Nichols Vs. Newsom (was Brown) update...

[sarabellum]

They dispose of the vast majority of pro se cases without oral argument. They are hearing his case in Feb. That means at least one judge thinks that his case has at least some merit.

FRCP Rule 34(a)(2) of the Federal Rules of Appellate Procedure provides:

Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons: (A)*the appeal is frivolous; (B)* the dispositive issue or issues have been authoritatively decided; or (C)*the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.

That a case does not rise to the level of frivolous does not necessarily mean that the case has meritorious arguments. The court made up its mind long ago as occurs in all cases that go to oral argument, someone will lose, invariably Nichols, and, like any other case, the court will draft an opinion indicating that the losing party's arguments have no merit. Subsections (B) and (C) do not apply to Mr. Nichols' contentions regarding the moot case of Overturf. The AG's reasoning in the opposition brief that possession of a firearm in one's home is sufficient protection while walking about in public does not qualify for subsections (B) and (C). Thus, Mr. Nichols' case will move forward to the perfunctory oral argument.

[rplaw]

In other words, you are lazy, lying, and cannot demonstrate that Mr. Nichols' briefs or any part of them contain identical content to that of the attorneys.


Prove it.

There's no need to get personal.

I've been an attorney in private practice for over 20 years. That's 20+ years of reading and responding to crappy legal briefs written by attorneys who are supposed to be better trained and educated. Trust my knowledge and experience here, Nichols is better than most. His arguments properly conform to requirements, aren't overly lengthy, and articulate his position on the issues with supporting authority. That you don't agree with them, or follow the logic, is immaterial because if everyone agreed on what the law says and means, we wouldn't need anyone to decide the case.

In addition to that, I've sat on the bench as a judge Pro Tem. In order to do that, I HAVE TO HAVE mandatory judicial training. This training is different from, and in addition to, the ordinary continuing legal education that every practicing attorney has to have.

This training includes training in judicial bias as well as how to deal with self represented litigants. Trust me again, when it comes to Pro Se litigation, the unrepresented litigant gets a LOT more attention and deference than the attorney does. I will listen more attentively, think about what they are saying as well as what they are trying to say and I will give them more time to do that. Failure to follow that procedure can result in removal from the bench AND possible sanctions by the judicial council.

Finally, California's legal system is one of "Equity and law". That means EQUITY comes first. If what it takes to deal with a case fairly and decisively is to give deference to the self represented litigant and pay a bit more attention to their presentation of the issues/argument, then that's what it takes. And, sometimes you give them opportunities that attorneys don't get. Such as setting aside a default if there's a good reason to do so. For an attorney to get that, they must fall on their sword and admit malpractice. There WILL BE a sanction for it. However, should a self represented party ask to set aside a default AND they have a good reason for it, there will usually be NO sanction. Why? Because they don't have the intimate knowledge of the legal system and can't be expected to perform to the same level as an attorney. This standard applies in all cases for the same reasons.

Now you can say that's for California and 9th circuit justices aren't California State attorneys or judges. That's true, BUT the standards are the same. Listen to what is being said, think about what was said, what was attempted to be said, and what you know the law to be, and then decide the case on the merits, not the parties appearance or representational status. Why? Because this is what is FAIR and IMPARTIAL.

In this country we DO NOT decide cases based on appearances, likability, or financial status of the parties. Or, we're not supposed to anyway. I'm not so sure that's the case anymore.

[sarabellum]

There's no need to get personal.
I've been an attorney in private practice for over 20 years.

Why? Because this is what is FAIR and IMPARTIAL.
.

Said the pot. An alleged attorney would have no problem placing side by side the analyses of an attorney with the content of Nichols' briefs.

An alleged attorney would have presented evidence to support the volume of your contentions summed up on in one conclusory circular argument, "the courts are fair and impartial toward in pro pers because they are fair and impartial." Since you allege to be an attorney, who at one time was a pro tem judge, i.e. a substitute judge hired by the judges appointed by the governor, cite the case names and case numbers of the in pro per cases, which you heard and for which you granted the relief requested by the in pro per Plaintiff. You have heaped one lie on top of another.

Pro se litigants prevail in 3.5 of their cases. Landsman, Steven, "The Challenge of Pro Se Litigants

[wolfwood]

Its pretty common knowledge that pro se briefs are liberally constued and that is what rplaw is referring to


Haines v. Keaner, et al. 404 U.S. 519,92 s. Ct. 594,30 L. Ed. 2d 652.

Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41,45 46 (1957). See Dioguardi v. Durning, 139 F.2d 774 (CA2 1944).
Baldwin County Welcome Center v. Brown 466 U.S. 147,104 S. Ct. 1723,80 L. Ed. 2d 196,52 U.S.L.W. 3751.

