Supreme Court of California Justia
Citation 27 Cal.4th 875, 44 P.3d 133, 118 Cal. Rptr. 2d 761, 02 Cal. Daily Op. Serv. 3460, 2002 Daily Journal D.A.R. 4375

Nordyke v. King

Nordyke v. King (2002)27 Cal.4th 875 , -- Cal.Rptr.2d --; -- P.3d --

[No. S091549. Apr. 22, 2002.]

RUSSELL ALLEN NORDYKE et al., Plaintiffs and Respondents, v. MARY V. KING et al., Defendants and Appellants.

[This opinion should follow the companion case of Great Western Shows, Inc. v. County of Los Angeles, released on the same date.]

(Ninth Cir. U.S. Ct. App. No. 99-17551; U.S. Dist. Ct. DC No. 99-4398-MJJ, Unpublished opinion.)

(Opinion by Moreno, J., with George, C. J., Kennard, Baxter, Werdegar, and Chin, JJ., concurring. Dissenting opinion by Brown, J. (see p. 885).)

COUNSEL

Richard Winnie, County Counsel; Richards, Watson & Gershon, Sayre Weaver, Paul Gutierrez Baeza and T. Peter Pierce for Defendants and Appellants.

Louise H. Renne, City Attorney, Joanne Hoeper, Chief Trial Attorney, Owen J. Clements, Chief of Special Litigation, Ellen M. Forman and D. Cameron Baker, Deputy City Attorneys for the City and County of San Francisco as Amicus Curiae on behalf of Defendants and Appellants.

Teresa Highsmith, Assistant City Attorney, for the City of Alameda as Amicus Curiae on behalf of Defendants and Appellants.

Law Office of Robert Zweben and Robert Zweben for the City of Albany as Amicus Curiae on behalf of Defendants and Appellants.

Manuela Albuquerque, City Attorney, and Matthew J. Orebic, Deputy City Attorney, for the City of Berkeley as Amicus Curiae on behalf of Defendants and Appellants.

Michael Biddle, City Attorney, for the City of Emeryville as Amicus Curiae on behalf of Defendants and Appellants.

Charles Dickerson, City Attorney, for the City of Inglewood as Amicus Curiae on behalf of Defendants and Appellants.

Charles Williams, City Attorney, for the City of Lafayette as Amicus Curiae on behalf of Defendants and Appellants.

Tom Curry, City Attorney, for the City of Livermore as Amicus Curiae on behalf of Defendants and Appellants.

Daniel S. Murphy, Principal Deputy City Attorney, for the City of Long Beach as Amicus Curiae on behalf of Defendants and Appellants.

James K. Hahn, City Attorney, and Carmel Sella, Assistant City Attorney, for the City of Los Angeles as Amicus Curiae on behalf of Defendants and Appellants.

Jayne W. Williams and John A. Russo, City Attorneys, Randolph W. Hall, Assistant City Attorney, J. Patrick Tang, Barbara J. Parker, Doryanna M. Moreno and Kandis A. Westmore, Deputy City Attorneys, for the City of Oakland as Amicus Curiae on behalf of Defendants and Appellants.

Lombardi, Loper & Conant and George S. Peyton, Jr., for the City of Piedmont as Amicus Curiae on behalf of Defendants and Appellants.

Michael H. Roush, City Attorney, for the City of Pleasanton as Amicus Curiae on behalf of Defendants and Appellant.

Daniel J. McHugh, City Attorney, for the City of Redlands as Amicus Curiae on behalf of Defendants and Appellants.

Samuel L. Jackson, City Attorney, and William P. Carnazzo, Chief Assistant City Attorney, for the City of Sacramento as Amicus Curiae on behalf of Defendants and Appellants.

Robert Lazone, City Attorney, for the City of San Carlos as Amicus Curiae on behalf of Defendants and Appellants.

George Rios, City Attorney, for the City of San Jose as Amicus Curiae on behalf of Defendants and Appellants.

Roy Abrahms, City Attorney, for the City of San Mateo as Amicus Curiae on behalf of Defendants and Appellants.

Marsha Jones Mourtrie, City Attorney, for the City of Santa Monica as Amicus Curiae on behalf of Defendants and Appellants.

Rene A. Chouteau, City Attorney, for the City of Santa Rosa as Amicus Curiae on behalf of Defendants and Appellants.

Michel Jenkins, City Attorney, for the City of West Hollywood as Amicus Curiae on behalf of Defendants and Appellants.

Lloyd W. Pellman, County Counsel, Larry Hafetz and Judy W. Whitehurst, Deputy County Counsel, for the County of Los Angeles as Amicus Curiae on behalf of Defendants and Appellants.

Patrick Faulkner, County Counsel, and John F. Govi, Assistant County Counsel, for the County of Marin as Amicus Curiae on behalf of Defendants and Appellants.

Thomas F. Casey, County Counsel, and Brenda B. Carlson, Deputy County Counsel, for the County of San Mateo as Amicus Curiae on behalf of Defendants and Appellants.

