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California Open Carry Lawsuit - Nichols v. Brown

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#61 Charles Nichols

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Posted 01 July 2016 - 10:34 PM

We don't have a outright ban on open carry here in Illinois.  We can open carry while fishing, and hunting now too I believe.  :pinch:

 

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I don't know of any state which doesn't exempt hunting but give California a little more time, there isn't a whole lot left to ban here.



#62 kwc

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Posted 02 July 2016 - 05:20 AM

Geez, and after Governor Moonbeam just signed a bunch of anti-rights laws yesterday, you're going to need to rely on baseball bats and butter knives!
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#63 Charles Nichols

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Posted 02 July 2016 - 01:13 PM

Geez, and after Governor Moonbeam just signed a bunch of anti-rights laws yesterday, you're going to need to rely on baseball bats and butter knives!

California has already banned the carrying of baseball bats for the purpose of self-defense.  The courts consider them to be clubs.

 

Butter knives are still legal provided that they are openly carried in a sheath and one is not in a city, like Redondo Beach, CA, which has banned all weapons or in the City of Los Angeles which requires knives to be carried concealed in violation of state law.



#64 skinnyb82

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Posted 03 July 2016 - 07:23 PM

Wonder how long before CA forces all combat vets from units falling under SOCOM to register themselves as assault weapons. Since every single SF vet I know is far more dangerous than any butter knife or baseball bat. Sent from my VS987 using Tapatalk
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#65 Charles Nichols

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Posted 03 July 2016 - 08:11 PM

Wonder how long before CA forces all combat vets from units falling under SOCOM to register themselves as assault weapons. Since every single SF vet I know is far more dangerous than any butter knife or baseball bat. Sent from my VS987 using Tapatalk

Shhh!  Don't give them any ideas.  



#66 Charles Nichols

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Posted 09 July 2016 - 09:19 PM

I emailed the state's attorney for Governor Brown and Attorney General Harris asking what his clients current position on the Second Amendment is given the concession of the California Solicitor General during the en banc oral arguments in Peruta v. San Diego/Richards v. Prieto that, as per Heller, the Second Amendment right to openly carry a firearm extends beyond the curtilage of one's home.
 
This is the response I received just a few minutes ago:
 
"The AGO does not have any comment to make in response to your questions below, other than to make clear that the AGO will be opposing your appeal in your open-carry case."
 
I followed up with an email reminding the state's attorney that Governor Brown is also an appellee and to confirm his position.
 
I expect to receive the same response regarding Governor Brown.  :laugh:
 
 


#67 Charles Nichols

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Posted 19 July 2016 - 12:49 AM

As per the court ORDER of April 6, 2016, I have filed my Status Report and hopefully what will be the very last Unopposed Motion to Stay my appeal.  I have asked for what I hope will be a short stay (45 days past the issuance of the mandate in Peruta/Richards).  I, and others, have asked for stays pending the issuance of the mandate in Peruta/Richards only to have our appeals stayed for a fixed number of days.  The last person asked for a 90 day stay following the issuance of the mandate and was instead stayed for 96 days.  My last stay was for 106 days.  The shortest stay in my appeal has been for 60 days.

 

I suspect that my appeal will be stayed for a fixed number of days.  One would think the clerks have enough paperwork to process and, after all, there isn’t a whole lot I can do with my appeal until the mandate issues in Peruta/Richards but it is what it is.

 

Regardless, my motion and status report was due by July 20, 2016.  They were both filed and served on time.  I did use this opportunity to point out the fatal defects in two Hawaii "carry" cases and to distance my case from the Army Corp of Engineer lawsuit.

 

Now we wait.

 

23 – Unopposed Motion to Stay Pending Mandate in Peruta and Richards

24 – Court Ordered Status Report of July 17-2016


Edited by Charles Nichols, 19 July 2016 - 12:50 AM.


#68 Charles Nichols

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Posted 22 July 2016 - 06:54 PM

My California Open Carry appeal is stayed pending the dispositions of the petitions for Full Court rehearing of Peruta v. San Diego and Richards v. Prieto until November 17, 2016.  This should be the final stay of my appeal.



#69 BShawn

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Posted 22 July 2016 - 09:03 PM

Sorry I am late to the party. Welcome to IllinoisCarry!


