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California Open Carry Lawsuit - Nichols v. Brown

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#181 Charles Nichols

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Posted 19 July 2018 - 12:44 PM

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

It is unlikely that there will be a decision in my appeal until there is a decision in Young v. Hawaii. 9th Circuit Advisory Committee Note to Rule 25-2(3) encourages the parties to a case to notify the court if the court has not issued a decision within 9 months after being taken under submission for a decision.  The three-judge panel assigned to my appeal vacated the submission of my case for a decision pending a decision in Young v. Hawaii and so that clock stopped ticking in my appeal.  Young v. Hawaii was taken under submission for a decision at the conclusion of oral argument on February 12, 2018.  If there is not a decision by November 12, 2018, then both sides are encouraged to notify the court.

 

I used to keep track of how long it took the 9th circuit court of appeals to render a decision in Second Amendment cases at this link.  Notably, both the presiding Judge (Ikuta) and Senior Judge O'Scannlain have both written extensive Second Amendment decisions.  It took five months and 18 days for Judge Ikuta to publish her decision in Jackson v. San Francisco.  Granted, that was the appeal of a preliminary injunction which had expedited priority.  It took eleven months and 24 days for the three-judge panel decision to be published in Peruta v. San Diego.  Judge O'Scannlain wrote that decision.  There was a dissent by Judge Thomas (now the Chief Judge) which may have delayed the time it took to be published.

 

The question is much simpler this time around.  If we have learned anything in the ten years since the Heller decision it is that the lower courts have almost invariably acted as if the Heller (and McDonald, and Caetano) decision never happened.  Both judges Ikuta and O'Scannlain have published decisions which conflicted with the Supreme Court decisions in Heller and McDonald.  The en banc court in Peruta took concealed carry off the table.  The threshold Second Amendment question in both my appeal and in Young is whether or not the Second Amendment extends outside the doors to our home.

 

If two of the three judges assigned to Young's appeal says that it does then he very likely gets his handgun Open Carry permit.

 

I would not be surprised if there were a decision today nor would I be surprised if there were a decision six months from now but given the narrowness of what Mr. Young can win on appeal (he is constrained by his Complaint), I would be a bit surprised if we are still waiting for a decision well into next year.

 

FYI, of all the appeals to be decided by Judges Ikuta, O'Scannlain and Clifton the week of February 12, 2018, four appeals (including Young v. Hawaii) are still pending a decision.



#182 cls74

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Posted 24 July 2018 - 02:12 PM

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

It is unlikely that there will be a decision in my appeal until there is a decision in Young v. Hawaii. 9th Circuit Advisory Committee Note to Rule 25-2(3) encourages the parties to a case to notify the court if the court has not issued a decision within 9 months after being taken under submission for a decision.  The three-judge panel assigned to my appeal vacated the submission of my case for a decision pending a decision in Young v. Hawaii and so that clock stopped ticking in my appeal.  Young v. Hawaii was taken under submission for a decision at the conclusion of oral argument on February 12, 2018.  If there is not a decision by November 12, 2018, then both sides are encouraged to notify the court.
 
I used to keep track of how long it took the 9th circuit court of appeals to render a decision in Second Amendment cases at this link.  Notably, both the presiding Judge (Ikuta) and Senior Judge O'Scannlain have both written extensive Second Amendment decisions.  It took five months and 18 days for Judge Ikuta to publish her decision in Jackson v. San Francisco.  Granted, that was the appeal of a preliminary injunction which had expedited priority.  It took eleven months and 24 days for the three-judge panel decision to be published in Peruta v. San Diego.  Judge O'Scannlain wrote that decision.  There was a dissent by Judge Thomas (now the Chief Judge) which may have delayed the time it took to be published.
 
The question is much simpler this time around.  If we have learned anything in the ten years since the Heller decision it is that the lower courts have almost invariably acted as if the Heller (and McDonald, and Caetano) decision never happened.  Both judges Ikuta and O'Scannlain have published decisions which conflicted with the Supreme Court decisions in Heller and McDonald.  The en banc court in Peruta took concealed carry off the table.  The threshold Second Amendment question in both my appeal and in Young is whether or not the Second Amendment extends outside the doors to our home.
 
