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California Open Carry Lawsuit - Nichols v. Brown


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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.

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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.

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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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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.

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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:



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  • 2 weeks later...

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


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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.

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  • 4 weeks later...

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

 

I kid you not.

 

Flanagan v. Harris

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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.

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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.

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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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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.

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Posted · Hidden by mauserme, August 18, 2016 at 11:45 PM - No reason given
Hidden by mauserme, August 18, 2016 at 11:45 PM - No reason given

I'd listen, glock23. He knows more than the SAF and NRA lawyers. Sent from my SM-G920V using Tapatalk

A mollusk knows more than the SAF and NRA lawyers combined.

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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. Kealoha, Young 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.

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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. Kealoha, Young 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 ?????????????????

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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.

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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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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.

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