For the current status of my California Open Carry lawsuit click here.
Note – I have created dedicated pages to several appeals including US v. Chovan, Peruta v. San Diego, McKay v. Hutchens, Baker v. Kealoha, Drake v. Jerejian, Palmer v. D.C., and others which are accessible from the tabs at the top of the page. From now on, updates to those cases will be posted there, not here.
To view a flowchart of the 9th Circuit Court of Appeals en banc procedure, click here.
Update May 18, 2015 – Henderson v. US could have been a Second Amendment case, it wasn’t. The decision was released today with no mention of the Heller decision.
Update May 13, 2015 – There is a nice Fourth Amendment decision regarding Open Carry out of the Sixth Circuit Court of Appeals. Here is a link to the decision. It is relevant to my Open Carry lawsuit here in California because my lawsuit seeks to openly carry in places where it is legal to openly carry loaded and unloaded firearms for reasons other than self-defense (i.e., hunting) and legal for a myriad of individuals who belong to special interest groups (e.g., lawyers) to openly carry unloaded modern firearms and legal for the rest of us to openly carry unloaded antiques. The Sixth Circuit held that simply openly carrying a firearm in a place where it is legal to openly carry a firearm does not constitute probable cause that a crime has been committed. Interestingly enough, the California courts held in 1970 that the mere sight of a firearm in a place where it is illegal to carry a loaded firearm does not constitute probable cause that the “crime” of carrying a loaded firearm has been committed.
And neither does the California statute that I am challenging say that. Former Penal Code section 12031(e) (now PC 25850(b) states that probable cause does not arise unless one refuses to consent to the search and seizure of his person and property. Long before that law was enacted in 1967 the Federal courts had held that consent cannot be coerced. PC 25850(b), the infamous “e-checks” are unconstitutional. As you can see by the numerous cases cited in the decision, if I lose on appeal then my loss would create multiple circuit splits and SCOTUS does not grant cert petitions to correct mistakes in the law, SCOTUS grants cert petitions to resolve circuit splits.
Update April 8, 2015 – Davis v. Grimes, a “carry” case out of Massachusetts is going to trial. The district court judge denied the motions for summary judgment on March 25, 2015.
Update March 8, 2015 – The NRA lost another lawsuit – Bauer v. Harris. This one was a challenge to the California DROS fee. Here is a link to the decision. Here is a link to many of the filings in the case.
Update February 13, 2015 – Instead of challenging the New York City permit requirements for handguns and long guns the official NRA New York State organization, The New York State Rifle & Pistol Association, filed a lawsuit, NYSRPA v. NYC Title 38, challenging a NYC restriction on where handguns could be used to target shoot. Here is a link to the Complaint. Here is a link to the district court decision ruling against them. Memo to the NRA and all of their official state organizations, the Second Amendment isn’t about target shooting or duck hunting. The Second Amendment guarantees the right of the individual to keep and bear arms for the purpose of self-defense and no fundamental, individual right can be conditioned upon obtaining a permit. Until you understand the Second Amendment, you should stop filing Second Amendment lawsuits. You aren’t helping anyone.
Update February 11, 2015 – For all intents and purposes the 2013 Appellate decision in People v. Pellecer does not apply to firearms and perhaps not even to knives says an appellate court in the case of The People v. Stephen Wade. The Pellecer court held that “concealed” means within or beneath the clothing a person is wearing. Weapons carried in containers outside of one’s clothing (packs, suitcases, etc) were not concealed under the Pellecer decision. When there is a split between different appellate districts in California, trial courts are free to choose which decision they want to apply to the case before them. This differs from Federal courts where, for example, a decision from the 9th Circuit Court of Appeals is binding on all trial courts (district courts) within the 9th Circuit unless the court explicitly limits the scope of the decision.
Update February 4, 2015 – The Second Amendment Foundation/Alan Gura filed a new lawsuit in an attempt to fix the mistakes made in the Palmer v. DC lawsuit. A new lawsuit with new and old mistakes. Here is a link to the Complaint.
Update January 23, 2015 – Yesterday, the case was taken under submission and oral arguments were heard in Friedman, et. al. v. City of Highland Park an appeal out of the 7th Circuit challenging a local ordinance of Highland Park, Illinois banning “assault rifles” and magazines that hold more than 10 rounds. Listening to the oral arguments by the attorneys on both sides was like listening to fingernails on a chalkboard. The only ones speaking for the Second Amendment were two of the three judges: Frank H. Easterbrook and Daniel Anthony Manion, both appointed by Ronald Reagan. I highly recommend listening to the oral arguments.
Update January 15, 2015 – The Supplemental briefs in the Massachusetts carry case Davis v. Grimes are due tomorrow.
Update December 28, 2014 – The CCW case Anderson v. Scott, 2:14-cv-05241-FFM (C.D. Cal.) is still stayed pending the mandate in Peruta v. San Diego. The Court in Davis v. Grimes has ordered another round of supplemental briefing. Henderson v. US is scheduled for oral arguments before the US Supreme Court on February 24, 2015. Johnson v. US has been argued before SCOTUS, we are awaiting a decision. A cert petition was never filed in the case of In Re Pantano out of New Jersey. The case management conference in Scocca v. Smith, a CCW case filed in March of 2011, has been pushed back yet again, this time until March 26, 2015. Fyock v. Sunnyvale has been argued and taken under submission for a decision on November 17, 2014. McKay v. Hutchens is still stayed pending Peruta. We are still waiting for a decision on the motion for a permanent injunction and the motion to hold DC in contempt in the case of Palmer v. DC. Jackson v. San Francisco has a cert petition pending before SCOTUS. Baker v. Kealoha is still stayed pending Peruta. Sigitas Raulinaitis v. Ventura County Sheriffs Department is still on appeal. George Young, Jr. v. State of Hawaii, et al is still on appeal. Muller v. Maenza was dismissed as moot. Mehl v. Blanas was disposed of in an unpublished memorandum. Haynie et al v. City of Pleasanton et al. was tossed in March of 2014.
Update November 20, 2014 – The Massachusetts carry case Davis v. Grimes filed a motion for leave to file an amended complaint back in September. The motion has been fully brief as of October 1st. We are still waiting for a decision.
Update October 20, 2014 – Not every case involving firearms is a case about the Second Amendment. Today SCOTUS announced that it has decided to hear just such a case. Henderson v. US. Here is a link to SCOTUSblog. Issue: Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.
SCOTUS is free to rewrite the question(s) presented to the court. So far, that link is dead.
Update October 6, 2014 – SCOTUS will meet in Conference on October 10, 2014 to decide whether or not to hear Henderson v. US. Here is a link to SCOTUSblog. Issue: Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.
Update September 29, 2014 – Today the US Supreme Court meets in conference for the first time this term. SCOTUS has 1,844 active cert petitions of which 1,788 have been distributed to today’s conference for review. How does SCOTUS review that many petitions in a day? It doesn’t. Eight of the nine justices participate in a cert pool where the cert petitions are “randomly” assigned to their law clerks who write a memo “summarizing” the case which is distributed to the justices. If a justice thinks a case is interesting then he requests a “Brief In Opposition” aka “Response” to the cert petition. So far, there are 56 BIOs requested. Having a BIO requested does not guarantee that a case will be heard but not having a BIO requested, particularly when the opposing party declines to file a BIO is the kiss of death for a cert petition. The only Second Amendment case I am aware of seeking cert is an important one for the 9th Circuit – Chovan v. United States. A BIO was not requested and none was filed. If cert is denied, which is highly likely, then the “Two-Step” historical inquiry is the framework that judges in the 9th Circuit are supposed to use. The two judges in the majority on the Peruta panel did not follow the prior precedent from the Chovan case which has created an intra-circuit split. One of the purposes for having an en banc hearing is to resolve intra-circuit splits. It is possible that the 9th Circuit has delayed deciding whether to grant the en banc petition in Peruta until the Chovan petition is granted or denied but no one can say for sure. What we can say for certain is that the fate of the Chovan petition is highly likely to be known after today’s conference of justices. It takes four justices to grant a cert petition. There are approximately 8,000 cert petitions filed each term of which 80 to 100 are granted. SCOTUSblog has an informative statistics section at this link.
Update September 24, 2014 – Contrary to the opinion of some, Johnson v. United States is not a Second Amendment case. The Second Amendment is not at issue, period. The sole question in the case is:
“WHETHER MERE POSSESSION OF A SHORT-BARRELED
SHOTGUN SHOULD BE TREATED AS A VIOLENT FELONY
UNDER THE ARMED CAREER CRIMINAL ACT?”