Ann Miller Ravel, County Counsel, and Debra L. Cauble, Assistant County Counsel, for the County of Santa Clara as Amicus Curiae on behalf of Defendants and Appellants.

Steven M. Woodside, County Counsel, for the County of Sonoma as Amicus Curiae on behalf of Defendants and Appellants.

Barrie Becker and Juliet Leftwich for Legal Community Against Violence as Amicus Curiae on behalf of Defendants and Appellants.

David Durant for Youth Alive! as Amicus Curiae on behalf of Defendants and Appellants.

Law Offices of Jones & Mayer and Martin J. Mayer for California Police Chiefs Association as Amicus Curiae on behalf of Defendants and Appellants.

Munger, Tolles & Olson and Jeffrey L. Bleich for the Los Angeles County Bar Association, Beverly Hills Bar Association and Bar Association of San Francisco as Amici Curiae on behalf of Defendants and Appellants.

Law Offices of Donald Kilmer and Donald E. J. Kilmer, Jr., for Plaintiffs and Respondents.

Trutanich •·Michel, C. D. Michel; Benenson & Kates, Don B. Kates; and Bruce Colodny for California Rifle and Pistol Association as Amicus Curiae on behalf of Plaintiffs and Respondents.

Mark Barnes & Associates, Mark Barnes; Law Offices of Jeff Caufield and Jeff Caufield for National Association of Arms Shows, Madison Society, Second Amendment Foundation, Bruce Colodny and Jess Guy as Amici Curiae on behalf of Plaintiffs and Respondents.

Robert C. Moest for Law Enforcement Alliance of America as Amicus Curiae on behalf of Plaintiffs and Respondents. [27 Cal.4th 877]

OPINION

MORENO, J.-

We granted the request of the United States Court of Appeals for the Ninth Circuit, for certification pursuant to California Rules of Court, rule 29.5 to address the following question: Does state law regulating the possession of firearms and gun shows preempt a municipal ordinance prohibiting gun possession on county property? We conclude that the municipal ordinance in question, insofar as it concerns gun shows, is not preempted. Other aspects of the ordinance may be partially preempted, but we need not address these aspects in this case.


I. STATEMENT OF FACTS

The facts, as set forth by the Ninth Circuit and from our own review of the record, are as follows:

Plaintiffs Russell Nordyke and Sallie Nordyke (doing business as TS Trade Shows) (the Nordykes) 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 and are managed by an independent nonprofit corporation, the Alameda County Fair Association (Fair Association), under an operating agreement with Alameda County. 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. The remaining plaintiffs are exhibitors and patrons of the show.

Alameda County passed in August 1999 and amended in September 1999 an ordinance (Ordinance) making it a misdemeanor to "bring[] onto or [27 Cal.4th 881] possess[] on County property a firearm, loaded or unloaded, or ammunition for a firearm . . . ." (Alameda County, Gen. Ord. Code, ch. 9.12, § 9.12.120, subd. B.) The Ordinance recited as justification the epidemic of gunshot fatalities or injuries in the county ¾ in the first five years of the 1990s, 879 homicides were committed using firearms and 1,647 additional victims were hospitalized with gunshot injuries. The Ordinance also recited a July 4, 1998, shooting incident on the Fairgrounds resulting in several gunshot wounds and other injuries.

The Ordinance was subject to certain limitations and exceptions. County property did not include any " 'local public building' " as defined in Penal Code section 171b, subdivision c. (Alameda County Gen. Ord. Code, ch. 9.12, § 9.12.120, subd. C.) It exempted from the prohibition various classes of persons, including peace officers, various types of security guards, persons holding valid firearm's licenses pursuant to Penal Code section 12050, and authorized participants "in a motion picture, television, video, dance, or theatrical production or event" under certain circumstances. (Alameda County Gen. Ord. Code, ch. 9.12, § 9.12.120, subd. F.) The Ordinance would have, as one of its chief consequences, the effect of forbidding the presence of firearms at gun shows, such as the Nordykes', thereby making such shows impractical.

To prevent the Ordinance's enforcement, the Nordykes brought suit against Alameda County in the United States District Court for the Northern District of California. The Nordykes 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, finding that the Nordykes had failed to demonstrate probable success on the merits.

The Nordykes then filed an interlocutory appeal in the United States Court of Appeals for the Ninth Circuit, which subsequently certified to us the above question. We granted certification for reasons similar to those stated in the companion case also decided today, Great Western Shows, Inc. v. County of Los Angeles (2002) 27 Cal.4th 853 (Great Western).


II. DISCUSSION

[1a] General preemption principles are recapitulated in Great Western, a case addressing whether state law preempts an ordinance banning the sale of guns on county property. We conclude in Great Western that "[a] review of [27 Cal.4th 882] the gun law preemption cases indicates that the Legislature has preempted discrete areas of gun regulation rather than the entire field of gun control." (Great Western, supra, 27 Cal.4th at p. 861.) We further conclude that an ordinance banning the sale of firearms and ammunition on county property, specifically targeted at the gun show held at the Los Angeles County Fairgrounds, is not preempted by state law: it is not expressly preempted by the statutes regulating gun shows, it does not duplicate or contradict such statutes, nor is the manifest legislative intent of these statutes to occupy the field of gun show regulation. [2] With regard to this last point, Great Western applied the traditional three-part test, asking whether " '(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the' locality." (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 898.)

