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Old April 24, 2012, 12:00 AM   #1
Charles Nichols
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Charles Nichols v. Edmund G Brown Jr et al

I realize that the "concealed carry or no carry" crowd doesn't care about the facts but here are a few facts about the magistrate's judge recommendation and report filed in my Open Carry lawsuit.

Her opinion is that governors and police departments are immune from Federal Civil Rights lawsuits, not just as applied to my case but in all cases. The lawyer who reviewed my complaint before I filed it says the magistrate judge is an idiot. I imagine lawyers in the nearly 1,000 Federal lawsuits brought against the LAPD alone in the last ten years would agree. Awards in these cases have totaled over $136 million dollars.

The District Court judge assigned to my case has found that police departments are liable if they have violated a plaintiff's constitutional rights.

The governor of North Carolina was just successfully sued a week before the magistrate judge filed her report. I have read federal lawsuits against California governors and other state officials that were written in pencil where the district court judge gave the plaintiff multiple opportunities to correct the deficiencies in the complaint.

The magistrate judge "advises" that I would have to state exactly when and where I would have to violate the law in order to have standing against the remaining defendants. She based her conclusion on a non-binding district court decision from Hawaii.

That decision was overturned by the 9th Circuit Court of Appeals less than a week after she filed her report and recommendation.

Given that District Court judge Otero is unlikely to contradict his earlier decisions the likelihood of his accepting the magistrate judge's report and recommendation is somewhere between none and nil.

But if he does, I am more than happy to have an even earlier opportunity to take my case to the 9th Circuit Court of Appeals. With over 100 years of US Supreme Court precedents on my side, not to mention the innumerable 9th Circuit Court decisions, I'm not too worried.

California Right To Carry
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Old April 24, 2012, 01:08 AM   #2
maestro pistolero
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Quote:
I realize that the "concealed carry or no carry" crowd doesn't care about the facts
You realize that, do you? Or is it that they see the facts differently than you do, Charles? I'm actually quite sympathetic to your case, and while open carry certainly seems like a more direct route, I'm not so full of hubris as to believe that I believe I have a monopoly on the truth as you seem to.

And I do believe that until GFSZ's are addressed, any right you were secure would be hollow indeed, as those school zones overlap so completely in many urban areas, that there is scarcely a square yard upon which stand to bear your arms.

Concealed carry licensees already have a federal exemption to the GFSZ problem.

So it's not like the CCL folks don't have a point. Good luck with your case, Charles, but for God's sake, get some talented help. I know you've heard it before.
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Old April 24, 2012, 01:48 AM   #3
Charles Nichols
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The problem with the CCL (CCW in California) folks is they don't have the law on their side. I wish the US Supreme Court had concluded that the 2nd Amendment guaranteed the right to carry as it was understood in 1791 when the Bill of Rights was adopted. It didn't.

California court decisions since the 1890s on concealed carry mirror the Heller decision and the current state of Open Carry is about as close to a mirror image of the Heller decision as we are likely to get. If AB 1527 passes so much the better. Which isn't to say I support AB 1527, you'll find my organization listed among the official opponents in the Assembly Public Safety Committee report on the bill.

Once it is established that the Supreme Court meant what it said in the Heller decision and that the 9th Circuit meant what it said when it applied the time, place and manner restrictions to California then California's Gun Free School Zone Act will be comparatively simple to overturn.

I challenged my opponents, including the CalGuns/SAF attorneys to cite even one US Supreme Court decision which held that a law prohibiting something which is not constitutionally protected (i.e., concealed carry) was overturned because there was a law prohibiting constitutionally protected activity (i.e., Open Carry).

They did not, because none exists. Such a holding would be the legal equivalent of a "divide by zero." Before I filed, I gave them every opportunity to present a legal argument as to why my case would fail.

Their two CCW cases now on appeal before the 9th Circuit would make a third year law student blush in embarrassment. Alan Gura, the SAF/CalGuns attorney spent so much time arguing that states may ban Open Carry he forgot to state just what the nature of his challenge to California's CCW law was. The judge inferred a "facial challenge" and Gura lost.

The NRA/CRPA CCW lawsuit, also on appeal, lost because the Federal Judge asked Chuck Michel point blank if he was bringing ANY constitutional challenge to ANY California law, he said that he was not.

Their defenders say that this is their strategy, to lose cases. My strategy is to win my case.