Rule 8(f) provides that 'pleadings shall be so construed as to do substantial justice.' We frequently have stated that pro se pleadings are to be given a liberal construction.
Estelle, Corrections Director, et al. v. Gample 29 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251.

We now consider whether respondent's complaint states a cognizable 1983 claim. The handwritten pro se document is to be liberally construed. As the Court unanimously held in Haines v. Kerner, 404 U.S. 519 (1972), a pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id., at 520 521, quoting Conley v. Gibson, 355 U.S. 41,45 46 (1957).
Hughes v. Rowe et al. 449 U.S. 5, 101 S. Ct. 173,66 L. Ed. 2d 163,49 U .S.L. W .3346.

Petitioner's complaint, like most prisoner complaints filed in the Northern District of Illinois, was not prepared by counsel. It is settled law that the allegations of such a [pro se] complaint, "however inartfully pleaded" are held "to less stringent standards than formal pleadings drafted by lawyers, see Haines v. Kerner, 404 U.S. 519,520 (1972). See also Maclin v. Paulson, 627 F.2d 83,86 (CA7 1980); French v. Heyne, 547 F.2d 994,996 (CA7 1976). Such a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines, supra, at 520 521. And, of course, the allegations of a complaint are generally taken as true for purposes of a motion to dismiss. Cruz v. Beto, 405 U.S. 319,322 (1972).
Rabin v. Dep't of State, No. 95-4310, 1997 U.S. Dist. LEXIS 15718.

The court noted that pro se plaintiffs should be afforded "special solicitude."

[Drivedabizness]

would the above apply to so-called taxpayer lawsuits here in CA?

[sarabellum]

Its pretty common knowledge that pro se briefs are liberally constued and that is what rplaw is referring to
Haines v. Keaner, et al. 404 U.S. 519,92 s. Ct. 594,30 L. Ed. 2d 652.

"Common knowledge, in my experience . . . " have zero legal and probative value. Facts, Evidence, and law are all that matter. The data I cited are dispositive as to the summary dismissal of in pro per causes of action. In fact, Nichols, perennial in pro per, has lost every single case and lost in this iteration at the District Court level.

No pin cite for Haines or a citation to the language of Haines? 2L con law: what are the differences between the due process rights of a criminal defendant/prisoner and civil litigant? The criminal defendant and prisoner plaintiff cases implicate liberty and bodily integrity concerns inherent in the terms of incarceration. The Haines v. Keaner, 404 U.S. 519 (1972) case addresses whether a court should broadly construe the pleadings of prisoners:

The only issue now before us is petitioner's contention that the District Court erred in dismissing his pro se complaint without allowing him to present evidence on his claims.

Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Accordingly, although we intimate no view whatever on the merits of petitioner's allegations, we conclude that he is entitled to an opportunity to offer proof. The judgment is reversed, and the case is remanded for further proceedings consistent herewith.

Id. at 521

Haines v Keaner does not apply to Nichols, because the 5th and 14th Amendment liberty and conditions of incarceration concerns (8th Am. cruel and unusual punishment) are not present in the cause of action by a non-prisoner and in particular a 2nd Amendment cause of action by Nichols.

Worse, Haines v Keaner is no longer good law for the premise that a prisoner's complaint need not state any facts giving rise to liability. See Ashcroft v. Iqbal, (addressing FRCP 8 and 12(b)(6) standards for )(Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”). Ashcroft v. Iqbal explained: (no page number in the original at https://supreme.justia.com/cases/fed...2/opinion.html)

[wolfwood]

"Common knowledge, in my experience . . . " have zero legal and probative value. Facts, Evidence, and law are all that matter. The data I cited are dispositive as to the summary dismissal of in pro per causes of action. In fact, Nichols, perennial in pro per, has lost every single case and lost in this iteration at the District Court level.

No pin cite for Haines or a citation to the language of Haines? 2L con law: what are the differences between the due process rights of a criminal defendant/prisoner and civil litigant? The criminal defendant and prisoner plaintiff cases implicate liberty and bodily integrity concerns inherent in the terms of incarceration. The Haines v. Keaner, 404 U.S. 519 (1972) case addresses whether a court should broadly construe the pleadings of prisoners:

The only issue now before us is petitioner's contention that the District Court erred in dismissing his pro se complaint without allowing him to present evidence on his claims.

Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Accordingly, although we intimate no view whatever on the merits of petitioner's allegations, we conclude that he is entitled to an opportunity to offer proof. The judgment is reversed, and the case is remanded for further proceedings consistent herewith.

Id. at 521

Haines v Keaner does not apply to Nichols, because the 5th and 14th Amendment liberty and conditions of incarceration concerns (8th Am. cruel and unusual punishment) are not present in the cause of action by a non-prisoner and in particular a 2nd Amendment cause of action by Nichols.

