can you encapsulate and distill it down?

A decision in my case won't be applicable nationwide unless it goes before the US Supreme Court.  The 9th circuit court of appeals has already held that there is no right of the general public to concealed carry.  Ultimately, we are going to have to wait and see what the two panels decide in my appeal and in the Young v. Hawaii appeal and then wait and see if either, or both, decision go before an en banc court or to SCOTUS.
 
Well, that's interesting. What is the likelihood that if it goes against the 9th Circuit that they will do something like what D.C. did with Wrenn v. District of Columbia and not appeal an adverse decision in order to avoid a nationally reaching decision that they are fearful of losing?
 
As well, if they do something like that, is there any way to force the issue and have the good side (carriers) be able to push the case to the Supreme Court and get a "once and for all" decision to stop this kind of nonsense?
A challenge to open carry bans could be filed in other circuits even if this case wins at the 9th and is not appealed. Gaining national open carry a circuit at a time may be necessary. If one of the circuits were to rule that open carry as not being a right it may result in a circuit split.
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#165 Charles Nichols

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Posted 16 February 2018 - 11:53 PM

A challenge to open carry bans could be filed in other circuits even if this case wins at the 9th and is not appealed. Gaining national open carry a circuit at a time may be necessary. If one of the circuits were to rule that open carry as not being a right it may result in a circuit split.

 

SCOTUS Rule 10 does not require the split be between the Federal circuits.  If there is a state court of last resort decision on Federal law which conflicts with another state court of last resort decision on the same question of Federal law OR a Federal circuit court of appeals then that constitutes a split.

 

That is one of the things about the Norman v. State cert petition which upset me.  Norman's lawyers had multiple circuit splits but his cert petition did not even use the word "split."



#166 Charles Nichols

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Posted 18 February 2018 - 09:19 PM

Here is an excerpt from my oral argument.  The judge in the center asking the questions is Judge Berzon.  The judge sitting to her right is Judge Bybee.  Judge Berzon wrote the en banc decision for Teixeria v. County of Alameda which Judge Bybee joined.  She held that the Second Amendment is the right to keep and bear arms, reserving the question as to whether or not the right extended beyond the home because that question was not before the court.

 

https://youtu.be/RxfQnicLO6c

 

Here is another excerpt where I argue my Fourth Amendment claim.

 

https://youtu.be/fnKN6BfzQ64

 

The court did not ask any question that I had not already answered in my Opening Brief.

 

It appears that the only reason oral argument was granted in my case was to give me the opportunity to make a concession fatal to my appeal.  I made no concessions.  I did not even accept the premise of their questions for the sake of argument.

 

However, the state's attorney did make concessions.  One was as to my Fourth Amendment claim, saying that if the carrying of a firearm is not "criminable" then the defendants lose.  Judge Berzon then asked the state's attorney if they should make an "automobile exception" for firearms, which she said would make more sense than for automobiles but, upon reflection, she realized that even the automobile exception requires probable cause.

 

The state's attorney also conceded that a firearm is not loaded unless there is an unexpended round in the firing chamber.  Under current California law, merely having matching ammunition in one's possession constitutes a "loaded" firearm.  The sneer quotes around "loaded" appear in the text of the statutes.

 

The state's attorney also conceded that the district court judge did not have the authority to dismiss my state law claims under the California Constitution with prejudice.  The claims should have been dismissed "without leave to amend."  There is an important distinction between the two.  A dismissal of my state law claims with prejudice precludes my filing a lawsuit in state court.  A dismissal of my state law claims without leave to amend allows me to challenge the same laws as violating the California Constitution.

 

As you can tell by my tone of voice, I was both shocked and frustrated by the questioning.  The judges did not ask a single question which I had not already answered in my opening brief on appeal.

 

Fortunately, I kept my composure and answered the questions with legal responses instead of saying what I was really thinking. 



#167 JTHunter

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Posted 18 February 2018 - 10:15 PM

Charles, good for you on keeping your cool !!  That can be very difficult when asked repetitious and pendantic questions.

Good luck !


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#168 Charles Nichols

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Posted 18 February 2018 - 10:27 PM

Charles, good for you on keeping your cool !!  That can be very difficult when asked repetitious and pendantic questions.

Good luck !

