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    Two Visions of America by Don Jans

    California Open Carry Update 10-25-2022

    By Charles Nichols

    First, an important correction.

    Holders of a license to carry a loaded firearm (CCW) are only exempt from the Unloaded Open Carry ban if one has a license to OPENLY carry a loaded firearm (see PC 26362) which means only in the county of issuance.

    I was correct that a CCW holder is exempt from the 1,000-foot California gun-free school zones that extend from every public and private K-12 school if the handgun is listed on the CCW (and provided that the license does not prohibit the carrying of the handgun in school zones). The CalGuns.nuts Foundation had filed, and lost on appeal, a lawsuit claiming that CCW holders are not exempt.

    California Penal Code section 26362  states, “Section 26350 does not apply to, or affect, the open carrying of an unloaded handgun by any person to the extent that person may openly carry a loaded handgun pursuant to Article 4 (commencing with Section 26000) of Chapter 3.”

    In my supplemental brief on appeal, I had mistakenly argued that a CCW holder was exempt from the unloaded handgun Open Carry ban – statewide.  The state’s attorneys representing Governor Newsom and AG Bonta did not catch my mistake.

    And now, the Update:

    Charles Nichols v. Gavin Newsom et al

    The mandate in my appeal was issued on September 12th.  I filed a motion to lift the mandate on September 14th.  My motion is still pending.  I had expected that there would have been a decision on my motion by now.

    Perhaps my motion to lift the mandate is still pending because the powers that be in the 9th circuit court of appeals are thinking about having oral argument in the NRA/CRPA fake Open Carry appeal of Flanagan v. Bonta.  Or perhaps my motion is simply setting at the bottom of someone’s inbox, never to be decided.  There is no way of knowing.

    In any event, a new district court judge was assigned to my case on September 13th, the day after the mandate was issued.  Nothing of substance has happened since.  Next month, after the Mark Baird et al v. Rob Bonta preliminary injunction hearing, I will start the paperwork in the district court to get things moving along.  I had hoped to find an attorney to file a writ of mandamus with SCOTUS instructing the 9th circuit court of appeals to issue an opinion in my appeal, but that fell through.  I could file a writ on my own but that would prevent the district court (or the court of appeals) from doing anything until SCOTUS made a decision on the writ which would have most likely been a denial of the writ.

    On the plus side, there is little left to do for the newly assigned district court judge in my case given that I stood on my complaint before Judge Otero entered his final judgment in favor of the state, and I will stand on my complaint now because to file an amended complaint would mean starting over from the beginning, for all intents and purposes.

    I was born in the morning but it was not yesterday morning.

    Once I have a final judgment from the district court, I will file a timely notice of appeal with the 9th circuit court of appeals followed by a petition with SCOTUS for a writ of certiorari before final judgment.  Given that I will be well into my 12th year of litigation when that happens, my chances of it being granted are better than they would have otherwise been.  Provided that there is not a significant change in the composition of SCOTUS.

    Michelle Flanagan, et al., v. Rob Bonta

    Contrary to popular belief, judges do not decide which appeals are assigned to them.  The assignment of an appeal to a particular three-judge panel is made by the Clerk, and the composition of three-judge panels is made in advance of a three-judge panel being assigned to a particular case (en banc panels are randomly drawn).  The three-judge panels are divided into two classes: appeals the Clerk thinks oral argument should take place, and appeals the Clerk thinks will be disposed of without oral argument.

    The attorneys in Flanagan v. Bonta were informed on October 18th that their appeal is being considered for oral argument in the February through April time frame (in Pasadena) and to inform the Clerk within 3 days of the dates they are unavailable.  The potential argument dates were: February 6-10, 13-17; March 6-10, 13-17; April 10-14, 17-21.

    Based on their responses, the oral argument will not take place on February 16-17, or April 10-14.