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~ I'm not the "bad guy" here, I just want to be able to defend myself and my family. Anywhere I should be permitted to carry a pencil (1st amendment), I should also be able to carry a firearm (2nd amendment) !!!!!!!!!!

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#70 Charles Nichols

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Posted 17 August 2016 - 09:05 PM

Today, the NRA filed an "Open Carry" lawsuit which seeks concealed carry permits.

 

I kid you not.

 

Flanagan v. Harris



#71 borgranta

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Posted 17 August 2016 - 09:43 PM

Today, the NRA filed an "Open Carry" lawsuit which seeks concealed carry permits.
 
I kid you not.
 
Flanagan v. Harris

Is this an attempt to blackmail the state legislature into turning may issue into shall issue under the threat of statewide open carry?
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#72 Charles Nichols

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Posted 17 August 2016 - 10:26 PM

 

Today, the NRA filed an "Open Carry" lawsuit which seeks concealed carry permits.
 
I kid you not.
 
Flanagan v. Harris

Is this an attempt to blackmail the state legislature into turning may issue into shall issue under the threat of statewide open carry?

 

The NRA lawsuit seeks an injunction against California Penal Code section 26150(B)(2) which authorizes county sheriffs to issue handgun Open Carry licenses if the county has a population of fewer than 200,000 people.  If the NRA is successful then the county sheriffs would be prohibited from issuing handgun Open Carry permits everywhere in the state.  The statute would provide solely for concealed carry permits.

 

My lawsuit, on the other hand, seeks to strike the population and residency requirements from the statute as well as the ancillary statutes including the one requiring fees (the fee cap is about to be removed).  If I am successful then anyone who is not prohibited under Federal or state law from possessing a firearm would be able to obtain a license to openly carry a loaded handgun and that license would be valid statewide.  This is an alternate challenge in my lawsuit.  I challenge a permit requirement as applied only to Open Carry.  If my lawsuit is successful then no permit will be required to openly carry a loaded or unloaded firearm in non-sensitive public places.

 

The NRA lawsuit isn't really an Open Carry lawsuit.  It is another feeble attempt at obtaining concealed carry permits which is precluded by the en banc decision in Peruta v. San Diego.  To the extent there is a viable claim against PC 25850, PC 26350 and PC 26400 (at this point there is not a viable claim) my California Open Carry lawsuit challenges the constitutionality of those laws and my appeal has priority over the NRA lawsuit filed today.

 

It is fairly easy to predict what is likely to happen next with the NRA lawsuit.

 

1.  The Sheriff will file a motion to dismiss the concealed carry challenge because it is precluded by Peruta v. San Diego en banc and his motion will be granted with prejudice.  The sheriff will no longer be a defendant.

2.  Attorney General Harris will file a motion to dismiss and/or a motion to stay the case pending a decision in my appeal.  If her motion to dismiss is granted then it will be without prejudice.  The NRA will be given another shot at writing a Complaint against the Attorney General.  More likely, the lawsuit will be stayed pending a decision in my appeal.


Edited by Charles Nichols, 17 August 2016 - 10:26 PM.


#73 borgranta

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Posted 17 August 2016 - 11:47 PM

A right can not be licensed so suing to have the ban on unlicensed open carry be declared unconstitutional would be the way to go in my opinion.
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#74 Glock23

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Posted 18 August 2016 - 11:23 AM

Today, the NRA filed an "Open Carry" lawsuit which seeks concealed carry permits.

 

I kid you not.

 

Flanagan v. Harris

 

The California Rifle and Pistol Association is not the NRA.  Whether the NRA supports the lawsuit or not, the CRPA is its own entity, just as we in Illinois have the Illinois State Rifle Association (ISRA).


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#75 Charles Nichols

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Posted 18 August 2016 - 02:54 PM

 

Today, the NRA filed an "Open Carry" lawsuit which seeks concealed carry permits.

 

I kid you not.

 

Flanagan v. Harris

 

The California Rifle and Pistol Association is not the NRA.  Whether the NRA supports the lawsuit or not, the CRPA is its own entity, just as we in Illinois have the Illinois State Rifle Association (ISRA).

 

The CRPA is the official state organization of the NRA.  The NRA refers to the attorney who filed the lawsuit as the "NRA West Coast Counsel". The NRA is funding the lawsuit.

