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Nichols v. Harris

United States District Court, C.D. California

May 1, 2014

CHARLES NICHOLS, Plaintiff,
v.
KAMALA D. HARRIS, in her official capacity as Attorney General of California, Defendant

Page 990

[Copyrighted Material Omitted]

Page 991

Charles Nichols, Plaintiff, Pro se, Redondo Beach, CA.

For Edmund G Brown, Jr, in his official capacity as Governor of California, Kamala D Harris, Attorney General in her official capacity as Attorney General of California, Defendants: Jonathan Michael Eisenberg, LEAD ATTORNEY, Office of the California Attorney General, Government Law Section, Los Angeles, CA.

For Joseph Leonardi, City of Redondo Beach Police Chief, Officer Todd Heywood, Defendants: Lisa Marie Bond, LEAD ATTORNEY, Richards Watson & Gershon, Los Angeles, CA.

Page 992

OPINION

S. JAMES OTERO, UNITED STATES DISTRICT JUDGE.

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended Complaint, all the records and files herein, the Report and Recommendation of the United States Magistrate Judge, Plaintiff's Objections, and Defendant's Response to Plaintiff's Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge. In addition, the Court will address certain arguments raised by Plaintiff in his Objections.

Plaintiff asserts that the Ninth Circuit's recent decision in Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014), has been " stayed" and is neither binding on this Court nor relevant to his claims. (Obj. at 8). Plaintiff is mistaken.

Page 993

On February 28, 2014, the Ninth Circuit stayed the issuance of the mandate in Peruta pending briefing and a decision on a motion for rehearing en banc. See Peruta v. County of San Diego, 9th Cir. Case No. 10-56971, (Dkt. No. 126, entered Feb. 28, 2014) (order extending time for filing petition for rehearing en banc and staying mandate). However, entry of the mandate is merely a " ministerial act," White v. Klitzkie, 281 F.3d 920, 924 n.4 (9th Cir. 2002), that " formally marks the end of appellate jurisdiction." Northern California Power Agency v. Nuclear Regulatory Com'n, 393 F.3d 223, 224, 364 U.S. App. D.C. 200 (D.C. Cir. 2004) (internal quotation marks omitted). A panel decision of the Ninth Circuit is binding on lower courts as soon as it is published, even before the mandate issues, and remains binding authority until the decision is withdrawn or reversed by the Supreme Court or an en banc court. See, e.g., Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) (" [A] published decision of this court constitutes binding authority which 'must be followed unless and until overruled by a body competent to do so.'" ) (quoting Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)); United States v. Gomez--Lopez, 62 F.3d 304, 306 (9th Cir. 1995) (" The government first urges us to ignore Armstrong since we have stayed the mandate to allow filing of a petition for certiorari; this we will not do, as Armstrong is the law of this circuit." ); Castillo v. Clark, 610 F.Supp.2d 1084, 1122 n.17 (C.D. Cal. 2009) (" Although the Ninth Circuit has granted a stay of the mandate in Butler, the panel decision remains the law of the Circuit." ). Indeed, three weeks after the stay in Peruta issued, the Ninth Circuit vacated a district court decision in another matter and remanded the case " for further proceedings consistent with Peruta." See Baker v. Kealoha, 564 F.App'x 903, 2014 WL 1087765 at *1 (9th Cir. Mar. 20, 2014). As of the date of this Order, Peruta remains binding precedent on this Court.

Plaintiff further appears to misinterpret the import of the Peruta court's clarification in footnote 19 that it was not " ruling on the constitutionality of California statutes." (Obj. at 2) (quoting Peruta, 742 F.3d at 1173 n.19). This footnote is part of the discussion in which the Ninth Circuit explained that because the Second Amendment does not protect any particular mode of carry, a claim that a state must permit a specific form of carry, such as open carry, fails as a matter of law. See id. at 1172-73 (" As the California legislature has limited its permitting scheme to concealed carry -- and has thus expressed a preference for that manner of arms-bearing -- a narrow challenge to the San Diego County regulations on concealed carry, rather than a broad challenge to the state-wide ban on open carry, is permissible." ). Accordingly, Peruta did not rule on ...


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