Last Updated on March 30, 2024
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SCOTUS denied my petition before judgment. My lawsuit continues in the district court (see updates below)
November 30, 2023. My 13th, and final, year of litigating my California Open Carry lawsuit began today.
Scroll Down the Page for the Periodic Updates
Current Schedule
Instead of “soliciting input” from the parties as to whether or not to reopen discovery, the magistrate judge did it without asking. Neither the magistrate judge nor the district court judge has jurisdiction to reopen discovery or to do anything other than to comply with the mandate order by the Ninth Circuit Court of Appeals.
PRETRIAL DEADLINES
Last Day to Serve Opposing Parties with Interrogatories,
Requests for Admission, Requests for Production of
Documents and Things, and Deposition Notices – February 21, 2024
Serve Initial Expert Disclosures – March 11, 2024
Serve Rebuttal Expert Disclosures – April 11, 2024
Serve Sur-Rebuttal Expert Reports – May 10, 2024
Complete Fact and Expert Discovery and File Related
Discovery Motions – June 11, 2024
Last Day to File Substantive Motions (such as Motions for
Summary Judgment) – July 24, 2024
California’s 1967 Loaded Open Carry ban went into effect on July 28, 1967
My lawsuit is the first and only lawsuit challenging that ban as it applies to rifles, shotguns, and handguns.
My California Open Carry lawsuit was filed on November 30, 2011.
It has been 20719 days since California’s Loaded Open Carry ban became law.
The Young v. Hawaii en banc panel opinion that held there is no right to carry handguns, openly or concealed, has been vacated by the United States Supreme Court, and the case was remanded back to the 9th circuit court of appeals on June 30, 2022. On August 19, 2022, the eleven-judge en banc panel simply reversed the judgment of the district court and remanded the case back to the district court for a do-over. Mr. Young reached an undisclosed monetary settlement. Mr. Young’s lawsuit is over without obtaining shall issue handgun Open Carry permits.
I’m still the first and only person to file a lawsuit challenging California’s bans on openly carrying rifles, shotguns, and handguns, both loaded and unloaded.
This year is the 57th anniversary of California’s Loaded Open Carry ban. Not only has not a single so-called gun-rights group challenged that ban — they have filed lawsuits and briefs in support of the ban.
Update March 30, 2024 – The new deadline to serve me with the state’s initial expert disclosures was March 11, 2024. I say “new” because last year the State of California had already served me with its expert disclosure but just days before our final motions for a final judgment were due, the renegade magistrate judge assigned to my lawsuit took it upon herself to stay my case pending the disposition of my petition for a writ of certiorari before judgment, and then issued a new scheduling order after it was denied. She, of course, did not have jurisdiction to do so but we shouldn’t expect Woke judges to behave any differently than the Woke who aren’t judges.
The State did not serve me with any additional expert disclosures. In the Baird v. Bonta handgun Open Carry lawsuit, the State filed four expert disclosures. Three were by the same people in my case. The fourth, Saul Cornell, for some unknown reason, did not want to participate in my case. The new deadline (the current deadline) for each side to file its substantive motions (motions for a final judgment) is now July 24, 2024.
Here are links to the three State’s expert witness reports that the State will file in my case:
Defendant Attorney General’s Expert Disclosures FRCP 26(a)(2)
Exhibit 1 – Rivas Expert Report and Declaration
Exhibit 2 – Spitzer Expert Report and Declaration
Exhibit 3 – Raney Expert Report and Declaration
Update March 12, 2024 – The deadline to serve me with the state’s initial expert disclosures was yesterday. I was not served with any, at least not by email. I should know by the end of the week if they were mailed to me. Assuming that there won’t be any additional disclosures than the three that were served on me last year before the magistrate judge, sua sponte, reopened discovery and reset the scheduling notice from the beginning, the only meaningful deadline is the July 24th deadline where each side will file its substantive motions. The state has said that it is going to file a motion for summary judgment. A motion for summary judgment is filed when there are no material facts in dispute. But the magistrate and district court judges insist on having a trial. Jurors decide questions of fact and so what is the purpose of having a trial? Who knows.