SCOTUS has granted cert and oral arguments will be heard on November 5, 2014. For more, click here.
Update September 9, 2014 – An update to the 9th Circuit Court of Appeals “STATUS OF PENDING EN BANC CASES” report has been released. Peruta v. San Diego is not on the list because here we are, seven months later, and the petition for rehearing is still pending.
Update August 20, 2014 – The deadline for a cert petition to SCOTUS in the case of In Re Pantano, the New Jersey handgun carry permit case, is rapidly approaching. Next Tuesday, August 26th marks 90 days since the New Jersey Supreme Court ducked the case.
Update July 23, 2014 – The CCW case, Scocca v. Smith, has been delayed again. The Case Management Conference is now scheduled for November 6, 2014.
Update July 23, 2014 – The carry case out of Massachusetts, Davis v. Grimes, had an interesting turn of events. On July 18th the Plaintiffs’ attorney notified the court that one of the Plaintiffs who had a Class B Open Carry license was issued a Class A Unrestricted Carry License (both openly and concealed in addition to high capacity magazines) on July 10th. It will be interesting to see whether or not the four remaining plaintiffs are similarly disposed of before a decision is issued in this case.
Update July 8, 2014 – Los Angeles attorney Jon Birdt has filed yet another concealed carry lawsuit. This latest one names as defendants LAPD Police Chief Beck and Interim LASD Sheriff Scott. Birdt has already lost previous challenges to the CCW policies of the LAPD and LASD. Here is a link to the Complaint in this case.
Frederick F. Mumm, presiding
Date filed: 07/07/2014
Date of last filing: 07/08/2014
|Notice to Counsel (CV-20a) Magistrate Judge Direct Assignment Program|
|Summons Issued (Attorney Civil Case Opening)|
|Complaint (Attorney Civil Case Opening)|
|Civil Cover Sheet (CV-71)|
|Certificate/Notice of Interested Parties|
Update June 16, 2014 – It comes as no surprise that the “strawman” handgun purchase case was decided by the US Supreme Court without even mentioning the Second Amendment. The decision turned on definitions and legislative intent. Here is a link to the decision in Abramski v. US. Here is an excellent link to the case at SCOTUSblog.
Update June 2, 2014 – The carry New York City handgun permit fee petition for cert in the case of Kwong v. de Blasio (formerly Kwong v. Bloomberg) was denied cert by SCOTUS. The US Supreme Court has not granted any cert petition since 2009 when it granted cert in the McDonald case.
Update May 31, 2014 – The carry case out of Massachusetts, Davis v. Grimes, had a motion hearing yesterday after which the court took the motions for summary judgement under advisement.
|Order on Motion for Summary Judgment|
Update May 30, 2014 – There has been a great deal of activity in Fyock v. Sunnyvale
United States Court of Appeals for the Ninth Circuit
|LEONARD FYOCK; SCOTT HOCHSTETLER; WILLIAM DOUGLAS; DAVID PEARSON; BRAD SEIFERS; ROD SWANSON,Plaintiffs – Appellants,v.CITY OF SUNNYVALE; THE MAYOR OF SUNNYVALE; ANTHONY SPITALERI, in his official capacity; THE CHIEF OF THE SUNNYVALE DEPARTMENT OF PUBLIC SAFETY; FRANK GRGURINA, in his official capacity,Defendants – Appellees.|
Update May 15, 2014 – A D.C., district court judge dismissed with prejudice the remaining claims in Heller II. The case was originally filed in March of 2010. The next trip to the court of Appeals will be its second. Here is a link to many of the filings in the district court.
Update May 13, 2014 – Brian Aitken v. New Jersey has been distributed to the conference of May 22nd. Unfortunately, SCOTUS did not request a response (Brief In Opposition) and no response was filed. This means that the cert petition was automatically placed on the dead list. Kwong v. de Blasio (formally v. Bloomberg) has been distributed to the SCOTUS conference of May 29th. Responses were not requested by SCOTUS but they were filed.
Update May 6, 2014 – The concealed carry case Scocca v. Smith is delayed again. The case management conference has been postponed again until September 4th, 2014. Apparently the court is waiting to see how the Peruta case plays out.
Update April 29, 2014 – The opposition to granting cert in Kwong v. De Blasio (formally Kwong v. Bloomberg) which challenges NYC’s outrageous fee to keep a handgun in one’s home has been filed. Kwong is the petitioner in this case having lost in the 2nd Circuit Court of Appeals. Here is a link to the SCOTUS docket.
Update April 23, 2014 – The motion to lift the stay in McKay v. Hutchens appeal of the denial of the NRA/CRPA preliminary injunction was denied today. The threshold for winning a motion for a preliminary injunction is “likelihood of success” which is a much easier threshold than winning a dispositive motion for summary judgment or judgment on the pleadings. What this means is that two of the three judges assigned to the McKay appeal think that the Peruta decision will be overturned.
|04/23/2014||67||Filed order (HARRY PREGERSON, KIM MCLANE WARDLAW and RICHARD C. TALLMAN) Appellants’ Motion for Relief from Stay and Request for Issuance of Memorandum Opinion is DENIED. Judge Tallman would grant the motion because, in light of Peruta v. Cnty. of San Diego, 742 F.3d 1144 (9th Cir. 2014), Plaintiffs-Appellants satisfy the factors articulated in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), and are entitled to a preliminary injunction.  (BJB)|
Update April 16, 2014 – The petitions asking for an en banc rehearing in Richards v. Prieto have all been filed along with the opposition reply. The petition for an en banc rehearing in Baker v. Kealoha is due no later than tomorrow. I just checked the Federal docket and the petition has not been filed. Both Richards and Baker relied on the Peruta decision. The en banc panel need only vacate and reverse one of the three decisions to overturn all three of Peruta, Richards and Baker.
|04/07/2014||66||Filed (ECF) Appellants Diana Kilgore, Fred Kogen, Dorothy McKay, The CRPA Foundation, David Weiss and Phillip Willms Motion to lift stay. Date of service: 04/07/2014.  (CDM)|
Update April 4, 2014 – There was some activity in Palmer v. DC, the SAF/Gura handgun “carry” case out of D.C. One year, 5 months, and 9 days after there was any docket activity by the district court judge, the judge denied Gura’s motion to strike a memorandum on March 31st. The motion to strike was filed by Gura on May 24, 2012. Whether or not means that there will be further movement in the case is anyone’s guess. After all, it took the judge nearly two years to write this one sentence order:
Full docket text for document 50:
TEXT ORDER denying  Motion to Strike  Supplemental Memorandum.IT IS SO ORDERED by Judge Frederick J. Scullin, Jr on 3/31/2014. (Scullin, Frederick)
Prior to March 31st, the last docket entry reflecting anything from the district court judge was this:
Full docket text: Filed & Entered: 10/26/2012
Courtroom Designation for November 1, 2012 10:30am. All counsel please report to Courtroom #17. (Scullin, Frederick)
Update March 31, 2014 – US v. Castleman was decided by SCOTUS. The case involved the definition of misdemeanor domestic violence resulting in a ban on the possession of firearms. Here is a link to the decision. Here is a link to the audio of the oral arguments and transcript.
Update March 25, 2014 – Jackson v. San Francisco lost on appeal before a three judge panel. Here is a link to the decision.
This decision torpedoed the central opposition the district court has had to my case since it denied my motion for a preliminary injunction last year. Barring a last minute computer crash or other emergency, I should be finished well before the April 1 deadline.
The district court has to date held that in my case that unless a Second Amendment law is unconstitutional in all applications (the most extreme interpretation of a facial challenge) then it is to be upheld.
Today the 9th Circuit Court of Appeals said that is nonsense in a case arising out of San Francisco. The 9th CCA said today that unless a law is limited to those persons who fall outside the scope of the Second Amendment, the law is vulnerable to a facial challenge even if it has applications to persons who fall outside the scope of the Second Amendment.
The same decision said that one can bring both a facial and as-applied challenge in a Second Amendment case. The district court in my case has said to date that I cannot bring both.
The icing on the cake is that in this post Peruta published decision the 9th CCA reaffirmed that:
“Heller indicated that the Second Amendment does not preclude certain “longstanding prohibitions” and “presumptively lawful regulatory measures,” such as “prohibitions on carrying concealed weapons…” Jackson v. City & Cnty. of San Francisco, slip op. No. 12-17803 (9th Cir. Mar. 25, 2014) at pg 8.