[1b] Applying the above test, we conclude in Great Western (1) that gun show statutes do not clearly indicate that gun show regulation has become exclusively a matter of state concern, but are rather expressly made subject to applicable local laws; (2) that there are significant local interests in gun regulation that the Legislature has not sought to override except in specific areas; and (3) that the ordinance in question did not have substantial impact on transient citizens. (Great Western, supra, 27 Cal.4th at pp. 867-869.)

We further concluded that under Government Code section 23004, subdivision (d), a county is given substantial authority to manage its property, including the most fundamental decision as to how the property will be used, and that nothing in the gun show statutes evince an intent to override that authority. The gun show statutes do not "mandate that counties use their property for such shows. If the County does allow such shows, it may impose more stringent restrictions on the sale of firearms than state law prescribes." (Great Western, supra, 27 Cal.4th at p. 870.)

[3] In the present case, the effect on the Nordykes of the Ordinance banning guns on county property is to make gun shows on such property virtually impossible. But as we held in Great Western, such a total ban is within the scope of a county's authority. Nor do the Nordykes contend that the county violated its operating agreement with the Fair Association by enacting the Ordinance. [27 Cal.4th 883]

The Nordykes claim that a number of state statutes that govern the possession of firearms are duplicated or contradicted by the Ordinance. Penal Code section 12025 prohibits possession of concealable firearms, subject to various exceptions. Penal Code section 12031 prohibits the carrying of loaded firearms, again subject to certain exceptions. These statutes criminalize the possession of a concealed and loaded firearm respectively, subject to licensing requirements found in Penal Code sections 12050 and 12051. Thus the state statutes, read together, make it a crime to possess concealed or loaded firearms without the proper license. The Ordinance makes it a misdemeanor to "bring[] onto or possess[] on County property a firearm, loaded or unloaded, or ammunition for a firearm . . . ." (Alameda County Gen. Ord. Code, ch. 9.12, § 9.12.120, subd. B.) The Ordinance does not duplicate the statutory scheme. Rather, it criminalizes possession of a firearm on county property, whether concealed, loaded or not, and whether the individual is licensed or not. Thus, the Ordinance does not criminalize " 'precisely the same acts which are . . . prohibited' " by statute (Pipoly v. Benson (1942) 20 Cal.2d 366, 370) and is therefore not duplicative. (Cf. Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 292 [discrete portions of ordinance criminalizing exactly the same conduct as statute duplicative of and preempted by state law].) Put another way, possessing a gun on county property is not identical to the crime of possessing an unlicensed firearm that is concealable or loaded, nor is it a lesser included offense, and therefore someone may lawfully be convicted of both offenses. (See People v. Ortega (1998) 19 Cal.4th 686, 692.) fn. 1

The Nordykes also claim Penal Code section 171b has a preemptive effect. That statute prohibits the possession of firearms in "any state or local public building or at any meeting required to be open to the public," punishable by a year in county jail or state prison. (Id., subd. (a).) Section 171b, subdivision (b)(7), excepts from the prohibition on gun possession in public buildings "[a] person who, for the purpose of sale or trade, brings any weapon that may otherwise be lawfully transferred, into a gun show conducted pursuant to Sections 12071.1 and 12071.4." or "[a] person who, for purposes of an authorized public exhibition, brings any weapon that may otherwise be lawfully possessed, into a gun show conducted pursuant to Sections 12071.1 and 12071.4." The Nordykes argue that section 171b, [27 Cal.4th 884] subdivision (b)(7) prohibits the county from outlawing possession of guns at gun shows. We disagree. The provision merely exempts gun shows from the state criminal prohibition on possessing guns in public buildings, thereby permitting local government entities to authorize such shows. It does not mandate that local government entities permit such a use, and the Nordykes cite no legislative history indicating otherwise. fn. 2

The Nordykes point out that the Ordinance is more restrictive than state statutes inasmuch as the latter provide more exceptions to the general prohibition on possession of firearms. For example, under Penal Code section 831.4, a security officer appointed by a sheriff or police chief for the protection of government property may be authorized to carry a firearm. There is no exception in the Ordinance for such security officers. There is also no exception for animal control officers, who may be authorized by their employing agency to use firearms (id., § 830.9), or for officers authorized to transport prisoners, who may carry firearms under certain circumstances (id., § 831.6), or for retired federal law enforcement officers (id., § 12027, subd. (i)).

