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California Open Carry Lawsuit - Nichols v. Brown

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#121 Charles Nichols

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Posted 18 January 2018 - 10:57 AM

 

 

 


 

That is unlikely.  Should I win, the more likely scenario is either the decision will be stayed pending a decision on the state's en banc petition or the en banc petition will be granted before the mandate is issued which would vacate the three-judge panel decision.  We would then have to wait for the decision by the en banc panel.

 

 

 

 

So, ultimately, if things go your way in the long run, what will the final hoped-for result be? What are the possibilities of what else it might end up being, if there is a firearm-friendly decision of some sort?

 

If things go my way then the final result is constrained by the four corners of my Complaint.  I have just updated the answer to your question at my website.  As I have just crawled out of bed, there may be typos.

 

What Does my California Open Carry Lawsuit Seek to Achieve?
 
The simple answer is my lawsuit seeks to strike down California’s bans on the carrying of firearms openly for the purpose of self-defense:
 
 In the curtilage of our homes (which for nearly everyone in the state means all of our residential property).
 In and/on our motor vehicles including in and/or on any attached camper or trailer regardless of whether or not they are used as a residence.
 
 In non-sensitive public places.
 
To this end my lawsuit seeks, at a minimum, a permanent injunction against California’s 1967 ban on openly carrying loaded firearms in public as well as a permanent injunction against California’s two, recently enacted, bans on openly carrying unloaded firearms in public, and everywhere those bans apply. 
 
My lawsuit also contains an alternate challenge to the population and other restrictions on the issuance of licenses to openly carry loaded handguns.  A challenge conditional on IF the court upholds California’s two CCW laws.  My position is that the Open Carry right cannot be conditioned on a government issued permission slip.  Given that the en banc Peruta decision held that there is no right to carry a concealed handgun in public, under the 9th Circuit Court of Appeals current case law, both CCW laws should be struck down if the court cannot find a right to bear arms in the Second Amendment.  
 
Should the court of appeals contrive some reason not to strike them down then my lawsuit demands that unrestricted handgun Open Carry licenses be granted with no qualification restrictions other than the person being issued the license is not prohibited under Federal or California law from possessing a firearm.  A handgun Open Carry license allows one to openly carry a loaded and exposed handgun within 1,000 feet of K-12 public and private schools but not on the grounds of any school.
 
PLEASE NOTE:  If a lawsuit uses the right "magic words" (which mine does) then the lawsuit is not narrowly limited to seeking injunctions against certain laws.  Lawsuits are bound by what is known as "The Four Corners of a Complaint."  Any law which infringes on our Second Amendment right in any of the three places I listed above falls within the four corners of my complaint and that includes California's Gun-Free School Zone Act of 1995.  
Although I did not seek an injunction against the prohibition on carrying handguns within 1,000 feet of a K-12 public or private school (California's GFSZ does not prohibit long guns) I did ask for shall-issue handgun Open Carry licenses.  Moreover, I asked for declaratory relief in all non-sensitive public places which, if granted, can easily prohibit the state from prosecuting people for openly carrying handguns in additions to long guns within 1,000 feet of a K-12 public or private school because the declaratory relief would require the prosecutor to prove that the place you were in is a sensitive place.
 
That said, there are other laws which I did not challenge, and could not challenge, given the limitations of Federal civil rights lawsuits.  One of the laws not challenged is the ban on firearms in state parks. 
 
The current restrictions and prohibitions on the possession of firearms in schools, on school grounds and in government buildings will remain unaffected should I win.
 
If California adds to, or renames, or creates a new law infringing on our right to openly carry a firearm before my lawsuit is finished, that new law falls within the scope of this lawsuit. 
 
My lawsuit does not seek concealed carry in any shape or form. Similarly, it does not challenge any law "regulating" the carriage of firearms in schools or government buildings.
 
My lawsuit does not challenge any Federal law. I don't see the current Congress or President enacting a Federal Open Carry ban but if they did then that would require a new Complaint in a new lawsuit.