Of course Peruta, in its “Through the Looking Glass” modern reinterpretation of the 19th Century prohibitions on concealed carry, which it acknowledged meant what they said at the time, to allow for the issuance of concealed carry permits, also said that states can prohibit concealed carry entirely without offending the constitution.
Jackson’s loss is my gain.
Update March 20, 2014 – Baker v. Kealoha was decided in an unpublished memorandum. The case was reversed and remanded. Baker gets his injunction, for the most part. This case, like every other, is still subject to an en banc appeal, stay and vacating of the decision. Here is a link to today’s decision.
Update March 16, 2014 – My website received a large number of hits today presumably from folks wanting to read the “modified” TRO which allowed the raid on Ares Armor to take place. Here is a direct link to the modified TRO in pdf format.
Update March 15, 2014 – On March 14th Federal Judge Janis L. Sammartino “modified” her TRO to allow the BATFE to conduct the raid pursuant to a warrant at the request of the ATF effectively nullifying her earlier TRO against the ATF in the case of Lycurgan Inc. v. Jones aka Ares Armor v. BATFE. The jack booted NAZIs of the ATF raided Ares Armor.
Update March 14, 2014 – Despite their case being stayed, McKay v. Hutchens, the NRA/CRPA filed a notice of Supplemental Authority to US v. Chovan, Peruta v. San Diego and Richards v. Prieto.
Update March 10, 2014 – Embody v. Cooper, the Open Carry case out of Tennessee made it past round one of the US Supreme Court conferences. No other “carry” case has made it this far. I’ve created a page dedicated to his appeal accessible via the menu bar. In other news, an emergency preliminary injunction appeal landed in Justice Kennedy’s lap regarding the “large capacity” magazine ban case Fyock v. Sunnyvale. Here is a link to the Fyock v. Sunnyvale emergency petition.
Update March 5, 2014 – 1 – Preliminary injunction against Sunnyvale’s “large capacity” magazine ban was denied today. Notice of appeal filed. Case is Fyock v. Sunnyvale. A similar motion for a preliminary injunction was denied on February 19, 2014 in the case of SFVPOA v. San Francisco. Two more reasons why the “historical inquiry” framework for analyzing Second Amendment cases adopted in US v. Chovan is to be preferred over the “substantial burden” framework used (improperly) in Peruta v. San Diego, Richards v. Prieto, SFVPOA v. San Francisco and now Fyock v. Sunnyvale. Under the vacated “substantial burden” framework only those gun control laws which fall into the category of total bans or near total bans will be subject to heightened scrutiny. Under the Two-Step historical inquiry framework every law which burdens the Second Amendment right, even minor burdens, as the right was understood in 1791 is subject to heightened scrutiny. Even though both cases cited Chovan (they also cited Peruta) they ultimately concluded that the magazine bans did not substantially burden the Second Amendment right.
Update March 5, 2014 – Richards v. Prieto reversed and remanded in an unpublished decision which means it cannot be cited in other cases.
You won’t find it on the 9th CCA opinions pages. The case was disposed of with a simple memorandum (Richards had earlier asked the 9th CCA to withdraw his challenge to the state statute). Richards is now disposed of the same as was Peruta. That leaves one more case to be decided before the stay of the denial of my preliminary injunction is lifted. As my Open Carry lawsuit, unlike Peruta and Richards, actually challenges state laws it will be the one that sets the precedent. Here is a link to the memorandum.
Update February 28, 2014 – Alan Gura filed a supplemental brief in Drake v. Jerejian. I can only assume it is in regards to Peruta v. San Diego. The US Supreme Court still has not requested a Brief in Opposition (BIO). If no BIO is requested then the chances of cert being granted are somewhere between nil and none.
Update February 26, 2014 – I haven’t posted an update to Montana Shooting Sports Association v. Holder since last August primarily because it wasn’t technically a Second Amendment case. It was a commerce clause case involving the non-interstate manufacture and sale of firearms. The US Supreme Court denied cert last month. This was hardly unexpected. It is the liberal interpretation of the commerce clause of the US Constitution since the late 1930s which is largely responsible for turning the Federal government into the diseased, bloated bureaucracy it is today.
Update February 24, 2014 – The California Supreme Court has decided to hear the appeal of Parker et al. v. The State of California et al F062709 Case: F062490 5th District. AB 962, the ammunition bill, was held to be facially invalid by the CA 5th Circuit Court of appeals.
Update February 24, 2014 – The US Supreme Court announced today that it had turned down the appeal (denied cert) of all four Second Amendment cases heard in last Friday’s conference:
Quinn v. Texas – Does the mere suspected presence of a firearm in the home allow police to conduct a no-knock raid on a private residence? Here is a link to the Cert Petition. Here is a link to the lone Amicus brief filed in the case. National Rifle Association v. Bureau of Alcohol Tobacco and Firearms – Challenges the Federal ban on selling handguns, through an FFL, t0 persons between 18 and 20 years of age. Here is a link to the Cert Petition. Here is a link to ScotusBlog. National Rifle Association of America v. McCraw – Challenges a Texas law which generally prohibits persons under the age of 21 from carrying a concealed handgun in public. Here is a link to the Cert Petition. Here is a link to ScotusBlog. Lane v. Holder – This is an interesting case. It was first distributed to the October 11, 2013 conference and not heard from again until it was again distributed for the February 21st Conference. It presents a simple question. Do consumers have standing to challenge Federal regulations relating to the commercial sale of firearms. Here is a link to the Cert Petition. Here is a link to ScotusBlog.
Update February 21, 2014 – San Diego County Sheriff Gore threw in the towel today. He issued a press release saying he is not going to appeal the three judge panel opinion. In a way that is good news, if the case ends now then there is no chance of Peruta v. San Diego becoming a binding precedent.
Update February 19, 2014 – Here is the new US Supreme Court docket page for Kwong v. de Blasio (formerly Kwong v. Bloomberg). This case challenges the onerous fees NYC charges for a permit to keep a handgun in one’s home. Sadly, it does not seek to invalidate the permit requirement but that is to be expected given that this is a Second Amendment Foundation lawsuit and we know how much the SAF loves permits.
Update February 19, 2014 – A Federal Judge turned down a request for a preliminary injunction against San Francisco’s magazine ban. The case is SAN FRANCISCO VETERAN POLICE. OFFICERS ASSOCIATION v. San Francisco Here is a link to the order denying the injunction. The NRA brain trust also screwed up its filings “In addition to their reply brief, plaintiffs raise 28 evidentiary objections in a separate sixteen-page filing. Local Rule 7–3(c), however, requires that plaintiffs file their evidentiary objections “within the reply brief or memorandum.”….Thus, plaintiffs’ requests to strike various declarations submitted by defendants are DENIED.”
Update February 17, 2014 – Given the interest in the Drake v. Jerejian (formerly Drake v. Filko) case out of New Jersey, I have created a page dedicated to the cert stage. Click on the link at the top of this page labeled as “Drake v. Jerejian No. 13-827 Status Page.”
Update February 14, 2014 – This falls under the category of LMAO. Peruta won because “This is not a case where a plaintiff who is permitted to openly carry a loaded weapon attacks the validity of a state’s concealed-carry rule because he would rather carry secretly.” Instead, Peruta sought to carry a handgun in some manner and did not challenge the California concealed carry law. The SAF/CalGuns lawsuit, Richards v. Prieto on the other hand sought to carry a handgun concealed and challenged parts of California’s concealed carry law. And so yesterday Gura filed a document in his case, which is still pending before the 9th Circuit Court of Appeals, attempting to withdraw his challenge to the state law. We should know shortly whether or not he was successful. Here is a link to the document and here is a link to the reply.
Update February 13, 2014 – The decision in Peruta v. San Diego has been published. Although it contains one sentence I did not like, and to which the AG is no doubt going to trumpet from the rooftops it was overall a very good decision which will provide me with paragraph upon paragraph to cite in my next notice of supplemental authority.
That said, the decision is a very narrow one and affects only the policy of the Sheriff of San Diego county and his interpretation of “good cause.” The decision is not binding anywhere else in the state and to anything other than the policy of the Sheriff of San Diego County.
There are lots of things the Sheriff can do. He can tweak his policy to accept “self-defense” as “good cause” for issuing a policy but put all kinds of restrictions on the issuance of the permit which are now valid under California law thanks to the decision in CalGuns.nuts v San Mateo County.
If the Sheriff wants to prohibit concealed carry, even with a permit, on all county owned property (streets, sidewalks, parks, open spaces, etc) he can. If the Sheriff wants to prohibit concealed carry in Gun Free School Zones, he can. If the Sheriff wants to make you wait a year for the required interview to get the permit he can. If the Sheriff decides that you are not of “good moral character” and deny you the permit he can.
