Nichols v. Newsom (formerly Nichols v. Brown) California Open Carry lawsuit (Read 1750 times)

Charles Nichols

Much to my bewilderment, so-called Second Amendment lawyers don't seem to study lawsuits which came before the ones they write and file.  Not only did I study the filings in the civil lawsuits which came before I wrote and filed my lawsuit, I strengthened my Complaint each time I amended it to ward-off frivolous defenses, like Rooker-Feldman (technically unreachable given that there are no California Open Carry licenses provided for under California law in my county).

I filed my lawsuit in November of 2011 against the California Governor and Attorney General, in their official capacity of course.  The governor filed a motion to dismiss claiming that he has 11th Amendment immunity from prosecution.  The attorney general filed a motion to dismiss because then Attorney General Harris had not personally threatened me with arrest and prosecution.

The district court judge rubberstamped the Report and Recommendation of the magistrate judge which recommended that Governor Brown be dismissed from my lawsuit with prejudice and that the attorney general be dismissed without prejudice so that I could amend my complaint to say that the attorney general had personally threatened me with arrest and prosecution.

Instead, I staged a Long Gun Open Carry Protest in the City of Redondo Beach California with an unloaded single-shot breach-loading shotgun with a single .223 caliber rifle bullet taped to the stock thereby making it "loaded" under California's definition of loaded.

I then filed an Amended Complaint and lodged a video of my protest which resulted in my arrest (under California law) and the seizure of my firearm.

The district court judge, Samuel James Otero, suddenly realized that "By Golly" the attorney general does not have to personally threaten me with arrest and prosecution for her to be a proper defendant in my challenge to Califonia's Loaded Open Carry ban (amended a final time to include the Unloaded Open Carry bans) and denied the motion to dismiss by the attorney general.  He also filed an Order instructing the AG to file an Answer.

On appeal, the attorney general filed a letter conceding that I have standing, which is a huge procedural victory.

Partial Recap:
Most of the defendants in what became District of Columbia v. Heller were dismissed for lack of standing.
The Peruta plaintiffs lacked standing to challenge California's Open Carry bans because they never challenged California's Open Carry bans but instead argued in support of the bans.
Teixeira v. Alameda County, California was dismissed because, in the words of the en banc decision, "similarly missing is any allegation by Teixeira that any "honest-to-God resident of Alameda County..cannot lawfully buy a gun nearby.""
The Flanagan v. Becerra plaintiffs do not articulate in their Complaint any plan, let alone a concrete plan to, to engage in conduct in violation of California's Open Carry bans.  Moreover, in discovery, most of the plaintiffs have disavowed any desire to openly carry a loaded or unloaded firearm in public.

I could go on.