A Declaration That Open Carry Is the Right

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9th Circuit Court of Appeals Oral Argument in California Open Carry Appeal is Tentatively Scheduled for November

It looks like oral argument will take place in my Federal lawsuit this November, Charles Nichols v. Edmund Brown, Jr., et al.

My lawsuit seeks an injunction against California’s 1967 ban on Loaded Open Carry as well as injunctions against the two recently enacted Unloaded Open Carry bans and injunctions against California’s two handgun licensing laws which restrict licenses to openly carry handguns to counties with a population of fewer than 200,000 people.

It seems that one cannot lift up a rock without finding some critic of me and my lawsuit. Most of my critics simply hate the fact that Open Carry is, and always has been, the right guaranteed by the Second Amendment and that concealed carry is not a Second Amendment right, notwithstanding certain exceptions to the prohibitions on concealed carry such as for travelers and persons while actually on a journey.

As these are cowardly bottom dwelling creatures lacking even a hint of morality, the prospect of having to openly carry a firearm instead of being able to carry a concealed handgun for use in sneak attacks makes their pointy little heads spin like a top.

California‘s Gun-Free School Zone Act of 1995

Some of my critics additionally attack me for not seeking an injunction against every California law, particularly the California Gun-Free School Zone Act of 1995 which generally prohibits the carrying of handguns (but not long guns) on public streets and sidewalks within 1,000 feet of a K-12 public or private school.

I did not seek an injunction against California’s Gun-Free School Zone Act of 1995 for several reasons. Here are two reasons. First, when my lawsuit was first filed six years ago this November, no court of appeals had said that there was a right under the Second Amendment to carry a firearm in public, let alone a handgun which many courts had long considered suspect, even for possession in the home.

Had I sought an injunction against the carrying of handguns within 1,000 feet of a K-12 public or private school then the judge assigned to my case would have dismissed my lawsuit with prejudice simply saying that I seek to carry a firearm in sensitive public places and ignore the other relief I sought in my lawsuit, such as carrying loaded firearms for the purpose of self-defense in places that do not fall within 1,000 feet of a K-12 public or private school.

Secondly, my lawsuit was filed in the Central District of California which has strict page length limitations on briefs filed in one’s case. It simply was not, and is not possible, to argue why an injunction should be issued against the Open Carry bans as well as the California Gun-Free School Zone Act in one lawsuit.

The state’s attorney representing Governor Brown and the California Attorney General knew this. That is why the state’s attorney made a couple of attempts to shoehorn a challenge to California’s Gun-Free School Zone Act of 1995 into my lawsuit.

He failed.

However, not seeking an injunction against California’s Gun-Free School Zone Act of 1995 does not mean I was blind to the ramifications of one not being able to carry a handgun on public streets and sidewalks within 1,000 feet of a K-12 public or private school.

An exception to this gun-free school zone ban on handguns is if one has a license to carry a concealable weapon issued pursuant to two California statutes. Note that I said “concealable weapon” and not “weapon concealed.” In California, a license to carry a concealable weapon “CCW” can be issued to allow one to carry a loaded handgun concealed or openly. The licenses to openly carry a handgun are limited to certain counties and are valid only in those counties.

And so I sought an injunction against those two handgun carry statutes in their entirety and, if the court does not strike them down in the entirety, then in the alternative I sought relief limited to licenses to openly carry handguns.

If I am successful then the prohibitions and “regulations” and restrictions on concealed carry licenses would remain unchanged but for a California handgun Open Carry license. The only thing you would have to do in order to obtain a license (no fees, tests, anything) is to provide the same identifying information you provide to a Federal firearms dealer when you purchase a firearm needed to perform an FBI instant background check.

And of course you would have to pass the FBI instant background check.

Given that the two state statutes which provide for the issuance of handgun carry licenses are the same two statutes which provide for the issuance of handgun carry licenses to judges, I’m pretty sure the licensing statutes won’t be struck down in their entirety.

But let us assume that the majority of judges assigned to my appeal strike down California’s handgun licensing laws in their entirety, or for everyone but judges.

The declaratory relief I sought in my lawsuit is much broader than the specific injunctive relief I asked for.

Declaratory Relief Requested in my Lawsuit

First a very brief explanation as to the difference between the injunctive and declaratory relief sought by my lawsuit.

An injunction is a command by the court. In my lawsuit it would be an Order prohibiting the state from enforcing, for example, California’s 1967, Loaded Open Carry ban.

A declaration on the other hand establishes the rights and obligations of the parties.

If I obtain the declaratory relief I requested in my lawsuit then any state official or agent of the state (e.g., police officer) who enforces a law contrary to the Declaration granted by the court loses his or her qualified immunity from being personally sued.

As of today a police officer, for example, can enforce a law and even if the law is eventually held to be unconstitutional and even if it were obvious that the law was unconstitutional at the time he enforced it and yet he cannot be sued for monetary damages unless it was not clearly established at the time he violated your rights that your rights were being violated.

In these situations, he is granted qualified immunity which means he is immune from prosecution. But not so if there is a declaratory, or injunctive, judgment against a law.

And, of course, the Federal courts can sanction the offending government official, agent or employee with both monetary fines and incarceration once the Declaration (and/or Injunction) is issued.

One of the declarations I sought in my lawsuit is the title of this article:

A Declaration That Open Carry Is the Right Guaranteed by the Constitution in Non-Sensitive Public-Places.

The injunctive relief sought in my lawsuit is primarily limited to the three statutes prohibiting Loaded and Unloaded Open Carry of handguns and long guns and the two state statutes providing for handgun carry licenses.