Also, the decision applies only to concealable weapons for which the penal code provides for a permits, e.g., handguns. There are no permits/licenses in the state of California which provide for the carrying of long guns for the purpose of self-defense.
Update January 31, 2014 – A new case seeking Cert before the US Supreme Court. Embody v. Cooper which seeks unlicensed Open Carry in Tennessee. It is a pro-se petition filed in forma pauperis which means it is highly unlikely that Cert will be granted. I wish him luck.
Update January 22, 2014 – Today, the US Supreme Court heard oral arguments in ABRAMSKI V. UNITED STATES. Audio will be available Friday afternoon on the Court’s website. The case involves the “straw purchase” of firearms. To read the questions the court will be resolving, click here.
Update January 15, 2014 – Today, the US Supreme Court heard oral arguments in United States v. Castleman. Which involves losing one’s right to possess a firearm for being convicted of misdemeanor violence. Here is a link to the oral arguments.
Update January 10, 2014 – Irony of ironies.
A Federal district court judge cites the denial of my preliminary injunction in support of issuing a preliminary injunction against Army Corp of Engineers regulations prohibiting loaded firearms at its dams and recreations areas with few exceptions such as for hunting and at authorized shooting areas because the judge in my case held that there was a self-defense exception (“grave, immediate danger”) and the Army Corp of Engineer regulations did not contain a self-defense exception and did not even allow for the unloaded Open Carry of Firearms if one had ammunition in his possession.
I guess the judge in the Idaho case didn’t notice that it is illegal to carry a firearm in California, loaded or unloaded, openly or concealed, until one is in “grave, immediate danger” and it becomes illegal to possess the firearm once police arrive.
In other words, it is only legal to carry “magic guns” in California that appear when one is in grave, immediate danger and wink out of existence when the police arrive.
On a positive note, at least some good came from the denial of my preliminary injunction. The Second Amendment has now been restored at over 700 dams and the surrounding recreation areas that serve over 300 million visitors annually.
At least for now.
The case is Morris v. U.S. Army Corps of Engineers -> http://www.mountainstateslegal.org/cases/all-cases/morris-v.-u.s.-army-corps-of-engineers
P.S. Mountain States Legal Foundation turned down my request for assistance in my California Open Carry lawsuit – twice.
Update January 9, 2014 – Alan Gura, on behalf of the SAF, filed his cert petition in Drake v. Filko today. Drake is a concealed carry case out of New Jersey. Although New Jersey handgun carry permits can be used for both concealed and Open Carry, the permits can be restricted to concealed carry and, as you may expect, Gura has argued all along that New Jersey can prohibit Open Carry if it wants to. This is the same mistake he made in Kachalsky and Woollard which were also denied cert by the US Supreme Court. The Cert Petition is here.
Update January 7, 2014 – We now have a district court decision in the Raulinaitis v. Ventura County Sheriff’s Department CCW case. As expected, the decision turned on the definition of residency given that was what the pleadings from both sides in the case argued. The Plaintiff’s motion was denied. Raulinaitis did not get his CCW. Here is a link to the order.
Update January 6, 2014 – There was a very nice decision today from the district court in Benson et al v. The City of Chicago et al. Although the lawsuit targets ban on the sale of firearms, the decision contains a lengthy discussion on the carrying of firearms outside the home.
Update December 29, 2013 – Obama’s opposition to the NRA v. BATFE cert petition is here.
Update December 25, 2013 – Does the suspected presence of a gun in a home entitle the police to conduct a no-knock raid on the home? The US Supreme Court has been asked to decide in Quinn v. Texas. Here is a link to the US Supreme Court docket.
Update December 22, 2013 – Assuming that the three concealed carry cases already taken under submission for a decision by the 9th Circuit Court of Appeals have not been decided by December 31, 2013, we will have our first post-Chovan decision on the right to bear arms outside of the home in a CCW lawsuit – Sigitas Raulinaitis v. Ventura County Sheriffs Department. The district court judge in that case has promised a decision by December 31st.
Update December 17, 2013 – Yesterday, the D.C., Court of Appeals refused to issue a writ requiring the lower court to issue a decision in Palmer v. District of Columbia. Palmer seeks to carry a handgun in public in the District of Columbia. I do not have a copy but press reports quote the court as saying “We are confident that the district court will act on the motions as promptly as its docket permits.”
Although Gura filed the lawsuit in August of 2009, he did little to move the case along. Gura waited until August 9th of this year to file a motion for an expedited decision and didn’t wait long after that to file his writ. Gura’s writ was filed on October 23, 2013.
By contrast, district court judges in this district have 120 days to issue their decision. If they don’t, the attorneys on both sides are required to send a letter to the Chief Judge of this district at which point the district court judge has 30 days to issue a decision or risk being reassigned.
I suspect that the D.C. lower court will issue its decision by the end of March.
Update December 16, 2013 – Kwong v. Bloomberg, the NYC license fees, has a US Supreme Court docket page. Application granted by Justice Ginsburg extending the time to file cert petition until February 3, 2014. Lane v. Holder, which involves the commercial sale of firearms, is still in limbo after two months of waiting to see whether or not it would be granted cert. Here is the link at ScotusBlog. NRA v. McCraw asks three questions: (1) Whether the Second Amendment right to bear arms for self-defense in case of confrontation includes the right to bear arms in public; (2) Whether that right to bear arms extends to responsible, law-abiding 18-to-20-year-old adults; and (3) whether Texas’s ban on responsible, law abiding 18-to-20-year-old adults bearing handguns in public for self-defense violates the Second Amendment and the Equal Protection Clause. Ultimately, this is another concealed carry case because the NRA did not challenge the Texas ban on openly carrying modern handguns in public and Texas does not prohibit the Open Carry of long guns. Here is the link at ScotusBlog.
Update December 6, 2013 – A Federal District Court judge today denied the motion for summary judgment made in a challenge to California’s 10 day waiting period. That doesn’t mean that the case is over. CalGuns is a plaintiff in the case and they have a piss-poor track record in winning. The case is Silvester v. Harris. A link to the order denying AG Harris’ motion for summary judgment can be found here.
Update December 6, 2013 – One year ago today the three concealed carry cases (Richards, Peruta, Baker) were taken under submission by the 9th Circuit Court of Appeals for a decision. They still have not issued a decision. The median time for a decision from the filing of a notice to appeal to final disposition in the 9th Circuit is 15.3 months. Peruta filed his notice of appeal on 12-14-2010, Richards filed his notice of appeal on 5-16-2011. Contrast that with the 7th Circuit cases of Moore and Shepard which filed their notice of appeals on 2-3-2012 and 4-2-2012. The 7th Circuit consolidated their appeals and issued its decision the same year, in December. Peruta has been waiting nearly three years to the day. Richards has been waiting nearly two years and seven months. Baker was the appeal of a preliminary injunction which are supposed to get priority scheduling over other non-criminal appeals. Even so, Baker has been waiting a year and a half for a decision.
Update November 26, 2013 – This is strictly speaking a Second Amendment case but the Montana Shooting Sports Association has filed a cert petition with the US Supreme Court. The case involves the manufacture of firearms which can only be sold and possessed within the state of Montana. Here is a link to the docket.
Update November 18, 2013 – The decision in US v. Chovan was published today. Chovan is one of the four cases which have to be decided before the stay in the NRA/CRPA concealed carry case McKay v Hutchens is lifted. The 9th Circuit decided to adopt the two-step Second Amendment inquiry from other circuits Chester, 628 F.3d at 680 and Marzzarella, 614 which (1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny. F.3d at 89.
Update November 12, 2013 – The handgun “carry” case out of New Jersey, Drake v. Filko, now has a US Supreme Court docket page. SAF/Gura has asked for an extension and received one til January 9, 2013 to file his cert petition .
Update November 12, 2013 – The NRA/CRPA concealed carry case out of Orange County, McKay v. Hutchens, has been stayed by the 9th Circuit Court of Appeals pending a decision in Richards/Paker/Peruta/Chovan. File this one under Karma can be a bitch. 😀
Update November 6, 2013 – Today marks 11 months since the California concealed carry cases of Richards v. Prieto and Peruta v. San Diego were taken under submission for a decision.
Update November 6, 2013 – The 7th Circuit Court of Appeals has officially closed the case of Shepard v. Madigan.