Update March 6, 2024 – Governor Newsom and Attorney General Bonta did not serve me with a deposition notice or interrogatories. The deadline was February 21st. Last year, I was served with a “First Set of Interrogatories” consisting of 10 questions and six “definitions.” I responded with 39 pages of objections to both the questions and the definitions. The next deadline is March 11th to serve the initial expert disclosures. Last year, I was served with three. I do not know if the state will be filing any additional expert disclosures. I will not be serving any and so the rest of the deadlines up to July 24th are meaningless. July 24th is the deadline for the state to file its motion for a summary judgment. It is also my deadline for filing my motion for a permanent injunction. After that, we wait. The magistrate and district court judges insist on having a trial but without any facts for a jury to decide, there are no legal grounds for a trial. But I am dealing with a pair of renegade judges. We shall see.
Update January 11, 2024 – Surprise, surprise! The magistrate judge in my California Open Carry lawsuit did as I predicted but instead of “soliciting input” from the parties, she reopened discovery and set a new scheduling order without being asked. Judges today don’t even pretend to be neutral or follow the rules.
Update January 8, 2024 – I wish I could say that I was surprised that my petition for a writ of certiorari before judgment was denied but what little hope I had for it being granted was dashed when SCOTUS denied the Nicky Keo v. Massachusetts cert petition a week before I filed my cert petition.
Massachusetts requires a permit to possess a firearm. Absent a permit, it is a felony to merely possess a firearm. The judge and prosecutor agreed that Nicky Keo should not be sentenced to prison but Massachusetts law requires a mandatory minimum sentence of 18 months in prison.
But most tellingly, last January SCOTUS denied the application to lift the stay of the preliminary injunction against New York’s post-Bruen carry ban in the case Antonyuk v. Nigrelli. There were no dissents, and Justices Alito and Thomas said they “respected” the denial of the application to vacate the stay.
As for what happens next, this Q&A exchange from Reddit answers the question.
Question: “What happens when (if as is now likely) the petition is denied, it just goes back to the prior court to be sweated out in further delay tactics (no final decision effectively) for eternity, in the lower courts? Being as you indicated you don’t wish to devote more time to it, does the case get dismissed or does it move on forever in lower court?”
Answer: “My cert petition did not remove jurisdiction from the district court. The Federal magistrate judge stayed the district court proceedings and vacated the scheduling order just a few days before the State of California was required to file its motion for summary judgment. She said she “will set new case management deadlines and solicit input from the parties about whether additional time is needed to complete discovery before summary judgment motion(s) can be filed.”
Neither the magistrate judge nor the district court judge has jurisdiction to reopen discovery or to do anything other than to comply with the mandate order of the court of appeals.
I intend to stop complying with these orders.
Absent a mandate limiting the district court’s jurisdiction on remand, a case is dismissed for lack of prosecution. There is a five-factor test the district court is supposed to apply to determine whether or not a case is dismissed with prejudice for lack of prosecution. However, the district court does not have jurisdiction to dismiss my case and I won’t be dismissing my case voluntarily. If my case is dismissed for lack of prosecution then I hope it is dismissed with prejudice because a dismissal with prejudice is a dismissal on the merits. I doubt that either the magistrate judge or the district court judge knows that. Or cares in the slightest.
But yes, delaying my case forever is certainly an option for the district court. SCOTUS had the opportunity to put a stop to the delay by simply construing my cert petition as a writ of mandamus. But it didn’t.”
Absent a favorable, early decision from the Baird v. Bonta appeal (should he file an appeal), I see no reason why the district court judges won’t continue to delay a final judgment in my case as long as they like.
Update January 5, 2024 – According to CertPool dot com, my California #OpenCarry cert petition is one of 464 scheduled for today’s (Jan 5) #SCOTUS conference.
Only 125 have a response on file. Two because #SCOTUS asked for a response. SCOTUS has asked for a response in 20 additional cases (mine was not one of them). Those 20 cases will survive today’s conference.
Mine is one of 48 cases in which an Amicus Brief was filed. In 4 of 5 cases, the Amicus brief was filed before the response was requested. Petitions without Amicus briefs tend to get denied.
The only #2A and related cases to be granted post-Bruen are the ones in which the government lost.
