On June 9, 2016, the 9th circuit court of appeals published an en banc decision in the case of Peruta v. San Diego which held that there is no right to concealed carry under the Second Amendment. The decision said that it was not going to decide if there is a right to carry firearms openly in public because that question was not before the court.
The NRA lawyers had argued that states can ban Open Carry in favor of concealed carry, therefore gimme my concealed carry permit.
The mandate issued on August 24, 2016. Peruta v. San Diego had been filed in the Federal Southern District of California with San Diego County and the San Diego County Sheriff named as a defendant. The lawyer who initially filed the case neglected to list the Attorney General as a defendant or to alternatively file a notice with the AG that a state law was being challenged.
On August 17, 2016, the NRA lawyers filed a new lawsuit in the Federal Central District of California with the California Attorney General and Los Angeles County Sheriff named as defendants.
In this case, Flanagan, the NRA lawyers argued that states and local governments can ban Open Carry in favor of concealed carry, therefore gimme my concealed carry permit.
As in Peruta, none of the Flanagan plaintiffs sought to openly carry a firearm anywhere in the state, let alone in violation of California's Open Carry bans. Three of the natural born plaintiffs disavowed any desire to openly carry a firearm, anywhere. Nor did they challenge the state restriction prohibiting sheriffs of counties with a population of 200,000 or more people from issuing handgun Open Carry licenses. The NRA did seek in their Complaint to enjoin the subsection of the statute which provides for the issuance of handgun Open Carry licenses in counties with fewer than 200,000 people. In short, despite what the NRA tells the public, the NRA still opposes Open Carry in the courts and, as in Peruta, the Flanagan plaintiffs don't have standing to challenge California's Open Carry bans even if they wanted to. Which they don't.
On February 24, 2017, the judge presiding over the Flanagan case dismissed the Los Angeles County Sheriff because he was not a proper party to the lawsuit given the en banc decision in Peruta. The Sheriff was supposed to have been dismissed with prejudice but the order said without prejudice.
On May 24, 2018, Judge John A. Kronstadt entered final Judgment in the case against the California Attorney General.
On June 4, 2018, the NRA filed its notice of appeal against California Attorney General Beccera "et al."
On June 5, 2018, the Office of the Clerk for the 9th Circuit Court of Appeals assigned a case number (18-55717) and docketed the case with only Attorney General Becerra listed as an Appellee.
One of the parties to the suit must have noticed the omission because on June 7, 2018, the parties filed a stipulation and proposed Amended Judgment which includes a final judgment against the Los Angeles County Sheriff. Once Judge Kronstadt signs and files the amended judgment, the NRA lawyers will file an amended notice of appeal.
The appellate schedule is as follows (it will change):
Appellant’s optional reply brief is due 21 days after service of the answering brief.
As many of you are aware, I have a lawsuit on appeal which challenges California's Open Carry bans and my lawsuit was never limited to the Second Amendment. Procedurally, my case in the district court was dismissed with prejudice based on a motion for a "judgment on the pleadings." For the court of appeals to affirm the decision of the district court it would have to hold that there are no facts which I can allege under any legal theory in which I can prevail. Final judgment in the Flanagan case resulted from a motion for summary judgment in which there does not appear to be disputed facts for a jury to decide which means that for all practical purposes, there is no chance for a remand. Theoretically, a lawsuit should be allowed to proceed so long as the Complaint can be amended. But Second Amendment cases are "special." The rules don't apply to them.
There is one other fly in the ointment. Judge Kronstadt did not decide whether or not there is a right to openly carry a firearm, he said he didn't have to. But if he had decided then he would conclude that the bans are constitutional because there is an exception for military, police, etc., and for civilians for that brief interval of time between one finding himself in "grave, immediate danger" and the arrival of the police. By the way, that isn't an exception, it is an affirmative defense which means that even if one were in "grave, immediate danger" and wasn't carrying a loaded firearm before the danger arose or after the police arrived, he can still be convicted by the jury for carrying a loaded firearm.
In the long run, the judge's non-decision decision on Open Carry won't matter. The plaintiffs don't have standing to challenge California's Open Carry bans even if they wanted to, which they don't.
Moreover, there will be a decision in my California Open Carry appeal long before the Flanagan appeal is taken under submission for a decision, assuming that the Flangan appeal isn't summarily affirmed.
Here is a link to the Flanagan case page at my website -> http://blog.californ...g/?page_id=8151