We first note that the fact that certain classes of persons are exempt from state criminal prosecution for gun possession does not necessarily mean that they are exempt from local prosecution for possessing the gun on restricted county property. But even if we accept the Nordykes' argument that in at least some cases the Legislature meant to preempt local governments from criminalizing the possession of firearms by certain classes of people, that would establish at most that the Ordinance is partially preempted with respect to those classes. Partial preemption does not invalidate the Ordinance as a whole. (See Peatros v. Bank of America (2000) 22 Cal.4th 147, 173 (lead opn. of Mosk, J.) [National Banking Act preempts the state Fair Employment and Housing Act to the extent that the two conflict, but does not to the extent that they do not].) Specifically, such partial preemption would not affect our answer to the question at issue in this litigation: whether a county can prohibit possession of guns at gun shows held on its property. Because we generally accept certified questions only when "answering the question will facilitate the certifying court's functioning or help terminate existing litigation" (Cal. Rules of Court, rule 29.5(f)(2)), and have the discretion to restate the question (id., rule 29.5(g)), we also retain the discretion to decline to address aspects of the certified question that are immaterial to such litigation. Accordingly, we decline to address whether the Ordinance is partially preempted by the above statutes. [27 Cal.4th 885]

In sum, 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.

George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.

BROWN, J., Dissenting:

Alameda County might be able to prohibit gun shows on county property, assuming the property is located within the geographic boundaries of the county and subject to the county's regulatory jurisdiction. (Cf. Great Western Shows, Inc. v. County of Los Angeles (2002) 27 Cal.4th 853, 860-870.) But the county did not enact a prohibition against gun shows. Instead, the county prohibited, with limited exceptions, the possession of firearms on county property. (Alameda County Gen. Ord. Code, ch. 9.12, § 9.12.120; see maj. opn., ante, at pp. 880-881.) That prohibition conflicts with several state statutes that expressly authorize certain persons to carry firearms without restriction as to place. (See, e.g., Pen. Code, §§ 831.4, subd. (b), 830.9, 831.6, subd. (b), 12027, subd. (i) [provisions authorizing non-peace officers to carry firearms in certain circumstances]; see also id., §§ 12031, 12050, 12051 [provisions authorizing licensed persons to possess loaded and/or concealable firearms].) Nothing in state law suggests that these authorizations to carry or possess firearms under certain circumstances are subject to local restrictions, and if they were, then a person authorized to carry firearms who happened to be traveling across the state would have to consult legal counsel each time he or she crossed a county line or entered a city, a rule that seems neither practical nor intended by the Legislature. (See Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 898.)

The majority concedes that state law might partially preempt the county ordinance at issue here, but it concludes that the ordinance is enforceable against plaintiffs, because plaintiffs seek only to promote a gun show. The majority, in effect, reasons that, because the county could prohibit gun shows on county property, the county is free to enforce the totally different prohibition at issue here--so long as it does so against a gun show promoter.

The flaw in this logic becomes apparent when we consider a hypothetical involving the constitutional protection of free speech. Suppose the county enacted an ordinance prohibiting any and all speech favoring residential rent control--in other words, a content-based restriction of political speech that would clearly violate First Amendment principles. A billboard company seeks to display billboard advertisements promoting rent control and challenges the ordinance on First Amendment grounds. In those circumstances, I [27 Cal.4th 886] doubt the majority would hold that, because the county is free to regulate billboard advertising (see City Council v. Taxpayers for Vincent (1984) 466 U.S. 789, 806-807; Metromedia, Inc. v. San Diego (1981) 453 U.S. 490, 507-512; City and County of San Francisco v. Eller Outdoor Advertising (1987) 192 Cal.App.3d 643, 658-661), it can enforce its unconstitutional restriction of speech against the billboard company. Rather, the majority would likely hold that the ordinance exceeds the county's regulatory authority under the state and federal Constitutions. Put another way, the question before us is not whether the county might be able to enact some hypothetical ordinance prohibiting what plaintiffs want to do. The question is whether the ordinance the county actually enacted exceeds the county's authority, which it does.

Significantly, this case is not one in which we are asked to enforce an independent provision in an ordinance after severing a preempted provision. (See, e.g., Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 292.) Rather, the provision that the majority enforces--the prohibition against possessing firearms on county property--is the same provision that conflicts with state law. Nor is this a case where the ordinance is ambiguous and might be construed narrowly so as to avoid preemption problems. (See, e.g., In re Cox (1970) 3 Cal.3d 205, 220, fn. 18.) No one could reasonably construe a general prohibition against firearm possession to refer only to gun shows, and no one reading the ordinance without the benefit of a law degree and a careful study of our decisions would guess that the ordinance merely refers to gun shows.

In short, we consider here a local restriction on firearm possession that directly conflicts with state law. The majority seeks to avoid the obvious preemption problem by the expedient of rewriting the ordinance to prohibit gun shows instead of gun possession. Alameda County might have enacted an ordinance prohibiting gun shows, but it did not, and the ordinance it did enact exceeds its regulatory authority.

