Ninth Circuit Orders Challenge to Gun Show Ban to Mediator

Thursday, April 5, 2012

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Ninth Circuit Orders Challenge to Gun Show Ban to Mediator

By KENNETH OFGANG, Staff Writer

The Ninth U.S. Circuit Court of Appeals yesterday delayed its latest ruling on a Second Amendment challenge to a ban on gun shows at the Alameda County Fairgrounds.

The limited en banc panel, by a vote of 9-2, ordered that further action in the 13-year old case be put off that the parties can work with the court’s mediator, who was instructed to report back to the panel in 45 days.

“The panel believes that the parties should attempt to settle this dispute by agreeing on the conditions for holding gun shows at the Alameda County fairgrounds, with the assistance of mediation,” the court explained.

The order drew a brief, but sharp, dissent from Chief Judge Alex Kozinski, joined by Judge Ronald Gould.

The chief judge wrote:

“The parties have not asked for mediation; they have said nothing that suggests mediation would be fruitful; when asked about it in court, they displayed obvious distaste for the idea.

“We overstep our authority by forcing the parties to spend time and money engaging in a mediation charade. Our job is to decide the case, and do so promptly. This delay serves no useful purpose; it only makes us look foolish. I want no part of it.”

Supporting the delay were Judges Harry Pregerson, Stephen Reinhardt, Diarmuid F. O’Scannlain.

Susan P. Graber, Richard C. Tallman, Consuelo M. Callahan, Milan D. Smith Jr. and Sandra S. Ikuta and Senior Judge Michael Daly Hawkins. Smith, however, wrote separately to say that he thought the mediation would be more likely to succeed if the court were to provide a tentative ruling.

The court voted last November to grant a second en banc review in the case brought by Russell and Ann Nordyke.

Remand to District Court

A three-judge panel ruled in May of last year that the Nordykes, doing business as TS Trade Shows, had failed to allege sufficient facts to plead a Second Amendment violation. But the judges said the case should be returned to the U.S. District Court for the Northern District of California so the Nordykes could amend their complaint.

The Nordykes promoted gun shows at the Alameda County fairgrounds in Pleasanton from 1991 until the county banned them in 1999 after a shooting there.

The ordinance was subsequently amended to provide an exception for certain artistic events after representatives of the Scottish Caledonian Games inquired about the law’s applicability to their activities, which included reenactments with period firearms loaded with blank ammunition.

Contending the ordinance was enacted to prevent members of the “gun culture” from expressing their political and social views, the Nordykes brought a federal civil rights suit under the First and Second Amendments and the Fourteenth Amendment Equal Protection Clause.

However, then-U.S. District Judge Martin Jenkins of the Northern District of California—now a justice of the First District Court of Appeal—said they were unlikely to prevail and denied a preliminary injunction.

The Nordykes appealed to the Ninth Circuit, and in 2000 the court certified the case—along with one brought against Los Angeles County—to the California Supreme Court to determine whether state gun laws preempted the ordinances.

The California Supreme Court held there was no preemption, and the Ninth Circuit then ruled in 2003 that the Nordykes lacked standing to pursue their Second Amendment claim. The panel relied on circuit precedent interpreting the amendment to provide a collective right that applied only to state-regulated militias.

That panel also rejected the Nordykes’ claim that the sale of guns at shows was a form of advocacy or commercial speech protected by the First Amendment.

Challenge Rephrased

On remand, the Nordykes sought leave to amend their complaint to again allege a violation of the Second Amendment—based on litigation pending in other jurisdictions contending that the right applied to individuals—which Jenkins denied. They also rephrased their First Amendment challenge, arguing the ordinance violated their freedom of expression by making gun shows impossible and alleged a violation of equal protection, but Jenkins granted summary judgment for the county.

The Nordykes appealed again, and while their appeal was pending, the Supreme Court ruled in District of Columbia v. Heller (2008) 554 U.S. 570 that the Second Amendment establishes an individual right to possess firearms for lawful purposes.

In April 2009, the Ninth Circuit panel agreed with the plaintiffs that the individual right affirmed in Heller was enforceable against the states through the Fourteenth Amendment, foreshadowing the holding in McDonald v. Chicago (2010) 561 U.S. 3025. But the panel, in an opinion by O’Scannlain, rejected the assertion that the ordinance violated the amendment.

“The Ordinance does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it,” O’Scannlain wrote. “The Ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise.”

O’Scannlain also rejected the First Amendment free expression claim, noting that the county offered a plausible purpose for the ordinance unrelated to suppression of free expression, and that summary judgment was proper applying heightened scrutiny.

The judge also said the plaintiffs failed to demonstrate that the exception in the ordinance for certain artistic events was designed to favor other groups, where the promoters were not situated similarly to other groups in that they could not meet the exception’s safety requirements.

In July 2009, the court granted en banc review, but in July 2010 the en banc court vacated the grant and sent the case back to the three-judge panel so that it could reconsider the ruling in light of McDonald.

The panel then issued its new ruling, again rejecting the First Amendment and equal protection claims but allowing the plaintiffs to re-plead their Second Amendment allegations, this past May.

O’Scannlain, again writing for the panel, said that gun control laws only violate the Second Amendment when they impose a substantial burden on the exercise of the right to keep and bear firearms. A ban on possessing arms on county property does not, in and of itself, constitute such a burden, he concluded.

The Nordykes’ proposed second amended complaint, which they submitted over six years ago, “does not assert that the Ordinance makes it materially more difficult to obtain firearms,” the judge explained. “Nor does it allege a shortage of places to purchase guns in or near Alameda County. In any event, the Ordinance does not prohibit gun shows, but merely declines to host them on government premises.”

But given the evolution of the law since the proposed pleading was offered, he said, it is possible the plaintiffs could plead facts they did not consider relevant at the time, but which might show a viable cause of action under Heller and McDonald, O’Scannlain said.

The case is Nordyke v. King, 07-15763.