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Flanagan v. Harris: California federal challenge to banning open carry and licensing concealed carry


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http://www.foxnews.com/politics/2016/08/18/gun-rights-advocates-file-suit-challenging-california-open-carry-restrictions.html?ICID=ref_fark

 

A new lawsuit has been filed in California challenging the effectively complete ban on carry in areas where concealed carry permits are not issued and open carry is banned.

 

 

 

Flanagan-v-Harris-Complaint_Conformed.pdf

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I have hopes for this case, but those are tempered by the reality that the justices of the 9th aren't known for being constitutionally consistent in their rulings.
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Meh... The system is rigged. Its not gonna change. The Supremes will not take the case until they have the anti gun majority in place and until then the California anti gun courts decision against you will become the law of the land. Its like putting your faith and hope in a snake oil salesmen when you are relying on the court system. This is just gonna be another L for them you can't count on it.

Put in on the board......YES.

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I have hopes for this case, but those are tempered by the reality that the justices of the 9th aren't known for being constitutionally consistent in their rulings.

The Complaint does not allege a viable Open Carry claim. Indeed, one would be hard pressed to infer any challenge to California's Open Carry laws from the Complaint.

 

There are many things that one must do to state a viable claim. Even assuming that one reads the Complaint to say that California's Open Carry bans are being challenged, that isn't enough to have standing to challenge the Open Carry bans.

 

One has to either assume that the NRA lawyers are incompetent or the NRA lawyers are running a scam. Which isn't to say both aren't true.

 

In any event, I will be tracking this case at my website here and I have published an article here.

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I've read through the complaint. As I understand it, the plaintiffs ask for:

 

- A declaration that the Second Amendment guarantees the right of responsible, law-abiding citizens to carry a firearm in public for self-defense

 

- A declaration that denying all manners of publicly carrying a firearm for self-defense to law-abiding citizens violates the Second Amendment.

 

- A declaration that precluding law-abiding citizens from openly carrying a firearm in public for self-defense is unconstitutional

 

- An order preventing enforcement of laws that prevent open carry of firearms in public for self-defense

 

They offer an alternative option, which is to eliminate the "good cause" provision that in its current form drastically restricts one's ability to obtain a license to carry concealed.

 

To me, it looks like the plaintiffs are asking the court to rule consistent with Heller, and parallel to Moore--that bearing arms is a protected right. The plaintiffs want open carry in public to be declared a constitutionally-protected right, but "shall issue" concealed carry is acceptable as an alternative.

 

The statement that "Today, the NRA filed an 'Open Carry' lawsuit which seeks concealed carry permits" appears misleading. Concealed carry is offered as an alternative, not the primary objective, and only to achieve the end result of legally bearing arms in public. (See http://illinoiscarry.com/forum/index.php?showtopic=62013&p=1030564, post #70)

 

 

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I've read through the complaint. As I understand it, the plaintiffs ask for:

 

- A declaration that the Second Amendment guarantees the right of responsible, law-abiding citizens to carry a firearm in public for self-defense

 

- A declaration that denying all manners of publicly carrying a firearm for self-defense to law-abiding citizens violates the Second Amendment.

 

- A declaration that precluding law-abiding citizens from openly carrying a firearm in public for self-defense is unconstitutional

 

- An order preventing enforcement of laws that prevent open carry of firearms in public for self-defense

 

They offer an alternative option, which is to eliminate the "good cause" provision that in its current form drastically restricts one's ability to obtain a license to carry concealed.

 

To me, it looks like the plaintiffs are asking the court to rule consistent with Heller, and parallel to Moore--that bearing arms is a protected right. The plaintiffs want open carry in public to be declared a constitutionally-protected right, but "shall issue" concealed carry is acceptable as an alternative.

 

The statement that "Today, the NRA filed an 'Open Carry' lawsuit which seeks concealed carry permits" appears misleading. Concealed carry is offered as an alternative, not the primary objective, and only to achieve the end result of legally bearing arms in public. (See http://illinoiscarry.com/forum/index.php?showtopic=62013&p=1030564, post #70)

 

 

As I've already posted a link to the NRA's Complaint, it should be a simple matter for you to copy and paste the lines from the Complaint which establishes standing for this case to proceed.

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Here's my prediction: Flanagan will lose in the District Court and will be appealed to CA9 just in time to be combined with Nichols v. Brown. [Whaaaa haaaa haaaa, evil grin]

 

With apologies to Mr. Nichols, that was too hard to pass up. :)

My lawsuit presents both a facial and as-applied challenge to the California Open Carry bans. The NRA lawsuit as filed does not present any challenge to California's Open Carry bans (look up the required elements for "standing" to challenge a law in Federal court).

 

But let us assume that someday the NRA manages to properly allege a facial challenge to California's Open Carry bans AND I forget to raise my as-applied challenge on appeal. On what grounds would this hypothetical NRA case be combined with my case? Alan Gura tried and failed to align his Richards v. Prieto appeal with the Peruta v. San Diego appeal and failed. Neither of those cases had an as-applied challenge and both cases presented the same legal theory that states can ban open carry in favor of concealed carry.