It does not take a crystal ball to predict that mine and the four other #SecondAmendment cases scheduled for today’s SCOTUS conference have been denied and will be so indicated on Monday.
https://www.supremecourt.gov/docket/docketfiles/html/public/23-526.html
Update December 29, 2023 – If there were going to be a response requested by SCOTUS then it would have been requested by now. When a cert petition goes to conference without a response, and none is requested, then the petition is invariably denied. My petition for a writ certiorari before judgment is scheduled for the January 5, 2024 SCOTUS conference. It will appear as denied on the January 8, 2024 Orders list. When it is denied, the stay of the district court proceedings will be lifted. The magistrate judge has already indicated that she is going to issue a new scheduling order which would push back a final judgment by the district court until sometime in 2025. The three-judge panel in Baird v. Bonta did not order the district court judge in that case to make a decision on the motion for a preliminary injunction within a specific time period. Instead, the panel said that it expects the district court judge to “expeditiously decide the preliminary injunction motion on remand.” That was on September 7, 2023. The mandate (return of jurisdiction to the district court) was issued on November 24, 2023. Both sides in the Baird case have filed motions for summary judgment which were taken under submission by the district court on November 3, 2023. If there is no decision on the preliminary injunction early next year, the plaintiffs’ attorney can file a writ of mandamus with the 9th Circuit Court of Appeals. In any event, there will be a decision in the Baird v. Bonta case long before there is one in mine. Judge Mueller entered a final judgment in favor of the State of California.
Update December 21, 2023 – Yesterday, the Foundation for Moral Law Amicus brief was distributed to the chambers of the justices. Documents are distributed to chambers on Wednesdays. The Amicus brief was filed last Wednesday which is why it was not distributed until yesterday.
Update December 14, 2023 – The Foundation for Moral Law filed an Amicus brief in support of granting my cert petition. It will be distributed to the chambers of the justices next Wednesday unless a decision has already been made not to grant my cert petition. Also, the justices are on vacation and so the only ones available to receive the Amicus brief would be the clerks who are working over the holiday. https://www.supremecourt.gov/docket/docketfiles/html/public/23-526.html
Update December 6, 2023 – There seems to be some confusion about the nature of my cert petition. My cert petition presents two questions. My first question is purely about the Second Amendment and is governed by Supreme Court Rule 11 which requires that for a petition to be granted, the petitioner must show that the “…case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
After 12 years of litigation, the Ninth Circuit Court of Appeals refuses to recognize the right to keep and bear arms, even in the curtilage of our home. The “normal appellate practice” of the Ninth Circuit Court of Appeals is to deny Second Amendment claims or refuse to recognize Second Amendment claims by simply remanding cases back to the district court for a do-over without instructions.
The second question in my cert petition is governed by Rule 10. The primary reason why SCOTUS grants Rule 10 cert petitions is to resolve circuit splits, not to correct mistakes of law made by the inferior courts. The Mandate of the Court of Appeals in my case created a split with every Federal court of appeals, including the 9th Circuit Court of Appeals but because the Mandate applies only to me, SCOTUS would undoubtedly deny my cert petition if that were the only question presented and despite the clear circuit splits.
As I predicted, my cert petition has been distributed to the January 5, 2023, SCOTUS conference. If no response is requested then my cert petition will be denied the following Monday morning. I searched the SCOTUS docket for “response requested.” The average was 7.5 days and the mean was 5 days for the twenty dockets I inspected from this term. The shortest interval of time between being scheduled for a conference and a response being requested among those twenty was one day. The longest interval of time was 18 days.
Update December 1, 2023 – At 1:19 PM I received an email from a state’s attorney informing me that Governor Newsom and AG Bonta filed a waiver to respond to my cert petition. My cert petition will now be distributed to all of the justices. If no response is requested then my cert petition will be scheduled for the January 5, 2024 SCOTUS conference and denied as of the following Monday.
Update November 30, 2023 – The 13th, and final, year of my California Open Carry lawsuit began today.
Update November 17, 2023 – My cert petition was docketed and made available online surprisingly fast. The docket also includes the appendix which is unusual for cert petitions like mine. The response date is December 18th which, coincidentally, is the same date my petition was due.
https://www.supremecourt.gov/docket/docketfiles/html/public/23-526.html
Update November 15, 2023 – Edit: My cert petition was hand-delivered to the Supreme Court today. November 15, 2023, 7:06 AM. I just paid the final invoice to the printer. The printer said it would be filed this afternoon. My cert petition should be docketed before Thanksgiving. I will post the link when I have it. My 13th year of litigating my California Open Carry lawsuit begins on November 30th.