I could have challenged California's licensing restrictions on Loaded Open Carry at the risk of enshrining permits to exercise a constitutional right. That, and the fact that procedural due process lawsuits are technically more complex weighed in my decision.

Fortunately, the California legislature passed a law back in 1967 which is facially unconstitutional and unlike Gura and Michel, I have challenged that law; facially, as-applied and on substantive due process grounds.

There is no way the courts are going to be able to avoid ruling on my lawsuit, which is why the attorneys (and the magistrate judge) are grasping at procedural straws.

We'll have the District Court judge's decision by mid-June. I've read enough of his decisions to know that the worst that will happen is that he will require me to file an amended complaint. He will spell out exactly what I need to put in the complaint to satisfy whatever concerns he may have.

Given that I had planned on filing a 1st amended complaint, this won't be much of a setback.

California Right To Carry
P.S. the next time you run into Alan Gura or Chuck Michel, remind them that I still have all the emails we exchanged.
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Old April 24, 2012, 02:17 AM   #4
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Quote:
I challenged my opponents, including the CalGuns/SAF attorneys
If Hoffman, Michel, and Gura are your opponents, exactly who are your friends in this?
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Old April 24, 2012, 02:20 AM   #5
Charles Nichols
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You can judge a man more by his enemies than by his friends. I am honored that they oppose me.

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Old April 24, 2012, 10:25 AM   #6
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Quote:
Originally Posted by Charles Nichols
The problem with the CCL (CCW in California) folks is they don't have the law on their side....
And exactly how is that?

Quote:
Originally Posted by Charles Nichols
...I challenged my opponents, including the CalGuns/SAF attorneys to cite even one US Supreme Court decision which held that a law prohibiting something which is not constitutionally protected (i.e., concealed carry) was overturned because there was a law prohibiting constitutionally protected activity (i.e., Open Carry)...
Really?

First, the underlying assumption in your question is patently false. You merely assume that concealed carry is not constitutionally protected while open carry is. There is really no basis for that assumption. The Court in Heller found that the bearing of arms unconnected with service in a militia was constitutionally protected.

Second, the availability of alternates figures prominently in much First Amendment jurisprudence. Among other things, availability of alternate means is a significant part of the evaluation of time, place and manner restrictions on the exercise of rights protected by First Amendment.

For example, in Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted (emphasis added):
Quote:
...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement ....
Thus the availability of alternate ways to communicate may allow the restriction or prohibition of one way.
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Old April 24, 2012, 05:36 PM   #7
Charles Nichols
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I do not "assume" anything about concealed carry. The Heller and McDonald decisions did not hide the Court's contempt for concealed carry. In the time, place and manner restrictions in Heller (which two published 9th Circuit decisions have embraced) the High Court said that nothing in their decision should cast doubt on the longstanding prohibitions on concealed carry.

Unless one was travelling, those longstanding prohibitions were that concealed carry is unlawful and is not constitutionally protected.

That will be my last word on the matter here. Feel free to get your hopes up that I'll lose my case.
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Old April 24, 2012, 06:49 PM   #8
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Quote:
...I do not "assume" anything about concealed carry. The Heller and McDonald decisions did not hide the Court's contempt for concealed carry. In the time, place and manner restrictions in Heller (which two published 9th Circuit decisions have embraced) the High Court said that nothing in their decision should cast doubt on the longstanding prohibitions on concealed carry.
...
You are absolutely wrong on this and either fail to understand what Heller said or you are intentionally misrepresenting the current state of the law to support your solicitation of money to support your spurious lawsuit. Indeed, you have misquoted the Court in Heller. What the Court actually said was (Heller, pp 54 -55):
Quote:
...nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms....
Cite the exact language in Heller that supports your contention.

Indeed, your reasoning is specious, and I've rebutted your line of thinking here, here, here, here, here, here, here, here, here, and here.
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Old April 24, 2012, 06:57 PM   #9
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Quote:
In the time, place and manner restrictions in Heller (which two published 9th Circuit decisions have embraced) the High Court said that nothing in their decision should cast doubt on the longstanding prohibitions on concealed carry.
As Frank pointed out, the Court didn't articulate an opinion on concealed carry at all. If you're not a fan of time/place/manner restrictions, I can't be of much help, since the Court has historically used that phrase when evaluating 1st Amendment challenges.

