I finished one of the most important parts of my opposition to the State of California’s motion for summary judgment in my California Open Carry lawsuit, and so I decided to write this update before starting on the next mountain of work for my opposition, which is due on August 22nd (I was given two extra weeks to file my opposition to the State’s 1,994 pages of filing).
The District Court canceled the hearing, and so we now have a better timeline for when the district court will issue a judgment in favor of the State of California, and I can file an appeal.
The district court's final judgment is due 120 days after the State of California files its reply brief to my opposition to its motion for Summary Judgment. The State’s reply brief is due on September 5th. The district court’s final judgment is due on January 5, 2025. If the district court does not file its final judgment by that date, then the local rules require that both sides file a joint request for the decision to be made “without further delay” within 10 days and send a copy to the Chief Judge of the Central District of California.
Back in 2014, now-retired Judge S. James Otero missed his deadline, and the state’s attorney refused to file the joint request. And so, I filed the request on my own, and filed a copy with the Chief Judge. Judge Otero issued his final judgment in favor of the State of California on May 1, 2014. I filed my timely notice of appeal on May 27, 2014.
Despite nearly 13 years of litigation, few people have heard of my lawsuit, and even fewer know what it is about.
In short, I challenge California’s bans on openly carrying loaded and unloaded rifles, shotguns, and handguns outside the doors to our homes for the purpose of self-defense and other lawful purposes. In lieu of an injunction against California’s Gun-Free School Zone Act of 1995 (PC 626.9), I sought “shall-issue” unrestricted handgun Open-Carry licenses because a license is required to carry a loaded firearm within 1,000 feet of every K-12 public and private school. In my expectation that California Senate Bill No. 2 would pass (it did), I notified the state’s attorney of record on April 20th of last year that I am challenging PC 626.9 as well (my lawsuit already challenges all requirements and restrictions placed on handgun Open Carry licenses).
In my opposition brief, I have included challenges to the new laws in S.B. 2 that now prohibit the use, carrying, possession, and transportation of firearms that did not exist when my lawsuit was filed and did not exist until January 1st of this year.
No, I did not have to explicitly state in my Complaint that I am seeking an injunction against these statutes that did not exist when my operative Amended Complaint was filed in March of 2013 or seek to enjoin PC626.9 (which was mentioned in my Amended Complaint) in order to obtain an injunction against them now or any other relief. It is black letter law in this circuit that "[E]very final judgment shall grant relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in its leading."
The State of California’s principal argument in support of its motion for summary judgment is the same argument the so-called gun-rights groups have been arguing since before the ink was dry on the 2008 Supreme Court opinion holding that the right to keep and bear arms is an individual right unconnected to service in a militia.
Their and the state’s argument is that if a state allows concealed carry, then it can ban all arms from being openly carried, including the rifles, shotguns, and handguns at issue in my lawsuit. Here is a short clip of a Q&A between Justice Kagen and NRA lawyer Paul Clement, in which she asked him why it is constitutional to ban open carry.
Arguing that the constitutionally protected right to bear rifles, shotguns, and handguns (openly carried) because people today are on a “different wavelength” than the Americans who wrote and voted to enact the Second Amendment is not an “originalist” argument. If the Supreme Court had adopted the different wavelength approach, then New York would have won because New Yorkers are certainly on a different wavelength than Americans were in 1791.
By the way, Justice Kagan and Justice Sotomayor joined Justice Breyer’s dissent, in which he said that he recognizes the right to openly carry arms from the District of Columbia as stare decisis (settled law).
Returning to my California Open Carry lawsuit, the State spent the second half of its brief defending claims the district court does not have jurisdiction to decide. When I filed my operative Complaint, I included claims independent of the Second Amendment. When the three-judge panel vacated Judge Otero’s judgment in favor of the State of California in full, the panel limited the scope of my lawsuit on remand to my Second Amendment claims.
Was California’s 1967 ban on openly carrying loaded firearms outside of the home racially motivated? Yes! Is it being disproportionately enforced? Yes! When a criminal law, even an otherwise valid criminal law, is racially motivated and disproportionately enforced, it violates the Fourteenth Amendment. The 9th Circuit doesn’t even require that the law be disproportionately enforced.
Not that any of that will matter. There is absolutely no doubt that the District Court will grant judgment in favor of the State of California, and my lawsuit will once again be pending in the 9th Circuit Court of Appeals.
Here's a quick note or two about the two Open Carry lawsuits currently pending before the 9th Circuit Court of Appeals. Baird v. Bonta started off challenging California’s bans on openly carrying loaded and unloaded handguns. It also challenged California’s limitation of its licenses to openly carry handguns to counties with fewer than 200,000 people and limited the validity of those licenses to the county in which the license was issued.
But then he filed an amended complaint in which he dropped that challenge and his challenge to the laws as they apply to him (known as an as-applied challenge) in favor of a facial challenge (applies to everybody), which the Supreme Court recently disapproved of when challenging a law on Second Amendment grounds. In the hearing on the cross-motions for summary judgment, Mr. Baird’s attorney “amended by argument” to include a challenge to California’s ban on carrying a loaded, concealed handgun without a permit!
His attorney recently filed her reply brief in which she argues that she did not drop the as-applied challenge. A hostile judge could ask her in oral argument to point to where in her operative Complaint she made an as-applied challenge. And let us not forget that Judge VanDyke was openly hostile to Mr. Baird’s attorney during the preliminary injunction oral argument and fawned over the State’s attorney.
The other Open Carry pending appeal is in Zeleny v. Bonta, which seeks to enjoin California’s bans on openly carrying unloaded long guns and handguns in public. On Friday, the State of California filed a motion to remand because Zeleny scarcely argued the Second Amendment in the district court, and the District Court denied Zeleny’s Open Carry claim with just two sentences.
Mr. Zeleney’s attorney filed a motion on June 27th for his appeal to be heard before the same three-judge panel that is hearing the Baird v. Bonta appeal. That motion is still pending.
My opposition in my California Open Carry lawsuit is due on August 22nd. If I can find the time to write another article, then I will. But don’t be surprised if you don’t hear from me again until after the 22nd.