Update November 12, 2023 – Tonight, I emailed the final draft of my cert petition to the printer. Sometime this week, the printer will send me its final draft for me to review. Once there is a print-ready pdf, my cert petition will be printed and filed with SCOTUS. That should happen by the end of this week, just in time for Thanksgiving. Because of the reduced SCOTUS schedule this time of year, my cert petition will not be scheduled before the January 5, 2024, SCOTUS conference.
Update October 6, 2023 – Well, the district court saved me the time and effort to seek a recall and stay of the mandate in my California Open Carry lawsuit.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Notice of Electronic Filing
The following transaction was entered on 10/6/2023 at 2:31 PM PDT and filed on 10/5/2023
Case Name: Charles Nichols v. Edmund G Brown Jr et al
Case Number: 2:11-cv-09916-SSS-KES
Filer:
WARNING: CASE CLOSED on 05/01/2014
Document Number: 200
Docket Text:
MINUTE (IN CHAMBERS): Order EXTENDING Stay (Dkt. 197) by Magistrate Judge Karen E. Scott: re: Minutes of In Chamber Case Stayed [197]. IT IS HEREBY ORDERED that: In the interest of judicial economy, the Court EXTENDS THE STAY on this action until proceedings in the U.S. Supreme Court conclude. The deadlines set forth in the December 9, 2022 Case Management and Scheduling Order (Dkt. 191) are VACATED. (See document for details). (et)
Update September 22, 2023 – Well, I no sooner finished printing and mailing my application for an extension of time to file a petition for a writ of certiorari when I checked my email and discovered that the three-judge panel assigned to my appeal denied my unopposed motion to stay the mandate (remand back to the district court). That means that I have to waste several more days writing an application to Justice Kagan to stay the mandate in my appeal pending the disposition of my petition for a writ of certiorari.
Update September 21, 2023 – This has been a very busy couple of days. I pulled a couple of all-nighters. I am too old to be doing that. Nevertheless, I wrote a 9-page emergency motion to stay the mandate (remand back to the district court) and filed it at 3:58 AM this morning. I have written an 11-page application for an extension of time to file my petition for a writ of certiorari which should be filed (by mail) tomorrow. I am waiting for the Supreme Court Clerk’s office to return my call and let me know if I have to include the $300 docketing fee with my application. I hope not to need the extension of time but it is better to have the extra time and not need it than to need the extra time and not have it. I have written 40 pages of a cert petition but, like all early drafts, not much of it will survive the rewrites. If my motion to stay the mandate is denied, well, that would give me the opportunity to ask SCOTUS to stay the mandate which would be an additional opportunity to make the justices aware of my incoming cert petition.
Update September 19, 2023 – As I predicted, my petition for a rehearing and rehearing en banc was denied. There really wasn’t any doubt that it would be denied after reading the Baird v. Bonta preliminary injunction opinion.
No judge called for a vote to rehear my appeal before an en banc panel and the three-judge panel assigned to my appeal unanimously voted to deny my petition for a rehearing.
The only question in my mind was whether or not the three-judge panel assigned to my appeal was going to rewrite their disposition from last year to make it even more difficult for my cert petition to be granted. They didn’t.
My petition for a writ of certiorari to the United States Supreme Court will be filed within 90 days. As I mentioned in my last newsletter, I will ask SCOTUS for an extension of time because it is better to have it and not need it than to need it and not have it.
A funny thing about S.B. 2 is that PC 626.9 (Gun Free School Zones) was amended to prohibit the transportation of an unloaded handgun inside of a fully enclosed locked container except when it is inside of a motor vehicle or locked in a trunk. I live in a gun-free school zone. It is impossible to drive my pickup onto my property. The only way I can get a handgun into my truck is to leave my property, on foot of course, and walk through a gun-free school zone in violation of the law which is punishable by a year in jail and a ten-year loss of my right to possess any firearm. In short, on January 1st it will become a crime for me to take my handguns (antique and modern) off of my property.
Of course, if I were to get a concealed carry permit then it would become a crime for me to take any firearm, including my long guns (antique and modern) in any of the prohibited places in S.B. 2.
That should improve the chances of my cert petition being granted.