Judge Berzon's Fourth Amendment question was bizarre.  Particularly so given my opening brief cited a decision of hers which held that having a firearm AND a hypodermic needle in a motor vehicle does not constitute reasonable suspicion or probable cause that a crime has been committed because Nevada law does not prohibit unloaded firearms in motor vehicles.

 

The state's attorney does not dispute that California's "chamber check" law is a suspicionless search.

 

And yet, I had to restate the obvious.  That police cannot arrest someone without probable cause.  They can't even detain a person unless he has an articulable, objective, reasonable suspicion.

 

Apparent the Fourth Amendment protects only addicts, convicted felons, and other people illegally in possession of a firearm.

 

Who knew?



#169 RonOglesby - Now in Texas

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Posted 20 February 2018 - 03:38 PM

I wish I could hear the entire orals. I still find it odd that you are arguing chamber check...  it isnt like you can carry open right now in LA or San Fran... this isnt abt chamber check.


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#170 Soutsidr

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Posted 20 February 2018 - 05:21 PM

It was the state and one of the judges going back and forth about the chamber check, not Mr. Nichols.

Off topic, but Ron, did you ever teach high school typing classes during the 1980s?

#171 Charles Nichols

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Posted 20 February 2018 - 07:08 PM

I wish I could hear the entire orals. I still find it odd that you are arguing chamber check...  it isnt like you can carry open right now in LA or San Fran... this isnt abt chamber check.

My lawsuit is about many things and one of those things is the Fourth Amendment.  Under California law, possession of a firearm is an innocent act.  If possession were per se unlawful then the sight of a firearm would constitute probable cause for an arrest.

 

The state wants to remove firearms, and persons who carry firearms from the protections of the Fourth Amendment.

 

There are lots of people who can Open Carry in Los Angeles and San Francisco and in every incorporated city. Hunters for example.  They can carry loaded if hunting is not prohibited in the incorporated city and they can carry unloaded (empty firing chamber) if hunting is prohibited.

 

Under California law, one's residential property is considered to be a "public place" where the Open Carry bans apply.

 

If I win my Fourth Amendment claim, which is more likely than not then every place it is legal to openly carry an unloaded firearm (or loaded) becomes a place where the police will not be able to stop you in order to see if your firearm is unloaded.  If I win then it will also prohibit the police from arresting a person for asserting his Fourth Amendment right, which is what the challenged statute says.

 

That includes on your own private residential property which is what must land in incorporated cities is comprised of.

 

Finally, if the court accepts my definition of loaded, which is basically if the firing chamber is empty then the firearm is unloaded, which the state conceded in oral argument then one will be able to carry a revolver with live rounds in the cylinder, and one will be able to carry firearms with loaded magazines attached so long as the firing chamber remains empty.

 

Under current California law, a firearm is "loaded" if ammunition is attached in any matter (1967 Loaded Open Carry ban) or if one is merely in possession of matching ammunition (recently enacted Unloaded Open Carry bans).

 

Even if I were to lose everything other than what constitutes a loaded firearm, a victory there would enable people to have some chance to defend themselves whereas today, they have none.



#172 Charles Nichols

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Posted 20 February 2018 - 07:10 PM

It was the state and one of the judges going back and forth about the chamber check, not Mr. Nichols.

Off topic, but Ron, did you ever teach high school typing classes during the 1980s?

Don't underestimate the power of winning the fight over the definition of what constitutes a loaded firearm.  See my post at #171.



#173 Charles Nichols

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Posted 27 February 2018 - 08:36 PM

Twelve days ago, at the completion of oral argument in my appeal my case was taken under submission for a decision by the 3-judge panel assigned to my case.  I opened my oral argument by pointing out to the judges assigned to my appeal that the Young v. Hawaii case had already been taken under submission for a decision.

 

The threshold question in Young is whether or not the Second Amendment extends outside of one's home.

 

The State of California wanted the 3-judge panel assigned to my appeal to issue its decision and kill two birds with one stone.  My appeal and the Young appeal, as the 3-judge panel assigned to Young v. Hawaii seemed to be more favorable of the Second Amendment than were the three judges assigned to my appeal.

 

Well, that won't be happening.  Today, the submission of my case, Nichols v. Brown, was vacated pending a decision in Young v. Hawaii.

 

This is potentially a good thing.  We will have to wait and see.



#174 RonOglesby - Now in Texas

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Posted 01 March 2018 - 10:37 AM

It was the state and one of the judges going back and forth about the chamber check, not Mr. Nichols.

