Charles Nichols: Ed Peruta is Confused

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Charles Nichols, president of California Right to Carry, writes:

For the record, my personal opinion is that the Second Amendment applies throughout the Nation regardless of where one resides or is domiciled. However, it is not my personal opinion that counts in a court of law, it is the opinions published by judges that decide an issue as far as the courts are concerned. In a classic case of shoot the messenger, Ed Peruta took a potshot at me for reporting the fact that the district court judge in his lawsuit held that Mr. Peruta was a non-resident and therefore ineligible for a California CCW license . . .

Mr. Peruta’s lawyer, Chuck Michel, appealed that finding by the district court to the 9th Circuit Court of Appeals. The Court of Appeals did not decide the question of Mr. Peruta’s residency.

The only issue decided on appeal was whether or not San Diego Sheriff Gore’s refusal to accept self-defense as “good cause” for the issuance of a concealed carry permit was constitutional. The Court of Appeals held that the policy was unconstitutional and remanded the case back to the district court for further proceedings. The Court of Appeals did not make the determination that any of the Plaintiff’s are entitled to a CCW. The Court did not issue an order requiring the issuance of a permit to anyone, let alone to the plaintiffs and certainly not to Mr. Peruta.

In a related concealed carry case out of Ventura County the district court judge held that:

[T]he Court has analyzed the legislative history pertinent to Section 26150’s use of the term “resident.” That history evidences an intent that county sheriffs grant CWPs only to those persons who are physically present within their respective counties to an extent consistent with the concept of “domicile.”Based on the legislative history located, the Court concludes that it was reasonable for the [Ventura County Sheriff’s Office] to construe Section 26150 to impose a residency requirement “akin to domicile,”…”

Peruta admits that his domicile is not in California -> “Mr. Peruta told TTAG that his Rocky Hill, Connecticut home is his legal domicile.”

Peruta is not domiciled in San Diego County. The court of appeals did not overturn the district court’s finding that Peruta is not a resident.

The crux of my original article is that until all of the named plaintiffs either obtain a CCW or remove themselves as plaintiffs from the case (Peruta v. San Diego) the Peruta case cannot become moot, despite the wishes of the SAF lawyer Alan Gura who opened that particular can of worms, not me.

Fortunately, all of the relevant briefs are online for anyone to read for free at the website of Mr. Peruta’s lawyer Chuck Michel → http://michellawyers.com/guncasetracker/perutavsandiego/

Particularly relevant are:

Peruta Circuit Court decision ->  http://michellawyers.com/wp-content/uploads/2010/11/order-12.10.10.pdf

In which the district court held that Mr. Peruta was not a resident:

For the reasons stated below, in differentiating between residents (and part-time residents who spend more than six months of the taxable year within the County) and non-residents, Defendant utilizes means that are substantially related to a substantial governmental interest. Because residents and non-residents are situated differently, the residency requirement of Defendant’s policy does not violate equal protection. Therefore, the Court GRANTS Defendant’s motion for summary judgment on Plaintiffs’ equal protection claim as it relates to Defendant’s residency requirement.”

Peruta Appellate Opening Brief -> http://michellawyers.com/wp-content/uploads/2010/11/Peruta-Opening-Brief.pdf

In which Mr. Peruta’s lawyer appealed the district court’s finding of non-residency:

“V. THE DISTRICT COURT RELIED ON ERRONEOUS AUTHORITY IN ANALYZING PLAINTIFF PERUTA’S RESIDENCY CLAIMS” (page 60 of Peruta Opening Brief).

The details of Mr. Peruta’s living arrangements are found in the many briefs and declarations filed with the district court. I would remind Mr. Peruta that his declarations were signed under penalty of perjury. Posting articles which contradict what he claimed in the district court puts him at risk of a felony prosecution, a conviction to which would prohibit him from even possessing a firearm anywhere.

There is an old adage often attributed to Mark Twain which goes something like “It is better to remain silent and thought the fool than to open one’s mouth and leave no doubt.”

That applies doubly to someone whose mouth could put him in prison.

comments

  1. avatar Dirk Diggler says:

    In the words of Rodney King, “Can’t we all just get along?”

  2. avatar Ralph says:

    Well, there’s nothing like a good old-fashioned 2A catfight, is there. Put your claws back in, Mr. Nichols, and stop acting like you’re still in Middle School.