The majority attempts to make the issue quite small, involving a restriction applicable only to county property (maj. opn., ante, at p. 884); the litigants, on the other hand, insist the stakes are large. It does not matter whether the issue is large or small, though, if the government exceeds its authority. As Judge Kozinski has noted, the small and superficially benign acts of a democratic government can erode personal freedom just as surely, and to the same end, as the large and malignant acts of a tyrant or dictator: "Liberty--the freedom from unwanted intrusion by government--is as [27 Cal.4th 887] easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress . . . ." (U.S. v. $124,570 U.S. Currency (1989) 873 F.2d 1240, 1246.) Because the ordinance conflicts with state law and because I believe the structural constraints on government authority are equally as important as the substantive ones, I dissent.

­FN 1. The dissent contends that Penal Code sections 12031, 12050, and 1251 conflict with the Ordinance, apparently based on the presumption that these and other state statutes preempt the field of gun possession to such an extent that they impliedly prohibit counties from regulating gun possession on their own property. As explained more fully in Great Western, however, the Legislature has not indicated an intent to so broadly preempt the field of gun regulation. (See also Pen. Code, § 12050, subd. (b) [gun licensing subject to reasonable local time, place, and manner restrictions].)

­FN 2. As noted, the Ordinance specifically exempts from its purview all " 'local public buildings,' " as defined in Penal Code section 171b, subdivision (c). (Alameda County Gen. Ord. Code, ch. 9.12, § 9.12.120, subd. C.) The meaning of this exemption, which is debated by the parties, is not included in the certified question and we express no opinion on this matter.

Request by the United States Court of Appeals for the Ninth Circuit for the answer to a ceritified question of state law pursuant to rule 29.5 of the California Rules of Court. The certified question is "Does state law regulating the possession of firearms and gun shows preempt a municipal ordinance prohibiting gun possession on county property?"

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 04/22/200227 Cal.4th 875, 44 P.3d 133, 118 Cal. Rptr. 2d 761, 02 Cal. Daily Op. Serv. 3460, 2002 Daily Journal D.A.R. 4375S091549Question of Law - Civilcomplete

Parties
1Nordyke, Russell Allen (Plaintiff and Appellant)
Represented by Donald E. J. Kilmer
Law Offices
1261 Lincoln Avenue, Suite 108
San Jose, CA

2King, Mary V. (Defendant and Appellant)
Represented by Sayre Weaver
Richards Watson & Gershon
1 Civic Center Cir., P.O. Box 1059
Brea, CA

3King, Mary V. (Defendant and Appellant)
Represented by Richard E. Winnie
1221 Oak Street, Suite 463
1221 Oak Street, Suite 463
Oakland, CA

4California Rifle & Pistol Association (Amicus curiae)
Represented by Bruce Edward Colodny
Attorney at Law
P.O. Box 10787
San Bernardino, CA

5California Rifle & Pistol Association (Amicus curiae)
Represented by Don B. Jr. Kates
Benenson & Kates
22608 Northeast 269th Avenue
Battleground, WA

6California Rifle & Pistol Association (Amicus curiae)
Represented by C. D. Michel
Trutanich And Michel
407 North Harbor Boulevard
San Pedro, CA

7National Association Of Arms Shows (Amicus curiae)
Represented by Jeffery L. Caufield
3727 29th St.
3727 29th St.
San Diego, CA

8Los Angeles County Bar Association (Amicus curiae)
Represented by Jeffrey L. Bleich
Munger, Tolles & Olson
33 New Montgomery St., 19th Fl.
San Francisco, CA

9Bar Association Of San Francisco (Amicus curiae)
10City & County Of San Francisco (Amicus curiae)
Represented by D. Cameron Baker
Deputy City Attorney
1 Drive Carlton B. Goodlett Pl., Rm. 234
San Francisco, CA

11Law Enforcement Alliance Of America (Amicus curiae)
Represented by Robert C. Moest
2530 Wilshire Blvd., 2nd Fl.
2530 Wilshire Blvd., 2nd Fl.
Santa Monica, CA