 

But thanks for playing.



#76 Glock23

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Posted 18 August 2016 - 03:34 PM

 

 

Today, the NRA filed an "Open Carry" lawsuit which seeks concealed carry permits.

 

I kid you not.

 

Flanagan v. Harris

 

The California Rifle and Pistol Association is not the NRA.  Whether the NRA supports the lawsuit or not, the CRPA is its own entity, just as we in Illinois have the Illinois State Rifle Association (ISRA).

 

The CRPA is the official state organization of the NRA.  The NRA refers to the attorney who filed the lawsuit as the "NRA West Coast Counsel". The NRA is funding the lawsuit.

 

But thanks for playing.

 

 

I completely understand that, but it's still a CRPA lawsuit, not an NRA lawsuit.  The NRA ILA is fully capable of filing lawsuits on its own behalf.  So regardless of whether or not it's an NRA lawyer spearheading this one, it still doesn't make it an NRA lawsuit.

 

Case in point, the keywords "NRA" and "National Rifle Association" are not contained within the filing.

 

That was pretty much my key point, whether semantics or not... you, however, chose to be a *self censored* about it, which has been pretty common with you since you joined this forum.


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#77 Charles Nichols

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Posted 18 August 2016 - 03:58 PM


 


The CRPA is the official state organization of the NRA.  The NRA refers to the attorney who filed the lawsuit as the "NRA West Coast Counsel". The NRA is funding the lawsuit.

 

 

But thanks for playing.

 

I completely understand that, but it's still a CRPA lawsuit, not an NRA lawsuit.  The NRA ILA is fully capable of filing lawsuits on its own behalf.  So regardless of whether or not it's an NRA lawyer spearheading this one, it still doesn't make it an NRA lawsuit.

 

Case in point, the keywords "NRA" and "National Rifle Association" are not contained within the filing.

 

That was pretty much my key point, whether semantics or not... you, however, chose to be a *self censored* about it, which has been pretty common with you since you joined this forum.

 

The NRA does not have to be a plaintiff in the lawsuit for this to be an NRA lawsuit.

 

But once again, thanks for playing.  There is a bottle of Turtle Wax waiting for you in the lobby as you leave.



#78 mauserme

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Posted 18 August 2016 - 05:45 PM

This thread will be a lot more useful when it gets back to the specifics of Nichols v Brown.

 

I removed a couple off topic posts.


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#79 Charles Nichols

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Posted 18 August 2016 - 06:19 PM

This thread will be a lot more useful when it gets back to the specifics of Nichols v Brown.

 

I removed a couple off topic posts.

Speaking of the specifics of my appeal:

 

Update by Charles Nichols, President of California Right To Carry – August 18, 2016 - The Defendants and I agreed on a briefing schedule which the court approved on July 22, 2016.  Now that the Full Court petitions in Peruta v. San Diego and Richards v. Prieto have been denied, the state's attorney agreed that there is no longer any reason to stay my appeal.  The state's attorney also agreed that neither Baker v. KealohaYoung v. Hawaii nor Nesbitt v. Army Corps of Engineers justify a further stay.  Keep in mind that I initially opposed any stay of my case.  I argued, correctly, that my appeal does not involve concealed carry in any shape or form and that the Peruta/Richards lawsuits did not seek to openly carry firearms in any shape or form.  Unfortunately, I was overruled by the court and my appeal was stayed.

 

My Opening Brief will be filed on, or before, November 17, 2016.  The defendants (Governor Brown and Attorney General Harris) Answering brief is due on December 19th, 2016.  The defendants are entitled to a single 30 day extension.  My optional Reply Brief is due 14 days after I am served with the defendants Answering Brief.  Likewise, I am entitled to a single 30 day extension in filing my Reply Brief.  Worst case scenario is that my appeal will be fully briefed the first week of February, 2017.

 

Shortly after filing my Opening Brief, I will file a petition for my case to be heard initially before an en banc panel of judges and a motion for expedited oral arguments and a decision.

I am also leaning toward seeking a temporary injunction pending a decision in my appeal.



#80 DoverGunner

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Posted 18 August 2016 - 06:38 PM

 

This thread will be a lot more useful when it gets back to the specifics of Nichols v Brown.