If two of the three judges assigned to Young's appeal says that it does then he very likely gets his handgun Open Carry permit.
 
I would not be surprised if there were a decision today nor would I be surprised if there were a decision six months from now but given the narrowness of what Mr. Young can win on appeal (he is constrained by his Complaint), I would be a bit surprised if we are still waiting for a decision well into next year.
 
FYI, of all the appeals to be decided by Judges Ikuta, O'Scannlain and Clifton the week of February 12, 2018, four appeals (including Young v. Hawaii) are still pending a decision.
Sounds like Young vs Hawaii has a preliminary ruling.

There's another thread discussing it, but you stated your case was awaiting a decision there.

What effect, if any, does this have on yours?

Can they deem your case moot by this ruling and make you start over if they do somehow reverse their decision?

https://www.national...tutional-right/

Edited by cls74, 24 July 2018 - 02:13 PM.


#183 Charles Nichols

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Posted 24 July 2018 - 07:17 PM

 

 

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

It is unlikely that there will be a decision in my appeal until there is a decision in Young v. Hawaii. 9th Circuit Advisory Committee Note to Rule 25-2(3) encourages the parties to a case to notify the court if the court has not issued a decision within 9 months after being taken under submission for a decision.  The three-judge panel assigned to my appeal vacated the submission of my case for a decision pending a decision in Young v. Hawaii and so that clock stopped ticking in my appeal.  Young v. Hawaii was taken under submission for a decision at the conclusion of oral argument on February 12, 2018.  If there is not a decision by November 12, 2018, then both sides are encouraged to notify the court.
 
I used to keep track of how long it took the 9th circuit court of appeals to render a decision in Second Amendment cases at this link.  Notably, both the presiding Judge (Ikuta) and Senior Judge O'Scannlain have both written extensive Second Amendment decisions.  It took five months and 18 days for Judge Ikuta to publish her decision in Jackson v. San Francisco.  Granted, that was the appeal of a preliminary injunction which had expedited priority.  It took eleven months and 24 days for the three-judge panel decision to be published in Peruta v. San Diego.  Judge O'Scannlain wrote that decision.  There was a dissent by Judge Thomas (now the Chief Judge) which may have delayed the time it took to be published.
 
The question is much simpler this time around.  If we have learned anything in the ten years since the Heller decision it is that the lower courts have almost invariably acted as if the Heller (and McDonald, and Caetano) decision never happened.  Both judges Ikuta and O'Scannlain have published decisions which conflicted with the Supreme Court decisions in Heller and McDonald.  The en banc court in Peruta took concealed carry off the table.  The threshold Second Amendment question in both my appeal and in Young is whether or not the Second Amendment extends outside the doors to our home.
 
If two of the three judges assigned to Young's appeal says that it does then he very likely gets his handgun Open Carry permit.
 
I would not be surprised if there were a decision today nor would I be surprised if there were a decision six months from now but given the narrowness of what Mr. Young can win on appeal (he is constrained by his Complaint), I would be a bit surprised if we are still waiting for a decision well into next year.
 
FYI, of all the appeals to be decided by Judges Ikuta, O'Scannlain and Clifton the week of February 12, 2018, four appeals (including Young v. Hawaii) are still pending a decision.
Sounds like Young vs Hawaii has a preliminary ruling.

There's another thread discussing it, but you stated your case was awaiting a decision there.

What effect, if any, does this have on yours?

Can they deem your case moot by this ruling and make you start over if they do somehow reverse their decision?

https://www.national...tutional-right/

 

Young has a final, published three-judge panel decision on appeal.  Now we wait to see if the decision is vacated and the case reheard en banc.

 

The only way my appeal becomes moot is if I die or am convicted of a crime which prohibits me from possessing firearms.  Mr. Young's case in the district court can be mooted by the Hawaii Chief of Police simply giving Mr. Young a permit to carry a handgun in public (openly or concealed).  Mine can't become moot because of the way I framed my case in the district court and on appeal.



#184 cls74

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Posted 24 July 2018 - 09:16 PM

Thanks for the response, seems they sided with your argument though in this instance.

 

Would love to see where it goes if open carry is deemed a consitutional right. Would states then push for concealed carry in fear of liberal shock at the sight of a gun in public?