Update November 4, 2013 – Today, the US Supreme Court posted that it had denied the cert petition in the case of Schrader v. Holder. This was a facial and categorical challenge by the SAF/Alan Gura to a Federal law which prohibits persons with certain common law misdemeanor convictions from possessing firearms. The court of appeals admonished Gura for not arguing that the law is unconstitutional as-applied to Schrader, suggesting he very may well have won had he made an as-applied challenge.
Update October 15, 2013 – I’ve debated for some time whether or not to add this to the “Cases to Watch” but here goes. Davis v. Grimes is another attempt to get permits what will enable one to carry concealed handguns in Massachusetts. Alan Gura already tried that and lost in Hightower v. Boston. An en banc appeal was filed and denied. Hightower is published and binding. The court in Hightower noted that the Plaintiff did not apply for a Class “B” license which would have allowed her to openly carry her handgun but was instead appealing the denial of a Class “A” license which would have allowed her to carry concealed. So what does the brain trust at Comm2A do? They file a lawsuit seeking Class “A” concealed carry licenses instead of Class “B” Open Carry licenses. The case has been argued and taken under submission in the district court on 9/13/2013. We are now awaiting a decision from the District Court judge.
Update October 15, 2013 – The US Supreme Court denied Alan Gura’s cert petition on behalf of the SAF in the case of Woollard v. Gallagher. Had the SAF/Gura succeeded in their appeal then it would have resulted in “shall issue” concealed carry permits.
Update October 8, 2013 – Oral arguments in the NRA/CRPA concealed carry lawsuit against Orange County California Sheriff Hutchens are now online here. It should come as no surprise to anyone that the NRA/CRPA once again argues that California can ban Open Carry.
Update September 24, 2013 – Here is a link to the reply brief in Woollard v. Gallagher filed by the SAF.
Update September 18, 2013 – Woollard v. Gallagher is fully briefed. The US Supreme Court holds its “long conference” on September 30th. This will be the first opportunity for the Supreme Court to decide whether or not to hear the case. If they decide to hear it then we will know that day. If they decide not to hear the case, or put it off for another conference then we will not know until the following Monday.
Update September 12, 2013 – Maryland has filed its brief in opposition to the cert petition to the US Supreme Court in a handgun carry case – Woollard v. Gallagher. Given that a permit enables one to carry a handgun concealed and the Plaintiff’s did not challenge the requirement that one have a permit, it is highly unlikely that the Supreme Court will hear the case. We will not know until September 30th at the earliest.
Update September 6, 2013 – Today marks ten months since three concealed carry cases were taken under submission by the 9th Circuit Court of Appeals. Every day without a decision marks a new record in the 9th Circuit for time between taking a case under submission and publishing the opinion for the case.
Update August 29, 2013 – The Alan Gura/Second Amendment Foundation lawsuit out of New Jersey lost again. Drake v. Filko – en banc denied. The only recourse left is a cert petition to the US Supreme Court.
Update August 23, 2013 – The Second Amendment Foundation (SAF) loses another one -> Montana Shooting Sports Association v. Holder. Here is a link to the decision.
Update August 17, 2013 – There are several cases which have filed Cert Petitions with the US Supreme Court. Click on the casename for a link to the Supreme Court docket. Lane v. Holder; Schrader v. Holder; Woollard v. Gallagher; National Rifle Association v. Bureau of Alcohol, Tobacco, Firearms, and Explosives
Update August 16, 2013 – If you scroll towards the bottom of the page you’ll notice that most of the cases on the watch-list are in red. They were concealed carry cases and they lost. Even in the 7th Circuit, hailed as a “victory” for concealed carry, the 7th Circuit said Illinois was free to prohibit the concealed carry of handguns. I have added another concealed carry case from the 8th Circuit which is currently being briefed in the court of appeals. Given that the concealed carry lawsuits have lost in every circuit, it is highly likely that they will lose in the two remaining Federal Circuits as well (8th & 9th).
Update July 31, 2013 – Alan Gura and the SAF lost another concealed carry case in the Third Circuit Court of Appeals. Technically, New Jersey handgun carry permits do not differentiate between open and concealed carry but Gura and the SAF want concealed carry and the 3rd Circuit didn’t care whether one carried handguns openly or concealed. The 3rd Circuit concluded that New Jersey’s requirement that one have a “justifiable need” to get a permit to carry a handgun in public is constitutional. Here is a link to the decision.
Update July 12, 2013 – Alan Gura filed a cert petition with the US Supreme Court on July 9th in the case of Woollard v. Gallagher. This is the case out of Maryland where the 4th Circuit Court of Appeals ultimately dodged the question of applicability of the Heller decision outside of the home. Unfortunately, although Maryland handgun carry permits do not differentiate between open and concealed carry of handguns, Gura argued the case in a way which left no doubt he seeks concealed carry. Also, Gura does not challenge the constitutionality of requiring a permit to carry a handgun in public. The Second Amendment Foundation is a party to the case and we all know that the head of that organization loves government issued permission slips and opposes Open Carry. Given that this case seeks concealed carry permits and does not challenge the requirement to have a permit, this case is indistinguishable from the Kachalsky case that was denied cert by the US Supreme Court. I will be very surprised if the Supreme Court decides to hear this case. Here is a link to the docket. Here is the Justia link. Here is a link to the Cert Petition.
Update July 11, 2013 – There have been a couple of twists in the 7th Circuit Court of Appeals. After begging the State of Illinois to enact a law requiring that one have a permit to carry a handgun in public, the Illinois State Rifle Association (State affiliate of the National Rifle Association) doesn’t like the fact that it will be at least nine months before the first permits are issued so they have filed a motion with the district court judge to issue a preliminary and permanent injunction against the law and a motion to expedite the hearing. The Second Amendment Foundation appears to be content with waiting another nine months for permits to be issued. The only motion they filed was for an extension of time to calculate how much they are going to demand in legal fees. The Attorney General had entered a motion to dismiss the case as moot. To which the ISRA filed a response here. An archive link to many of the filings to date is here.
Update July 9, 2013 – The Second Circuit Court of Appeals upheld New York City’s high permit fees to keep a handgun in one’s home. Here is a link to the decision in Kwong v. Bloomberg.
Update July 8, 2013 – The California concealed carry case Mehl v Blanas lost in an unpublished (non-binding) decision.
Update June 20, 2013 – We are still waiting for a decision on my motion for a preliminary injunction against California’s Open Carry bans (both loaded and unloaded) and the concealed carry decisions from the 3rd and 9th Circuit Courts of Appeal.
Update May 18, 2013 – The City of Chicago has a local ordinance which makes it a crime to carry a firearm outside of the interior of one’s home. Likewise in California it is a crime to carry a firearm on your own residential property unless it is fully enclosed by a fence tall enough to keep the public out. I just discovered that a lawsuit was filed against the Chicago municipal ordinance – Hall, et al. vs. City Of Chicago. Here is a link. Here is Chicago’s motion to dismiss. Here is an archive link to the docket. Here is the Justia link which includes links to PACER.
Update April 16, 2013 – Young v. Hawaii filed a Supplemental Brief in the 9th Circuit Court of Appeals on April 10, 2013. Click here to read.
Update April 15, 2013 – The SAF/Alan Gura concealed carry lawsuit out of New York was denied cert this morning by the US Supreme Court (Kachalsky v. Cacase). That means there is now a bad, binding precedent in the 2nd Circuit and a precedent which can be cited in cases across the country. Every concealed carry case which has asked the Supreme Court to hear its appeal has lost. So much for the SAF/CalGuns “secret plan” to win by losing.
Update April 8, 2013 – “04/08/2013 Order filed by Judges Lucero, Baldock and Hartz denying petition for rehearing en banc filed by Appellant Gray Peterson.” For those of you unfamiliar with the case Gray Peterson is a forum moderator for CalGuns.nuts and one of my most vocal critics. Peterson sued Colorado for a concealed carry permit and lost. The 4th Circuit has now denied his request for an en banc review of the decision. His only recourse is to appeal to the US Supreme Court which has not heard a concealed carry appeal since it issued its Heller decision in 2008.
Update March 21, 2013 – The Federal 4th Circuit Court of Appeals released its decision in Woolard v. Gallagher and its a bad one. On the plus side, Alan Gura probably got his circuit court split which is a virtual necessity to the US Supreme Court hearing a case. The Court might not grant cert in the Kachalsky decision but I don’t see how they can pass up granting cert in this case. Here is a link to today’s decision.
Update March 14, 2013 – The State of New York filed its opposition to the Cert Petition filed by Alan Gura in the concealed carry Kachalsky case. Here is the link.
