Nordyke v. King, No. 07–15763.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before: ARTHUR L. ALARCÓN, DIARMUID F. O'SCANNLAIN and RONALD M. GOULD, Circuit Judges.
• Citation: 644 F.3d 776
• 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.
• Docket Number: No. 07–15763.
• Decision Date: 02 May 2011

644 F.3d 776
2011 Daily Journal D.A.R. 6208

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.

Opinion Issued April 20, 2009.Opinion Withdrawn July 29, 2009.Reheard En Banc Sept. 24, 2009.Remanded to Panel July 12, 2010.Re-argued and Re-submitted Oct. 19, 2010.Filed May 2, 2011.

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Donald E. Kilmer, Jr., Law Offices of Donald Kilmer, San Jose, CA, argued the cause for the plaintiffs-appellants and filed the brief. Don B. Kates, Battleground, WA, was also on the brief.Sayre Weaver, Richards, Watson & Gershon, Los Angeles, CA, argued the cause for the defendants-appellees and filed the brief. Richard E. Winnie, County Counsel, Alameda County, CA, T. Peter Pierce, Richards, Watson & Gershon, Los Angeles, CA, and Veronica S. Gunderson, Richards Watson & Gershon, Los Angeles, CA, were also on the brief.Paul D. Clement, Jeffrey S. Bucholtz, and Adam Conrad, King & Spalding, LLP, Washington, D.C., filed a brief on behalf of amicus curiae the National Rifle Association of America, Inc., in support of the plaintiffs-appellants.Alan Gura, Gura & Possessky, PLLC, Alexandria, VI, filed a brief on behalf of amicus curiae the Second Amendment Foundation, Inc., in support of the defendants-appellees.C.D. Michel, Michel & Associates, PC, Long Beach, CA, Glenn S. McRoberts, Michel & Associates, PC, Long Beach, CA, and Stephen P. Halbrook, Law Offices of Stephen P. Halbrook, Fairfax, VI, filed a brief on behalf of amicus curiae the California Rifle & Pistol Association, in support of the plaintiffs-appellants.Herbert W. Titus, William J. Olson, John. S. Miles, and Jeremiah L. Morgan, William J. Olson, PC, Vienna, VI, filed a brief on behalf of amici curiae Gun Owners of California, Inc., Gun Owners of America, Inc., and Gun Owners Foundation, in support of the plaintiffs-appellants.Jonathan E. Lowy, Brady Center to Prevent Violence, Washington, D.C., and Gil N. Peles, Proskauer Rose LLP, Los Angeles, CA, filed a brief on behalf of amicus curiae Brady Center to Prevent Gun Violence, in support of the defendants-appellees.Charles M. Dyke, Nixon Peabody LLP, San Francisco, CA, filed a brief on behalf

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of amici curiae the Legal Community Against Violence, California Peace Officers' Association, California Police Chiefs' Association, California State Sheriffs' Association, City of Oakland, City and County of San Francisco, Violence Policy Center, and Youth Alive!, in support of the defendants-appellees.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: ARTHUR L. ALARCÓN, DIARMUID F. O'SCANNLAIN and RONALD M. GOULD, Circuit Judges.

OPINION O'SCANNLAIN, Circuit Judge:

We must decide whether the Second Amendment prohibits a local government from banning gun shows on its property.

I A

Russell and Sallie Nordyke operate a business that promotes gun shows throughout California. A typical gun show involves the display and sale of thousands of firearms, generally ranging from pistols to rifles. Since 1991, the Nordykes have promoted numerous shows across the state, including one at the public fairgrounds in Alameda County. The Alameda gun shows routinely draw about 4,000 people. In the summer of 1999, the county passed an ordinance making it a misdemeanor to bring onto or to possess a firearm or ammunition on county property. See Alameda Code § 9.12.120(b) (“the Ordinance”). The Ordinance does not mention gun shows.¹

The county asserts that it passed the Ordinance in response to a shooting that occurred the previous summer at the annual county fair. The Ordinance's text reflects this, finding that “gunshot fatalities are of epidemic proportions in Alameda County.” Id. § 9.12.120(a). The Nordykes, however, allege that the Ordinance's real purpose is to ban gun shows from county fairgrounds. To support this allegation, the Nordykes note that, shortly before proposing the Ordinance, the former county supervisor, Mary King, sent a memorandum to Richard Winnie, the county counsel, stating that King has “been trying to get rid of gun shows on County property” for “about three years,” and asking Winnie to research “the most appropriate way that [King] might proceed.” The memorandum also states that, in her efforts to ban gun shows, King has “gotten the run around” from “spineless people hiding behind the Constitution.” At a subsequent press conference, the Nordykes assert, King again made clear that the purpose of the Ordinance was to outlaw gun shows on county property. ²

