A former California Attorney General and now Senator from the land of fruits and nuts (California), Cowardly, Incompetent Kamala Harris, is now swinging her stick around on the campaign trail seeking the Democrat nomination for President of the United States.
She says that if elected President she will bypass Congress and issue executive orders to do a number of things in violation of the Second Amendment including banning firearms.
What she fails to mention to the Great Unwashed mob of Democrat primary voters is that she will have to defend her unconstitutional dictates in Federal court.
Allow me a minute or two to share with you my firsthand experience of Cowardly, Incompetent Kamala in my Federal lawsuit which seeks to overturn California’s 1967 ban on openly carrying a loaded firearm outside of one’s home for the purpose of self-defense.
I filed my lawsuit in the Federal Central District Court of California on November 30, 2011. Named in my lawsuit was former Governor Brown (current Governor Newsom is now substituted in his place) and then California Attorney General Kamala Harris (current Attorney General Becerra is now substituted in her place).
For the next five years, one month, and four days, Kamala Harris was a named defendant in my Federal lawsuit.
For the next five years, one month, and four days, Cowardly, Incompetent Kamala Harris failed to defend California’s Open Carry bans and incompetently failed to submit any evidence in support of California’s Open Carry bans in the district court. By failing to do so even a hostile to the Second Amendment panel of Federal 9th circuit court of appeals judges can’t use non-existent evidence as an excuse to uphold California’s Open Carry bans.
The Two Sides
Let’s take a look at the two sides to my California Open Carry lawsuit. I am the lone plaintiff in my lawsuit. I am not an attorney. And if it were not for my supporters paying the many thousands of dollars I spent on printing, postage, filing fees, and the like this past decade, then I would not have been able to afford to challenge California’s Open Carry bans.
By the way, I am the first person to ever file a lawsuit challenging California’s Open Carry bans.
The other side is the State of California which is an indirect defendant because the governor and attorney general are sued in their official capacities and because the US Supreme Court says we can’t sue a State directly. A successful lawsuit against state officials is also a successful lawsuit against the state.
Siding with the State of California in support of California’s Open Carry bans* is The National Rifle Association via its official state organization, the California Rifle and Pistol Association.
*I say bans (plural) because after my lawsuit was first filed, bans on the Open Carry of unloaded handguns and the Open Carry of unloaded long guns went into effect on January 1, 2012, and January 1, 2013. I amended my lawsuit to challenge those bans as well. My lawsuit also challenges California’s twin bans on issuing licenses for civilians to openly carry loaded handguns in counties with a population of 200,000 or more people. There are no long gun carry licenses in California.
When I first filed my lawsuit there were various other named defendants from the City of Redondo Beach California because I had challenged a local ordinance which also banned Open Carry, and, in fact, bans the mere possession of firearms in the City and still does to this day.
I voluntarily dismissed my Federal Civil Rights lawsuit without prejudice against the City of Redondo Beach and various other Redondo Beach defendants so that I could devote my full efforts against the state’s Open Carry bans.
By voluntarily dismissing my lawsuit without prejudice, I am free to file a new lawsuit against the City of Redondo Beach ordinances at any time. I will, of course, wait until I am successful with my lawsuit against the state Open Carry bans.
Also formally aligned in opposition to my California Open Carry lawsuit with the Governor, Attorney General, and National Rifle Association/CRPA are the Law Center to Prevent Gun Violence, the Brady Center to Prevent Gun Violence and Everytown for Gun Safety.
Those are the are organizations which formally filed briefs in direct opposition to my lawsuit to overturn California’s Open Carry bans. But one does not have to formally file a document in my lawsuit to oppose Open Carry.
One can file a lawsuit which argues to uphold California’s Open Carry bans in exchange for something else, such as concealed carry permits which the NRA/CRPA/SAF/CalGuns.nuts Foundation did or one can file an Amicus brief in direct opposition to my lawsuit as the NRA/CRPA did.
Lest we forget, there were many so-called gun-rights groups, as well as a few anti-gun groups, which all filed Amicus briefs in support of the NRA/CRPA lawsuit, Peruta v. San Diego, a lawsuit which sought to uphold California’s Open Carry bans.
And don’t forget that the Second Amendment Foundation, in conjunction with the CalGuns.nuts Foundation had a separate lawsuit, Richards v. Prieto, which likewise sought to uphold California’s Open Carry bans.
If either the Peruta or Richards concealed carry lawsuits had won then there would be no way to exercise one’s Second Amendment right to keep and bear arms outside of our homes in California and there would be no Federal judge in all of the 9th circuit who would have been allowed to recognize an individual right to keep and bear arms.
