Nordyke v. King

Decision Date18 February 2003
Docket NumberNo. 99-17551.,99-17551.
Citation319 F.3d 1185
PartiesRussell Allen NORDYKE; Ann Sallie Nordyke, dba TS Trade Shows; Jess B. Guy; Duane Darr; William J. Jones; Daryl David; Tasiana Wertyschyn; Jean Lee; Todd Baltes; Dennis Blair; R.A. Adams; Roger Baker; Mike Fournier; Virgil McVicker, Plaintiffs-Appellants, v. Mary V. KING; Gail Steele; Wilma Chan; Keith Carson; Scott Haggerty, County of Alameda; The County of Alameda Board of Supervisors, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Donald E.J. Kilmer, Jr., Law Offices of Donald Kilmer, San Jose, CA, argued the cause and filed briefs for the appellants.

Sayre Weaver, Richards, Watson, & Gershon, San Francisco, CA, argued the cause for the appellees; Richard Winnie, County Counsel, County of Alameda, was on the briefs.

C.D. Michel, Trutanich Michel, LLP, San Pedro, CA, and Stephen P. Halbrook, Law Offices of Stephen P. Halbrook, Fairfax, VA, were on the brief for amicus curiae National Rifle Association of America, Inc.

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: ALARCÓN, O'SCANNLAIN and GOULD, Circuit Judges.

Opinion by Judge O'SCANNLAIN; Concurrence by Judge GOULD.

O'SCANNLAIN, Circuit Judge.

We must decide whether a local ordinance prohibiting the possession of firearms on county property infringes upon constitutional rights protected by the First and Second Amendments.

I

Russell Nordyke and Sallie Nordyke (dba TS Trade Shows) ("Nordyke") have been promoting gun shows at the Alameda County Fairgrounds ("Fairgrounds") since 1991. The Fairgrounds are located on unincorporated county land in the City of Pleasanton. The exhibitors at the show include sellers of antique (pre-1898) firearms, modern firearms, ammunition, Old West memorabilia, and outdoor clothing. In addition, the show hosts educational workshops, issue groups, and political organizations.

In August 1999, Alameda County ("County") passed an ordinance making illegal the possession of firearms on County property ("Ordinance"). In pertinent part, the Ordinance reads: "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." Alameda County, Cal., Ordinance § 9.12.120(b). The Ordinance would forbid the presence of firearms at gun shows, such as Nordyke's, held at the Fairgrounds. As a practical matter, the Ordinance makes it unlikely that a gun show could profitably be held there.

Seeking to prevent the Ordinance's enforcement, Nordyke brought suit against the County in the United States District Court for the Northern District of California. Nordyke applied for a temporary restraining order, claiming that the Ordinance was preempted by state gun regulations and that it violated the First Amendment's free speech guarantee. The district court judge treated the application as one for a preliminary injunction and denied it. The judge noted that under either test for a preliminary injunction, a litigant must at least show a fair chance of success on the merits and ruled that Nordyke had failed to do so. Because he concluded that Nordyke had little chance of success on the merits, he did not reach the balance of the hardships determination. Nordyke then filed this timely interlocutory appeal.

We certified Nordyke's preemption claim to the California Supreme Court asking the following question: "Does state law regulating the possession of firearms and gun shows preempt a municipal ordinance prohibiting gun possession on county property"? Nordyke v. King ("Nordyke I"), 229 F.3d 1266, 1267 (9th Cir.2000).

The California Supreme Court granted certification and ultimately held, "whether or not the Ordinance is partially preempted, Alameda County has the authority to prohibit the operation of gun shows held on its property, and, at least to that extent, may ban possession of guns on its property." Nordyke v. King ("Nordyke II"), 27 Cal.4th 875, 118 Cal.Rptr.2d 761, 44 P.3d 133, 138 (2002). Pursuant to Rule 29.5 of the California Rules of Court we follow the answer provided by the California Supreme Court to the certified question. We therefore conclude that the district court properly determined that Nordyke's preemption claim was without merit.