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As I've already posted a link to the NRA's Complaint, it should be a simple matter for you to copy and paste the lines from the Complaint which establishes standing for this case to proceed.

 

I'm trying to follow along.

 

By "standing," I assume you are referring to the 3-rule test of injury-in-fact, causation, and redressability?

 

The "injunctive relief allegations" (paragraphs 68-70) point out that denial of a Constitutionally-protected right and the inability to defend oneself (e.g., the injury) is caused by enforcement of the previously cited statutes that prohibit carry of firearms in any manner, and a court decision in favor of the plaintiffs will redress the injury.

 

Is there something else I should be looking for that is missing?

 

68. Injunctive relief is necessary to prevent Defendant Harris from enforcing California's carry restrictions and to prevent Defendant McDonnell from enforcing his restrictive “good cause” policy. Together, those legal mandates prohibit Plaintiffs from carrying a firearm in public for self-defense in any manner. If an injunction does not issue, Plaintiffs will continue to be irreparably injured by Defendants' carry restrictions insofar as they preclude Plaintiffs from exercising rights guaranteed by the Second Amendment. Defendants' enforcement of these statutes and policies denies Plaintiffs the right to publicly carry a firearm for self-defense without subjecting themselves to risk of criminal prosecution.

 

69. If not enjoined by this Court, Defendants will continue to enforce these statutes and policies in derogation of Plaintiffs' Second Amendment rights. Plaintiffs have no plain, speedy, and adequate remedy at law. Damages are indeterminate or unascertainable, and would not fully redress any harm suffered by Plaintiffs as a result of being unable to engage in activity protected by the Second Amendment.

 

70. The injunctive relief sought would eliminate that irreparable harm and allow Plaintiffs to exercise their core, fundamental right to carry a firearm for self-defense. Accordingly, injunctive relief is appropriate.

 

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But let us assume that someday the NRA manages to properly allege a facial challenge to California's Open Carry bans AND I forget to raise my as-applied challenge on appeal. On what grounds would this hypothetical NRA case be combined with my case?

 

I had hoped you would catch onto my feeble attempt at humor...

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As I've already posted a link to the NRA's Complaint, it should be a simple matter for you to copy and paste the lines from the Complaint which establishes standing for this case to proceed.

I'm trying to follow along.

 

By "standing," I assume you are referring to the 3-rule test of injury-in-fact, causation, and redressability?

 

The "injunctive relief allegations" (paragraphs 68-70) point out that denial of a Constitutionally-protected right and the inability to defend oneself (e.g., the injury) is caused by enforcement of the previously cited statutes that prohibit carry of firearms in any manner, and a court decision in favor of the plaintiffs will redress the injury.

 

Is there something else I should be looking for that is missing?

 

68. Injunctive relief is necessary to prevent Defendant Harris from enforcing California's carry restrictions and to prevent Defendant McDonnell from enforcing his restrictive “good cause” policy. Together, those legal mandates prohibit Plaintiffs from carrying a firearm in public for self-defense in any manner. If an injunction does not issue, Plaintiffs will continue to be irreparably injured by Defendants' carry restrictions insofar as they preclude Plaintiffs from exercising rights guaranteed by the Second Amendment. Defendants' enforcement of these statutes and policies denies Plaintiffs the right to publicly carry a firearm for self-defense without subjecting themselves to risk of criminal prosecution.

 

69. If not enjoined by this Court, Defendants will continue to enforce these statutes and policies in derogation of Plaintiffs' Second Amendment rights. Plaintiffs have no plain, speedy, and adequate remedy at law. Damages are indeterminate or unascertainable, and would not fully redress any harm suffered by Plaintiffs as a result of being unable to engage in activity protected by the Second Amendment.

 

70. The injunctive relief sought would eliminate that irreparable harm and allow Plaintiffs to exercise their core, fundamental right to carry a firearm for self-defense. Accordingly, injunctive relief is appropriate.

 

You are missing a lot, and so did the NRA, when it comes to establish standing to challenge the Open Carry bans. The denial of the concealed carry permits, although poorly plead, could establish standing to challenge the denial of the concealed carry permits but that claim is precluded by the en banc decision in Peruta v. San Diego.

 

Here is an example from the 9th Circuit Court of Appeals in the case of Protectmarriage. com-Yes on 8 v. Bowen, 752 F. 3d 827 - Court of Appeals, 9th Circuit (2014).

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  • 4 weeks later...

The NRA/CRPA gave the Sheriff additional time to file his response. These are the current reply deadlines:

 

Answer from Attorney General Harris (most likely motion to dismiss) due October 7, 2016, by stipulation.

Answer from Los Angeles County Sheriff (most likely motion to dismiss) due October 14, 2016, by stipulation.

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  • 3 months later...

Lots of new activity since my last update. From my website:


The judge assigned to this case, John A. Kronstadt, has already upheld a concealed carry lawsuit against the Los Angeles County Sheriff in Jonathan Birdt v. Beck et al. Order Granting Defendants Motion for Summary Judgment in Birdt v. Beck et al


I am greatly amused to see that the state’s attorney representing Attorney General Harris is the same attorney up against me in my California Open Carry lawsuit (Jonathan Eisenberg).


