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No. 14-55873 [DC 2:11-cv-09916-SJO-SS] IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ________________________________ Charles Nichols, Plaintiff-Appellant v. Edmund Brown, Jr., et al Defendants-Appellees. ________________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ________________________________ APPELLANT'S OPENING BRIEF ADDENDUM CERTIFICATE OF SERVICE ________________________________ Charles Nichols PO Box 1302 Redondo Beach, CA 90278 Tel. No. (424) 634-7381 e-mail: [email protected] In Pro Per TABLE OF CONTENTS INTRODUCTION ................................................................................................... 1 JURISDICTIONAL STATEMENT .................................................................... 14 STATEMENT OF ISSUES PRESENTED FOR REVIEW .............................. 15 STATEMENT REGARDING ADDENDUM………………………………….21 STATEMENT WITH RESPECT TO ORAL ARGUMENT ............................ 21 STATEMENT OF THE CASE ............................................................................ 22 SUMMARY OF ARGUMENT ............................................................................ 36 STANDARDS OF REVIEW ................................................................................ 41 ARGUMENT ......................................................................................................... 44 1. There Has Been A Change In The California Courts Interpretation Of Carrying Concealed Weapons And The Carrying Of Loaded Firearms Concealed Which Renders The Peruta Decision Moot. This Does Not Change The Uncontroverted Fact That Concealed Carry Substantially Burdens Plaintiff Nichols’ Ability To Defend Himself. ........................... 44 2. Open Carry Is The Right Guaranteed By The Us Constitution Under Heller. The Second Amendment Right Applies To One’s Home And To Non-Sensitive Public Places........................................................................ 48 3. The Second Amendment Right Is Fundamental Under Mcdonald......... 51 4. The Second Amendment Right Has Been Applied To All State And Local Governments Via Mcdonald. ........................................................... 51 5. By Default, Open Carry Is Legal Everywhere In The State Of California Except Where It Is Prohibited Or Otherwise “Regulated.” . 51 6. Open Carry Has Always Been, And Still Is, The Right In California. .. 52 i 7. Unlicensed Open Carry Is The Right Under California Law. ................ 53 8. Open Carry Stands As A Safeguard Against Tyranny. .......................... 55 9. Under Current California Law Plaintiff Nichols Is Relegated To The Open Carry Of: Unloaded Antique Firearms, Knives, Swords And A Bow And Arrows. This Conflicts With Heller. ........................................ 59 10. Unloaded Firearms Cannot Be Instantaneously Loaded. ....................... 60 11. Concealed Carry Is A Privilege Except For Certain Longstanding Exceptions Not Relevant Here. .................................................................. 60 12. There Is No General Right To Carry A Concealed Weapon In Public. 61 13. Concealed Carry Can Be Prohibited Under Heller, Robertson And California Law............................................................................................. 61 14. Under California Law “Having” A Firearm On One’s Residential Property Does Not Mean “Carrying” A Firearm. This Conflicts With Heller. ........................................................................................................... 62 15. Firearms (E.G., Rifles, Shotguns, Handguns And Stun Guns), Including Modern Firearms, Fall Within The Scope Of The Second Amendment Right. ............................................................................................................ 63 16. Nunn And Chandler Perfectly Capture The Second Amendment Right According To Heller. ................................................................................... 64 17. Concealed Carry Endangers The Public By Failing To Provide Fair Notice That A Person Is Armed. ................................................................ 66 18. Justice Breyer’s Dissent Read Heller To Mean That Open Carry Is The Second Amendment Right And That Concealed Carry Can Be Prohibited………………………………………………………………….66 19. Sister Circuits Have Come To The Same Conclusion That Concealed Carry Falls Outside Of The Scope Of The Second Amendment. This Circuit Has Not Held That There Is A Right To Concealed Carry Nor ii Has This Circuit Held That There Is Not An Open Carry Right Either Under Heller Or Under California Law. .................................................. 67 20. 19th Century State Courts Have Likewise Failed To Find A General Right To Concealed Carry Outside Of One’s Home. .............................. 