After all this time, I am still astonished that there are so many people who claim to support the Second Amendment but they and their so-called gun-rights organizations seek to destroy the very right they claim to hold so dear.
Five will get you ten that if Cowardly, Incompetent Kamala gets the Democrat nomination, she will then claim to be a supporter of the Second Amendment but also in favor of “reasonable regulations” like bans.
Briefs Opposing Open Carry
These organizations have all filed briefs opposing Open Carry (partial list):
Brady Center to Prevent Gun Violence The National Rifle Association The California Rifle and Pistol Association The Second Amendment Foundation The CalGuns Foundation Gun Owners of California Gun Owners of America The Independence Institute Center for Constitutional Jurisprudence Doctors for Responsible Gun Ownership Law Enforcement Alliance of America Congress of Racial Equality Inc. International Law Enforcement Educators and Trainers Association The Independence Institute California State Sheriff's Association California Police Chiefs Association California Peace Officers Association Legal Community Against Violence Major Cities Chiefs Association Association of Prosecuting Attorneys San Francisco District Attorney George Gascon Professors of Law, History, Politics, and Government Commonwealth of Virginia Associated Gun Clubs of Baltimore, Inc., Monumental Rifle & Pistol Club Illinois State Rifle Association New York Rifle & Pistol Association Association of New Jersey Rifle and Pistol Clubs, Inc. Hawaii Rifle Association Gun Owners Foundation Gun Owners of America, Inc. Virginia Gun Owners Coalition Virginia Citizens Defense League Inc. U.S. Justice Foundation Conservative Legal Defense and Education Fund Virginia Shooting Sports Association Center for Constitutional Jurisprudence Professors of Law, History, Politics and Government NRA Civil Rights Defense Fund Buckeye Firearms Foundation, Inc
By the way, most of the so-called Open Carry groups are led by people who have allied themselves with those groups opposed to Open Carry. They are easy enough to spot, they are the ones who are NOT supporting any lawsuit to restore Loaded Open Carry to California.
More or Less?
But wait! There’s less.
The Federal Courts claim to embrace the right of individuals to file lawsuits, particularly civil rights lawsuits against the government, and to do so without having to incur the crippling expense of hiring an attorney. An expense which all but a few percent of the population simply cannot afford to pay.
In reality, Federal judges side with the government and simply dismiss those lawsuits with prejudice knowing that 99.9% of these people will either never file an appeal or lose on appeal if they do file an appeal.
Federal District Court judges don’t want to waste their time with pro se lawsuits unless they have to and so they turn the case over to magistrate “judges.” Magistrate judges are not Constitutional judges. They are hired to assist real judges with the paperwork.
Attorneys, by the way, get to file their briefs electronically, not that the cost of postage and printing means anything to the government. Non-attorneys have to mail the defendants paper copies of their filings and hand-deliver two paper copies of each document to the intake filing clerk at the Federal courthouse.
Theoretically, they could mail their briefs to the intake clerk. I mailed three Requests of Judicial Notice from two separate post offices on two separate days and despite my tracking numbers saying that they were delivered, there was no record of their being filed.
Did I mention that contrary to the local rules of the court which mandates that all pro se documents be filed, even the defective ones, the magistrate judge assigned to my case in the district court refused to allow any of my documents to be filed unless she first approved of their being filed. But I digress.
Assigned to my case by the Federal District Court judge, Samuel James Otero, was a magistrate judge, Susanne Segal, who made no attempt to hide her hatred of the Second Amendment. Despite this, Kamala Harris refused to file what is called an “Answer” to my lawsuit, the central document of which is known as the “Complaint.”
Despite a history of prosecutions for carrying a loaded firearm outside of the home since the law first went into effect in July of 1967, Ms. Harris filed a motion to dismiss my lawsuit claiming that my lawsuit was purely “speculative and hypothetical” that I would be either arrested or prosecuted, convicted, fined or imprisoned were I to openly carry a loaded firearm in public** (**the curtilage of your home and your private property are “public” places according to the California courts).
She added that my lawsuit should be dismissed because she had not personally threatened to prosecute me.
The law is well established (since 1911) that one does not have to break a law in order to bring what is called a pre-enforcement lawsuit against the state challenging the Constitutionality of a state law. The case law is also well established that an official who has the authority to prosecute a law does not have to personally threaten enforcement of the law. For that matter, Congress does not even require that the Attorney General even be named as a defendant. County Sheriffs are state officials under California law. I could have sued any County Sheriff and simply notified the Attorney General of my lawsuit. That is all that the law requires.