Mark Baird said he would appeal the denial of his preliminary injunction if it weren’t granted. It wasn’t granted. If I were him, I would piggyback off of my cert petition.
Update September 12, 2023 – The California legislature passed Senate Bill No.2 today and then sent it to Governor Newsom for his signature. Given that Gov. Newsom is a co-sponsor along with AG Bonta, there is no question as to whether or not he will sign the bill into law. Not that it needs his signature as there is no “pocket veto” under California law.
S.B. 2 amends 22 sections of the California Penal Code, adds six sections, and replaces one section. Each of these sections of the Penal Code has multiple subsections. Today, the official state organization of the NRA, the CRPA, the Gun Owners of America, the Gun Owners of California, the Liberal Gun Owners Association, the Second Amendment Foundation, and eleven individual plaintiffs filed a lawsuit. Given that the United States Supreme Court set a very high bar for the state to overcome when defending a gun law then you might think that this newly filed lawsuit challenges everything in Senate Bill 2 as well as throwing in a bunch of other Second Amendment challenges to a bunch of other California gun laws.
That would be the logical and right thing to do but you must remember that we are dealing with these so-called gun-rights groups that file lawsuits and then go into court and argue that other laws that violate the Second Amendment are constitutional and, Heck! even the law they are challenging would be constitutional if it were a little bit different.
And so, as you might have guessed by now, this newly filed lawsuit (May v. Bonta) is very, very limited. Not only does it not challenge a single one of the 29 sections of the California Penal Code in S.B.2., the lawsuit challenges only one subsection of one section and only challenges part of that subsection, but isn’t that specific as to which parts of the subsection are being challenged.
On the other hand, my California Open Carry lawsuit challenges those prohibitions as they apply to openly carried firearms and does so with specificity. Moreover, what the State of California now calls “sensitive places” in the bill, the State of California both waived in its defense of my lawsuit and conceded in writing that they are not sensitive places. By waiving a sensitive places defense and conceding that streets, sidewalks, parks, piers, malls, the 1,000-foot gun-free school zones that extend from every public and private school, malls, parking lots, etc., are not sensitive places, the State is procedurally barred from now claiming that they are sensitive places in my lawsuit.
However, the State of California (AG Bonta) is not prohibited from raising a “sensitive places” defense in the May v. Bonta lawsuit.
Fortunately, the United States Supreme Court will be given an opportunity to decide whether or not the Second Amendment protects the bearing of arms in those places when the petition for a writ of certiorari in Charles Nichols v. Gavin Newsom et al., lands on its desk in a few months.
Update September 10, 2023 – My latest video. I filed a notice of supplemental authority regarding the People v. Miller case. I doubt it will matter even one red cent to the 9th Circuit Court of appeals.
Update August 31, 2023 – I filed the following letter with the 9th circuit court of appeals informing the potential members of the en banc panel as well as the three-judge panel assigned to my California Open Carry appeal that California Attorney General Bonta told the California court of appeals that there is no right to concealed carry protected by the Second Amendment and NYSRPA v. Bruen did not say that the state must allow concealed carry if Open Carry is banned.
151 – Nichols v. Newsom – FRAP 28j letter regarding People v. Miller
Update August 29, 2023 – I sent out the following newsletter:
Last Thursday, August 24, 2023, a published opinion by the California Court of Appeals held that concealed carry is not a right protected by the Second Amendment pursuant to the opinions in both NYSRPA v. Bruen and Peruta v. San Diego (en banc).
Given that the opinion does not conflict with the opinion of any other panel of the state court of appeals, it is binding on all California state trial courts (trial court judges are free to pick and choose between conflicting appellate opinions). A common refrain of concealed carriers is that they don’t need no stinkin concealed carry permit, the 2A is their concealed carry permit. Notably, the court of appeals in this case, Peope v. Miller, said that California’s concealed carry licensing laws are irrelevant to the analysis. And let us not forget that a separate court of appeals opinion held that a concealed carry license can be revoked at any time and for any reason, and seemingly without the license holder actually having been aware that his license was revoked.
California Senate Bill 2 will, of course, make concealed carry permits worthless.