    It only takes one judge on the three-judge panel requesting oral argument for it to take place.  And even if it is calendared for oral argument, that does not mean that oral argument will take place.  Hopefully, the three judges will read the only Amicus brief filed in that appeal, mine.  If they do then they will read that the district court judge assigned to the Flanagan case never decided whether or not California’s Open Carry bans are constitutional because the NRA/CRPA attorneys refused to argue that they are unconstitutional.  Judge Kronstadt wrote that if he were to decide then he would uphold the bans.  By not deciding, he deprived the court of appeals the jurisdiction to decide whether or not California’s Open Carry bans are constitutional.

    That does not mean that the three-judge panel won’t decide that California’s Open Carry bans are constitutional. After all, two of the three judges on the Peruta v. San Diego three-judge panel held that we are not even allowed to argue that we have a right to Open Carry.  That is known as a “pleading bar” which only SCOTUS and Congress can create. The judge who wrote that opinion would go on to write the vacated three-judge panel opinion in Young v. Hawaii which held that there is a right to openly carry handguns.  We will just have to wait and see what the three-judge panel assigned to Flanagan v. Bonta decides.

    Mark Baird et al., v. Rob Bonta
    On November 4th, Judge Mueller will hold a hearing on the third motion for a preliminary injunction (the first motion was denied (no appeal), and the second motion was withdrawn).

    Mark Baird’s second amended complaint was filed on September 27th.  Attorney General Bonta’s Answer (more likely a motion to dismiss with prejudice) is due on November 1st.  I suspect that the AG will make the same Second Amendment legal argument in his Answer/Motion to Dismiss as he did in his opposition to the third motion for a preliminary injunction which, in a nutshell, is that NYSRPA v. Bruen held that states can ban Open Carry so long as concealed carry is allowed.

    Unfortunately, the Baird v. Bonta lawsuit is still limited to handguns and challenges only California’s ban on carrying loaded firearms (PC25850) as it applies to handguns and challenges only the Unloaded Handgun Open Carry ban (PC 26350).

    By limiting the lawsuit to handguns, the AG does not have to prove that California’s Open Carry bans as they apply to long guns are constitutional.

    Fortunately, Judge Mueller (and the three-judge panel assigned to Flanagan v. Bonta) are bound by the eleven-judge en banc panel opinion in Peruta v. San Diego, which held that there is no right of the general public to carry a handgun concealed in public.

    For the state to win, Judge Mueller will have to hold that NYSRPA v. Bruen unequivocally held that bans on the Open Carry of handguns are constitutional provided that the plaintiffs can carry handguns concealed.

    There are Federal (and state) judges in California who would leap at that nonsensical interpretation of NYSRPA v. Bruen, but I’m not sure that Judge Mueller is one of them.

    For some inexplicable reason, AG Bonta cited Judge Otero’s final judgment in favor of the state in my California Open Carry lawsuit in his opposition to the motion for a preliminary injunction as “persuasive” authority even though the 9th circuit court of appeals vacated Judge Otero’s judgment in favor of the State of California, in full!

    Two senior Federal court of appeals judges who have published opinions and/or concurrences hostile to the Second Amendment (Berzon and Bybee) vacated the judgment of the district court in my case when they could have contrived some reason to affirm Otero’s final judgment on other grounds.

    AG Bonta citing the vacated final judgment in my case in support of his opposition to the motion for a preliminary injunction is Orwellian, to say the least.

    We probably will not know until the end of this week or early next week whether or not we can listen in on the Baird v. Bonta preliminary injunction hearing via telephone.


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    2 COMMENTS

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    Bruce Boyer
    Bruce Boyer
    10 days ago

    Thank you for running this article. I have been a supporter of his lawsuit (Charles has manage to get all this way, learning the law.. amazing). I was with him on day one when he chose to take a walk on the Redondo Beach pier w a slung unloaded rifle.. that was in 2011…

    Whatjustice
    Whatjustice
    24 days ago

    What a joke.

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