 

I removed a couple off topic posts.

Speaking of the specifics of my appeal:

 

Update by Charles Nichols, President of California Right To Carry – August 18, 2016 - The Defendants and I agreed on a briefing schedule which the court approved on July 22, 2016.  Now that the Full Court petitions in Peruta v. San Diego and Richards v. Prieto have been denied, the state's attorney agreed that there is no longer any reason to stay my appeal.  The state's attorney also agreed that neither Baker v. KealohaYoung v. Hawaii nor Nesbitt v. Army Corps of Engineers justify a further stay.  Keep in mind that I initially opposed any stay of my case.  I argued, correctly, that my appeal does not involve concealed carry in any shape or form and that the Peruta/Richards lawsuits did not seek to openly carry firearms in any shape or form.  Unfortunately, I was overruled by the court and my appeal was stayed.

 

My Opening Brief will be filed on, or before, November 17, 2016.  The defendants (Governor Brown and Attorney General Harris) Answering brief is due on December 19th, 2016.  The defendants are entitled to a single 30 day extension.  My optional Reply Brief is due 14 days after I am served with the defendants Answering Brief.  Likewise, I am entitled to a single 30 day extension in filing my Reply Brief.  Worst case scenario is that my appeal will be fully briefed the first week of February, 2017.

 

Shortly after filing my Opening Brief, I will file a petition for my case to be heard initially before an en banc panel of judges and a motion for expedited oral arguments and a decision.

I am also leaning toward seeking a temporary injunction pending a decision in my appeal.

 

For us non legal speaking Peeps , what does it mean ?????????????????



#81 kwc

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Posted 18 August 2016 - 08:20 PM


The defendants are entitled to a single 30 day extension.


If only the 7th Circuit Court of Appeals imposed similar limitations!

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#82 Charles Nichols

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Posted 18 August 2016 - 08:50 PM

 

The defendants are entitled to a single 30 day extension.
 


If only the 7th Circuit Court of Appeals imposed similar limitations!

 

The limitation was made by mutual agreement which I submitted via an unopposed motion which was granted.  Each side is entitled to an automatic 30 day extension to the filing of our briefs without having to file a motion or get permission by the clerk so that part is nothing special.  The defendants agreeing to the briefing schedule and the court granting the motion to limit the briefing schedule is what was special.  Otherwise, the defendants could have asked for, and likely be granted, one extension after another to the deadline for filing its Answering brief.



#83 kwc

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Posted 18 August 2016 - 10:12 PM

Otherwise, the defendants could have asked for, and likely be granted, one extension after another to the deadline for filing its Answering brief.


We know that strategy all too well, unfortunately.
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#84 borgranta

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Posted 19 August 2016 - 12:53 AM

Today, the NRA filed an "Open Carry" lawsuit which seeks concealed carry permits.
 
I kid you not.
 Flanagan v. Harris

Is this an attempt to blackmail the state legislature into turning may issue into shall issue under the threat of statewide open carry?
The NRA lawsuit seeks an injunction against California Penal Code section 26150(B)(2) which authorizes county sheriffs to issue handgun Open Carry licenses if the county has a population of fewer than 200,000 people.  If the NRA is successful then the county sheriffs would be prohibited from issuing handgun Open Carry permits everywhere in the state.  The statute would provide solely for concealed carry permits.
 
My lawsuit, on the other hand, seeks to strike the population and residency requirements from the statute as well as the ancillary statutes including the one requiring fees (the fee cap is about to be removed).  If I am successful then anyone who is not prohibited under Federal or state law from possessing a firearm would be able to obtain a license to openly carry a loaded handgun and that license would be valid statewide.  This is an alternate challenge in my lawsuit.  I challenge a permit requirement as applied only to Open Carry.  If my lawsuit is successful then no permit will be required to openly carry a loaded or unloaded firearm in non-sensitive public places.
 
The NRA lawsuit isn't really an Open Carry lawsuit.  It is another feeble attempt at obtaining concealed carry permits which is precluded by the en banc decision in Peruta v. San Diego.  To the extent there is a viable claim against PC 25850, PC 26350 and PC 26400 (at this point there is not a viable claim) my California Open Carry lawsuit challenges the constitutionality of those laws and my appeal has priority over the NRA lawsuit filed today.
 
