Alameda County gun show case may end without definitive legal shot fired

Oakland Tribune ^ | 4/4/12 | Howard Mintz

[SmithL]

A 12-year legal battle over an Alameda County ban on gun shows on public property may end with a soft pop instead of a bang.

With a scathing dissent from the chief judge, the 9th U.S. Circuit Court of Appeals on Wednesday ordered county lawyers and gun show promoters Russell and Sally Nordyke into settlement talks to resolve a case that was expected to break new ground in Second Amendment law.

The brief order, signed by nine judges, would leave unresolved questions about the constitutionality of local laws banning gun shows on government property.

The 9th Circuit order was prompted by issues that arose during arguments in the case last month, when county lawyers suggested the Nordykes could put on gun shows at the county fairgrounds with some basic changes, such as tethering guns to tables to display them, thus restricting the ability of patrons or sellers to carry them around.

Chief Judge Alex Kozinski, joined by 9th Circuit Judge Ronald Gould, clearly believed the court should have resolved the central legal issues.

"The parties have not asked for mediation," Kozinski wrote. "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," he continued. "This delay serves no useful purpose; it only makes us look foolish. I want no part of it."

Don Kilmer, the Nordykes' lawyer, said there will be a "good faith" effort to resolve the case, even if it leaves key gun rights issues for another day.

"Our objective has always been to get gun shows back into Alameda County," Kilmer said.

Sayre Weaver, a lawyer for the county, said the ordinance has exceptions that have always given the Nordykes' leeway to put on a gun show if they make adjustments.

"I think the Nordykes will need to present some ideas on how they'd conduct a gun show in compliance with that exception," she said.

An 11-judge 9th Circuit panel was considering the latest chapter in the Nordykes' attempt to overturn the 1999 ordinance, established in response to concerns about gun violence in the East Bay. The case had broad implications for similar laws in counties across the Bay Area, as well as the potential to define further how far states and local governments can go in enacting gun control laws following several recent U.S. Supreme Court rulings.

A federal judge in San Francisco also was awaiting the 9th Circuit's ruling before deciding a Santa Clara County gun-related case, which involves a lawsuit against Sheriff Laurie Smith over allegations of arbitrariness in her decisions about who gets permits to carry concealed firearms.

In the Nordyke case, a three-judge 9th Circuit panel previously found that while Second Amendment limits on gun controls apply to laws such as Alameda County's, the ordinance was constitutional and a valid way to restrict weapons on government property.

The Supreme Court has already found the Second Amendment right to bear arms applies to local gun control laws, but has left unresolved questions about when such laws may be permissible.

[SmithL]

I guess the 9th Circus is so tired of getting smacked down by SCOTUS, that they're abdicating their responsibility.

[paul51]

cowards

[bunkerhill7]

These guns shows, if I remember corectly, had been there in 1965 when I visited the Alameda County fairgrounds. Anyone correct my memory? Isn`t this ex post facto?

[Still Thinking]

"I think the Nordykes will need to present some ideas on how they'd conduct a gun show in compliance with that exception," she said.

So to the county "mediation" means Nordykes bear all the burden while the county stands pat on their current position. I can see this is going to go well.

[Still Thinking]

These guns shows, if I remember corectly, had been there in 1965 when I visited the Alameda County fairgrounds. Anyone correct my memory? Isn`t this ex post facto?

No, ex post facto isn't a prohibition on changing laws or regs to prohibit something in the future that used to be legal, it means you can't pass a law criminalizing acts already committed.

IOW, you can't pass a law in 2012 banning gun shows, and have it be retroactive so that someone who held a gun show in 2010 is now guilty of having committed a crime.

[William Tell]

Still Thinking said: "... the county stands pat on their current position. "

I don't think so.

There's a case to be made that the county changed their interpretation at the last minute in order to moot the case.

At one time, the county stated that the Nordykes could hold a gun show as long as there were no guns present. It was ridiculously suggested that they could use pictures of guns.

The county may have avoided a losing session at the Ninth Circuit, but the case is not over. I would be confident that the Nordykes will insist, as they should, that you can't have a gun show without selling ammunition.

The Ninth Circuit was so willing to dump the case that they didn't allow this topic to be discussed. After years of representing their ordinance as a gun ban, the county suddenly claims that tethered guns would be allowed.

[mvpel]

But it was never really a gun ban, because re-enactments and the like were allowed. This was purely and has always been a vendetta by Mary King and the Board of Supervisors against Russ & Sally.