A Federal district court judge issued an Order and tentative ruling on Valentine’s Day smacking down the National Rifle Association’s latest attempt at obtaining “shall issue” concealed carry permits in the State of California. Flanagan et al v. Harris, et al.
The mainstream press has largely failed to report on these lawsuits by the NRA and the other so called gun-rights groups. The acolytes of these so called gun-rights groups don’t bother to read the briefs filed in the lawsuits because, you know, reading is hard and so what you may have heard from media is most likely wrong.
The “gun-rights” bloggers similarly don’t read the briefs. They often wait for the NRA and SAF to tell them what to say which often turns into a forlorn wait. For example, the SAF website still claims victory in its California concealed carry lawsuit (Richards v. Prieto) out of California even though its short lived “victory” was vacated shortly after it was issued in a non-published opinion. Last year an eleven judge en banc panel of the 9th circuit court of appeals drove a stake through the heart of concealed carry which the SAF fails to acknowledge on its website and which the NRA lied about.
What Happened Before.
For the benefit of those of you who haven’t heard, the 9th circuit court of appeals has held that there is no right of the general public to carry a concealed handgun in public. The NRA, through its official state organization the California Rifle and Pistol Association lost its quest for shall-issue concealed carry in its appeal of Peruta v. San Diego. The SAF in its separate lawsuit filed in conjunction with the CalGuns.nuts Foundation lost before the same en banc panel of eleven 9th circuit court of appeals judges in its Richards v. Prieto appeal.
Both Peruta and Richards filed petitions for their appeals to be reheard before all active judges of the 9th circuit court of appeals. Their “Full Court” petitions were denied without dissent.
The NRA has filed a cert petition with SCOTUS which should be denied in March. The SAF did not file a cert petition with SCOTUS.
In light of its miserable failure to achieve shall-issue concealed carry permits in the 9th circuit, the NRA brains trust came up with the idea of again seeking shall-issue concealed carry permits via a brand new lawsuit which purportedly challenged California’s Open Carry bans.
Unfortunately, this “Open Carry” lawsuit filed by the NRA (Flanagan et al v. Harris et al) sought, you guessed it, concealed carry permits. None of the plaintiffs in this lawsuit have articulated a concrete plan to violate California’s Open Carry bans. Having failed to do so they do not have standing to challenge California’s Open Carry bans.
When the NRA filed its fake Open Carry lawsuit last August I read its Complaint and created a webpage dedicated to the lawsuit in which I made the following predictions which, one by one, are happening.
Both of the defendants will file a motion to dismiss. And both did.
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. On Valentine’s Day the judge issued a tentative ruling and order stating that the sheriff will be dismissed. Formal Order of the court to follow.
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. The judge’s Valentine’s Day tentative ruling and order said that the Attorney General’s motion to dismiss will be granted in part. Presumably the concealed carry part and possibly the Open Carry “challenges” except for the challenge to the section of California law which restricts handgun Open Carry licenses to counties with a population of fewer than 200,000 people.
The NRA will file its First Amended Complaint. The judge set a deadline of May 1, 2017, for the NRA to file its First Amended Complaint and to add new parties to the lawsuit.
What Happens Next?
Theoretically, district court judge John Kronstadt could change his mind and dismiss the case (with prejudice) in its entirety via his upcoming formal order but I suspect that he will stand by his tentative ruling and minute order filed on Valentine’s Day which set a deadline of May 1, 2017, for the NRA to file its First Amended Complaint and which set a tentative trial start date of February 6, 2018.
Keep in mind that the NRA’s First Amended Complaint, due on May 1, 2017, is likely to be as screwed up as its Initial Complaint filed last August. If this turns out to be so then this case will never make it to trial next year. The amended complaint will be dismissed with prejudice and the NRA will have to file an appeal. An appeal which won’t be heard or decided for years.
Meanwhile, the petition for my appeal which actually challenges California’s Open Carry bans to be initially heard before an en banc panel of 9th circuit judges (shaving a year or two off of my appeal) is still pending. The state’s Answering Brief is due this Friday in the only pure, Open Carry lawsuit in this nation – Charles Nichols v. Edmund G. Brown Jr., et al.
I will then file my Reply Brief at which point we wait for a decision on my petition for my case to be initially heard before eleven judges instead of three. Once a decision to hear my case is made (or a decision is issued in my appeal) the NRA district court case in Flanagan will likely be stayed until a final decision in my appeal.
Today’s tentative ruling and minute order along with the other relevant briefs in this case and others can be found at my website.
President of California Right To Carry