  3. avatar DrVino says:

    Whose words comprise this article? Dan’s or. Nichols’?

    1. avatar Hannibal says:

      I don’t know either… I think the last sentence isn’t copypasta….

  4. avatar uncommon_sense says:

    Hazard me this:

    What if San Diego County officially declares today (if they have not already done so) that they will issue a concealed carry license to anyone who claims “self defense” as their “just cause” … wouldn’t that cause the 9th Circuit to vacate their decision because the original reason for the plaintiffs’ lawsuit no longer exists?

    That would really, really, really suck for three reasons:
    (1) The plaintiffs would not be able to recover attorney’s fees.
    (2) There would be no ruling to apply to the entire 9th Circuit.
    (3) There would be no case to appeal to the U.S. Supreme Court.

    Would the gun grabbers lose in San Diego County? Of course. But there would be no decision binding on the entire 9th Circuit jurisdiction, there would be only one Circuit (7th) splitting from all the other Circuits, and may issue (in reality de facto no-issue) concealed carry licensing would continue for the remaining 79 million people currently in may issue jurisdictions. I won’t even cover how this would further require myriad more lawsuits at the local level that would take several years or even a decade to work their way through the courts.

    It goes without saying that the gun grabbers do not want de facto shall-issue in San Diego County. Nevertheless, I have to believe the gun grabbers won’t hesitate to give up San Diego County in exchange for, at worst delaying shall issue to the entire 9th Circuit jurisdiction for years, and at best, preventing shall issue to the entire United States quite possibly forever.

    Someone please tell me how this nightmare is not guaranteed?

    1. avatar Hoystory says:

      Because that’s not how the law works. IANAL (and obviously you aren’t either), but try to imagine how that would’ve worked in Brown v. Board of Education. So the Kansas school district, after losing at the Supreme Court, acquiesces and ends segregation of its schools. Then the Supreme Court vacates its decision and no other school district in the 1960s south has to integrate because the case is mooted?

      The law isn’t this stupid. Thankfully.

    2. It is not San Diego County that sets the CCW policy it is the San Diego County Sheriff. I can see how you would be confused, so were the two judges who wrote the Peruta appellate decision.

      That said, you are right about one thing. If Sheriff Gore were to suddenly say that he will accept self-defense as “good cause” prior to the mandate being issued then you are looking at a repeat of the final en banc hearing of Nordyke v. King.

      In the 13th year of litigation, the County of Alameda suddenly discovered that its ordinance which banned guns at gun shows did, in fact, contain an exception which allows guns at guns shows.

      Don Kilmer was the attorney for the Nordykes. He litigated the case for over 12 years and did not collect one red cent from the defendants. He appealed his denial of attorney fees and costs to the US Supreme Court. SCOTUS denied his cert petition.

      The same thing could happen in the Peruta case but it is unlikely. I was notified yesterday by one of my supporters that Sheriff Gore had just denied his application for a CCW which cited self-defense as “good cause.” He said the Sheriff’s letter indicated the Sheriff would hold on to the application until the mandate is issued in Peruta and then revisit it.

      Charles Nichols – President of California Right To Carry
      http://CaliforniaRightToCarry.org

      “[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2809.

      “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2816.

  5. avatar SouthernPatriot says:

    That is an issue which is debatable. I can see the reasoning for the concealed carry independent of any jurisdiction throughout the United States of America and I can agree with this since the federal law which has been adopted by all states is included in our Bill of Rights. “Shall not be infringed” means what? That open carry should be universal for all sound-minded law abiding citizens? That concealed carry should be universal for all sound-minded law abiding citizens? When you start restricting this, isn’t that “infringing”?

    1. avatar Ralph says:

      Putting aside the meaning of “infringed” for another time, don’t lose sight of the fact that 2A was not held binding on the states until 2010.

      Because the states have police powers (unlike the Fed, which does not), what the states can and cannot do may be different from what the Feds can and cannot do. Those parameters have not been adjudicated by SCOTUS.

      We were hoping for Drake to be heard by SCOTUS because it would resolve some questions. Alas, it was not to be.

    2. Without knowing it you have hit the problem with all of the concealed carry lawsuits on the head.

      It was the Heller decision which was applied to the states in the McDonald decision. Challenges to state gun-control laws on the carrying of arms are subject to the understanding of the Second Amendment when the 14th Amendment was adopted in 1868. Which means there is no right to concealed carry in public, except for travelers while actually on a journey.