Opinion Authors
OpinionJustice Carlos R. Moreno

Disposition
Apr 22 2002Opinion filed

Dockets
Sep 15 2000Request to answer question of state law filed
United States Court of Appeals for the Ninth Circuit (No. 99-17551)
Nov 15 2000Request for certification accepted
For purposes of briefing & oral argument, Nordyke, et al., are deemed the petnrs to this court. Votes:GCJ,Mos,Ken,Bax,Wer,Chi,Brn JJ.
Dec 8 2000Application for Extension of Time filed
by counsel for aplts, for filing of the opening brief. to 1-31-01 ***perm gtd, order being prepared.
Dec 12 2000Extension of Time application Granted
to 1-31-01 for for aplt to file the opening brief on the merits
Feb 1 2001Opening brief on the merits filed
Appellants, Nordyke, et al. (40N)
Feb 27 2001Application for Extension of Time filed
answer brief/merits to 3-15-01Appellants Mary V. King, etal ***perm gtd, order being prep.
Mar 2 2001Extension of Time application Granted
to 3-15-01 for aplts to file the ans. brief on the merits.
Mar 15 2001Answer brief on the merits filed
Appellants Mary V. King, etal
Mar 15 2001Request for Judicial Notice filed
Appellants Mary V. King, etal
Mar 15 2001Motion filed (in non-AA proceeding)
Motion to strike improper matter in opening brief, by appellants Mary V. King, et al.
Mar 15 2001Motion filed (in non-AA proceeding)
Motion to strike portions of opening brief, by appellants Mary V. King, et al.
Mar 16 2001Request for Judicial Notice filed
Respondents Mary V. King, etal
Apr 9 2001Reply brief filed (case fully briefed)
by aplts Nordyke et al. perm.
Apr 17 2001Filed document entitled:
Aplts' oppos to resp's motion to strike improper matter/opening brief.
May 2 2001Application for Extension of Time filed
Proposed amici National Assn of Arms Shows, etal [for Appellants]
May 2 2001Application for Extension of Time filed
Proposed amici California Rifle & Pistol Assn, etal [for Appellants]
May 7 2001Application for Extension of Time filed
By The Los Angeles County Bar Assn. and The Bar Assn. of San Francisco to file application and amicus curiae brief in support of Resp. King. Asking for 14 days. Granted - order bieng prepared
May 8 2001Extension of Time application Granted
To May 23, 2001 to file the application and amicus curiae brief of California Rifle Association et al. in support of appellant Russell A. Nordyke. An answer thereto may be served and filed by any party on or before June 12, 2001.
May 8 2001Extension of Time application Granted
To May 23, 2001 to file the application and amicus curiae brief of National Association of Arms Shows et al., in support of appellant Russell A. Nordyke. An answer thereto may be served and filed by any party on or before June 12, 2001.
May 8 2001Extension of Time application Granted
To May 23, 2001 to file application and amicus curiae brief of Los Angeles County Bar Assn. and the Bar Assn. of San Francisco in support of Appellant Mary V. King. An answer thereto may be served and filed by any party on or before June 12, 2001.
May 9 2001Received application to file Amicus Curiae Brief
of the City and County of San Francisco et al. in support of Appellant Mary V. King.
May 14 2001Permission to file amicus curiae brief granted
The City and County of San Francisco et al., in support of appellant Mary V. King. Answer is due within twenty days.
May 14 2001Amicus Curiae Brief filed by:
The city and County of San Francisco et al., in support of appellant Mary V. King. Answer is due within twenty days.
May 23 2001Received application to file Amicus Curiae Brief
National Assn of Arms Shows, etal [in support of applnts]
May 24 2001Received application to file Amicus Curiae Brief
Califoria Rifle & Pistol Association [in support of applnts][Rule 40N]
May 24 2001Received application to file Amicus Curiae Brief
Law Enforcement Allance of America [in support of applnts] [Rule 40N]
May 31 2001Received:
reqt for judicial noticeac Calif Rifle and Pistol Assn
Jun 11 2001Permission to file amicus curiae brief granted
by the Calif. Rifle and Pistol Association in support of aplt Nordyke. Ans. due by 6-12-01. (see ord of 5-8)
Jun 11 2001Amicus Curiae Brief filed by:
the Calif. Rifle & Pistol Assn. in suppt of aplt Nordyke
Jun 11 2001Permission to file amicus curiae brief granted
by the Association of Arms Shows in support of aplt Nordyke. Ans due 6-12-01. (see ord of 5-8)
Jun 11 2001Amicus Curiae Brief filed by:
the Assoc. of Arms Shows in suppt of aplt Nordyke.
Jun 11 2001Permission to file amicus curiae brief granted
by the law Enforcement Alliance of America in support of aplt Nordyke. Ans due 6-12-01. (see ord of 5-8)
Jun 11 2001Amicus Curiae Brief filed by:
the Law Enforcement Alliance of America in suppt. of aplt Nordyke.
Jun 11 2001Permission to file amicus curiae brief granted
by the L.A. County Bar Assn. et al in support of aplt King. Ans. due 6-12-01. (see ord of 5-8)
Jun 11 2001Amicus Curiae Brief filed by:
the L.A. County Bar Assn. in suppt of aplt King. with separate appendix.
Jun 12 2001Response to Amicus Curiae Brief filed by:
Respondents Mary V. King, etal to ac briefs of Law Enforcement Alliance, Nat'l Assn of Arms Shows, Madison Society, Second Amendment Fdn., Colodney, Guy, and Calif. Rifle Assn.
Oct 1 2001Request for Judicial Notice filed
by aplts Nordyke et al
Oct 11 2001Request for judicial notice denied
Jan 4 2002Case ordered on calendar
2-5-02, 2pm, Sac.
Jan 10 2002Application filed to:
reqt continuance of oral argument>>respondents Mary V. King
Jan 15 2002Received document entitled:
Resp Great Western Shows, Inc's Response To Request Of Alameda County Resps To Continue Hearing. faxed to SF attn: Ken - - shipped o/n
Jan 28 2002Request for judicial notice denied
The request for judicial notice filed by the Courty of Alameda on March 16, 2001, is denied.
Feb 5 2002Cause argued and submitted
Apr 22 2002Opinion filed
Whether or not ordinance is partially preempted, Alameda Co. has authority to prohibit operation of gun shows held on its property & at least to that extent may ban possession of guns on its property. Majority Opinion by Moreno, J. -- joined by George C.J., Kennard, Baxter, Werdegar & Chin, JJ. Dissent by Brown, J.
May 7 2002Rehearing petition filed
by pltf/aplt Nordyke
May 7 2002Time extended to consider modification or rehearing
to 7-22-02
May 15 2002Answer to rehearing petition filed
appellant Mary V. King
Jun 26 2002Rehearing denied
Brown, J., is of the opinion the petition should be granted.
Jun 26 2002Case Final