However, if I win my appeal then I also obtain the declaration above and if I obtain the above declaration then Open Carry is the right throughout the 9th circuit court of appeals and the burden shifts to the government to prove that a particular public place is a sensitive public place pursuant to the Heller decision in both criminal court and in future lawsuits seeking an injunction against California’s Gun-Free School Zone Act of 1995 and, for that matter, against any state and local law within the jurisdiction of the 9th circuit court of appeals.

Schools and government buildings are presumptively sensitive places under Heller. Perhaps the government could make the case that the grounds where the government building or school is located is also a sensitive place and possibly even the parking lots adjacent to, or on the grounds of the government building or school is a “sensitive place.”

What the government will be hard pressed to do is to prove that a public sidewalk or street 999 feet away from a K-12 public or private school is a “sensitive place” under the Supreme Court Heller decision.

In any event, all the government needs to do today in order to prosecute you is to claim you were in a prohibited area within 1,000 feet of a K-12 public or private school in violation of the California Gun-Free School Zone Act of 1995.

If I prevail in my appeal then in every future prosecution of every person who was openly carrying a firearm for the purpose of self-defense, including a handgun, the government will have to prove that both the “crime” was committed and that the crime was committed in a non-sensitive public place. And, as I indicated above, the same is true of every civil lawsuit seeking an injunction against any law in this circuit.

With the caveat that one would have to have a competent lawyer who knows about the declaration (or injunction) and who knows which paperwork to fill out.

By the way, my lawsuit seeks other declaratory relief as well which, if granted, will at least enable us to openly carry firearms for the purpose of self-defense without fear of arrest, prosecution, fine and imprisonment in places where it is now illegal, or where the law is vague, and to do so even if I were to be denied the injunctive relief I seek in my lawsuit. Namely:

  • A Declaration that Open Carry is the right guaranteed by the Constitution in non-sensitive public-places.
  • A Declaration that no license is required to openly carry a firearm for the purpose of self-defense.
  • A Declaration that a private motor vehicle and any attached campers or trailers are not public places and firearms may be carried therein.
  • A Declaration that private residential property is not a public place regardless of whether or not it is fully enclosed by a fence or barrier.
  • A Declaration that firearms openly carried which do not have live ammunition in the firing chamber are unloaded and that possession of matching ammunition with an openly carried unloaded firearm does not make the firearm “loaded” regardless of whether or not the ammunition is attached in any way to the firearm.
  • PLAINTIFF desires a judicial declaration of his rights and DEFENDANT’S duties namely, that California Penal Code Section 25850 infringes on PLAINTIFF’S Second, Fourth and Fourteenth Amendment rights to openly carry a loaded firearm in non-sensitive public places.
  • PLAINTIFF requests declaratory and/or prospective injunctive relief under 42 U.S.C. § 1983 against DEFENDANT HARRIS to prevent future violations of his Second Amendment right to openly carry a loaded firearm in non-sensitive public places for the purpose of self-defense and for other lawful purposes, his Fourth Amendment Right, and his Fourteenth Amendment rights to equal protection under the law and to due process. PLAINTIFF submits that no license is required to openly carry a firearm for the purpose of self-defense but if a license is required then PLAINTIFF and persons not prohibited from possessing a firearm have a liberty and/or property interest in a license and must be issued one.
  • Declaratory judgment that Penal Code section 25850, 26350, 26400, 26150, 26155, (plus ancillary licensing statutes requiring fees, good cause, etc) are invalid in that and to the extent that it is applied to prohibit private citizens who are otherwise qualified to possess firearms from openly carrying loaded firearms for the purpose of self-defense on their own property, in their vehicles and in non-sensitive public places.

Finally, my lawsuit is technically not limited to the injunctive and declaratory relief listed in my Complaint but realistically, this is my last gunfight in the courts. If I lose on appeal then I will file my cert petition (and writ for declaratory relief) with the US Supreme Court and leave it in their hands.

If I win then any future injunctive and declaratory relief will have to be sought by others in their own lawsuits.

I’ve been fighting this fight for seven years, nearly six of those years in court without the benefit of a lawyer or even the assistance of a paralegal because California prohibits paralegals from working for anyone but lawyers.

Last month marked the 50th anniversary of California’s 1967 ban on Loaded Open Carry. In all that time my lawsuit was the first to challenge the ban as applied to firearms openly carried for the purpose of self-defense.

What does that say about the people of California? In 50 years I was the first to challenge the ban as applied to firearms openly carried for the purpose of lawful self-defense.

The National Rifle Association helped write the 1967 ban and endorsed its passage. For nearly all of this decade, the NRA was in Federal court arguing to uphold California’s Open Carry bans and California’s gun-free school zones.

The other so called gun-rights groups supported the NRA’s war on the Second Amendment. Two of the groups, The Second Amendment Foundation (SAF) and the Calguns Foundation, had their own separate lawsuit which sought the destruction of the Second Amendment in pursuit of shall-issued concealed carry permits.

We live in a world where the so called gun-rights groups are the richest, most powerful supporters of anti-gun laws and yet people, who claim to support the Second Amendment, throw money at them hand over fist.

For me and for the just over 300+ souls who have supported me these past seven years I will continue to fight this fight to overturn California’s Open Carry bans to the best of my ability. They are, after all, almost literally one in a million.

And I am not forgetting the few supporters I have who do not even live in the United States.

I often wonder if the opponents of Open Carry know what they are and, if they don’t, I wonder what those of us who support Open Carry must look like to them.

Transcript Released in NRA’s Fake Open Carry Lawsuit

50th Anniversary of California’s Loaded Open Carry Ban