      If there were a Federal law prohibiting concealed carry then it would be subject to the Second Amendment as it was understood when the Framers adopted it in 1791. There were no prohibitions on merely carrying concealed weapons in 1791 there were, however, serious restrictions on their use.

      Every concealed carry case brought has argued that the US Supreme Court was wrong about what it said in the Heller decision. Every case had lost until two judges in the 9th Circuit Court of Appeals thought they could tap dance their way around the Heller decision.

      I think those two judges finally realized that their decision would eventually be overturned which is why they are now grasping at straws (i.e., Gura’s mootness claim) to avoid an en banc rehearing or Supreme Court review.

      Charles Nichols – President of California Right To Carry
      http://CaliforniaRightToCarry.org

      “[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2809.

      “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2816.

  6. avatar JoshuaS says:

    Is TTAG really aiming at making sure to report every word a loon says? Nichols is not trustworthy.

    1. avatar Ralph says:

      I would say that his opinion is not worth a plugged Nichol.

      1. avatar JR says:

        I have no idea why, I mean, I really don’t know anything about him one way or another, good or bad, but when I saw the pictures and read the post, my thoughts went to….

        “Blow it out your a$$, motorcycle man! I am the Devil,
        Do you understand?”

        –Zappa

        1. I understand completely. This is why Justice Scalia said that there are some folks who should not be allowed to even possess firearms and why nobody should be allowed to carry a concealed weapon. There are just too many cowards out there lacking character and courage.

          Charles Nichols – President of California Right To Carry
          http://CaliforniaRightToCarry.org

          “[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2809.

          “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2816.

        2. avatar JR says:

          Sigh.

          You ever start the day in a really, really good mood, a nice hearty breakfast and the warm smile from pleasant Spring sunshine, only to walk outside and find as you cross to your car that you stepped in dog crap?

          That’s kinda like what I’m feeling at the moment.

  7. avatar Kurt Schuberg says:

    Yeah. TTAG, giving a voice to this guy is not helping those of us behind the iron curtain here in CA. He’s not advancing our rights; instead, he’s stepping on the toes of folks who are making real progress here.

  8. avatar nathanredbeard says:

    Can someone please explain what the hell this pissing contest is about?

    1. It is about Ed Peruta claiming to be an Open Carry advocate coming to California seeking support from Open Carry activists, such as myself, for his concealed carry case and then turning on us after losing his case in the district court by saying he thinks Open Carry should be banned.

      It is about character and loyalty. Qualities that Open Carry opponents lack.

      1. avatar Hannibal says:

        So there’s your agenda… and the reason you can’t be trusted to be anywhere near unbiased on this.

        1. The only agenda I have is to overturn California’s 1967 ban on Loaded Open Carry and to overturn the two recently enacted bans on unloaded Open Carry.

          The NRA is funding the Peruta case, the NRA’s state organization the CRPA is a plaintiff in the case along side Ed Peruta.

          The NRA endorsed the Loaded Open Carry ban in 1967 and argued to uphold both that ban and the California Gun Free School Zone Act of 1995 in its Peruta lawsuit.

          I have always been a proponent of Open Carry and an opponent of Gun Free School Zones. Ed Peruta’s lawsuit opposes Loaded Open Carry and supports Gun Free School Zones.

          If Ed Peruta has reversed his position (again) then he should remove himself as an individual plaintiff from his lawsuit.

  9. avatar ropingdown says:

    I felt like somebody accidentally posted some tweener’s social media b___ch attack.

    I also disagree with the claim that Peruta may be subjecting himself to a perjury charge, although I could not care less: Peruta claimed to realize his domicile is in CT. He believed he was also a resident in San Diego CA. That is an innocent mistake of law. There are jurisdictions, U.S. states and some foreign countries, in which you can legally be resident, but not domiciled. The usual case occurs when the residency is a fact based only on time spent in the jurisdiction. Change of domicile requires, generally, a permanent intent to reside elsewhere permanently. Laws vary.

  10. avatar Noah says:

    Nichols is just a cry baby. Who took him out of his [play] pen?

