Baird v. Becerra (USDC Eastern District of CA) Open Carry
 

new open carry case filed in CA

Interesting it is arguing that the sheriff could but refuses to issue open carry permits.

https://www.scribd.com/document/4056...omplaint-Filed

you can donate to this lawsuit at the below link

http://tokeepandbear.com/index.php/d...GDE8ljirxmrwSs

Interesting choice of counties, since Shasta is virtually shall issue CCW and Siskiyou isn't far off of that. Both sheriffs are pro-2A, except, I guess, when it comes to open carry. Which is strange since a lot of each county is national forest where open carry is legal without a license. It really pushes some buttons after Peruta, and may result in an interesting trial court decision since Nichols' case is stayed for the foreseeable future. Then again, an open carry license, allowing carry in incorporated areas, is virtually useless because of the GFSZA.

Let us know when it is assigned to a judge so we can see who it is. The EDCal, being in Sacramento, has both very liberal and conservative judges.

Yeah, how does that "open carry is legal in a national Forest" thing work if you're drive ng on a Forest road or just happen to need to walk across a road to get from one middle of the woods to the other...?

Oh no, not one of these again. Another chip off of the ol' Charles Nichols block. Granted, this guy at least hired attorneys, but I've never heard of them in connection with 2nd Amendment civil rights litigation in California.

Here are some of the glaring legal issues I noticed right off the bat:

- Only AG Becerra is a named defendant, yet the AG's office has no involvement in making a determination on someone's "good cause" statement. No individual sheriffs are named.

- Plaintiffs are residents of Siskiyou and Shasta county, both of which have "shall issue" CCW policies at the moment. Not to mention 2A friendly sheriffs.

- Nothing in the complaint alleges Plaintiffs even tried applying for, and were denied, an open carry license. Without this, how do we know there is even a dispute ripe for adjudication?

- There is no state-mandated form to use for open carry license applications, but that doesn’t mean you can’t apply for one. Write a letter ... something, anything to show that there is actually a no-issue policy in place.

Upon further research, I found this web page relating to one of the plaintiffs, Mark Baird: State of Jefferson leader to file lawsuit blocking CA open carry law. I do have a couple of issues with this author's statements:

No, this is not true at all. There are already open AND concealed carry challenges pending before the Ninth Circuit (in addition to Young v. Hawaii, Michel & Associates just recently filed Livingston v. Ballard in Hawaii). This lawsuit does not get to "jump ahead".

No, please don't. In order to handle this type of case at the appropriate level of competence, a federal lawsuit and appeal should cost a whole lot more than this. Think about it, for an average attorney charging $400 per hour, this is only going to pay for 62.5 hours of their time. That just doesn't add up. Please contribute your hard-earned dollars instead to the reputable efforts of NRA/CRPA.

Look, I'm sure Mr. Baird's and Mr. Gallardo's hearts are in the right place. We all want swift justice and our rights restored without delay. Unfortunately our court system just doesn't work that way. My prediction is that this Complaint gets disposed with a quick Motion to Dismiss.

preliminary injunction appeals are expedited so if he files one it will be expedited and he will catch up to Flanegan. Those are the rules.

The same thing happened with Peruta and Baker v kealoha
Peruta was appealed years earlier but Baker was a PI appeal so even though it was years behind Peruta the two cases were argued the same day. The same will likely happen here.

I thought that this only applied to injunctions that were granted. I could be wrong here and would stand corrected if so. My appellate experience is mostly limited to state court and none involved injunctions. But I do disagree that the same would happen here, in light of the other threshold issues that I mentioned.

the complaint shows that both plaintiffs applied for open carry more than once and were declined. pg 10 of the complaint has key information supportive of the claims.

The allegations are confusing, at best. It goes on and on about how there is no process by which to even apply, but they give zero details about how or when they supposedly applied. And again, these are decisions made by the individual county sheriff, not the AG's office. The sheriffs are the proper defendants to be named and they failed to do that. Remember back in Peruta, there was a whole controversy over whether the AG's office was even allowed to intervene, let alone be the solely named defendant.