Quote:
Feel free to get your hopes up that I'll lose my case.
I don't want you to lose. That would be problematic for all of us. The plain fact is, I don't want you to bring it at all. You're asking a court to acknowledge a right to carry when the higher courts have yet to do so. It's not time. Your "opponents" understand this, which is probably why they're not jumping in to support your efforts.
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Old April 25, 2012, 09:26 AM   #10
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Quote:
Feel free to get your hopes up that I'll lose my case.
We don't want you to lose. We hope that you win. But we don't want you to lose in a way that makes a later win even more difficult.
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Old April 25, 2012, 03:05 PM   #11
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Charles, That you even THINK we want you to lose validates the concerns many of us have over your perception and judgment. I think I totally get your point and position, but I haven't seen you so much as acknowledge the many good arguments to proceed with CC first.

You have many good points as well. For example, I happen to believe, unlike some in leadership positions at Calguns and elsewhere, that if we got open, loaded carry first, that the CA legislature would RUN, not walk to shall issue licensing policy. But I must admit that, despite that approach working in Ohio, I could be wrong about that in CA.

AND, the GFSZ issue notwithstanding, any rights regained your way can and WOULD be quickly reduced to an ash-heap via private property rights. This is due to the political climate in CA. You won't be able to carry at many restaurants, malls, coffee shops, retail stores of all kinds, because in California, "No Guns" signs will start popping up like the state flower in June.

All I'm saying is, when you treat allies as enemies due to mischaracterizing and misinterpreting our motives; assigning ill-will where none exists, you undermine the built in support that you actually have, but fail to see.

Last edited by maestro pistolero; April 25, 2012 at 03:16 PM.
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Old April 25, 2012, 08:36 PM   #12
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Forty-two years of California court decisions have held that businesses can not prevent persons from engaging in constitutionally protected activities on commercial property so long as they do not actively interfere with the operations of the business.

The only two exceptions are at isolated stand-alone businesses which can prohibit signature gathering and inside of airports which can prohibit receiving cash or cheques (but not prohibit asking that cash or cheques be mailed to them).

Last edited by Frank Ettin; April 25, 2012 at 08:46 PM. Reason: delete defamatory content
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Old April 25, 2012, 08:52 PM   #13
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Quote:
Originally Posted by Charles Nichols
Forty-two years of California court decisions have held that businesses can not prevent persons from engaging in constitutionally protected activities on commercial property so long as they do not actively interfere with the operations of the business....
It of course remains to be seen whether a court would buy your vague and nebulous attempt at making a connection.

And are any of those something other than First Amendment cases? Do any of those cases describe how interference with business operations are to be assessed. Please provide citations and specific language from the court decisions.
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Old April 25, 2012, 08:53 PM   #14
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Hey welcome to the forum Charles !
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Old April 25, 2012, 10:10 PM   #15
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Charles -
We understand your frustration.
We're on your side.

We just don't think it's the right time for this particular appeal.
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Old April 25, 2012, 10:36 PM   #16
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Quote:
For example, I happen to believe, unlike some in leadership positions at Calguns and elsewhere, that if we got open, loaded carry first, that the CA legislature would RUN, not walk to shall issue licensing policy.
It seemed to have worked in Ohio, but California's a whole different place. Let's not forget that open carry was part of the cause of the problem back in 1967.

If you followed the Richards case, Judge England's logic was that, as long as one form of unlicensed carry (at the time, UOC) was permitted, then the right to carry was not violated. AB 144 took even that off the table. That leaves certain parties a window through which to file litigatin with a real chance of succeeding.

Those parties have a plan. This is about chess, not checkers. Now, if it's to be an either/or choice between legal open carry or legal concealed carry, concealed carry is a better choice.

Maestro, good point about private establishments and GFZ's whittling the effective scope of the right down in a non-permissive culture.
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Last edited by Tom Servo; April 25, 2012 at 11:16 PM.
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Old April 25, 2012, 11:11 PM   #17
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Private property owners absolutely have a right to prohibit weapons on their premises.
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Old April 26, 2012, 08:06 PM   #18
Charles Nichols
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Keeping in mind that I have not filed even a 1st Amended Complaint here is the District Court Judge's standard for 12(b)(6) motions to dismiss (ruling on a 2nd Amended Complaint) putting aside the fact that Gov. Brown did not file a 12(b)(6) MTD, the magistrate judge "found" 12(b)(6) grounds all on her own.