Briefs
Feb 1 2001Opening brief on the merits filed
Appellants, Nordyke, et al. (40N)
Mar 15 2001Answer brief on the merits filed
Appellants Mary V. King, etal
Apr 9 2001Reply brief filed (case fully briefed)
by aplts Nordyke et al. perm.
May 14 2001Amicus Curiae Brief filed by:
The city and County of San Francisco et al., in support of appellant Mary V. King. Answer is due within twenty days.
Jun 11 2001Amicus Curiae Brief filed by:
the Calif. Rifle & Pistol Assn. in suppt of aplt Nordyke
Jun 11 2001Amicus Curiae Brief filed by:
the Assoc. of Arms Shows in suppt of aplt Nordyke.
Jun 11 2001Amicus Curiae Brief filed by:
the Law Enforcement Alliance of America in suppt. of aplt Nordyke.
Jun 11 2001Amicus Curiae Brief filed by:
the L.A. County Bar Assn. in suppt of aplt King. with separate appendix.
Jun 12 2001Response to Amicus Curiae Brief filed by:
Respondents Mary V. King, etal to ac briefs of Law Enforcement Alliance, Nat'l Assn of Arms Shows, Madison Society, Second Amendment Fdn., Colodney, Guy, and Calif. Rifle Assn.
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Dec 18, 2013
Annotated by Amelia Green

FACTS:

The Plaintiffs are gun show promoters Russell Allen Nordyke and Sallie Nordyke (the “Nordykes”) as well as gun show exhibitors and patrons. Since 1991, the Nordykes promoted gun shows that took place on the county fairgrounds in Alameda County, California. The gun shows included, among other exhibits, the exhibition and sale of antique and modern firearms and ammunition.

In 1999, in response to an increase in gunshot fatalities and injuries, including a 1998 shooting incident at the county fairgrounds, Alameda County passed an Ordinance (Alameda County Gen. Ord. Code. § 9.12.120) making it a misdemeanor to “bring[ ] onto or posess[ ] on county property a firearm, loaded or unloaded, or ammunition for a firearm.”

Since the Alameda County fairgrounds are located on unincorporated county land, the ordinance had the effect prohibiting the presence of firearms at the gun shows, making the gun shows that the Nordykes promoted virtually impossible. The Nordykes sought to challenge the ordinance on preemption and First Amendment grounds. With regard to preemption, the Nordykes alleged that the ordinance should be struck down as it was was duplicative and contradictory to California state gun control laws.

PROCEDURAL HISTORY:

The Nordykes brought suit against Alameda County in US District Court for the Northern District of California seeking injunctive relief to prevent enforcement of the Alameda County gun control ordinance. The plaintiffs alleged that the ordinance was preempted by California state gun laws and violated their First Amendment right to free speech. The district court denied the plaintiffs’ motion for injunction, finding that they had failed to demonstrate probable success on the merits.

The plaintiffs then challenged the district court’s decision by interlocutory appeal to the US Court of Appeals for the Ninth Circuit. In turn, the Ninth Circuit, pursuant to a request for certification, sought the opinion of the California Supreme Court as to the whether the Alameda County gun control ordinance was preempted by California state law.

The California Supreme Court granted the request of certification.

ISSUE:

Does California state law regulating the possession of firearms and gun shows preempt an Alameda County municipal ordinance which prohibits gun possession on county property?

HOLDING:

No, insofar as the ordinance’s prohibition of gun possession on county property prohibits the operation of gun shows, the ordinance is not preempted by California state law.