You know it is a full bore lawsuit when this appears:

12. The true names or capacities of Defendants DOES 1-10, whether individual, corporate, or otherwise, are presently unknown to Plaintiffs and are therefore sued herein as
“Does 1

For the State Attorney General. In his case it ought to be Does 1 through 20 inclusive.

His parents were illegal and his true name has never been established.

CIRCUIT RULE 3-3. PRELIMINARY INJUNCTION APPEALS
(a) Every notice of appeal from an interlocutory order (i) granting, continuing, modifying,
refusing or dissolving a preliminary injunction or (ii) refusing to dissolve or modify a
preliminary injunction shall bear the caption “PRELIMINARY INJUNCTION
APPEAL.” Immediately upon filing, the notice of appeal must be transmitted by the
district court clerk’s office to the Court of Appeals clerk’s office. (Rev. 12/1/09)
(b) Within 7 days of filing a notice of appeal from an order specified in subparagraph (a), the
parties shall arrange for expedited preparation by the district court reporter of all portions
of the official transcript of oral proceedings in the district court which the parties desire
to be included in the record on appeal. Unless otherwise established by Court order in a
particular case, the following briefing deadlines will apply: Within 28 days of the
docketing in the district court of a notice of appeal from an order specified in
subparagraph (a), the appellant shall file an opening brief and excerpts of record.
Appellee’s brief and any supplemental excerpts of record shall be filed within 28 days of
service of appellant’s opening brief. Appellant may file a brief in reply to appellee’s brief
within 21 days of service of appellee’s brief. (Rev. 12/1/02; 12/1/09; 6/1/17)


PI appeals always are expedited. That is why Chuck's appeals in Fyock, Jackson and McKay were all expedited despite losing in the trial court.

Noted. But it also occurred to me, if the case isn't dismissed, the state is just going to seek a stay. What is the point, why is the case even necessary if the objective is just to catch up?

Well, it could be said that the AG is a proper party since, as I recall, the CCW form is mandatory, and the AG has not issued a form that provides for an open carry permit.

tentative court date in Sac. is Sep 6, 2019.

Court date confirmed! Fri Sep 6, 10 am, Matsui Courthouse, Sacramento. Judge Kim Mueller. http://tokeepandbear.com/ Unfortunately, the judge's online calendar only shows 28 days out. Clerk phone tel:1-916-930-4193; please spread the word and show up and support !!

Mueller thinks the California Roster of Not-Unsafe Hanguns is totally cool and doesn't burden the 2A right at all, so I I think we know how this is going to go :(

Bringing this case was NOT WISE in the first place. It appears to have been brought for the wrong reasons (hoping to get to go to SCOTUS? Self-promotion?), at the wrong time, and with insufficient resources and skills. Litigating Second Amendment cases is a HEAVY legal lift. Sadly, well-intentioned but uninformed lawyers and plaintiffs who bring lawsuits like this hurt the 2A cause. You are NOT helping. I do not support this effort.

Could you go into a bit more depth as to your predicted problems this case brings and any other downside you see happening? I understand the general, "poor preparation leads to bad precedent" are there specifics about this case that are wrong?

Baird has filed for a preliminary injunction

https://www.scribd.com/document/4164...ary-Injunction

To a layperson it seemed well reasoned, but a bit repetitive. Curious what the legal beagles responses will be, hopefully with specifics as to positives and negatives of the arguments presented.

Here to facilitate communication
 

Hello - I am new to the board. I am helping Mark Baird with this case. I run the tokeepandbear.com website and newsletter. Mark is very interested in what you all are posting here and wants to engage in dialog where he can. His problem is time. He flies DC 10 fire suppression aircraft so he is in his busy season right now. When not flying he is a rancher.

I will check here often and forward questions and comments to Mark. When he has time he will probably jump in himself. When he can't,I will try to forward his responses to you all in a timely manner.

David Titchenal
admin@tokeepandbear.com

I’m fairly new to all of this, but I’m trying to do my homework and research.

Aside from Baird being behind other, similar cases like Young and Nichols, why isn’t this getting more support? I think the goal for all of us is to get the government’s greasy paws off of our Second Amendment rights, isn’t it? I would prefer that meant Permitless carry, open or concealed, at the carrier’s discretion.

