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Baird v. Becerra - California handgun Open Carry lawsuit

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#1 Charles Nichols

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Posted 14 September 2019 - 06:31 PM

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://californiaop...-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.


Concealed carry is of no use to me because I don't carry a purse or wear a dress, and I'm not into secret advantage and unmanly assassination.

 

"Should the Open Carry movement become successful it will result in the greatest dissolution of government power since the collapse of the Soviet Union." - Charles Nichols
 
"If a monkey looks into a book, a sage cannot look out." - Georg Christoph Lichtenberg
 
"La plus belle des ruses du diable est de vous persuader qu'il n'existe pas." - Charles Baudelaire 
 
"God doesn't want me and the devil isn't finished with me." - Raymond Reddington
 
"When you lift the last veil, you might discover that your bride is an ignorant, illiterate child living in a world of fear and superstition." - Charles Nichols.* 
 
* I posted this on my Facebook page on May 20, 2011.  Unable to find its origin, I claim to be its creator.

#2 Charles Nichols

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Posted 11 November 2019 - 01:58 AM

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)

 


Concealed carry is of no use to me because I don't carry a purse or wear a dress, and I'm not into secret advantage and unmanly assassination.

 

"Should the Open Carry movement become successful it will result in the greatest dissolution of government power since the collapse of the Soviet Union." - Charles Nichols
 
"If a monkey looks into a book, a sage cannot look out." - Georg Christoph Lichtenberg
 
"La plus belle des ruses du diable est de vous persuader qu'il n'existe pas." - Charles Baudelaire 
 
"God doesn't want me and the devil isn't finished with me." - Raymond Reddington
 
"When you lift the last veil, you might discover that your bride is an ignorant, illiterate child living in a world of fear and superstition." - Charles Nichols.* 
 
* I posted this on my Facebook page on May 20, 2011.  Unable to find its origin, I claim to be its creator.

#3 ChicagoRonin70

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Posted 11 November 2019 - 07:48 PM

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://californiaop...-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?


"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."

 

Who gets to keep and read books? The Media? Or is it the People?

 

“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

 

 InX89li.jpg
 

 
 
 
 


#4 Charles Nichols

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Posted 11 November 2019 - 10:50 PM

 

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://californiaop...an-and-english/  


Concealed carry is of no use to me because I don't carry a purse or wear a dress, and I'm not into secret advantage and unmanly assassination.

 

"Should the Open Carry movement become successful it will result in the greatest dissolution of government power since the collapse of the Soviet Union." - Charles Nichols
 
"If a monkey looks into a book, a sage cannot look out." - Georg Christoph Lichtenberg
 
"La plus belle des ruses du diable est de vous persuader qu'il n'existe pas." - Charles Baudelaire 
 
"God doesn't want me and the devil isn't finished with me." - Raymond Reddington
 
"When you lift the last veil, you might discover that your bride is an ignorant, illiterate child living in a world of fear and superstition." - Charles Nichols.* 
 
* I posted this on my Facebook page on May 20, 2011.  Unable to find its origin, I claim to be its creator.

#5 ChicagoRonin70

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Posted 12 November 2019 - 12:06 AM

 

 

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://californiaop...an-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.


"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."

 

Who gets to keep and read books? The Media? Or is it the People?

 

“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

 

 InX89li.jpg
 

 
 
 
 


#6 Charles Nichols

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Posted 13 November 2019 - 02:44 AM

 

 

 

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://californiaop...an-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.


Concealed carry is of no use to me because I don't carry a purse or wear a dress, and I'm not into secret advantage and unmanly assassination.

 

"Should the Open Carry movement become successful it will result in the greatest dissolution of government power since the collapse of the Soviet Union." - Charles Nichols
 
"If a monkey looks into a book, a sage cannot look out." - Georg Christoph Lichtenberg
 
"La plus belle des ruses du diable est de vous persuader qu'il n'existe pas." - Charles Baudelaire 
 
"God doesn't want me and the devil isn't finished with me." - Raymond Reddington
 
"When you lift the last veil, you might discover that your bride is an ignorant, illiterate child living in a world of fear and superstition." - Charles Nichols.* 
 
* I posted this on my Facebook page on May 20, 2011.  Unable to find its origin, I claim to be its creator.

#7 ChicagoRonin70

    The Landlord of the Flies!

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Posted 13 November 2019 - 01:29 PM

 

 

 

 

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://californiaop...an-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.


"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."

 

Who gets to keep and read books? The Media? Or is it the People?

 

“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

 

 InX89li.jpg
 

 
 
 
 






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