Update February 22, 2013 – The 7th Circuit denied an en banc hearing request in the case of Moore v. Madigan. The decision by judge Posner stands. The only thing Illinois can do now is to appeal to the US Supreme Court. In the 10th Circuit Court of Appeals, Gray Peterson lost his concealed carry lawsuit out of Denver. This pleases me no end. Gray Peterson is a forum moderator at CalGuns.nuts and OpenCarry.org who has been one of my most vocal critics.
Update February 19, 2013 – Opening brief filed in the 9th Circuit Court of Appeals on December 24, 2012 – George Young, Jr. v. State of Hawaii, et al No. 12-17808. This is an Open Carry case, of sorts. Answering brief due 04/25/2013. Here is a link to the district court case.
Update February 12, 2013 – Oral arguments were heard in Muller v. Maenza before the 3rd Circuit Court of Appeals, another SAF case where Alan Gura argued that states can ban Open Carry and therefore must issue concealed carry permits. That argument hasn’t won him a single case and this one is no different. Here is a link to the oral arguments.
Update January 15, 2013 – Kachalsky v. Cacace – We now have a live docket page at the US Supreme Court for Kachalsky v. Cacace, the concealed carry case out of New York where the 2nd Circuit Court of Appeals compared self-defense to pornography and shagging in the street.
Unfortunately, it is a concealed carry case and the US Supreme Court has turned down every concealed carry case since its 2008 Heller decision.
Cacace will decline to respond. If the Supreme Court does not request a response from Cacace then you can stick a fork in it. If the Supreme Court does request a response then there is still a remote chance the court will hear the case.
Once it has been distributed for conference, keep an eye on the conference dates. If the court is going to hear the case it will be announced the day of the conference. If not, it will either be denied the following Monday or put off to the next conference date. Case # 12-845
Update January 9, 2013 – Moore v. Madigan & Shepard v. Madigan. Illinois Attorney General Lisa Madigan filed a petition yesterday for an en banc rehearing of the 7th Circuit Court of Appeals decision by Judge Posner which overturned Illinois’ ban on carrying loaded firearms in public.
Update December 11, 2012 –Moore v. Madigan & Shepard v. Madigan. The 7th Circuit Court of Appeals struck down Illinois’ ban on carrying a loaded firearm in public. Illinois bans both open and concealed carry. The court said Illinois can ban concealed carry if it wants to and gave the state 180 days to enact new laws which are constitutional under the Second Amendment. One of the laws struck down is identical to the 1967 California ban on openly carrying a loaded firearm in public which is challenged in Nichols v. Brown. Here is a link to today’s decision.
Update December 10, 2012 – David Mehl v. Lou Blanas, No. 08-15773, a concealed carry case was just taken under submission on September 4th in the 9th Circuit Court of Appeals but that has changed as a new set of oral arguments has been scheduled. The oral arguments were heard by judges Schroeder, Berzon and Roth way back in June of 2009 which was a year before the US Supreme Court McDonald decision was released. The court scheduled another round of oral arguments which were held today. Here is a link to today’s audio of the oral arguments.
Update December 6, 2012 – Oral arguments were heard today before the 9th Circuit Court of Appeals in three concealed carry cases, two from California and one from Hawaii. Here are the links to the audio from the hearings: Peruta v. San Diego, Richards v. Prieto, Baker v. Kealoha.
Update November 30, 2012 – James Rothery, et al v. County of Sacramento, et al – Appellate proceedings are stayed until March 5, 2013
Update November 27, 2012 – Kachalsky et al. v. Cty. of Westchester et al (aka v. Cacase). Today, SAF/CalGuns lawyer Alan Gura lost another concealed carry case out of New York. The Second Circuit Court of Appeals held that there is no Second Amendment Right to carry a concealed handgun in public. Read the decision here.
Update November 20, 2012 – Nichols v. Brown. The Chief Magistrate Judge for the Central District of California filed her report and recommendation to the District Court judge assigned to my case recommending that Attorney General Harris’ motion to dismiss my case be denied. She concluded that I have standing to challenge California’s 1967 ban on Loaded Open Carry as well as the California statute which restricts licenses to openly carry a handgun to residents of counties with a population of fewer than 200,000 people. All parties have until December 4th to file a response and then 14 days to file a reply to any response. Given that the District Court judge rubber stamps the Reports & Recommendations of the Chief Magistrate Judge, all in all, this is good news.
Update November 19, 2012 – David Mehl v. Lou Blanas, No. 08-15773, a concealed carry case was just taken under submission on September 4th in the 9th Circuit Court of Appeals but that has changed as a new set of oral arguments has been scheduled. The oral arguments were heard by judges Schroeder, Berzon and Roth way back in June of 2009 which was a year before the US Supreme Court McDonald decision was released.
Assuming that none of the parties files any additional supplemental briefs we could have a decision in a couple of months because, unlike the Peruta/Richards/Baker cases, Mehl is an “as applied” challenge to California’s concealed carry statute. A companion case by the same attorney was stayed until December 5th, 2012 – Rothery v. Blanas now named Rothery v. County of Sacramento. Mehl v. Blanas is now scheduled for oral arguments on Monday, December 10, 2012 – 8:30 AM – Courtroom 1 – Richard H. Chambers US Court of Appeals Bldg. – Pasadena, California.
Update November 18, 2012 – In the four plus years since the Heller Decision in 2008, the appellate courts have quickly published opinions where there have been Second Amendment challenges; typically within 90 days of oral arguments or the case being taken under submission by the court. The 10th Circuit decision in Peterson v LaCabe in particular is long overdue. I can only speculate that the 10th Circuit is holding back on releasing its decision until it is too late for the US Supreme Court to hear an appeal this term.
Peterson v. LaCabe – 10th Circuit – Taken under submission on March 19th, 2012
Shepard/Moore v. Madigan – 7th Circuit – The twin cases were taken under submission on June 8th, 2012.
Kachalsky v. Cacace – 2nd Circuit – Taken under submission on August 22nd, 2012.
David Mehl v. Lou Blanas – 9th Circuit – Taken under submission on September 4th, 2012.
Woolard v. Sheridan – 4th Circuit – Taken under submission on October 24th, 2012.
Update November 1, 2012 – The judge in the NRA/CRPA case, McCay v. Hutchens out of Orange County has denied the NRA’s motion for a preliminary injunction. See the October 30 update for details.
Update October 30, 2012 – The judge in the NRA/CRPA case, McCay v. Hutchens out of Orange County has published a tentative denial of the NRA’s motion for a Preliminary Injunction against California’s “good cause” requirement for obtaining a license to carry a handgun concealed. It shouldn’t surprise anyone if the judge ultimately denies the motion as well as rule against the NRA/CRPA. After all, the NRA/CRPA is making the same arguments, or lack thereof, that they made in their lawsuit against the San Diego Sheriff which is now pending before the 9th Circuit Court of Appeals (Peruta v. San Diego) which is scheduled for oral arguments on December 6th. You can read a copy of the tentative denial of the Preliminary Injunction here.
Update October 27, 2012 – A case from the 6th Circuit Court of Appeals has asked the US Supreme Court to hear an appeal from a decision which granted immunity to a police officer who pointed a loaded shotgun and arrested a person who was legally carrying a handgun openly in a place where it was legal for him to be. The SAF attorney Alan Gura joined with the Brady Bunch and filed an Amicus Brief opposing the Plaintiff’s right to openly carry a firearm. The case is Embody v. Ward. Here is a link to the decision and to the oral arguments. Cert Denied – December 3, 2012
Update October 16, 2012 – NRA/CRPA seeks a preliminary injunction for concealed carry permits. The hearing is scheduled for October 29, 2012 in Santa Ana in the case of McCay vs. Hutchens. As you can see by this copy of the NRA/CRPA’s brief, the NRA/CRPA is making many of the same mistakes it made in the Peruta case out of San Diego.
Update October 9, 2012 – 9th Circuit Court of Appeals to Decide on Carrying Handguns Concealed
Oral Arguments before the 9th Circuit Court of Appeals set in Richards and Peruta for December 6, 2012.
Richards is the SAF/CalGuns case which argues that California can ban ban Open Carry if it wants to. It is a “facial challenge” which means that they are arguing that prohibitions on concealed carry are either always, or in nearly every case, unconstitutional. Given three US Supreme Court decisions saying that states can prohibit concealed carry, it will lose.
Peruta is the NRA/CRPA case which is arguing to uphold California’s 1967 ban on loaded open carry and “warns” the court that if they don’t issue concealed carry permits then it would result in the overturning of California’s Loaded Open Carry ban as well as the overturning of California’s Gun Free School Zone Act. The NRA/CRPA argues that would be “drastic.”