"In a pro se civil rights case, the complaint must be construed liberally to afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 623 (9th Cir.1988). Before dismissing a pro se civil rights complaint for failure to state a claim, the plaintiff should be given a statement of the complaint's deficiencies and an opportunity to cure. Id. Only if it is absolutely clear that the deficiencies cannot be cured by amendment should the complaint be dismissed without leave to amend. Id.; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.1995)."

Which is consistent with 9th Circuit rulings. Unless a complaint is frivolous, falls under a statute of limitations, or otherwise precluded by Federal law; initial complaints simply do not get dismissed.

Feel free to provide a citation to any of Judge Otero's decisions where he has deviated from this standard.

Judge Otero has also found that police departments are "persons" under 42 USC 1983 and the Magistrate judge's opinion that governors (in their official capacity) and police departments cannot be sued for Declaratory and/or Prospective injunctive relief speaks for itself. Notice that the magistrate judge did not conclude that they were not proper defendants as applied to my case, she concluded that they were not subject to civil rights lawsuits, period.

Alas, this is all lost on you folks.
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Old April 26, 2012, 08:14 PM   #19
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"Alas, this is all lost on you folks. "


With all due respect: Belittling your audience is not generally a way to gain their sympathies.
All it does, frankly, is make you seem like a smaller man.


Willie

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Old April 26, 2012, 09:45 PM   #20
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Charles Nichols, as I do not live in California, I had never heard of you and therefore had no opinion about you prior to encountering this thread.

Based solely on this thread, I have to tell you that your persuasive skills are solely lacking. You have alienated me entirely through your style and approach. You might want to consider toning it down, as you come across unfavorably enough to distract from the meat of your arguments.

Insulting the audience is no way to make allies of the audience.
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Old April 26, 2012, 09:59 PM   #21
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Charles,

I do not live in California either, but to echo what MLeake has stated roughly, until you came on here I had no idea who you are. Beyond your trying to alienate me and others, I wish you would do more to listen to others about your case.

While I hope you win, I will keep my fingers crossed...
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Old April 26, 2012, 11:55 PM   #22
maestro pistolero
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I assure you, Charles, very little is lost on us. You inexplicably alienate folks who are nothing but sympathetic. How do you expect to prevail against
real adversaries when you lack the judgment to recognize allies?

You must post here because you imagine this (correctly) to be friendly territory. But then you begin or end a post with a false negative assumption and insult all your new friends. What gives?
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Old April 26, 2012, 11:56 PM   #23
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Quote:
Originally Posted by Charles Nichols
...Alas, this is all lost on you folks.
It's not lost on me. For more than 30 years in practice, reading and understanding statutes and cases was my business, how I made my living and how I supported my family.

However, after having read the pleading in your case, including your complaint and your responses to motions, I've found that I can't put much credence in your assessment of what the cases say.
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Old May 1, 2012, 05:36 AM   #24
Charles Nichols
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More than 30 years in practice and Frank somehow missed learning that a complaint can only be dismissed with prejudice under 12(b)(6) if it is frivolous, time barred or otherwise incapable of being corrected by amendment.

Frank apparently can't conceive of an amended complaint to escape a dismissal with prejudice, we'll know within six weeks or so whether District Court Judge Otero is similarly impaired.

I'll give you'all a hint:
Starr v. Baca, 652 F. 3d 1202 - Court of Appeals, 9th Circuit 2011 -> The US Supreme Court just refused to hear the appeal.

Coalition to Defend Affirmative Action v. Brown, Court of Appeals, 9th Circuit 2012

Now for the kids at the back of the class. What Governor got slapped with an injunction where his sole enforcement connection was a government code section identical to California Government Code section 12010 & 12011?

Keeping in mind that I have alleged a much more tightly coupled level of enforcement of the statute than Brown has with the Board of Regents.

And if all else fails, even Brown's attorney concedes that my suing the governor in his personal capacity keeps him on the hook.

It's a good thing I never asked Frank to review my complaint before I filed it. The attorney who did review it, pro bono, thinks the magistrate judge is an idiot. Others have used other words, none of them charitable.

Frank is the only attorney, including Brown's attorney, who seems to think otherwise.
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Old May 1, 2012, 07:31 AM   #25
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Charles, I don't know if you are right or not. Your persuasive style leads me to believe you are likely to achieve Pyrrhic victories, though.

IE, you have high odds of offending or driving away your audience, even if you might be technically correct.

You do not seem interested in winning allies.
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