However, since the Supreme Court has ruled that “concealed carry is not a right,” and all nine justices (conservative, moderate, and liberal blocs) agreed unanimously on that point, that means open carry is our best shot. It may not be the fight we wanted, but it’s the fight we have, and the only one we have a chance of winning, given SCOTUS record of denying cert for concealed carry cases.

Since open carry is the only method left that we can win for permitless carry, why are those efforts not receiving more backing, instead of filing concealed cases over and over again?

Highlander - there is plenty of grass roots support in certain areas of California for what Baird is doing. The entire State of Jefferson movement is supporting Mark both financially and with public relations efforts. That's 23 counties and hundreds of thousands of people. As to the mixed reactions on this thread I will let Baird speak for himself. As to the charge made by Mr. C. Michel that Baird is doing this for self-promotion I can unequivocally say that statement is absurd and beneath someone of Michel's reputation to even post something like that.

Have you thought about reaching out to CRPA to have them file an amicus brief (friend of the court) in support of Mark's case. It seems like opening up a dialog would be the best way to alleviate any anxiety they might have regarding the case. This would help CRPA as well because that would give them a chance to offer their perspective to the court.

I get that; I’m in “Jefferson” myself, and I see the support here. I meant more of the NRA/CRPA/Chick Michel crowd; since SCOTUS has specifically said that *concealed* carry is NOT a right under 2A, why aren’t more of their efforts focused on Open Carry, which it appears is a battle that can actually be won, rather than concealed, which has already lost, and continues to be denied cert every time it comes up?

As I said before, I would prefer permitless carry of both open and concealed at the carrier’s discretion, but since concealed carry is a non-starter for SCOTUS, shouldn’t we focus on the battles we can win, rather than fighting the same losing war over and over again?

In the process now of contacting organizations and sending info for the amicus brief requests. The three organizations contacted yesterday were positive..

Circular firing squad
 

It is not my habit to post on forums, but since this directly impacts me, I will make an attempt to explain the reasons for our lawsuit. Yes the lawsuit was my idea originally, but I take no credit, nor do I wish any. Thousands of patriots from Jefferson Counties are actively involved in an attempt to regain some of the Liberty we have all squandered through inaction, inattention, etc. The Jefferson Counties have also brought suit against California for lack of adequate representation, but that is another story.

We have the God given, pre-governmental Right to defense of self, family, community, state and nation. We know this because the Constitution says so in plain english as guaranteed in our Second Amendment. The California Constitution agrees in Art 1, Sec 1, Art 2, Sec 1, Art 3, Sec 1. California Governmental officials Swear, (or affirm) the same in Article 20. Government has NO Rights. Government is an inanimate object, and thus enjoys nothing the people do not give it, or in this case what it has usurped and stolen from the people. Only people have Rights. If that is true, what are we talking about here?

We allowed California government to take our liberty because Governor Reagan and Don Mulford had a bone to pick with the Black Panther Party in 1967. We again allowed California to strip us of what little remained of our rights in 2012, and 2013, when Little Anthony Portantino made our ability to carry unloaded weapons illegal. For more than 163 years, in California, a person could openly carry weapons, loaded until 1967, and unloaded until 2013. All of a sudden it is in the governments “interest” to balance your God Given Right to defense, with governments “interest” in maintaining order. Criminals don’t follow the law. Criminals are already barred from weapons possession. Whom, one may ask is the government subjecting to this “order” they want to maintain? The answer is easy....it’s YOU!

California Sheriffs are not the end all of law enforcement in our state, as they may or may not be in others. In California, Sheriffs work for the Attorney General. The Attorney General runs Cal DOJ. DOJ produces regulations and paperwork for your mother may I slips to carry concealed, or openly as permitted open carry is all that is left to us according to our masters in Sacramento. The legislature has instructed DOJ that it has given Sheriffs and Police Chiefs the authority to decide “who may carry”, and (who may not), in order to protect its “delicately balanced” system designed to protect individual rights against the state’s interest in “maintaining order”.