Complaint – Filed on August 17, 2016.


Answer from Attorney General Harris (most likely motion to dismiss) due October 7, 2016, by stipulation. And I was right, Harris filed a motion to dismiss on October 7, 2016.


24 – Motion to Dismiss by Harris


24-1 MPA in support of MTD by Harris


Answer from Los Angeles County Sheriff (most likely motion to dismiss) due October 14, 2016, by stipulation. And I was right, Los Angeles County Sheriff McDonnell filed a motion to dismiss on October 14, 2016.


27 – Sheriff Mcdonnells Motion to Dismiss


It is doubtful that there will actually be a hearing on the motion to dismiss by AG Harris but if there is to be one then it is currently scheduled for February 13, 2017.


It is doubtful that there will actually be a hearing on the motion to dismiss by Sheriff McDonnell but if there is to be one then it is currently scheduled for February 13, 2017.


Order Setting Scheduling Conference for February 13, 2017


LASD Briefing Schedule


Opposition to Motions to Dismiss filed on December 1, 2016.


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  • 2 weeks later...

Update by Charles Nichols, President of California Right To Carry – January 10, 2017 – Well, the NRA is slow to update its own website for its own cases and so, at great expense ($1.90), here are the two reply briefs:


33 – Attorney General Reply – Flanagan et al v. Harris et al


34 – Sheriff McDonnel’s Reply – Flanagan et al v. Harris et al



Note that the Los Angeles County Sheriff cites the Teixeira three judge panel decision six times. Teixeira was vacated and as such, cannot be cited in this circuit.



I have to laugh at the California AG's reply, the state's attorney is the same attorney opposing my California Open Carry appeal.



When we were in the district court he argued that my fears were hypothetical and speculative that I would be arrested, prosecuted, fined or imprisoned were I to openly carry a loaded firearm in a public place in violation of California's 1967 Loaded Open Carry ban. He also argued that I did not have standing to bring my lawsuit because neither Governor Brown nor then Attorney General Harris had ever personally threatened me with arrest or prosecution.



Arguments he has not made in this case.


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  • 1 month later...

When this case was filed and I had a chance to read the Complaint, I created a dedicated page at my website in which I made the following predictions:

 

This is what is going to happen with this “Open Carry” lawsuit.

  1. Both of the defendants will file a motion to dismiss. And both did.
  2. The Sheriff will be dismissed from the lawsuit with prejudice because the concealed carry claims against him are precluded by the en banc decision in Peruta v. San Diego. And that is exactly what happened.
  3. The Attorney General’s motion to dismiss will be granted but the NRA will be granted leave to amend its complaint in order to state a viable claim against California’s Open Carry bans. And that is exactly what happened.
  4. The NRA will file its First Amended Complaint.
  5. If the amended Complaint states a viable claim against California’s Open Carry bans then the case will move on to discovery after which both sides will file dispositive motions unless there are triable issues of fact for a jury to decide (or be decided in a bench trial).
  6. If the amended Complaint fails to state a viable claim against California’s Open Carry ban then the case will be dismissed with prejudice without discovery or the filing of dispositive motions.
  7. The Attorney General will likely file a motion to stay this case pending a decision in my California Open Carry lawsuit which challenges the same state laws. If that motion is filed then it is likely to be filed before discovery and before the filing of any dispositive motions. If the motion to stay is filed then it is likely to be granted.
  8. If no motion to stay is filed then steps 2-6 will take a year or so. If a judge hostile to the Second Amendment is assigned then it could take two or three years before there is a final decision by the district court judge in this case.

Technically, the state did not include in its motion to dismiss a dismissal against the "thin" Open Carry challenge saying it would wait until discovery. The district court judge did not buy the plaintiffs argument that they have a right to carry in "some manner." The judge concluded, correctly, that the 9th circuit en banc decision in Peruta took concealed carry off the table. Concealed carry simply is not a right under the Second Amendment.

 

The Los Angeles County Sheriff was dismissed with prejudice as were the plaintiffs' claim that they were entitled to concealed carry permits because Open Carry is banned.

 

Normally, an amended complaint must be served and filed within 30 days. I am assuming that still holds even though the district court judge made no mention of a deadline in his Order of February 24th. In a prior ORDER he had set a deadline of May 1st for filing making amendments to the lawsuit.

 

Regardless, I do not think that the NRA lawyers are capable of filing a lawsuit which properly challenges California's Open Carry bans. Moreover, my lawsuit already challenges those bans under the Second Amendment. Whatever decision the court of appeals makes in my case is going to be binding on the plaintiffs in this case.

 

More at my website.

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I have hopes for this case, but those are tempered by the reality that the justices of the 9th aren't known for being constitutionally consistent in their rulings.

There are 4 vacant seats on the 9th Circuit Appeals Court, and 19 in the 9th Circuit total, waiting to be filled by Trump.

I have since changed my opinion, and I believe that the gun control movement as a whole is cooked. If Peruta and Kolbe come before the SCOTUS with two Trump appointees, then the gun control movement will be greatly diminished. The 9th will still cause problems, but far fewer than now because of the presence of Trump appointees.

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