Magistrate “Judge” Suzanne Segal apparently slept through that day of magistrate judge school where they covered these 100 years of binding prior precedents.
In any event, the District Court Judge rubber-stamped her Report and Recommendation and dismissed most of my lawsuit with leave to file an Amended Complaint against Attorney General Harris.
I filed my First Amended Complaint in which I lodged videos of City of Redondo Beach police officers enforcing California Penal Code section 25850 (the Loaded Open Carry ban) against me while I was lawfully*** openly carrying an unloaded long gun in the City of Redondo Beach.
***In its response to my First Amended Complaint the City of Redondo Beach conceded that their local ordinance was preempted by state law (and therefore unconstitutional under the California Constitution) and yet the City continued to prosecute me for violating its local ordinance.
Despite this, Cowardly Kamala filed yet another motion to dismiss my lawsuit on the grounds that she had not personally threatened to prosecute me. Cowardly Kamala could have filed an Answer to my lawsuit and defended the constitutionality of California’s Open Carry bans but she didn’t.
Keep in mind that when most people who represent themselves in court have their lawsuit dismissed without prejudice, they do not file an Amended Complaint. Not only do they not know what an Amended Complaint is, they haven’t a clue as to how to go about finding out what an Amended Complaint is let alone how to write one.
I am not “most people.” Despite his personal hatred for the Second Amendment, Federal District Court Judge Samuel James Otero realized that he screwed up when he rubber-stamped the dismissal of the initial Complaint I filed in my lawsuit.
Judge Otero overruled the Report and Recommendation of Magistrate “Judge” Suzanne Segal, that my First Amended Complaint against the State of California be dismissed with prejudice because Cowardly Kamala had not personally threatened me with prosecution. This time around, Judge Otero discovered binding case law which held that I do not have to be personally threatened with enforcement of the law, or have to first violate the law, before I can bring a Federal civil rights lawsuit challenging the constitutionality of that law.
I was told by the District Court Judge that if I wanted to continue with my lawsuit then I would have to file an Amended Complaint for a second time and he ordered Cowardly Kamala to file an Answer to my Second Amended Complaint should I file one. Of course, had I missed the deadline to file my Second Amended Complaint then my lawsuit would have been dismissed with prejudice.
In our court system, both State and Federal, cannibals have more rights than do people who fail to file on time.
Incompetent Kamala enters Stage Left
Now, this is where Cowardly Kamala puts on a dunce cap and enters onto the stage as Cowardly, Incompetent Kamala.
Cowardly, Incompetent Kamala’s Answer to my lawsuit was a non-Answer.
And instead of making any defense to California’s Open Carry bans, she also filed what is called a Rule 12(c) Motion for Judgment on the Pleadings.
I realize that means nothing to you, even if you are a lawyer.
And so let me briefly explain. When a district court judge grants a Rule 12(c) motion it is functionally equivalent to his granting a Rule 12(b) motion to dismiss ***with prejudice.
*** A lawsuit can be dismissed in one of two ways, with or without prejudice. If a lawsuit is dismissed with prejudice then one must file a timely appeal or his lawsuit is forever dead. If a lawsuit is dismissed without prejudice then the lawsuit is not dead. It can continue usually by filing a timely amended complaint.
The Court of Appeals is required to view every well-pleaded fact and document referenced in my Complaint as true and everything the Attorney General said as false.
A Rule 12(c) motion cannot be granted by the district court judge if there are facts in dispute. And neither can the court of appeals consider anything that wasn’t filed in the district court had my lawsuit lost at trial or lost by a summary judgment motion.
Being as there are no facts in dispute, the district court judge granted the State’s motion for a judgment on the pleading saying that we do not have a right to even possess a firearm under the Second Amendment and he compared guns to crystal meth and people who carry firearms to dealers in crystal meth, even if those firearms are lawfully carried.
Why? Because he can and, let’s face it, no Congress (Republican or Democrat) is ever going to impeach a Federal judge for violating his oath of office.
By the way, the California Supreme Court held in 2012 that possession of a firearm is in and of itself an innocent act. In that case, the constitutionality of the convictions turned on the facts which made the defendant’s possession of a firearm unlawful, specifically that he was a convicted felon in possession of a loaded, unregistered, concealed handgun, in a motor vehicle.
The California Supreme Court held that the defendant could only be punished for violating the California Penal Code section which entailed the greatest punishment (felon in possession of a firearm) and ordered the other convictions to be stayed (unenforced).