71 21. Concealed Carry Has Always Been A Privilege In California And Was Banned In California When The 14th Amendment Was Enacted. ......... 73 22. Under California Law The Act Of Firearm Possession, By Itself, Is Innocent Under Jones. Bans On Carrying Both Openly And Concealed Are Therefore Subject To Strict Scrutiny Under Mitchell. ..................... 73 23. Under Jones A Person Cannot Be Punished By Multiple Laws For The Same Act Thereby Rendering The Laws At Issue In This Appeal Inapplicable To Persons, Firearms, Places And Acts Which Fall Outside The Scope Of The Second Amendment..................................................... 74 24. Open Carry State Law Summary. ............................................................. 76 25. California Is The Only State Which Prohibits The Open Carry Of Modern, Loaded Firearms On Residential Property. ............................. 78 26. Defendant Harris Has Never Conceded That There Is A Right To Possess, Let Alone Carry, A Firearm In The Home. ............................... 79 27. The Second Amendment Applies To The Home Which Includes The Curtilage Of The Home. Plaintiff Nichols And The Federal Government Concur That Jardines Includes The Curtilage Of The Home For Second Amendment Purposes. ................................................ 79 28. The Second Amendment Applies To The Curtilage Of The Home Under Chovan As Well. .......................................................................................... 84 29. The Second Amendment Applies Outside Of The Home Under Chovan As Well. ........................................................................................................ 84 30. Strict Scrutiny Applies To This Second Amendment Case Under Chovan. The Bans Fail Intermediate Scrutiny And Rational Review As Well. The Government Made No Attempt To Meet Its Burden Under iii Heightened Scrutiny. Plaintiff Nichols Proved His Case That The Challenged Laws Fail Even Rational Basis Review. ................................ 86 \31. The Black Panther Loaded Open Carry Ban (PC 25850) Fails The Rational Basis Test Under Carolene Products Co Even If It Were An Economic Regulation. ................................................................................. 91 32. The Open Carry Bans (PC 25850, PC 26350, PC 26400) Fail The Rational Basis Test. ..................................................................................... 93 33. Plaintiff Seeks To Openly Carry Firearms, Including Modern Firearms, For The Purpose Of Self-Defense In Public Places Where It Is Legal To Openly Carry Loaded And Unloaded Firearms Without A Permit For Purposes Other Than Self-Defense And Where It Is Legal For A Myriad Of Special Interest Groups. .......................................................... 95 34. Plaintiff Nichols Has The Right To Openly Carry A Non-Lethal/Less- Lethal Firearm. ........................................................................................... 96 35. Heller Precludes Interest-Balancing. Heller’s Per Se Invalidation Of The Challenged Laws Is Required In This Case Just As It Was In Heller And Mcdonald. ............................................................................................. 98 36. Ninth Circuit Court Of Appeals Post-Heller Decisions Recognize The Second Amendment Right. ......................................................................... 99 37. The District Court’s Interpretation Of Fourth Amendment Rights Conflicts With The Supreme Court’s Interpretation, Conflicts With This Circuit’s Interpretation And Conflicts With The California Courts Interpretation Of That Right. .................................................................. 100 A. There Can Be No Effective Consent To A Search Or Seizure If That Consent Follows A Law Enforcement Officer's Assertion Of An Independent Right To Engage In Such Conduct. ........................... 100 B. It Has Long Since Been Settled That Compelling One To Produce Evidence Of One’s Guilt Is A Violation Of Both The Fourth And Fifth Amendment. .............................................................................. 101 iv C. Probable Cause Defined. ................................................................... 101 D. “Probable Cause” Does Not Arise Under PC 25850(b) Until One Refuses To Consent To The Search And Seizure. ........................... 102 E. The United States Supreme Court Has Refused To Create A "Firearm's Exception" To The Fourth Amendment. ..................... 103 F. Openly Carrying A Firearm In And Of Itself Does Not Constitute Reasonable Suspicion That A Crime Has Been Committed And Therefore Any Detention, Search And Seizure Pursuant To PC 25850(b) Which Is Not Consensual Is In Violation
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