The NRA/CRPA did not challenge the constitutionality of any California statute which means there is no “case or controversy” for the court to decide upon. It too will lose.
The denial of the preliminary injunction in Baker v. Kealoha will be heard before the same panel on the same day. Chris Baker wants a concealed carry permit. The same Hawaii statute provides for the issuance of both Open and Concealed Carry permits. Baker could argue that he has the right, under Heller, to carry a handgun concealed while travelling and openly while not on a journey but it is highly unlikely that he will.
Thursday, December 6, 2012 – 9:00 AM – Courtroom 1, 3rd Floor – James R. Browning US Courthouse – San Francisco, CA.
Update September 4, 2012 – David Mehl v. Lou Blanas, No. 08-15773, a concealed carry case was just taken under submission in the 9th Circuit Court of Appeals. The oral arguments were heard by judges Schroeder, Berzon and Roth way back in June of 2009 which was a year before the US Supreme Court McDonald decision was released. Assuming that none of the parties files any additional supplemental briefs we could have a decision in a couple of months because, unlike the Peruta/Richards/Baker cases, Mehl is an “as applied” challenge to California’s concealed carry statute. A companion case by the same attorney was stayed until December 5th, 2012 – Rothery v. Blanas now named Rothery v. County of Sacramento.
Cases Won, Lost and Pending before the various Federal Courts of Appeal
The First Circuit Court of Appeals has jurisdiction over Massachusetts. In Hightower v. Boston, the Plaintiff sought a “Class A” license and return of her handgun. In oral arguments, the lead judge asked Alan Gura if this was an Open Carry case. Alan Gura sheepishly conceded that it was. The three judge panel was comprised of all Clinton and Obama appointees. Update – The Court has issued its decision. The Court noted that Hightower had never applied for a license to openly carry a handgun, she was seeking reinstatement of a license which would have allowed her to carry a handgun concealed. The Court cited the US Supreme Court decision in Robertson and Heller which said that states may prohibit concealed carry. Moral of the lesson is don’t lie to a Federal judge. They don’t like it. Alan Gura was Hightower’s attorney. He currently has a lawsuit pending before the 9th Circuit Court of Appeals where he argues that states can ban Open Carry if they want to. That lawsuit is funded by the Second Amendment Foundation (SAF) and CalGuns Foundations. Oral arguments in Hightower were heard on June 6, 2012. A link to the published decision of August 30, 2012 in Hightower v. Boston is here. The First Circuit denied an en banc appeal which means Alan Gura’s only hope is for the US Supreme Court to hear his appeal, should he ask for one. Given that the Supreme Court has declined to hear every concealed carry case since the Heller decision the only thing the SAF/CalGuns lawyer Alan Gura has achieved is to create a binding precedent prohibiting concealed carry in the 1st Circuit. The Second Circuit Court of Appeals has jurisdiction over New York. Kachalsky v. Cacace is another SAF case where Alan Gura argued that states can ban Open Carry and therefore must issue concealed carry permits. That argument hasn’t won him a single case and this case is no different. Oral arguments were heard on August 22, 2012. We are awaiting a decision from the court. The Second Circuit Court of Appeals held that there is no Second Amendment Right to carry a concealed handgun in public on November 27, 2012. Read the decision here. US Supreme Court denied Cert on April 15, 2013. The Third Circuit Court of Appeals has jurisdiction over New Jersey. Muller v. Maenza is another SAF case where Alan Gura argued that states can ban Open Carry and therefore must issue concealed carry permits. That argument hasn’t won him a single case and this one is no different. Oral arguments were calendared for February 12, 2013. Access the Appellate docket on PACER. The case is now renamed Drake v. Filko. It lost before the court of appeals. We are now waiting to seek if a cert petition is filed. The Fourth Circuit Court of Appeals has jurisdiction over Maryland. Maryland licenses to carry a loaded handgun in public do not differentiate between open or concealed carry. Have a Maryland carry license and theoretically one can carry in either manner. In reality, since Maryland licenses are may-issue were one to Open Carry the license would be revoked. A Federal judge in Maryland issued an injunction against the “good cause” requirement. In his opinion he said that he was not ruling on the constitutionality of concealed carry but since Maryland requires an license and the plaintiffs are just challenging the good cause section of the statute, Maryland must issue the licenses. The SAF hailed that as a victory for “concealed carry” because SAF is run by an arrogant little shit (Allan Gottlieb) who has no problems with lying through his teeth. I met Gottlieb years ago. He was a squirrelly little fuck then and apparently hasn’t improved with age. The Fourth Circuit stayed the District Court decision and expedited oral arguments. Oral arguments in the case, Woollard v. Sheridan, were heard on October 24th. Instead of taking his win and running with it, Gura is insisting to the appellate court that his is a concealed carry case. This means he is very likely to lose on appeal. Here is a link to the oral arguments. March 21, 2013 – Court of Appeals reverses the District Court decision. Here is a link to the decision.
The 7th Circuit Court of Appeals has jurisdiction over Illinois and is where I have my highest hopes in obtaining a persuasive precedent for my lawsuit. The State of Illinois has an identical statute to the one I am challenging. Oral arguments have already been heard and I am expecting a decision before the court resumes session on the 5th of September. The lead judge made a rather refreshing comment in the oral arguments. He said it was silly to argue that when the founding Fathers enacted the Second Amendment they intended for it to only entail the right to walk around one’s living room with a musket – “Come on now, that’s silly!” said judge Posner. Another member of the 3 judge panel kept grilling attorneys for both sides why a school should be a “sensitive” place where guns can be prohibited? She said a teacher, who is being stalked, is most likely to be attacked at her school. We only need two judges to win. There are two lawsuits which seek to overturn that Illinois statute identical to the one I am challenging, the oral arguments were combined and expedited. The two cases are: Shepard v. Madigan and Moore v. Madigan. Oral arguments were heard on June 8, 2012.
We are awaiting the decision from the court. Cases won on December 11, 2012. en banc petition denied. Illinois Attorney General Madigan asked the US Supreme Court for a one month extension to file a cert petition, it was granted. She now has until June 24 to ask the US Supreme Court to hear an appeal of the decision. The decision itself goes into effect on June 9, 2013. 8th Circuit Court of Appeals – Plastino v. Koster No. 13-1974 – The Second Amendment Foundation lost its motion for a preliminary injunction seeking, you guessed it, concealed carry permits. Having lost their motion for a preliminary injunction one would have thought they would be ready to appeal back in April but no, they asked for and got an extension til October 11, 2013. After so many losing concealed carry cases, if you think this one has a snowball’s chance in Hell of winning, I have a bridge I want to sell you. On October 10th, the SAF dismissed its own lawsuit. Missouri had changed its law and Plastino got his concealed carry permit which made the lawsuit moot. I’m sure the SAF will eventually file another losing case in the 8th Circuit.
9th Circuit Court of Appeals has jurisdiction over California.
Unfortunately, most of the cases currently pending before the 9th Circuit Court of Appeals seek “shall issue” CCW permits. In 1891, 2008 and 2010 the United States Supreme Court issued decisions saying that states can prohibit the concealed carry of weapons (except while travelling). So what did the so called gun-rights groups do? They brought Federal lawsuits saying the US Supreme Court didn’t really mean what it said. They argued that states can ban Open Carry if they want to but they can’t ban both. For nearly 200 years now, both state and Federal courts have said that states can ban concealed carry but not Open Carry. Needless to say they have lost every case where they have made this argument in Federal District Courts and their cases are now on appeal.
Baker v. Kealoha is an appeal from the denial of a Preliminary Injunction against the State of Hawaii’s “may issue” for licenses to carry a loaded firearm in public. The Hawaii state statute applies to both Open and Concealed carry. The Plaintiff, Christopher Baker, could have an easy win. He could argue that the US Supreme Court meant exactly what it said. He has the right to openly carry a loaded handgun in public and a right to carry a loaded handgun (openly or concealed) while travelling. Unfortunately, Mr. Baker wants to carry his handgun concealed all of the time. Mr. Baker is going to lose. Mr. Baker requested a stay, the 9th Circuit Court of Appeals denied the request. The oral arguments have been scheduled for December 6th in San Francisco.