Unless you have been living in a cave this past decade you know that appellate court judges are more than happy to uphold unconstitutional laws for the flimsiest of reasons.
Unfortunately, for the opponents of the Second Amendment right to keep and bear arms, Cowardly, Incompetent Kamala failed to file any evidence in support of California’s Open Carry bans with the district court.
This had happened once before in the 7th circuit court of appeals in a challenge to the State of Illinois ban on carrying loaded and unloaded firearms (openly and concealed) in incorporated cities, towns and villages. The State of Illinois filed a motion to dismiss with prejudice. The Federal District Court judge granted the motion and when the appeal was decided, the court of appeals held that the burden of proof was on the state to justify the Illinois bans and since the State and not filed any evidence in support of the bans in the district court, the State of Illinois had failed to meet its burden of proof and the State lost.
Cowardly, Incompetent Kamala’s successor, California Attorney General Harris, filed inadmissible “evidence” on appeal which might have been admissible in the district court if mine were a concealed carry lawsuit. But mine is an Open Carry lawsuit.
But the judge made rules of the 9th circuit court of appeals prohibit the three judges assigned to my appeal from considering any “evidence” by the State when a Rule 12(c) motion is granted and Federal Rule of Appellate Procedure 10 prohibits the state from introducing new “evidence” on appeal.
All that remains in my California Open Carry appeal are pure questions of law for the Court of Appeals to decide.
And for me to lose my Second Amendment claim, the 9th circuit court of appeals will have to conclude that the scope of the Second Amendment right is limited to the inside of our homes.
And because of Cowardly Kamala’s incompetence, that is exactly what the State’s attorney who represents the governor and attorney general argued on appeal, that there is no right to keep and bear arms outside of one’s home.
No need to take my word for it. Here is an excerpt from the oral argument on appeal in my California Open Carry lawsuit, Charles Nichols v. Gavin Newsom, et al (formerly v. Brown et al).
Another problem with the State of California’s frivolous defense is that the State of California is prohibited from arguing that there is no right to keep and bear arms outside of my home.
You see when a party to a lawsuit argues something in some other lawsuit and wins, he cannot turn around and adopt a contrary position in another lawsuit. The legal term is Judicial Estoppel.
In the en banc oral argument for the combined appeals of Peruta v. San Diego and Richards v. Prieto, the State of California argued that it was hard to read the Heller decision to say that the right to keep and bear arms does not extend beyond the curtilage of one’s home but it is easy to read the Heller decision to say that the right does not extend to concealed carry.
Here is a short video excerpt from the en banc oral argument of the California Solicitor General (appointed by Cowardly, Incompetent Kamala) saying just that.
The State of California prevailed in Peruta v. San Diego/Richards v. Prieto which held that, as per the Heller decision, there is no right to carry a weapon concealed in public.
I pointed that out in my Opening Brief on appeal to which the State did not respond in its Answering Brief on appeal and by failing to respond have therefore waived any defense that judicial estoppel does not apply to the State in my case.
Cowardly, Incompetent Kamala Harris as President
It appears that the US Supreme Court has finally decided to grant Second Amendment cert petitions.
Even Justice Ginsburg, who voted against the Second Amendment in both the Heller and McDonald decisions, cited the McDonald five times in the first two pages of a recent decision she wrote. The McDonald decision held that the Second Amendment, and not some watered-down version, applies fully against all state and local governments.
She said that there is no daylight between the Second Amendment right which applies to the Federal government and the Second Amendment right which applies against the states.
The Heller decision held that Open Carry (in public) perfectly captures the meaning of what it called the “Operative Clause” of the Second Amendment, namely, “the right of the people to keep and bear arms shall not be infringed.”
The State of California has already conceded in Peruta/Richards en banc that the right to openly carry firearms extends beyond the curtilage of our homes.
And Kamala, Honey Baby, for me to win my Second Amendment claim, I only need for the 9th circuit court of appeals to conclude that the Second Amendment protects my right to carry a loaded firearm in the curtilage of my home.
And so go ahead and let the unwashed, gender-confused, airheads elect Cowardly, Incompetent Kamala Harris as President of the United States.
As a would-be dictator, she will have to defend her gun bans and various other anti-gun edicts before the Federal courts and SCOTUS can just as easily hold that we have a right to keep and bear semi-automatic firearms in a lawsuit brought against her as they can in a lawsuit brought against a state official.
And who would you rather have defending an anti-gun law? Someone who knows what he or she is doing and isn’t afraid to defend the law or President Cowardly, Incompetent Kamala?