  11. avatar Jonathan - Houston says:

    Well, residency is an important point, but not one of the top ten, or possibly even top twenty, most important firearms regulation-related points. If it’s not even on the court’s radar, then this spat really amounts to little more than side-issue squabbling between parties who stand to gain nothing from each other. When we start running out of real issues to address, then maybe we can focus some attention on this.

  12. avatar Logan says:

    What I have a problem with is the idea that a man cannot legally defend himself in CA (or any other state that does not have reciprocity) because he is not a resident and the state will not recognize another state’s permit. It’s saying to us “we know you have this constitutional right, but we are going to make it legally impossible to exercise it here.”

  13. avatar Edward Peruta says:

    I have maintained a physical fixed residence in San Diego for over 20 years. I have maintained a mobile residence in San Diego between the months of November and April for approximately six years.

    During my second interview for a CCW, I recorded the entire interview start to finish with a digital tape recorder placed in full view on the counter between me and the interviewer which provides me with the have digital evidence of my statements regarding residency and answers to questions asked regarding same.
    The recording still exists, and offers the best evidence of what was or was not said.

    Mr. Nichols claims that I park a 40′ Motor home in my sister’s driveway.
    My RV would NEVER fit in the driveway of my San Diego fixed residence.
    I have do not and have never had a sister.
    I have a sister-in-law.
    If you are looking for the Truth about Guns, don’t rely on Mr. Nichols as a source of VALID AND ACCURATE information.
    Enough said.

    1. Look Ed, you came whining to me with hat in hand back in 2010 asking me to promote your case which I did. We exchanged a large number of emails, I wrote a number of articles. I had always supported your case and your contention that you are a resident until you became a turncoat and announced that you are an opponent of Open Carry on your Facebook page.

      You can whine all you want about being a “resident.” It has always been my position that the Second Amendment is universal and does not require a government issued permission slip.

      You are the one who wants the government to say “Yes you may have the privilege of carrying a concealed weapon. Here is your permission slip you somehow believe makes you feel special. And oh by the way, we can take your permission slip away from you at anytime. Don’t like it? Sue us!”

      I provided links to all of the relevant briefs and decisions in your case. Your supporters can barely operate a microwave oven and so I don’t expect anything from them other than the throwing of feces.”

      The court of appeals did not rule on the issue of your residency an issue which YOU appealed.

      Until the case is remanded to the district court judge and she concludes you are a resident and you are issued a CCW along with all of the other individual plaintiffs your case is not moot.

      Which was the point of my original post and in opposition to the SAF/CalGuns lawyer’s (Alan Gura) claim that your case is moot.

      Your problem is with SAF/CalGuns. You chose to make it about me. I’ve never filed a brief in opposition to your case either in the district court or in the court of appeals. You however, chose to submit a brief in opposition to my case in the court of appeals.

      You are the one shitting on my lawn. But isn’t that the specialty of you and your pointy headed friends?

      Charles Nichols – President of California Right To Carry
      http://CaliforniaRightToCarry.org

      “[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2809.

      “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” District of Columbia v. Heller, 128 S. Ct. 2783 – Supreme Court (2008) at 2816.

      1. avatar Hannibal says:

        Why don’t you two go outside and settle this like men?

  14. avatar rlc2 says:

    THIS IS PATHETIC. ED, CHARLES, STFU!

  15. avatar Edward Peruta says:

    I challenge Mr. Nichols to publish ALL the emails and postings he references.

    “Look Ed, you came whining to me with hat in hand back in 2010 asking me to promote your case which I did. We exchanged a large number of emails, I wrote a number of articles. I had always supported your case and your contention that you are a resident until you became a turncoat and announced that you are an opponent of Open Carry on your Facebook page.”

    Those that know me would NEVER believe his statement that “you came whining to me”.

    I can also assure everyone that I HAVE NEVER been an opponent of “OPEN CARRY”.

    I was and still am absolutely opposed to “UNLOADED OPEN CARRY”

    Again, PUBLISH every email and post you can find to verify your inaccurate embellished statements.

    They don’t exist!!!!

    1. Verify your identity by sending me an email asking me to publish all of your emails to my email address we used to correspond from 2010 to February of this year.

    2. Ed Peruta said:

      “I can also assure everyone that I HAVE NEVER been an opponent of “OPEN CARRY”.

      I was and still am absolutely opposed to “UNLOADED OPEN CARRY””

      What was the title of this article? Oh, yeah! ED PERUTA IS CONFUSED

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