Worse, Haines v Keaner is no longer good law for the premise that a prisoner's complaint need not state any facts giving rise to liability. See Ashcroft v. Iqbal (no page number in the original at https://supreme.justia.com/cases/fed...2/opinion.html)

Are you disputing that pro se briefs are supposed to be construed liberally?
I gave you a supreme cite that says all pro se briefs need to be construed liberally. Here is another one. Erickson v.
Pardus, 551 U.S. 89, 94 (2007).

That is that rplaw meant. You insulted him and insist that he is wrong when he posted. Since what he said is right you should apologize to him. It really breaks forum etiquette to call someone a liar for no reason.

[rplaw]

Wolfwood, don't bother. He's wrong but he'll never admit it because he believes he's right. We've both probably had clients like this. The same remedy applies.

[highbrass]

And here's Nichols, heading for arguments next spring on a clear question of whether we have the right to bear arms in public or not. And yet you and others STILL refuse to support him.

It's pathetic. Really, it is.

That should have been the question, all along. Nichols had the question framed correctly, from the beginning. All this frail nuance of not wanting to admit that carry in public might actually mean open carry, and, gosh, wouldn't that just be too frightful for even the gun owners, themselves?, has merely caused a bunch of easily defeated impedimentary litigation to get in the reporters.

Keep at it, Nichols.

[TruOil]

That should have been the question, all along. Nichols had the question framed correctly, from the beginning. All this frail nuance of not wanting to admit that carry in public might actually mean open carry, and, gosh, wouldn't that just be too frightful for even the gun owners, themselves?, has merely caused a bunch of easily defeated impedimentary litigation to get in the reporters.

Keep at it, Nichols.

Not quite. Nichols does not claim a general right to carry, but only a right to carry (loaded or unloaded not specified) in "nonsensitive" areas, i.e., not in any governmental buildings, and not in any gun free school zone. He concedes that he is not contesting the validity of the GFSZA 1000' exclusionary zone.

This is indeed a very narrow right he seeks to establish with respect to urban areas (and is irrelevant in unincorporated areas where second amendment rights exist). In fact, it is so narrow that it is almost entirely useless. Now maybe Mr. Nichols lives in a neighborhood where he can walk around the block carrying a rifle, but the vast majority of people living in cities and towns cannot because they live within 1000 feet of a school.

[JeffC]

Not quite. Nichols does not claim a general right to carry, but only a right to carry (loaded or unloaded not specified) in "nonsensitive" areas, i.e., not in any governmental buildings, and not in any gun free school zone. He concedes that he is not contesting the validity of the GFSZA 1000' exclusionary zone.

This is indeed a very narrow right he seeks to establish with respect to urban areas (and is irrelevant in unincorporated areas where second amendment rights exist). In fact, it is so narrow that it is almost entirely useless. Now maybe Mr. Nichols lives in a neighborhood where he can walk around the block carrying a rifle, but the vast majority of people living in cities and towns cannot because they live within 1000 feet of a school.

Well if he cant carry there he cant carry anywhere, so I am not sure how your point....

[Drivedabizness]

Well if he cant carry there he cant carry anywhere, so I am not sure how your point....

Me either.

if they can declare "school zones" (as applied) they can "zone" the right out of existence. Just as in the Alameda County case extant....

As Bill Weise has pointed out - "sensitive places" are places like airports (inside the ticketing/security area) and courthouses where EVERYONE" is disarmed and active security provided.

[Frisco3Gun]

I will admit, I'm not a fan of Nichols, but I appreciate his efforts. He is pretty smug in his ways, but I do respect him.

[rplaw]

Not quite. Nichols does not claim a general right to carry, but only a right to carry (loaded or unloaded not specified) in "nonsensitive" areas, i.e., not in any governmental buildings, and not in any gun free school zone. He concedes that he is not contesting the validity of the GFSZA 1000' exclusionary zone.

This is indeed a very narrow right he seeks to establish with respect to urban areas (and is irrelevant in unincorporated areas where second amendment rights exist). In fact, it is so narrow that it is almost entirely useless. Now maybe Mr. Nichols lives in a neighborhood where he can walk around the block carrying a rifle, but the vast majority of people living in cities and towns cannot because they live within 1000 feet of a school.

Nichols' challenge is to non sensitive places where the gov prohibits the right to bear arms anyway. Those who live inside GFSZ areas will have to challenge that specific infringement AFTER Nichols' establishes whether there is a right to bear arms in public or not. Attempting to do both at the same time will result in a guaranteed loss because Heller is quite clear on the subject and the courts will decide based on that while ignoring the other claims made. Just like they used Peruta to defeat Flanigan.

[Paladin]