 

I still refuse to get a permit in IL, cost prohibitive and now election prohibitive to justify cost. I'll transport and legally posess as necessary in order to feel I can defend myself when/if needed.

 

Needs to be a federal mandate not left to the individual states. The US constitution is a border to border, extended to an island, or two binding liberty.

 

 

 

On a side note. Really wish Illinois Carry would change the stupid "quoted post" format the site has.

 

No need for it. Quote a post and respond to it, easy enough. Replying to someones reply that has already responded to xxx others posts is silly. Getting an error too many quotes are used when responding to one reply is crazy

 

 

 



#185 Soutsidr

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Posted 24 July 2018 - 10:20 PM

Young has a final, published three-judge panel decision on appeal.  Now we wait to see if the decision is vacated and the case reheard en banc.
 
The only way my appeal becomes moot is if I die or am convicted of a crime which prohibits me from possessing firearms.  Mr. Young's case in the district court can be mooted by the Hawaii Chief of Police simply giving Mr. Young a permit to carry a handgun in public (openly or concealed).  Mine can't become moot because of the way I framed my case in the district court and on appeal.

Many years have passed since Mr. Young applied for a permit. I don't know the ins & outs of Hawaii's non existent permitting process, but it stands to reason that his original application might have expired, info needs updating, etc. I would expect that Mr. Young would need to submit a current application or at least a photo for his card in order to receive a permit. In other words, I presume that Mr. Young would need to cooperate with the opposition in order for them to moot the case.

If they issue Mr. Young a permit to moot the case, could his attorneys then argue that the appellate decision affirms that open carry is at the core of 2A, and thus a permit is not required?

#186 Charles Nichols

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Posted 24 July 2018 - 10:33 PM

 

Young has a final, published three-judge panel decision on appeal.  Now we wait to see if the decision is vacated and the case reheard en banc.
 
The only way my appeal becomes moot is if I die or am convicted of a crime which prohibits me from possessing firearms.  Mr. Young's case in the district court can be mooted by the Hawaii Chief of Police simply giving Mr. Young a permit to carry a handgun in public (openly or concealed).  Mine can't become moot because of the way I framed my case in the district court and on appeal.

Many years have passed since Mr. Young applied for a permit. I don't know the ins & outs of Hawaii's non existent permitting process, but it stands to reason that his original application might have expired, info needs updating, etc. I would expect that Mr. Young would need to submit a current application or at least a photo for his card in order to receive a permit. In other words, I presume that Mr. Young would need to cooperate with the opposition in order for them to moot the case.

If they issue Mr. Young a permit to moot the case, could his attorneys then argue that the appellate decision affirms that open carry is at the core of 2A, and thus a permit is not required?

 

Mr. Young did not challenge the permit requirement in his operative (initial) complaint.  For him to challenge the permit requirement now would require that he file an amended complaint or file a new lawsuit.  Either would have the effect of starting over from the beginning.  I can't speak for Mr. Young but given his age, I don't see that happening.



#187 gunuser17

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Posted 24 July 2018 - 10:40 PM

The Ninth Circuit panel in Nichols can (1) take the Hawaii decision into account and issue its opinion; (2) ignore the Hawaii decision and issue its opinion; or (3) simply per curiam remand the case to the district court with instructions to take into account the new 9th Circuit decision in the Hawaii case and then issue a new decision taking that decision into account.  Remand does not necessarily mean that the outcome changes but it is not unusual for that to happen.  In the Supreme Court decisions in May-June that occurred several times.  Given the action by the Nichols panel so far, I would not think that Option 2 is very likely.



#188 Charles Nichols

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Posted 25 July 2018 - 01:00 AM

The Ninth Circuit panel in Nichols can (1) take the Hawaii decision into account and issue its opinion; (2) ignore the Hawaii decision and issue its opinion; or (3) simply per curiam remand the case to the district court with instructions to take into account the new 9th Circuit decision in the Hawaii case and then issue a new decision taking that decision into account.  Remand does not necessarily mean that the outcome changes but it is not unusual for that to happen.  In the Supreme Court decisions in May-June that occurred several times.  Given the action by the Nichols panel so far, I would not think that Option 2 is very likely.

LOL - Did I write that?  It sounds like me.   :laugh:







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