Off topic, but Ron, did you ever teach high school typing classes during the 1980s?

OT: I did not. In the 80's I was the student in HS...


Edited by RonOglesby - Now in Texas, 01 March 2018 - 10:37 AM.

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#175 Charles Nichols

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Posted 07 May 2018 - 09:33 PM

After the Peruta v. San Diego concealed carry appeal lost en banc in 2016, the NRA filed Peruta II (Flanagan v. Harris) which made the same argument that was made in Peruta -That states can ban Open Carry in favor of concealed carry.  That case lost in the district court today.  This time, the NRA mentioned California's Open Carry bans but the Plaintiffs failed to articulate, either in the Complaint or in a declaration, a concrete plan to so much as step outside the door to his or her home carrying a loaded firearm (or unloaded modern firearm) in violation of the law.  Given the 9th circuit's high threshold to have standing to challenge a law, failure to do so means the NRA won't have standing to challenge the Open Carry bans on appeal.  In fact, three of the Plaintiffs, including the lead plaintiff, disavowed a desire to openly carry firearms during their depositions.  

 

However, the NRA plaintiffs did apply for, and where denied, concealed carry permits so they will have standing to challenge the denial of the permits on appeal.  Whether or not that was the NRA lawyers' plan all along is hard to say.  After all, these are the same lawyers who argued in Jackson v. San Francisco that large capacity magazine bans are constitutional, so long as that number is somewhere north of 10 rounds.  In any event, their concealed carry claim is precluded by the Peruta v. San Diego decision.  It would take an en banc panel to reverse the prior panel decision and that just ain't gonna happen.

 

Instead of filing a motion for partial summary judgment, the NRA filed a motion for summary judgment.  That means there is no do-over for them at the end of their appeal.

 

Did I mention that in their Complaint they argued that the limitations on Open Carry licenses are unconstitutional but instead of seeking to strike those limitations in their Prayer for Relief, they sought an injunction against the subsection of the law which provides for the issuance of handgun Open Carry licenses?  Which, if granted, would have eliminated Open Carry licenses.  Fortunately, they forgot to mention the Open Carry licensing statute in their motion for summary judgment which means they forfeited that relief.

 

Attached is Judge Kronstadt's final judgment.  For those interested in more legal babble, all of the relevant filings in this case can be found at my website.

 

Attached File  81 - Order on Motion for Summary Judgment.pdf   190.08KB   48 downloads

 

   



#176 press1280

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Posted 08 May 2018 - 10:37 AM

But it seems this judge has ruled that the right doesn't extend past the front door, or that somehow a total ban is permissible?

#177 Charles Nichols

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Posted 08 May 2018 - 10:15 PM

But it seems this judge has ruled that the right doesn't extend past the front door, or that somehow a total ban is permissible?

Judge Kronstadt's decision was even more twisted.  He cited Peruta en banc which said that its decision and this circuit (and Heller) had not decided the question as to whether or not there is a right to openly carry firearms in public.  Being an en banc decision, all prior 3 judge panel decisions have to be read consistently with the Peruta en banc decision.  So what does John Kronstadt do?  He cites a prior decision, Chovan, which did not involve carrying firearms outside of the home, it involved persons convicted of domestic violence being prohibited from possessing firearms for the conclusion that the core right is limited to one's home.

 

Finally, Judge Kronstadt smears himself with his own ruling by saying that it is not necessary to decide whether or not there is a right to Open Carry, the "grave, immediate danger" exception is a reasonable fit.  "Grave, immediate danger" is not an exception under California law.  It is an affirmative defense, not even close to being the same thing.



#178 Charles Nichols

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Posted 24 May 2018 - 08:53 PM

Final judgment was entered today in the NRA's Fake Open Carry lawsuit, Flanagan v. Harris (now v. Becerra).  The plaintiffs have to file their notice of appeal within 30 days.  The judge awarded the lone defendant, California Attorney General Xavier, costs of the suit.  I suspect he will be filing a motion for attorney fees within the next two weeks.

 

http://blog.californ...n-v.-Harris.pdf



#179 Soutsidr

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Posted 19 July 2018 - 09:40 AM

Has anyone heard anything about this case or the Hawaii one? It seems like we should hear something sooner or later.

#180 press1280

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Posted 19 July 2018 - 10:36 AM

Yea, this is the 9th Circuit. It'll be later. Probably February 2019, 1 year after oral arguments.





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