#122 ChicagoRonin70

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Posted 18 January 2018 - 03:44 PM

 

 

That is unlikely.  Should I win, the more likely scenario is either the decision will be stayed pending a decision on the state's en banc petition or the en banc petition will be granted before the mandate is issued which would vacate the three-judge panel decision.  We would then have to wait for the decision by the en banc panel.

 

 

 

 

 

So, ultimately, if things go your way in the long run, what will the final hoped-for result be? What are the possibilities of what else it might end up being, if there is a firearm-friendly decision of some sort?

 

If things go my way then the final result is constrained by the four corners of my Complaint.  I have just updated the answer to your question at my website.  As I have just crawled out of bed, there may be typos.

 

What Does my California Open Carry Lawsuit Seek to Achieve?
 
The simple answer is my lawsuit seeks to strike down California’s bans on the carrying of firearms openly for the purpose of self-defense:
 
 In the curtilage of our homes (which for nearly everyone in the state means all of our residential property).
 In and/on our motor vehicles including in and/or on any attached camper or trailer regardless of whether or not they are used as a residence.
 
 In non-sensitive public places.
 
To this end my lawsuit seeks, at a minimum, a permanent injunction against California’s 1967 ban on openly carrying loaded firearms in public as well as a permanent injunction against California’s two, recently enacted, bans on openly carrying unloaded firearms in public, and everywhere those bans apply. 
 
My lawsuit also contains an alternate challenge to the population and other restrictions on the issuance of licenses to openly carry loaded handguns.  A challenge conditional on IF the court upholds California’s two CCW laws.  My position is that the Open Carry right cannot be conditioned on a government issued permission slip.  Given that the en banc Peruta decision held that there is no right to carry a concealed handgun in public, under the 9th Circuit Court of Appeals current case law, both CCW laws should be struck down if the court cannot find a right to bear arms in the Second Amendment.  
 
Should the court of appeals contrive some reason not to strike them down then my lawsuit demands that unrestricted handgun Open Carry licenses be granted with no qualification restrictions other than the person being issued the license is not prohibited under Federal or California law from possessing a firearm.  A handgun Open Carry license allows one to openly carry a loaded and exposed handgun within 1,000 feet of K-12 public and private schools but not on the grounds of any school.
 
PLEASE NOTE:  If a lawsuit uses the right "magic words" (which mine does) then the lawsuit is not narrowly limited to seeking injunctions against certain laws.  Lawsuits are bound by what is known as "The Four Corners of a Complaint."  Any law which infringes on our Second Amendment right in any of the three places I listed above falls within the four corners of my complaint and that includes California's Gun-Free School Zone Act of 1995.  
Although I did not seek an injunction against the prohibition on carrying handguns within 1,000 feet of a K-12 public or private school (California's GFSZ does not prohibit long guns) I did ask for shall-issue handgun Open Carry licenses.  Moreover, I asked for declaratory relief in all non-sensitive public places which, if granted, can easily prohibit the state from prosecuting people for openly carrying handguns in additions to long guns within 1,000 feet of a K-12 public or private school because the declaratory relief would require the prosecutor to prove that the place you were in is a sensitive place.
 
That said, there are other laws which I did not challenge, and could not challenge, given the limitations of Federal civil rights lawsuits.  One of the laws not challenged is the ban on firearms in state parks. 
 
The current restrictions and prohibitions on the possession of firearms in schools, on school grounds and in government buildings will remain unaffected should I win.
 
If California adds to, or renames, or creates a new law infringing on our right to openly carry a firearm before my lawsuit is finished, that new law falls within the scope of this lawsuit. 
 
My lawsuit does not seek concealed carry in any shape or form. Similarly, it does not challenge any law "regulating" the carriage of firearms in schools or government buildings.
 
My lawsuit does not challenge any Federal law. I don't see the current Congress or President enacting a Federal Open Carry ban but if they did then that would require a new Complaint in a new lawsuit.

 

 

Ah, noted and appreciated! That is all quite interesting and, of course, I am very interested in seeing how this plays out.

 

I wonder how any of this can be applied to Illinois and its Illanoying prohibition on open carry?


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#123 lockman

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Posted 18 January 2018 - 09:52 PM

I would send "fertilizer".


Isn’t that what Tim McVey did?


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