It is fairly easy to predict what is likely to happen next with the NRA lawsuit.
 
1.  The Sheriff will file a motion to dismiss the concealed carry challenge because it is precluded by Peruta v. San Diego en banc and his motion will be granted with prejudice.  The sheriff will no longer be a defendant.
2.  Attorney General Harris will file a motion to dismiss and/or a motion to stay the case pending a decision in my appeal.  If her motion to dismiss is granted then it will be without prejudice.  The NRA will be given another shot at writing a Complaint against the Attorney General.  More likely, the lawsuit will be stayed pending a decision in my appeal.
Are the open carry licenses issued to non-residents? If not the court might have to rule the open carry licensing regime unconstitutional unless and until it is issued to any legal gun owner.
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#85 borgranta

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Posted 19 August 2016 - 12:55 AM

Could the court as part of a ruling exempt non-residents from needing to acquire the open carry license if no one will issue them to non-residents?
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#86 Charles Nichols

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Posted 19 August 2016 - 01:36 AM

Could the court as part of a ruling exempt non-residents from needing to acquire the open carry license if no one will issue them to non-residents?

Let's step back a moment so that I can clarify that wherever it is legal to openly carry a firearm in California, a license is not required by anyone, regardless of whether or not he is a resident, to openly carry a firearm.  Around 25 years ago the laws providing for licenses to carry a handgun concealed were amended to provide for a license to openly carry a loaded handgun.  The law as introduced applied to every county sheriff and every police chief.  By the time it reached final passage, it applied only to counties with a population of fewer than 200,000 people.  Up until 2009 or 2010, these licenses were valid statewide.  After that, the licenses are valid only in the county of issuance.

 

The licenses come in two flavors for most of us: 2 year resident licenses and 90 day employment licenses.  The 2 year resident licenses are only available to residents of the county of issuance.  The 90 day employment licenses are available to persons regardless of residency but are still limited to the county of employment.  One must be employed full-time in the county in order to qualify.

 

My lawsuit challenges the population and residency requirements as well as "good cause," "good moral character" and the ancillary statutes (fees, training, etc.).  If I am successful then anyone who is not otherwise prohibited from possessing a handgun and is at least 18 years of age, regardless of whether or not he lives in the state, would be able to obtain a license to openly carry a handgun.

 

My legal challenge is that of a resident of the State of California who is prohibited by statute from being issued a handgun Open Carry license because I reside in a county with a population of nearly 10 million people.  I would not have standing to challenge the law as the resident of another state but that really doesn't matter because the effect would be the same if I am successful.

 

Bear in mind that I am only challenging the two state CCW laws as they apply to Open Carry.  My lawsuit does not challenge any concealed carry law in any shape or form.



#87 borgranta

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Posted 19 August 2016 - 05:49 PM

Another open carry challenge in California
Flanagan v. Harris
http://illinoiscarry...57#entry1030848
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#88 kwc

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Posted 19 August 2016 - 05:58 PM

Another open carry challenge in California
Flanagan v. Harris
http://illinoiscarry...57#entry1030848


Discussed in post #70 above and following...
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#89 Charles Nichols

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Posted 11 September 2016 - 07:10 PM

Another open carry challenge in California
Flanagan v. Harris
http://illinoiscarry...57#entry1030848

The same state's attorney who is assigned to my California Open Carry lawsuit (Johnathan Eisenberg) has been assigned to the NRA's new concealed carry lawsuit which claims to be an Open Carry lawsuit but really isn't.   :laugh:

 

Eisenberg is going to eat alive the NRA West Coast lawyer, Chuck Michel.

 

Complaint – Filed on August 17, 2016

Answer from Attorney General Harris (most likely motion to dismiss) due October 7, 2016, by stipulation.

Answer from Los Angeles County Sheriff (most likely motion to dismiss) due September 16, 2016.

 

Once the defendants file their responses, most likely motions to dismiss, the NRA will file oppositions to the responses after which the defendants will file their reply briefs.  After that there may or may not be a hearing.  In any event, the local rules for the district this lawsuit is filed in requires the district court judge to rule on any motion within 120 days.

