I think it was 9th circuit court of appeals circuit judge William A. Fletcher who once asked, facetiously, if the two lawyers on opposite sides of a case he was presiding over were colluding with each other?
If I were district court judge John A. Kronstadt, who is presiding over the NRA lawsuit Flanagan v. Becerra, I would seriously question if the NRA were colluding with the State of California to lose.
Let’s recap the Flanagan case thus far:
- The NRA, through its official state organization the California Rifle and Pistol Association filed a lawsuit purportedly challenging California’s Open Carry bans. The problem with the lawsuit is that the NRA lawyers did not allege the facts required to have standing to challenge California’s Open Carry bans. Instead, the NRA alleged the facts necessary to challenge the denials of concealed carry permits on behalf of the individual plaintiffs who had been denied concealed carry permits. But there is no right to a concealed carry permit, the 9th circuit court of appeals had already decided that question in another NRA lawsuit, Peruta v. San Diego.
- The State’s Attorney filed a motion to dismiss the allegations of the Complaint related to concealed carry, as did the Los Angeles County Sheriff. The State’s Attorney did not move to dismiss the lawsuit challenging California’s Open Carry bans “at this time” even though he characterized the Plaintiff’s Open Carry challenge as “thin.”
- District court judge John A. Kronstadt dismissed, with prejudice, the plaintiffs’ concealed carry claims, the Los Angeles County Sheriff, and the equal protection claims under the 14th Amendment in February. Judge Kronstadt did not dismiss the challenge to California’s Open Carry bans which wasn’t too surprising given that the state did not move to dismiss the “thin” Open Carry challenge.
- Judge Kronstadt set a May 1, 2017, deadline for the NRA lawyers to amend its Complaint and to add any new plaintiffs to its lawsuit.
- California Attorney General Becerra filed his Answer to the plaintiffs’ complaint in March. Not surprisingly, he claims that the plaintiffs lack standing to challenge California’s Open Carry bans.
- The NRA did not file an Amended Complaint (or add any new plaintiffs) by the May 1st
Because the NRA did not file an Amended Complaint by the deadline, coupled with the fact that the California Attorney General has filed his Answer to the complaint initially filed in this lawsuit, the initial complaint filed in Flanagan v. Becerra is now what the courts refer to as the “Operative Complaint.”
The Operative Complaint is the document by which this case will win or lose both in the district court and on appeal.
There was a very similar case to this in the 10th Circuit Court of Appeals which challenged Colorado’s residency requirement for a concealed carry permit, Peterson v. Martinez. Peterson argued that he had a right to carry a handgun “in some manner” and that “manner” was concealed, with a Colorado concealed carry permit.
During oral arguments in that case, Peterson’s attorney was asked where in Peterson’s complaint did Peterson say he intended to openly carry a handgun? The circuit judge added that he counted eight places where Peterson said he seeks to carry a handgun concealed but nowhere does he see in Peterson’ operative complaint where Peterson said he seeks to openly carry a handgun in public.
Judge Kronstadt, or a judge on the 9th circuit court of appeals, may very well ask that same question. The NRA complaint in Flanagan v. Becerra is chock full of paragraphs where the plaintiffs seek to carry concealed handguns and, indeed, sought concealed carry permits. But not a single paragraph of the complaint says that any of the plaintiffs seek to step even one inch outside the doors to their home openly carrying a firearm, loaded or unloaded.
The NRA plaintiffs in Flanagan v. Becerra do not say anywhere in their operative complaint that they seek to openly carry a loaded or modern, unloaded handgun, rifle or shotgun anywhere in the state at any time under any circumstances.
To put it simply, the Federal courts require at a minimum that one at least articulate a concrete plan to engage in conduct prohibited by the law one is challenging in order to challenge the law. The Flanagan plaintiffs have not articulated any plan, let alone a concrete plan.
One does not have to break the law to have standing to challenge a law. If that were not true then there would be no civil rights lawsuits challenging unconstitutional laws, there would only be lawbreaking and the laws being challenged via criminal prosecutions.
What one cannot do in a civil lawsuit is to simply claim that a law is unconstitutional and therefore it should be overturned, which is exactly what the NRA lawyers did in its Flanagan v. Becerra “Open Carry” lawsuit and which is what the State’s Attorney claims the NRA lawyers did in his Answer to the NRA’s Operative Complaint.
Which begs the question, “Why did the NRA do this?”
We know the NRA hates Open Carry, it clearly said so in its Peruta v. San Diego concealed carry lawsuit.
I suppose the NRA wants Judge Kronstadt to issue a decision upholding California’s Open Carry bans. But given the Flanagan plaintiffs lack of standing to challenge California’s Open Carry bans, any decision Judge Kronstadt might issue on the Constitutionality of California’s Open Carry bans would merely be an advisory opinion and, you might have guessed, Federal judges are prohibited from issuing advisory opinions.
August 14, 2017, is the last day to file motions in this case. I suspect that the State’s attorney will file a motion to dismiss the case with prejudice and the NRA will file a motion for summary judgment in favor of the NRA.
Federal District Court Judge John A. Kronstadt set November 6, 2017, as the last day to hear the motions and he set December 4, 2017, as the date he anticipated ruling on all motions.
Hopefully by then, we will have a decision in my California Open Carry appeal, Charles Nichols v. Edmund Brown, Jr., et al and the Flanagan case will simply dry-up and blow away.