Nordyke v. King

• Decision Date: 01 June 2012
• Docket Number: No. 07–15763.,07–15763.
• Citation: 681 F.3d 1041,12 Cal. Daily Op. Serv. 6025,2012 Daily Journal D.A.R. 7285
• Parties: Russell Allen NORDYKE; Ann Sallie Nordyke, dba TS Trade Shows; Jess B. Guy; Duane Darr; William J. Jones; Daryl N. David; Tasiana Westyschyn; Jean Lee; Todd Baltes; Dennis Blair; R.L. Adams; Roger Baker; Mike Fournier; Virgil McVicker, Plaintiffs–Appellants, v. Mary V. KING; Gail Steele; Wilma Chan; Keith Carson; Scott Haggerty; County of Alameda; County of Alameda Board of Supervisors, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

681 F.3d 1041

12 Cal. Daily Op. Serv. 6025

2012 Daily Journal D.A.R. 7285

Russell Allen NORDYKE; Ann Sallie Nordyke, dba TS Trade Shows; Jess B. Guy; Duane Darr; William J. Jones; Daryl N. David; Tasiana Westyschyn; Jean Lee; Todd Baltes; Dennis Blair; R.L. Adams; Roger Baker; Mike Fournier; Virgil McVicker, Plaintiffs–Appellants,

v.Mary V. KING; Gail Steele; Wilma Chan; Keith Carson; Scott Haggerty; County of Alameda; County of Alameda Board of Supervisors, Defendants–Appellees.

No. 07–15763.

United States Court of Appeals, Ninth Circuit.

Argued En Banc March 19, 2012.

Submitted May 24, 2012.

Filed June 1, 2012.

Donald Kilmer, Law Offices of Donald Kilmer, San Jose, CA, and Don B. Kates, Battleground, WA, for the plaintiffs-appellants.

T. Peter Pierce and Sayre Weaver, Richards, Watson & Gershon, Los Angeles, CA, for the defendants-appellees.

John M. Grenfell, Pillsbury Winthrop Shaw Pittman LLP, Jordan Eth, Morrison & Foerster LLP, San Francisco, CA; Jason Andrew Davis, Davis & Associates, Mission Viejo, CA; C.D. Michel, Michel & Associates, P.C., Long Beach, CA, and S.P. Halbrook, Fairfax, VA; Herbert W. Titus, William J. Olson, P.C., Vienna, VA; Jeffrey S. Bucholtz, King & Spalding LLP, Washington, D.C.; and Alan Gura, Gura & Possessky, PLLC, Alexandria, VA, for the amici curiae.

Appeal from the United States District Court for the Northern District of California, Martin J. Jenkins, District Judge, Presiding. D.C. No. CV–99–04389–MJJ.

Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, STEPHEN REINHARDT, DIARMUID F. O'SCANNLAIN, MICHAEL DALY HAWKINS, SUSAN P. GRABER, RONALD M. GOULD, RICHARD C. TALLMAN, CONSUELO M. CALLAHAN, MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge GRABER; Concurrence by Judge O'SCANNLAIN; Concurrence by Judge IKUTA.

OPINION

GRABER, Circuit Judge:

The law and the facts relevant to Plaintiffs' Second Amendment claim have evolved during the 12 years since this case first reached our court. See Nordyke v. King, 644 F.3d 776, 781–82 (9th Cir.2011) ( “Nordyke V ”) (“summariz[ing] this case's long and tangled procedural history”).¹ Under the present law and the present facts, we affirm the district court's decision to dismiss the Second Amendment claim.²

Recently, the Supreme Court recognized an individual right under the Second Amendment. Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Even more recently, the Court held that this right is fundamental and is incorporated against states and municipalities under the Fourteenth Amendment. McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

Plaintiffs Russell and Sallie Nordyke, along with other co-plaintiffs, seek to conduct gun shows at the Alameda County fairgrounds. In 1999, Alameda County enacted an ordinance that provides in relevant part:

Possession of Firearms on County Property Prohibited

....

(b) Misdemeanor. Every person who brings onto or possesses on County property a firearm, loaded or unloaded, or ammunition for a firearm is guilty of a misdemeanor.

....

(f) Exceptions. Subsection 9.12.120(b) does not apply to the following:

....

(4) The possession of a firearm by an authorized participant in a motion picture, television, video, dance or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.

Alameda County, Cal., Ordinance Code § 9.12.120.

Plaintiffs challenged that ordinance as a violation of their Second Amendment rights. It is undisputed that Plaintiffs are legally authorized to sell firearms and that, if allowed to conduct a gun show on County property, they would offer for sale only firearms that they lawfully could sell under federal and state statutes.