 

The Federal Rules of Civil Procedure require that a leave be given to amend the Complaint at least once unless the Complaint is frivolous or incapable of amendment.  I really don't see how the part of the Complaint against the Los Angeles County Sheriff is capable of amendment and, in light of the Peruta v. San Diego decision, would be dismissed with prejudice if I were the judge.  California law preempts sheriffs and police chiefs from issuing their own handgun Open Carry permits.  The only handgun Open Carry permits which can be issued in California are those which are issued pursuant to state law.  The portion of the Complaint against the sheriff gets dismissed with prejudice.

 

The Complaint fails to state a claim against California Attorney General Harris in which the plaintiffs have demonstrated they have standing.  The Complaint against the AG gets dismissed with leave to amend.

 

By the time the NRA gets its case dismissed with prejudice in the district court and files an appeal, my California Open Carry appeal will have been fully briefed and most likely taken under submission for a decision.

 

Which begs the question "Why did the NRA file this lawsuit?"   :hmm: 



#90 Charles Nichols

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Posted 09 November 2016 - 08:24 PM

FROM MY WEBSITE My Opening Brief is Filed – The Stay of My Appeal is Over!

 

The New Briefing Schedule is Set as Follows

NOTE:  The following links point to large pdf files.  If you are using a portable device then you are unlikely to be able to view them.  Instead of trying to view them online, download them to your local desktop and view them locally.

Appellant’s Opening Brief – 111 pages – Due November 17, 2016.  Filed November 9, 2016.
Addendum – 164 pages – Due November 17, 2016.  Filed November 9, 2016.

Excerpts of Record in two volumes for a total of – 298 pages
Excerpts of Record – Volume 1  – Due November 17, 2016.  Filed November 9, 2016.
Excerpts of Record – Volume 2 – Due November 17, 2016.  Filed November 9, 2016.

Appellees Edmund G. Brown Jr. and Kamala D. Harris, Attorney General answering brief is due December 19, 2016.
My optional reply brief is due within 14 days from the date of service of the answering brief.

 

Update by Charles Nichols, President of California Right To Carry – November 9, 2016 at 4:35 PM – I think the 9th Circuit Clerk set a new record in accepting documents as filed and issuing the order to file the printed documents within seven days.  It took them an hour and a half to review my documents and issue the order.  I likewise rushed in appending the proofs of service and certification of paper copies to the pdfs, getting them to the printer and confirming that the files were received and that they were able to open and view the files.  They tell me the printed copies should be ready tomorrow, noon on Friday at the latest.  This means I will be able to box them up and ship them from the post office on Friday afternoon via USPS Priority 2 day mail which is cheaper (but not cheap) than the Priority Express postage I had to pay for my preliminary injunction appeal (my preliminary injunction appeal is now moot because I am now on an appeal of final judgment).

Case Name: Charles Nichols v. Edmund Brown, Jr., et al
Case Number: 14-55873
Docket Text:
Filed clerk order: The opening brief [26] submitted by Charles Nichols is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: not applicable. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate CM/ECF. The Court has reviewed the excerpts of record [27] submitted by Charles Nichols. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format, with a white cover. The paper copies must be in the format described in 9th Circuit Rule 30-1.6. [10192113] (SML)

Update by Charles Nichols, President of California Right To Carry – November 9, 2016 – Eight days and eleven hours ahead of schedule I electronically filed the following with the 9th Circuit Court of Appeals.  The Clerk will now review the filings and once they are reviewed and accepted, the Court will issue an order for me to file the paper copies with the court within seven days.

The following transaction was entered on 11/09/2016 at 1:01:36 PM PST and filed on 11/09/2016

Case Name: Charles Nichols v. Edmund Brown, Jr., et al
Case Number: 14-55873
Docket Text:
Submitted (ECF) Opening Brief for review. Submitted by Appellant Charles Nichols. Date of service: 11/09/2016. [10191823] [14-55873] (Nichols, Charles)

The following transaction was entered on 11/09/2016 at 1:10:48 PM PST and filed on 11/09/2016

 

Case Name: Charles Nichols v. Edmund Brown, Jr., et al
Case Number: 14-55873
Docket Text:
Submitted (ECF) excerpts of record. Submitted by Appellant Charles Nichols. Date of service: 11/09/2016. [10191843] [14-55873] (Nichols, Charles)







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