Concealed carry is NOT a right. Cert denied in Peruta, end of story. There are only two ways to carry the gun. Openly or concealed. This nonsense, in my opinion, about “public” carry is designed by the state as a ruse to obscure the facts and denigrate the Right to a permission. There is no law against, carry in you home whether you have the gun in your bathrobe pocket or strapped to your hip over your PJs. Never has been. Open carry, the Right to wear bear or carry a loaded weapon in public for use offensively, or defensively, in the event of conflict with another person is the core Right guaranteed by the Second Amendment and further the Right Declares That It Shall Not Be Infringed.

PC 26150 (b)(2), and 26155 (b)(2), codify, in the state’s opinion, the only lawful avenue to ordinary citizens to Second Amendment guaranteed Rights, (concealed carry is not a Right. It is a permission at the whim of the state).

We have the Right, we know this. But what good is the Right, when no jurisdiction capable of issuing the permit, has ever done so.....not even one!
Further, what good is the Right when it ends in arrest at the county line on the way to Costco? What good is the Right, when one would have to apply in all 30 jurisdictions separately,(only 30 counties out of 58 have less than 200,000 populations. If you live in the other 28 counties you hav NO second Amendment Right at all). One would have to live in all of them simultaneously, (establish residence), Pay, and train, in all of them separately, convince thirty sheriffs or police chiefs that you have “good cause”, and finally sprout wings to fly over the counties in the middle to avoid arrest.

Look.... there is too much to say here. I will not engage in the circular firing squad where conservatives stand around and shoot each other in the foot because someone thinks their case is better. I applaud every patriot group or law firm trying to restore the Liberty we the people have allowed the state to take from us. I have never met Mr Michel and have never spoken to him. I don’t know why he thinks he knows what our motives are for this suit, don’t care. I say a rising tide floats all boats. I don’t care who wins, let’s just win!
Our group applauds any and all patriots who stand up and put the pressure on!
If you don’t agree with what we are doing, God bless you, and go follow you own path, but all any of us can ask is that you do no harm to anyone trying to do anything to restore our God given gifts.

Please if interested, read the complaint carefully. Constructive critique is welcome. Honest questions are welcome. My self or some one involved will monitor the site and we are happy and willing to engage. If conservatives, Christians, and gun owners would stop the circular firing squad, and start showing up to vote, contribute to cases, show up to court, we could take our state back from the liars in Sacramento in an instant.

I would love to engage, but in doing so on a public forum (where the DoJ is known to lurk) I would be doing the state's job for them. Not that I think it will be difficult for them to torpedo this case in the first place. For example:
When you make arguments like this, it's reminiscent of the statement "What part of shall not be infringed don't you understand". You claim that I, by living in a high pop. county, have "NO second Amendment Right at all". Yet I own firearms. We can nitpick over the definitions of rights and privileges, but that's not an argument you're going to win in front of a judge in CA. Not unless NYSRPA hands down a mandate in scrutiny, but at that point we've won anyways. All you'll be doing in the meantime is building precedent against the second amendment and making other legal challenges less likely to succeed.

I get the impatience- I really do. There's an overbearing sense of despair that comes from being a 2A advocate in Ca these days. We all feel we have to "stand up and do something" to stop the loss of our rights completely. I understand that you have all of our best interests at heart. But can you understand how what you're doing might be actually hurting rather than helping us?

Peruta was not about "a right to concealed carry." It was about a right to carry in some manner, San Diego County just happened to only allow concealed carry licenses.

Two Supreme Court justices (Thomas and Gorsuch) recognized such in dissenting to the denial of SCOTUS reviewing Peruta:

The en banc court’s decision to limit its review to
whether the Second Amendment protects the right to
concealed carry—as opposed to the more general right to
public carry—was untenable. Most fundamentally, it was
not justified by the terms of the complaint, which called
into question the State’s regulatory scheme as a whole.
See First Amended Complaint ¶63 (“Because California
does not permit the open carriage of loaded firearms,
concealed carriage with a [concealed carry] permit is the
only means by which an individual can bear arms in public places”); id., ¶74 (“States may not completely ban the
carrying of handguns for self-defense”). And although the
complaint specified the remedy that intruded least on the
State’s overall regulatory regime—declaratory relief and
an injunction against the sheriff ’s restrictive interpretation of “good cause”—it also requested “[a]ny further relief
as the Court deems just and proper.” Id., ¶152.