In its initial and supplemental briefing before the three-judge panel, and again during oral argument before the en banc court, counsel for Alameda County gave the County's current, official interpretation of its ordinance. The County now avers that a gun show is an “event” within the meaning of exception (f)(4). Moreover, the County affirmatively asserts that Plaintiffs, when conducting a gun show, may offer firearms for sale with the requirement that, when a “firearm is not in the actual possession of the authorized participant,” the firearm must be “secured to prevent unauthorized use.” Id. The County represents that a sturdy cable attaching the firearm to a fixture, such as a table, would suffice—much as cell phones, cameras, and other attractive items routinely are displayed for sale. The County further represents that buyers may physically inspect properly secured firearms.

We hold the County to its interpretation of the ordinance, and its reading is a reasonable one. With that interpretation in mind, Plaintiffs cannot state a viable Second Amendment claim. Thus read, the ordinance regulates the sale of firearms at Plaintiffs' gun shows only minimally, and only on County property. No matter how broad the scope of the Second Amendment—an issue that we leave for another day—it is clear that, as applied to Plaintiffs' gun shows and as interpreted by the County, this regulation is permissible. See Heller, 554 U.S. at 626–27, 128 S.Ct. 2783 (“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on ... laws imposing conditions and qualifications on the commercial sale of arms.”); see also Engquist v. Or. Dep't of Agric., 553 U.S. 591, 598, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (observing, in the context of an equal protection claim against a governmental employer, that “there is a crucial difference, with respect to constitutional analysis, between the government exercising the power to regulate or license, as lawmaker, and the government acting as proprietor, to manage its internal operation” (internal quotation marks and brackets omitted)); United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (recognizing a distinction, for First Amendment purposes, between governmental exercise of the “power to regulate or license, as law-maker” and governmental actions taken in its role “as proprietor, to manage its internal operations” (internal quotation marks and brackets omitted)).

Should the County add new requirements or enforce the ordinance unequally, or should additional facts come to light, Plaintiffs or others similarly situated may, of course, bring a new Second Amendment challenge to the relevant laws or practices. But in the present case, they cannot succeed, no matter what form of scrutiny applies to Second Amendment claims.

AFFIRMED.

O'SCANNLAIN, Circuit Judge, joined by TALLMAN, CALLAHAN, and IKUTA, Circuit Judges, concurring in the judgment:

Twelve years into this appeal, the County of Alameda now represents that its ordinance presents no barrier to conducting gun shows on its property. Contrary to its previous assertions, the County now concedes that such an event can be held with firearms present and available for meaningful physical inspection by potential buyers.¹

The County's sweeping concessions—made at oral argument before the en banc court—change the game and make this a far different case from the one argued before the three-judge panel. Plaintiffs' Second Amendment challenge was based solely on their inability to conduct a successful gun show on county property. See Nordyke v. King, 644 F.3d 776, 781 n. 4, 786–87 & n. 10 (9th Cir.2011). As gun shows may now be held on county property with only the restrictions described in the majority opinion, see majority op. at 1044–45, I agree with the majority that Plaintiffs' Second Amendment claim cannot succeed.

But I cannot agree with the majority's approach, which fails to explain the standard of scrutiny under which it evaluates the ordinance.² Rather than leave the level of scrutiny in doubt, I would expressly adopt the measured, calibrated approach developed in the original three-judge panel majority opinion, which considers carefully the extent of the regulation's burden on Second Amendment rights. See Nordyke, 644 F.3d at 782–88 (explaining that the level of scrutiny applied to gun control regulations depends on the regulation's burden on the Second Amendment right to keep and to bear arms); cf. Heller v. District of Columbia, 670 F.3d 1244 (D.C.Cir.2011) (developing framework for reviewing gun control regulations with reference to the extent of the regulation's burden on Second Amendment rights); Ezell v. City of Chicago, 651 F.3d 684 (7th Cir.2011) (same); United States v. Masciandaro, 638 F.3d 458 (4th Cir.2011) (same); United States v. Chester, 628 F.3d 673 (4th Cir.2010) (same); United States v. Reese, 627 F.3d 792 (10th Cir.2010) (same); United States v. Marzzarella, 614 F.3d 85 (3d Cir.2010) (same).

In light of the breadth of the County's concessions at oral argument, I am satisfied that the ordinance, as applied to Plaintiffs' gun shows and as now interpreted by the County, survives this standard. See Nordyke, 644 F.3d at 783–88. I therefore agree that the district court's denial of leave to amend should be affirmed. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir.1998); Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir.1988); Universal Mortg. Co. v. Prudential Ins. Co., 799 F.2d 458, 459 (9th Cir.1986).

I concur in the judgment.

IKUTA, Circuit Judge, with whom CALLAHAN, Circuit Judge, joins, concurring in the judgment:

Given the procedural posture of this case, the majority cannot affirm the district court's ruling unless it would be futile to allow Plaintiffs to amend their complaint because Plaintiffs cannot state a claim for a Second Amendment violation as a matter of law. See Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th...