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Posted on 12/03/2001 3:15:08 PM PST by THEUPMAN

By John A. Read / Times Staff Writer

LOMPOC - In a case closely watched by the National Rifle Association, a federal judge will be asked a second time to award a Lompoc couple damages against the city of Lompoc and its police department for an alleged violation of civil rights in the search and seizure of firearms stored in their home.

Buellton attorney John Kenneth Dorwin filed suit Sept. 17 on behalf of Albert and Mary Jo Nordyke, who returned home Sept. 18, 2000, to find Lompoc police on their front lawn, requesting them to turn over legal firearms they and other family members had stored in a locked case.

A federal judge Monday granted the city's request to dismiss the complaint, but gave Dorwin 10 days to return with an amended complaint containing enough facts to back up the civil rights allegations in the lawsuit. Dorwin confirmed Wednesday he was planning to meet the refiling deadline.

Asked the chances of winning the case, Dorwin responded, "This is the best Second Amendment fact pattern I have seen in 100 cases as to the standing to assert an individual's right to keep and bear arms." "The city is the one who went out and made the decision to seize these weapons without first going to a judge and saying what their probable cause was," Dorwin said. He said the city could have proceeded more properly by interviewing the Nordykes and taken the information to a judge for a determination as to probable cause.

According to all attorneys involved, the case began when a social worker for the Veterans Administration in Santa Barbara's Community Based Outpatient Clinic requested police assistance after finding out in a confidential medical interview that Albert Nordyke planned to go elk hunting and had firearms at home.

Mary Jo Nordyke said the social worker had a previous bad experience with a distressed client who had committed suicide with a weapon at home, and contacted police, setting off a chain of events for which the Nordykes want answers.

"They basically pushed their way into our house and removed our guns," she told the newspaper. Police confiscated 13 weapons they and other family members owned, including Ruger rifles, 12-gauge shotguns and a collector's item .38 Smith and Wesson revolver Mary Jo Nordyke purchased in 1993 from a San Luis Obispo gun dealer.

All but one of the weapons was returned, but not before the pistol was "accidentally dropped into a bin of firearms designated for destruction, " according to a letter sent to the Nordykes from Lompoc Police Chief William F. Brown Jr.

Brown also said in the letter, dated July 17, 2001, that a "comprehensive administrative investigation of this matter has been completed. It is my belief that no illegal search or seizure took place."

But Brown added the revolver had been "inadvertently destroyed. I have classified this portion of your complaint as sustained, and appropriate administrative action has been taken against the employee who was responsible," Brown wrote in the letter, a copy of which was obtained from Dorwin.

Both Brown and City Administrator Frank Priore declined comment, saying the case was now in court.

"There's nothing I can give you at this point," said Brown.

The initial lawsuit was filed Sept. 18 this year against four unidentified police officers, the city and community service Officer Edward V. York, who is responsible for evidence control. The suit requested a jury trial for "tangible property damage," correction of criminal justice databases to clear the Nordykes' name and restoration of Mary Jo Nordyke's right to own the .38 revolver. It also sought to deny federal funding to the city until the case was settled.

"We want to be compensated," Nordyke told the Times. "We would like an honest apology from the police department (that) what they did was wrong. And I would like to know what happened to my pistol."

The city referred the case to Carrington and Nye, a Santa Barbara legal firm. Carrington and Nye attorney Karen Peabody said Wednesday her motion to dismiss was granted.

She said if Dorwin files an amended complaint in the 10 days allotted by U.S. District Court Judge Manuel L. Real, "it may again be subject to a motion" for dismissal.

If the judge again dismisses the complaint "without leave to amend, that would be final," she said. The Nordykes would then have to appeal to the Ninth Circuit Court of Appeal in hopes of continuing the case, Peabody said.

Staff writer John A. Read --can be reached at (805) 736-2313, Ext. 126, or by e-mail at jread@pulitzer.net.

By John A. Read / Times Staff Writer

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