This next case is personally painful as I knew the Plaintiff and had an amicable relationship within him until he turned coat and went from being an Open Carry advocate to an Open Carry opponent – Edward Peruta v. County of San Diego. Ed Peruta was winning until he invited the National Rifle Association to take over his case. The NRA state organization (the CRPA) became a plaintiff in the case and instead of challenging the constitutionality of California’s CCW statute (which applied to licenses for both Open and Concealed Carry of loaded handguns) the NRA/CRPA explicitly said they were not challenging the constitutionality of ANY California statute. As any first year law student knows, if there is no “case of controversy” there is no case. The Chief Federal judge for the Southern District of California said it wasn’t her job to make the case for the NRA/CRPA and dismissed the case. The NRA/CRPA is arguing in their appellate case that the court must grant them shall-issue CCWs to avoid someone like me overturning California’s 1967 ban on Loaded Open Carry as well as the California Gun Free School Zones law. The NRA/CRPA attorney, Chuck Michel, says that would be “drastic.” In short, the NRA/CRPA has no case. They will lose. The oral arguments have been scheduled for December 6th in San Francisco.
The Peruta case was heard on the same day before the same 3 judge panel as Baker v Hawaii and the SAF/CalGuns case – Richards v. Prieto. The attorney in that case is Alan Gura, the same arrogant little shit Justice Scalia had to spoon-feed during the oral arguments in the Heller case and the same little shit that Justice Scalia nearly leaped from his bench to strangle during the oral arguments in the McDonald case. In the Richards v. Prieto CCW case, Gura spent so much time telling the District Court judge that California can ban Open Carry if it wants to he forgot to state the nature of his constitutional challenge to California’s CCW statute. So the judge inferred what is known as a “Facial Challenge.” A facial challenge is almost impossible to win. The law must be unconstitutional in every application or in virtually every application to win a facial challenge. Since Alan Gura did not argue what is known as an “as-applied” or any other winnable legal theory at the trial court level, he is prohibited from raising them at the appellate court level. SAF/CalGuns will lose. The oral arguments were held on December 6th in San Francisco. Decisions in Peruta/Richards and Baker are pending. Mehl was disposed of in an unpublished opinion.
It has been over four years since the landmark Second Amendment decision by the US Supreme Court – Heller v. District of Columbia. In that time the US Supreme Court has declined to hear EVERY concealed carry case which asked for a hearing.
They will have lost their cases for good. The best we can hope for is that the 9th Circuit doesn’t publish a damaging opinion saying there is no right to carry a concealed weapon in public at all. Don’t assume that judges know the law or have even read the US Supreme Court decisions. At best, they read only what the parties wrote in their briefs. The NRA/CRPA/SAF/CalGuns did not, and are not, going to argue that they only have a right to carry a concealed weapon while travelling. The counties of San Diego and Yolo County have argued that there is NO right to carry a concealed weapon in public and have hundreds of cases to cite in support of their position.
There are three additional concealed carry cases before the 9th Circuit Court of Appeals in addition to Rothery v. County of Sacramento
and David Mehl v. Lou Blanas. I know the attorney in those cases (Jon Birdt) and have an amicable relationship with him. Fortunately, he was smart enough to bring what is known as an As-Applied challenge to each of his CCW lawsuits which means the courts have to look at the circumstances unique to each case when making a decision, at least in theory. Unfortunately, this is Jon Birdt’s first time before the 9th Circuit Court of Appeals and he has waived oral arguments. Fortunately, one of the judges in one of his three CCW cases gave him a guaranteed reversible error which means the 9th Circuit Court of Appeals will be sending that case back to the District Court judge for a do-over thereby giving Jon Birdt another chance to make his case. All the NRA/CRPA/SAF/CalGuns lawyers will be able to do is to ask either for an en banc hearing from the 9th Circuit (which is rarely granted) or appeal directly to the US Supreme Court which will decline to hear their appeals. The three As-Applied concealed carry challenges where Jon Birdt is the attorney are: Thomson v. Torrance Police Department et al (Filed July 5, 2012), Raulinaitis, et al v. LASD (Filed August 15, 2012) and Birdt v. Charlie Beck, et al (Filed January 17, 2012). Jon Birdt has waived oral arguments in his three CCW cases.
McKay v. Hutchens is another concealed carry case brought by the NRA/CRPA lawyer Chuck Michel after he was replaced as lead counsel from Peruta v. San Diego. Not only is he making the same mistakes he made in Peruta, he is making new mistakes. His motion for a preliminary injunction against the Orange County California Sheriff was denied. Oral arguments are scheduled for the 9th Circuit Court of Appeals in Pasadena on October 7, 2013.
The 10th Circuit Court of Appeals has jurisdiction over Colorado. The Plaintiff, Gray Peterson, in Peterson v. LaCabe is a gay, concealed carry advocate from Washington state who wants Colorado to give him a license to carry concealed and who just happens to be a moderator at two notorious anti-Open Carry websites: CalGuns.nuts and OpenCarry.org. The trolls at CalGuns don’t try to hide their hatred for Open Carry but John Pierce, who owns OpenCarry.org pretends to be an Open Carry advocate (is he still asking for donations I wonder?). Pierce also has written that he doesn’t think people should be “allowed” to openly carry a loaded firearm unless they have a license and extensive training. John Pierce just graduated from law school. With friends like that…. Anyway, the 10th Circuit Court of Appeals bitch slapped Gray Peterson not in one but in two sets of oral arguments. They told him that they were likely to dismiss his case and if he wants to challenge Denver’s ban on Open Carry then he is going to have to file a new lawsuit and not try to shoehorn his failed concealed carry lawsuit into an Open Carry case at the last minute. Hopefully, the 10th Circuit in its decision will clearly state that the Second Amendment applies outside of the home and the US Supreme Court meant what it said about Open and Concealed Carry. If it does, I am inclined to send Peterson flowers and a box of chocolates with a quote from the Heller decision which said that concealed carry is for people who seek secret advantage and unmanly assassination. Oral arguments were heard on November 17, 2011 and March 19, 2012. The 10th Circuit issued its decision on February 22, 2013 – There is no right to carry a concealed weapon in public.
District of Columbia District Court – Still off in the distance is a lawsuit seeking to carry a loaded handgun in public in D.C., – Palmer v. D.C. On December 4, 2012 D.C., filed notice of supplemental authority of Kachalsky 2nd Circuit decision. On December 11, 2012, Plaintiffs filed notice of supplemental authority in the 7th Circuit Court of Appeals case Moore v. Madigan decision. The complaint in this case was filed on 08/06/2009. A motion for an expedited decision was filed on August 9, 2013.
United States District Court – Northern District of California – Scocca et al v. Smith et al. Instead of arguing that there is a Second Amendment right to carry a handgun concealed, this is a purely 14th Amendment case. The defendants have filed a motion to dismiss. The case was stayed by the judge pending a decision from the 9th in Mehl/Richards/Peruta.
United States District Court – Northern District of California – Haynie et al v. City of Pleasanton et al. This isn’t a carry case exactly, it is a challenge to California’s so-called assault weapons ban but it does include a facial challenge to the infamous “e-checks” (Penal Code 12031(e) since renumbered to PC 25850(b)). An “e-check” as everyone in the California Open Carry movement knows is named after a subsection of the penal code authorizing police officers to conduct a warrantless search of an openly carried firearm to see whether or not it is unloaded. A Second Amended Consolidated Complaint was filed on November 1st. The defendants have sixty days to file a responsive pleading (most likely a motion to dismiss).
United States District Court – Central District of California – McCay vs. Hutchens. Another concealed carry brought to you by the clowns at the NRA/CRPA. It is a rehash of the Peruta case no doubt brought as a fund raising tool rather than a real court challenge. Preliminary Injunction hearing was held on October 29, 2012. The judge denied the motion for a Preliminary injunction on November 1st. The District Court case is stayed pending the appeal of the denial of the Preliminary Injunction. Oral Arguments are scheduled for October 7, 2013 in Pasadena.
United States District Court – Central District of California – Nichols v. Edmund G Brown Jr et al. This is of course, my lawsuit which seeks to overturn California’s 1967 ban on openly carrying a loaded firearm in public as well as the two recently enacted bans on unloaded Open Carry. The district court denied my motion for a preliminary injunction. I have appealed to the 9th Circuit Court of Appeals. The appeal will be fully briefed on September 18, 2013 at which point it will be assigned to three judges randomly selected. That three judge panel will then decide whether or not to have oral arguments in the case. The NRA state organization (CRPA) has asked the court of appeals to stay my appeal or, in the alternative, to participate in oral arguments. The current status of my Open Carry lawsuit is here.
There are close to 100 Second Amendment cases I have been keeping track of these past few years. These have just been a few of the pending cases.