Nor was the Ninth Circuit’s approach justified by the
history of this litigation. The District Court emphasized
that “the heart of the parties’ dispute” is whether the
Second Amendment protects “the right to carry a loaded
handgun in public, either openly or in a concealed manner.” Peruta v. County of San Diego, 758 F. Supp. 2d 1106,
1109 (SD Cal. 2010).

Read the whole dissent here: http://michellawyers.com/wp-content/...Certiorari.pdf

That people pushing litigation in this arena are unaware of that fact, and don't understand its ramifications, is disconcerting to say the least.

The biggest issue with different entities filing lawsuits with very little experience in the gun world in this state is that they have no idea what other suits have done to set up other potential lawsuits.

They also think the Lawyers that work for the State of California are stupid which isn't the case at all! They know exactly how the courts will generally act towards their arguments and are good at framing their arguments to be welcomed by 9th circuit judges until lately with a slight swing in the 9th.

Not here to bash anyone but its kinda like jumping into the chess game and not even knowing what the strategy.

Please cite the case that SCOTUS unanimously ruled that CCW is NOT a RIGHT.

Denying cert for a case is not by any means a "Unanimous" ruling against the petitioner.

New member "mcbair" said;

Concealed carry is NOT a right. Cert denied in Peruta, end of story.

"mcbair", you seem to be laboring under the same misconception as Highlander.

There are a lot of chapters left in this "story".

Mr Tenemae, Agreed, “Shall not be infringed”....but according to California PC 25850, 26400, 26350, it is unlawful to and there are penalties for carrying openly a loaded or unloaded weapon, beyond your residence or business into public areas. Concealed carry is not your Right, it is a permission which some may gain, and most will not. It is a permission which the state can restrict, grant or not in any way they so choose. 26150, and 26155(b)(2), are the only avenue through which a lawful individual may exercise the core right to “bear arms”, in public. None of these permits have ever been issued in any County in California.....Not One single one. Thirty county sheriffs, and police chiefs within those counties are barred by Penal Code from issuing because populations exceed 200,000. You may well keep arms, but unless you are prepared to be arrested, your Right to bear arms is non existent.

Mr. Brady.....not pointing any fingers, not casting aspersions, but our reality because of a corrupt and liberally activist court is that concealed carry is not a right. It is now officially a permission which California can regulate or deny as it so chooses. Open carry is the only option which may remain open to lawful individuals in California if someone can carry the day in court.

Mr taperxz. Without any knowledge of the people involved it is unwise to make value judgments regarding who does or does not have “experience” in the gun world.
Perhaps there are people who think the state’s attorneys are stupid but we are not among those people. Exactly who is in charge of this strategy, because to date success has been fleeting. Hopefully we have successes in the future, I pray that will be true.
Our God given Rights are undeniably linked to us as individuals. If there is a plan to restore liberty, please don’t keep it a secret, many will join in. Otherwise we will seek redress in the ways we think Liberty can best be achieved.

I know you mean well, sir, but, respectfully, your statement does not make any sense whatsoever as a legal analysis.

It is entirely unfair to target a litigants online posting and represent it as the legal analysis he is presenting to the Court. That is especially the case when the litigant in the instant matter has had the foresight to retain counsel.

"Unanimous" was Highlanders word. Which was incorrect.

And "Peruta" was denied cert. So again, SCOTUS did not rule against Peruta. Certainly not "unanimously". They refused to even hear it.

So mrrabbit, go drop your plethora of pellets elsewhere. Nobody is going to re-read 157 pages of a pdf. Because you aren't capable of otherwise supporting a premise.

Didn't Heller define "bear" to include in the clothing or pocket?

I think linking 'bear' and a definition of 'infringe' should be linked in court.

I know this is over-simplified; but in my eyes, its the best route to restoring our rights in court.

Than again i'm a layman, so these are just my thoughts.