The wonderful thing is the California Attorney General won. the whereabouts of the defendant is unknown and so there won’t be anyone to file an appeal to the California Supreme Court. Notwithstanding that California state courts can, sua sponte, take jurisdiction over a case that is final without either side filing an appeal. There is no Federal “live case or controversy’ requirement in California state courts. If the case presents, “An important issue” then that is all that is required for a California state appellate court to weigh in. But this opinion does not conflict with any state appellate court opinion and so I don’t see the California Supreme Court grabbing jurisdiction in the Miller case.
It should come as no surprise that Attorney General Bonta’s position on concealed and Open Carry in my California Open Carry lawsuit, Nichols v. Newsom, is inconsistent with the position he took in this case.
Quoting from the opinion: “We agree with the Attorney General that the post-Heller opinions upholding the constitutionality of section 25400 were not abrogated by Bruen. This is because they were already based on the understanding that prohibitions on concealed firearms have historically been permitted by the Second Amendment.”
The California court of appeals held that Bruen’s citation to Nunn v. State was dispositive that there is no right to concealed carry (regardless of whether or not Open Carry is legal).
“Bruen did not suggest that where a state bans both concealed and open carry (or all carry), the concealed carry provisions are unconstitutional. Rather, Bruen quoted a Georgia case explaining that to the extent a statute that prohibited concealed carry also prohibited open carry, it was the open carry provision that conflicted with the Constitution and was void. (Id. at p. 2147, quoting Nunn v. State (1846) 1 Ga. 243, 251.) This conclusion controls the outcome of this case.
The California court of appeals opinion then concluded by citing a section of the Peruta v. San Diego en banc panel opinion that I cited in my petition for rehearing and rehearing en banc (I had also cited Peruta en banc in my opening brief and in my post-Bruen supplemental brief). The State of California’s citations to Peruta en banc in its answering brief were inconsistent with the actual holding of the Peruta en banc opinion. Fun fact, the State of California never cited the vacated three-judge panel opinion in Peruta. The state’s attorney emailed me to say that he did not know whether or not the opinion helped my case. I, on the other hand, had gone through the opinion with a fine tooth comb and found one line that was harmful to my case. That line was procedural but in conflict with both the 9th circuit court of appeals binding precedents which were in turn based on a US Supreme Court binding precedent on procedural law. Nonetheless, the magistrate judge sua sponte cited the line as dispositive in my case and the district court judge adopted her report and recommendation.
Here is the concluding citation to People v. Miller:
“Whatever constitutional defects may currently exist elsewhere in California’s multifaceted statutory scheme regulating firearms, section 25400 is not itself unconstitutional because of them. To the contrary, Miller’s arguments that California’s licensing scheme is invalid, if meritorious, would suggest other statutes such as the open carry prohibitions in sections 25850 and 26350 are unconstitutional, but the concealed carry prohibitions in section 25400 would remain valid post-Bruen because California would effectively no longer ban open carry. (See Peruta v. County of San Diego, supra, 824 F.3d 919, 942 [“If there is a Second Amendment right of a member of the general public to carry a firearm openly in public, and if that right is violated, the cure is to apply the Second Amendment to protect that right. The cure is not to apply the Second Amendment to protect a right that does not exist under the Amendment.”].) Therefore, the trial court erred in sustaining Miller’s demurrer and dismissing the charge against her.” The People of California v. Stephanie Miller, Third Appellate District No.: C097229
I do not know if I will be filing anything regarding this state court opinion with the court of appeals. State court opinions on Federal law are not binding on Federal judges and the 9th circuit court of appeals does not seem troubled in the least that the attorney general takes inconsistent positions before different judges even when the attorney general is the prevailing party.
That said, I am inclined to write and file what is known as a F.R.A.P. 28(j) letter. Such letters are limited to 350 words but I’m sure that I can make my point and needle AG Bonta and Gov. Newsom at the same time without exceeding the word limit. I’ve done it before.
Regardless, ten days have come and gone since I filed my petition for rehearing and rehearing en banc without the court of appeals requesting a response from the State. I fully expect my petition to be denied the week of September 11th. I’m hoping that it is denied as my petition for a writ of certiorari will be ready to be filed with the U.S. Supreme Court within 90 days of the denial of my en banc petition.
