13 Years Later, Ninth Circuit Nordyke Ruling Allows Gun Shows On Alameda County Fairgrounds

On June 1, 2012 an en banc panel of the Ninth Circuit Court of Appeals issued its ruling in Nordyke v. King. The opinion is posted here: http://michellawyers.com/nordyke-v-king/.

The Court ruled that it would hold the County to the concession it made at the oral argument (if not before) that the gun show promoter plaintiffs could hold a gun show on the Alameda County fairgrounds property, so long as the guns were secured to the exhibit tables with a wire cable.

In essence, Alameda County blinked. There is a dispute between the parties about exactly when that happened, but after years of maintaining that their ordinance prohibited gun shows entirely, the County decided they would rather switch its position than continue to fight the lawsuit. The en banc panel jumped on that position in reaching its decision.

The Nordyke v. Alameda case was filed in 1999 by gun show promoters Russ and Sallie Nordyke challenging an Alameda County ordinance that bans guns on county property (effectively banning the gun show at the county fairgrounds). The suit alleged multiple legal grounds to invalidate the ordinance, including a Second Amendment claim. Over the next 13 years the case bounced around the trial and appellate courts, in both the state and federal court systems. Copies of court filings and more information about the case is posted at http://michellawyers.com/nordyke-v-king/.

NRA provided financial and logistical support to the case since it was filed. Noted NRA / CRPA attorneys including Don Kates, Stephen Halbrook, and Chuck Michel all provided assistance through several amicus brief campaigns, and the NRA subsidized the case by advancing the associated costs for years. But San Jose attorney Don Kilmer, representing the Nordykes as the owners of the gun show, deserves special recognition for seeing the case through for all these years. Because the ruling effectively orders the County to honor the concession it made at oral argument that gun shows could be held after all, Kilmer has a good argument to recover his contingent attorney fees, which surely exceed a million dollars by now. No doubt that claim will be hotly contested by the county.

The Nordyke family also deserves the thanks of the Second Amendment civil rights community for putting up with the strain of litigation all these years. In fact, showing what fighters they are, in light of the Ninth Circuit’s opinion the Nordykes are submitting gun show plans to Marin, San Mateo, and Santa Clara counties to force those jurisdictions to allow gun shows on their fairgrounds. Those counties adopted essentially the same ordinance as Alameda, and have been interpreting them to prohibit gun shows. Unless those counties adopt Alameda County’s concession and allow gun shows on their fairgrounds, they will face similar lawsuits. Hopefully, in these times of budgetary deficits, and considering the rapidly evolving body of Second Amendment jurisprudence, the counties will see the wisdom in Alameda’s concession and take the same position — allowing gun shows to take place.

The Ninth Circuit en banc opinion dodges the issue of the appropriate level of judicial scrutiny to be applied by a court when a law is challenged on Second Amendment grounds. The new opinion supersedes a three judge panel ruling that had held a “substantial burden” test was the appropriate level of scrutiny to apply. That three judge panel adopted a “substantial burden” test, akin to that used in abortion jurisprudence and seen in some “time, place, and manner” restrictions on free speech, holding that “only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment.” Nordyke v. King, No. 07-15763, 2011 WL 1632063 at *6 (9th Cir. May 2, 2011).  Under Federal Rule of Appellate Procedure 35, the three-judge panel opinion cannot be cited as precedent by any court of the Ninth Circuit. So with the three judge panel decision gone, the standard of review question is wide open again in the Ninth Circuit.

Several other cases brought by the NRA and CRPA Foundation in California may serve as another vehicle for addressing this issue in the Ninth Circuit, and several cases in other circuits raise the issue as well.