Nevertheless, we must still decide Nordyke's remaining constitutional claims. Nordyke urges, under the First Amendment, that the Ordinance impermissibly infringes upon constitutionally protected speech rights.

Nordyke also makes a Second Amendment challenge to the Ordinance. Pending the certification of Nordyke's preemption claim to the California Supreme Court, there were several judicial developments relating to the Second Amendment. As a result, Nordyke filed a motion for supplemental briefing with this court which we granted. Because of our sister circuit's holding in United States v. Emerson, 270 F.3d 203 (5th Cir.2001), and the change in the United States government's position on the scope of the Second Amendment,1 Nordyke now urges on appeal that the Ordinance unduly infringes the right of individuals under the Second Amendment to possess privately and to bear their own firearms.

II

We consider first Nordyke's challenge to the Ordinance on the grounds that it infringes his First Amendment right to free speech. The district court squarely rejected Nordyke's argument that gun possession is expressive conduct protected by the First Amendment and that the ban on the possession of firearms unconstitutionally interferes with commercial speech.2

A

As to Nordyke's expressive conduct claim, the Supreme Court has "rejected the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea." Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (citation and internal quotation marks omitted). However, the Court has "acknowledged that conduct may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." Id. (citation and internal quotation marks omitted).

In the case at hand, Nordyke argues that possession of guns is, or more accurately, can be speech. In evaluating his claim, we must ask whether "[a]n intent to convey a particularized message [is] present, and [whether] the likelihood [is] great that the message would be understood by those who viewed it." Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). If the possession of firearms is expressive conduct, the question becomes whether the County's "regulation is related to the suppression of free expression." Johnson, 491 U.S. at 403, 109 S.Ct. 2533. If so, strict scrutiny applies. If not, we must apply the less stringent standard announced in United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

The first step of this inquiry—whether the action is protected expressive conduct—is best suited to an as applied challenge to the Ordinance. However, in this case, Nordyke challenged the law before it went into effect. Accordingly, he mounts a facial challenge, relying on hypotheticals and examples to illustrate his contention that gun possession can be speech.

In evaluating Nordyke's claim, we conclude that a gun itself is not speech. The question in Johnson was whether flag burning was speech, not whether a flag was speech. 491 U.S. at 404-06, 109 S.Ct. 2533. Here too, the correct question is whether gun possession is speech, not whether a gun is speech. Someone has to do something with the symbol before it can be speech. Until the symbol is brought onto County property, the Ordinance is not implicated. See also Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (analyzing whether the wearing of armbands is speech, not whether armbands themselves are speech); O'Brien, 391 U.S. at 376, 88 S.Ct. 1673 (analyzing whether burning of draft cards is speech).

In the context of a facial challenge, Nordyke's contentions are unpersuasive. Gun possession can be speech where there is "an intent to convey a particularized message, and the likelihood [is] great that the message would be understood by those who viewed it." Spence, 418 U.S. at 410-11, 94 S.Ct. 2727. As the district court noted, a gun protestor burning a gun may be engaged in expressive conduct. So might a gun supporter waving a gun at an anti-gun control rally. Flag waving and flag burning are both protected expressive conduct. See Johnson, 491 U.S. at 404-06, 109 S.Ct. 2533. Typically a person possessing a gun has no intent to convey a particular message, nor is any particular message likely to be understood by those who view it. The law itself applies broadly to ban the possession of all guns for whatever reason on County property. The law includes exceptions, primarily for those otherwise allowed to carry guns under state law, but these exceptions do not narrow the law so that it "has the inevitable effect of singling out those engaged in expressive activity." Arcara v. Cloud Books, Inc., 478 U.S. 697, 706-07, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986).

As Nordyke's "facial freedom of speech attack" does not involve a statute "directed narrowly and specifically at expression or conduct commonly associated with expression," his challenge fails. See Roulette v. City of Seattle, 97 F.3d 300, 305 (9th Cir.1996) (quoting City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 760, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)). In Roulette, we turned back a facial First Amendment...

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