The People of California v. Miller C097229 8-24-2023
Update August 18, 2023 – I have filed my petition for panel rehearing and rehearing en banc. I do not know what the 9th circuit court of appeals is going to do with my petition but I am proceeding on the assumption that it will be denied and that there will be no change to the order of the three-judge panel from last September. I am writing a cert petition and will be filing it within 90 days of the denial of my en banc petition. I could ask SCOTUS for a 60 day extension of time to file my cert petition but I won’t need it. I have been working nonstop on my cert petition for three weeks. I stumbled around for the first two weeks but once I nailed down my two questions presented to SCOTUS, the cert petition has been writing itself.
Here is what happens next, taken from the General Orders of the court of appeals.
1. Upon the filing by a party of a petition for rehearing en banc, the Clerk shall circulate a copy to each active judge and to those senior judges who have requested copies.
2. An off-panel judge may request notice of the panel’s vote on a petition for panel rehearing and petition for rehearing en banc within 21 days of the circulation of the last-filed petition for rehearing en banc. In the absence of a timely request for notice, the panel may enter an order denying the petition for rehearing en banc and denying the petition for panel rehearing.
(that would be the week beginning September 11th)
If a judge timely requests notice…the panel shall circulate to all judges notice of its vote on the petitions for panel rehearing and rehearing en banc. If the panel decides to amend its opinion the panel shall notify all judges of its proposed amendments. The panel should respond as soon as possible to the…request, but ordinarily within 90 days of the request or the petition for rehearing, whichever is later.
(that would be November 16th)
This is the simplified version. The en banc petition rules are far more convoluted.
Of course, the court of appeals doesn’t have to follow its own procedures or rules. The court of appeals could simply deny my en banc petition at any time before the week of September 11th or November 16th.
United States Court of Appeals for the Ninth Circuit
Notice of Docket Activity
The following transaction was entered on 08/18/2023 at 12:12:26 AM Pacific Daylight Time and filed on 08/18/2023
Case Name: Charles Nichols v. Gavin Newsom, et al
Case Number: 14-55873
Document(s): Document(s)
Docket Text:
Filed (ECF) Appellant Charles Nichols petition for panel rehearing and petition for rehearing en banc (from 09/12/2022 opinion). Date of service: 08/18/2023. [12776537] [14-55873] (Nichols, Charles)
Update June 23, 2023 – Today, is the one year anniversary of #NYSRPA v. Bruen.
Update June 19, 2023 – The Baird v. Bonta handgun Open Carry preliminary injunction appeal drew a favorable three-judge panel. You can read more about it by clicking on the Baird v. Bonta link at the top of this page.
Update May 31, 2023 – The State of California expert disclosures were due today. I received copies via email today but since I have not agreed to accept service via email, the printed copies must be postmarked today or they are inadmissible. In any event, the state is calling three “expert” witnesses. None of them so much as cited the Heller or Bruen opinions in their “expert” reports.
Update May 26, 2023 – Twelve years ago today, I announced my intention to file a Federal lawsuit challenging California’s 1967 Loaded Open Carry ban. Six months later, I filed my lawsuit in the Federal Central District of California. On March 12, 2013, I amended my lawsuit to include the subsequently enacted bans on openly carrying unloaded firearms. My lawsuit seeks declarative relief that no license is required to openly carry loaded and unloaded firearms in non-sensitive public places including the 1,000 foot gun-free school zone boundary extending from every K-12 public and private school and public places such as public streets, sidewalks, shopping centers, parking lots, piers, open spaces, and my residential property, within my motor vehicle including any attached camper or trailer regardless of whether or not the motor vehicle or attached camper or trailer is used as a primary or temporary residence or no residence at all. I also challenge California’s prohibitions on issuing licenses to openly carry handguns to residents in counties with a population of 200,000 or more, and all of the ancillary license statutes with the exception on the prohibition on issuing licenses to convicted felons and other persons prohibited under state or Federal law from possessing firearms. Given that I am not a prohibited person, I would not have standing to challenge that particular law.
Update May 25, 2023 – Today, California Senate Bill 2 was passed by the Senate in a vote of 29-9. It now moves on to the Assembly. At this point, it has not been declared “emergency legislation” which, if unchanged, means it will not go into effect until January 1, 2025. The bill makes it a crime to carry a concealed firearm with a concealed carry permit on streets and sidewalks adjacent to so many places, it will be impossible to leave one’s home and travel very far without breaking the law. The penalty for violating the restrictions on concealed carry with a permit and for carrying loaded, and unloaded rifles, shotguns, and handguns is increased to a ten-year prohibition on the possession of all firearms. My California Open Carry lawsuit targets most of the newly prohibited places (my lawsuit excludes schools and government buildings) as the law applies to rifles, shotguns, and handguns openly carried outside of the home for the purpose of self-defense.
