Nordyke v. King

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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 No. 07-15763
FOURNIER; VIRGIL MCVICKER,
Plaintiffs-Appellants,  D.C. No.
CV-99-04389-MJJ
v. OPINION
MARY V. KING; GAIL STEELE;
WILMA CHAN; KEITH CARSON;
SCOTT HAGGERTY; COUNTY OF
ALAMEDA; COUNTY OF ALAMEDA
BOARD OF SUPERVISORS,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued En Banc March 19, 2012
Submitted May 24, 2012
San Francisco, California
Filed June 1, 2012
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.
6163
6164 NORDYKE v. KING
Opinion by Judge Graber;
Concurrence by Judge O’Scannlain;
Concurrence by Judge Ikuta
NORDYKE v. KING 6165
COUNSEL
Donald Kilmer, Law Offices of Donald Kilmer, San Jose,
California, and Don B. Kates, Battleground, Washington, for
the plaintiffs-appellants.
T. Peter Pierce and Sayre Weaver, Richards, Watson & Ger-
shon, Los Angeles, California, for the defendants-appellees.
John M. Grenfell, Pillsbury Winthrop Shaw Pittman LLP, San
Francisco, California; Jordan Eth, Morrison & Foerster LLP,
San Francisco, California; Jason Andrew Davis, Davis &
Associates, Mission Viejo, California; C.D. Michel, Michel &
Associates, P.C., Long Beach, California, and S.P. Halbrook,
Fairfax, Virginia; Herbert W. Titus, William J. Olson, P.C.,
Vienna, Virginia; Jeffrey S. Bucholtz, King & Spalding LLP,
Washington, D.C.; and Alan Gura, Gura & Possessky, PLLC,
Alexandria, Virginia, for the amici curiae.
6166 NORDYKE v. KING
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 (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, 130 S. Ct. 3020 (2010).
Plaintiffs Russell and Sallie Nordyke, along with other co-
1
See also Nordyke v. King, 229 F.3d 1266 (9th Cir. 2000) (“Nordyke I”);
Nordyke v. King, 44 P.3d 133 (Cal. 2002) (“Nordyke II”); Nordyke v.
King, 319 F.3d 1185 (9th Cir. 2003) (“Nordyke III”); Nordyke v. King, 563
F.3d 439 (9th Cir. 2009) (“Nordyke IV”), vacated, 611 F.3d 1015, 1015
(9th Cir. 2010) (en banc).
2
We affirm the district court’s ruling on the First Amendment for the
reasons given by the three-judge panel. See Nordyke V, 644 F.3d at
791-94. As to the Nordykes’ equal protection claim, because the ordinance
does not classify shows or events on the basis of a suspect class, and
because we hold that the ordinance does not violate either the First or Sec-
ond Amendments, rational basis scrutiny applies. See Locke v. Davey, 540
U.S. 712, 720 n.3 (2004); Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 54 (1983); Johnson v. Robison, 415 U.S. 361, 375
n.14 (1974). The equal protection claim fails because Alameda County
could reasonably conclude that gun shows are more dangerous than mili-
tary reenactments. This is enough to satisfy rational basis scrutiny. See
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955) (“Evils
in the same field may be of different dimensions and proportions, requir-
ing different remedies. Or so the legislature may think.”).
NORDYKE v. KING 6167
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 Prohib-
ited
....
(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 pic-
ture, television, video, dance or theat-
rical 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 autho-
rized participant, it is secured to pre-
vent 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 con-
duct a gun show on County property, they would offer for sale
6168 NORDYKE v. KING
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 fire-
arm to a fixture, such as a table, would suffice—much as cell
phones, cameras, and other attractive items routinely are dis-
played for sale. The County further represents that buyers
may physically inspect properly secured firearms.
[1] We hold the County to its interpretation of the ordi-
nance, and its reading is a reasonable one. With that interpre-
tation 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 (“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 qualifica-
tions on the commercial sale of arms.”); see also Engquist v.