Whatever the intent of the Ordinance, the Nordykes assert that its effect was to

[644 F.3d 781]

ban gun shows on county property. After the county passed the Ordinance, the manager of the fairgrounds asked the Nordykes to submit a written plan explaining how their next gun show would comply with the Ordinance. Although the Ordinance did not expressly prohibit gun shows or the sale of firearms, the Nordykes insisted then and maintain now that they cannot hold a gun show without guns.³ Rather than submitting a compliance plan, the Nordykes filed this suit.⁴

B

Before discussing the district court rulings now before us, it is necessary to summarize this case's long and tangled procedural history. The Nordykes, joined by several would-be exhibitors or patrons at their gun shows (collectively, “the Nordykes”), first sued Alameda County, its Board of Supervisors, and a number of its employees, including King (collectively, “the County”) in 1999. Initially, the Nordykes asserted just two claims: a First Amendment free speech claim, and a claim that the Ordinance was preempted by state law. In due course, they moved for a preliminary injunction forbidding the County from enforcing the Ordinance against their gun show. After the district court denied this motion, we accepted the Nordykes' interlocutory appeal. Rather than reaching the First Amendment question, however, we certified the preemption question to the California Supreme Court. See Nordyke v. King, 229 F.3d 1266, 1267 (9th Cir.2000) (“ Nordyke I ”). The California Supreme Court answered that the County Ordinance was not preempted by state law. See Nordyke v. King, 27 Cal.4th 875, 118 Cal.Rptr.2d 761, 44 P.3d 133, 138 (2002) (“ Nordyke II ”).

After receiving that response, we returned to the Nordykes' First Amendment claim. Construing their challenge as a facial one, we rejected the argument that the Ordinance burdened the expressive conduct of gun possession. See Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir.2003) (“ Nordyke III ”). Our opinion noted that its rejection of the facial attack did not “foreclose a future as applied challenge to the Ordinance.” Id. at 1190 n. 3.

In Nordyke III we also responded to developments in the law while the certified question was pending in the California Supreme Court, by granting the Nordykes' motion to file supplemental briefing on a potential Second Amendment claim, see id. at 1188, and then holding that Ninth Circuit precedent precluded such claim, see id. at 1191–92 (citing Hickman v. Block, 81 F.3d 98 (9th Cir.1996)).

On remand, the Nordykes moved for leave to amend the complaint to add claims under the Second Amendment, the Equal Protection Clause, the Due Process Clause, and the Ninth Amendment.⁵ The

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district court allowed the addition of all claims except for the Second Amendment claim, which the district court deemed futile because Nordyke III had already held that a Second Amendment claim was precluded by binding circuit precedent. After two motions to dismiss, only the First Amendment and equal protection claims survived. The district court then granted summary judgment to the County on those remaining claims. The Nordykes timely appealed.

On that appeal, the Nordykes challenged the district court's ruling that adding a Second Amendment claim would be futile, as well as the district court's grant of summary judgment on their First Amendment and equal protection claims. Before we ruled on the appeal, however, the Supreme Court decided District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), which held that the Second Amendment protects an individual right to keep and to bear arms for self-defense. After further briefing, we affirmed on all three issues. See Nordyke v. King, 563 F.3d 439 (9th Cir.2009) ( “ Nordyke IV ”). On the Second Amendment issue, we held: (1) the individual right to keep and to bear arms recognized in Heller is incorporated against state and local governments through the Due Process Clause of the Fourteenth Amendment; but (2) the Ordinance constituted a permissible regulation of firearms under the Second Amendment. See id. at 446–60. We declined to adopt an explicit standard of review for evaluating gun-control regulations.

Nordyke IV was subsequently vacated and reheard en banc. See Nordyke v. King, 575 F.3d 890 (9th Cir.2009). But before the en banc panel issued its decision, the Supreme Court decided McDonald v. Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), holding, as we did in Nordyke IV, that “the Second Amendment right to keep and bear arms” is “fundamental to our scheme of ordered liberty” and, therefore, incorporated against the states through the Due Process Clause of the Fourteenth Amendment. Id. at 3036. To support this holding, the Court went to great lengths to demonstrate that the right to keep and to bear arms is a “fundamental” right. See id. at 3037, 3041–44. McDonald also specifically rejected the suggestion that the...