Here are a couple of excerpts from the operative complaint of my California #OpenCarry lawsuit.
I was prescient enough to explicitly state that my lawsuit seeks to carry in what will soon become prohibited public places when California Senate Bill 2 becomes law.
“This case involves an important constitutional principle, that neither the state nor local governments may prohibit PLAINTIFF or similarly situated individuals from openly carrying a fully functional firearm (loaded and unloaded) for the purpose of self-defense (or for other lawful purposes) in non-sensitive public places such as public streets, sidewalks, parking lots, open public spaces, his residential property, within his motor vehicle including any attached camper or trailer regardless of whether or not the motor vehicle or attached camper or trailer is used as a primary or temporary residence or no residence at all.”
“Openly carrying a loaded firearm in non-sensitive public places such as public streets, sidewalks, shopping centers, parking lots, piers, open spaces; of a type in common use for the purpose of self-defense or for other lawful purposes is a right guaranteed by the Second Amendment of the United States Constitution and is a fundamental right which cannot be denied to PLAINTIFF or the People under the Second and Fourteenth Amendments because PLAINTIFF happens to be in a non-sensitive public place in ALL incorporated cities or in ANY unincorporated county territory where the discharge of a firearm is prohibited. PC25850 should be construed as a Loaded Open Carry ban, which is what the legislature intended and is clear in the legislative history.”
Update May 1, 2023 – On this date in 2014, Federal District Court Judge Samuel James Otero held that firearms are no different from crystal meth and people who carry firearms are no different than dealers in crystal meth and therefore the American people do not have the right to possess firearms in his final judgment in favor of the State of California’s bans on openly carrying loaded and unloaded rifles, shotguns, and handguns. I filed a timely notice of appeal on May 27, 2014. On September 12, 2022, a three-judge panel of the 9th circuit court of appeals reversed Judge Otero’s final judgment and remanded my California Open Carry lawsuit back to the Central District of California with the mandate that further proceedings must be consistent with the United States Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen. On remand, my lawsuit was assigned to a pair of renegade judges who said that they refuse to comply with the Order of the 9th circuit court of appeals and are going to give the State of California all of the time it needs to prove that there is no right to carry any loaded firearm, not even a loaded flintlock rifle, outside the doors to our home. This leaves me with no other option than to file writs of mandamus with the 9th circuit court of appeals and with the United States Supreme Court. Congress could, of course, remove these judges from office and/or otherwise prohibit them from being assigned cases but it won’t because Congress is more interested in the contents of Hunter Biden’s laptop than they are interested in real change.
Update April 20, 2023 – I have finished my objections and responses to the state’s first set of interrogatories. I included an objection to lack of jurisdiction for each question. The answers to all but two of the questions can be found in my operative complaint. The former state’s attorney representing the governor and attorney general had no problem with understanding what my lawsuit seeks to achieve. I suspect the current state’s attorney is going to feign ignorance and claim that the defendants were not given notice as to what my lawsuit seeks to achieve. Or she could just be lazy or she was simply harassing me. One question not in my operative complaint is what counties I visited in the past year and the other question was which counties I intend to visit in the coming year. The questions are, of course, irrelevant to my lawsuit.
My next task is to write a letter to the three-judge panel in the Baird v. Bonta appeal. After that, I will be working on my writ of mandamus and prohibition to file with the court of appeals. The defendants are going to seek to depose me for a second time. I will file an opposition, and the district court judge(s) will order me to comply. Rather than go through the expense of multiple, simultaneous appeals before the 9th circuit (which are expensive), I am going try to limit my writs of mandamus to two in total. One before the 9th circuit court of appeals and the other will be filed with SCOTUS.
Update March 5, 2023 – The Baird v. Bonta handgun #OpenCarry appeal is being considered for oral argument June 26-30, 2023 in Pasadena. For more details, click here.
Update February 8, 2023 – The status updates prior to today have been archived.