Or. Dep’t of Agric., 553 U.S. 591, 598 (2008) (observing, in
the context of an equal protection claim against a governmen-
tal 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 govern-
NORDYKE v. KING 6169
ment acting as proprietor, to manage its internal operation”
(internal quotation marks and brackets omitted)); United
States v. Kokinda, 497 U.S. 720, 725 (1990) (recognizing a
distinction, for First Amendment purposes, between govern-
mental 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 quota-
tion marks and brackets omitted)).
[2] 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 suc-
ceed, 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 inspec-
tion by potential buyers.1
1
Having made these concessions, the County is bound to them. Should
the County at any time fail to apply the ordinance as it represented it at
oral argument, Plaintiffs may of course bring suit. Kreisner v. City of San
Diego, 1 F.3d 775, 787 n.8, 789 n.10 (9th Cir. 1993). And, of course, if
we have misinterpreted the County’s representations, either party may file
a petition for rehearing. See Fed. R. App. P. 35.
6170 NORDYKE v. KING
The County’s sweeping concessions—made at oral argu-
ment 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 6168, 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 evalu-
ates 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 regula-
tion’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 regu-
lations 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. Mascian-
daro, 638 F.3d 458 (4th Cir. 2011) (same); United States v.
Chester, 628 F.3d 673 (4th Cir. 2010) (same); United States
2
All that is clear from the majority’s approach is that the majority can-
not be evaluating the ordinance under strict scrutiny. Strict scrutiny
requires the government to show that it has taken the least restrictive
means to serve a compelling government interest. It is an exceptionally
difficult standard to satisfy. See Bernal v. Fainter, 467 U.S. 214, 219 &
n.6 (1984). Here, the parties have not even had an opportunity to build a
factual record regarding the County’s new interpretation of its ordinance,
so it is impossible to say at this stage that the County could establish that
its ordinance would satisfy a least-restrictive-means analysis.
NORDYKE v. KING 6171
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 can-
not 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 Cir. 1988). Rather than applying a constitutional
standard of review to Plaintiffs’ Second Amendment chal-
lenge, see maj. op. at 6168, the majority applies the ever pop-
ular “rule of thumb” standard, concluding that an amendment
of Plaintiffs’ complaint is futile because the majority has the
strong impression that County’s newly interpreted ordinance
is not sufficiently burdensome to violate the Second Amend-
ment. The majority reaches this conclusion notwithstanding
the lack of any basis in the record to ascertain how the
requirement that firearms be tethered to a table, maj. op. at
6168, actually burdens gun shows, or the nature of the fit
between this burden and the government’s alleged purpose to
6172 NORDYKE v. KING
“promote the public health and safety by contributing to the
reduction of gunshot fatalities and injuries in the County.”
Alameda County Mun. Code § 9.12.120(a).
Rather than take this rough-justice approach, we should
decide this case by identifying the correct legal standard and
only then determining whether Plaintiffs could amend their
complaint to state a Second Amendment claim. I agree with
Judge O’Scannlain that the County’s “regulation, as applied
to Plaintiffs’ gun shows and as now interpreted by the
County, survives the relevant standard,” J. O’Scannlain con-
currence at 6172, which is the intermediate scrutiny standard
adopted in Heller v. District of Columbia, 670 F.3d 1244,
1252-53 (D.C. Cir. 2011), United States v. Chester, 628 F.3d
673, 683 (4th Cir. 2010), United States v. Reese, 627 F.3d
792, 800-02 (10th Cir. 2010), and United States v. Marzza-
rella, 614 F.3d 85, 97 (3d Cir. 2010), and the substantial bur-
den standard adopted by the original three-judge panel. See
Nordyke v. King, 644 F.3d 776, 782-88 (9th Cir. 2011).
Therefore, I join Judge O’Scannlain’s concurrence.