ANALYSIS:

The California Supreme Court held that the Alameda County ordinance prohibiting the possession of guns on county property was not preempted by California state law. The court found that the Alameda County ordinance is not expressly preempted by California state statutes regulating gun shows, the ordinance does not duplicate or contradict such state statutes, and it is not the legislative intent of California state statutes to occupy the field of gun show regulation.
The court’s opinion first addressed the question of legislative intent. Applying a three-part test announced in previous cases, the court found: (1) California gun show statutes do not indicate that gun show regulation has become exclusively a matter of state concern, but are rather expressly made subject to applicable local laws; (2) there are significant local interests in gun regulation that the California legislature has not sought to override except in specific areas; and (3) the ordinance in question did not have substantial impact on transient citizens. The court also emphasized that California state law grants counties substantial authority to manage county property and its use, and there is no evidence that state laws governing gun shows are intended to override such authority. The court reasoned that if Alameda County wished to impose more stringent restrictions on the possession of guns and effectively ban gun shows on county property, it was in the county’s authority to do so.
Next, the court rejected the Nordykes’ claim that the ordinance contradicted or duplicated state statutes, California Penal Code Sections 12025 and 12031 , which already made it a crime to possess concealed or loaded firearms without a license. The court found that the Alameda County ordinance, which criminalizes the possession of a firearm on county property, whether or not concealed, loaded or licensed, was not duplicative or contradictory to the state statues. The ordinance was neither identical to the statutes, nor a lesser and included offense, and a person could be lawfully convicted of violating both of the county ordinance and the state statutes.
The court also found that the ordinance was not preempted by California Penal Code Section 171b, which prohibits the possession of firearms in any state or local building but exempts gun shows from the prohibition. The court found that an exemption for gun shows under the state statute was not a mandate for local entities to the permit possession of guns on local property for such use.
Finally, the court addressed the Nordykes’ argument that the ordinance was preempted by state gun control statutes because the ordinance lacked certain other exceptions that were recognized under state law. For example, unlike California state gun control laws, the ordinance did not allow an exception so that security officers, animal control officers, retired federal law enforcement officers, and officers transporting prisoners could possesses guns on county property. Nevertheless, the court declined to answer the question of whether state law preempted the ordinance with regard to these exceptions. The court reasoned that even if they accepted the Nordykes’ argument on this point, the ordinance would only be partially preempted, not preempted as a whole. Any such partial preemption would have no affect on the Court’s decision that Alameda County has the authority to prohibit the operation of gun shows on its property, and to that extent, may ban the possession of guns on its property.

SUBSEQUENT HISTORY & CONTEXT:

After the California Supreme Court answered the Ninth Circuit’s certified question by holding that the Alameda County ordinance was not preempted by California state law, the United States Court of Appeals for the Ninth Circuit considered the Nordykes’ remaining claims. The Nordykes made a facial challenge to the ordinance on the First Amendment grounds that it infringed their right to free speech because it interfered with expressive conduct and commercial speech. They also brought a Second Amendment challenge that the ordinance infringed their right to bear arms.

In 2003, the Ninth Circuit ruled that the ordinance did not violate the First Amendment or the Second Amendment. On the Nordykes’ First Amendment facial challenge, the court rejected the argument that the ordinance unduly burdened the expressive conduct of gun possession. Further, the court held that the Nordykes’ Second Amendment claim failed because the right to bear arms was solely a “collective right” and not an “individual right.”

However, in 2008, in District of Columbia v. Heller , the Supreme Court held that the Second Amendment does protect individual rights – the individual right to keep and bear arms for self-defense. In 2010, in McDonald v. Chicago, the Supreme Court ruled on another Second Amendment case, finding that the Second Amendment’s protections are incorporated against states by the Due Process Clause of the Fourteenth Amendment, such that the Second Amendment not only restricts federal action but also any state or local government action that unduly infringes upon an individuals right to bear arms.

In light of the two recent Supreme Court decisions, in May 2011, the Ninth Circuit considered an as-applied challenge to the Alameda County ordinance brought by the Nordykes. The Nordkyes argued that the ordinance violated the Second Amendment because it effectively prohibited gun shows on Alameda County fair grounds. Nevertheless, the Ninth Circuit upheld the constitutionality of the ordinance finding that a ban on gun shows at the Alameda County fairgrounds did not substantially burden the Second Amendment right to keep and bear arms. The court reasoned that, on the facts before it, the ordinance’s ban on gun shows still left law abiding citizens with reasonable alternative means for obtaining firearms sufficient for self-defense purposes. In the same opinion, the court also rejected an as-applied First Amendment challenge brought by the Nordykes against the ordinance. Nevertheless, just a few months later in November 2011, the Ninth Circuit ordered that the Nordykes’ case be reheard en banc and that the May 2011 decision should not be cited as precedent.

The Ninth Circuit issued its final opinion in June 2012 after rehearing the case. Since the 2011 ruling, Alameda County had begun to interpret the ordinance so as to allow gun shows on county fairgrounds pursuant to an events exception in the ordinance. The exception allowed for the possession of guns on county property by “an authorized participant in a . . . theatrical production or event . . . provided that when such firearm is not in the actual possession of the authorized participant it is secured to prevent unauthorized use. ” The Nordykes brought a Second Amendment claim challenging the requirement that any firearms at gun shows on the fairgrounds must be secured when not in use. Nevertheless, the Ninth Circuit did not rule in the Nordykes’ favor. The court found that the requirement to secure firearms when not in use during the gun shows only regulated the sale of firearms minimally and thus was constitutionally permissible.

TAGS: arms, firearms, First Amendment, gun shows, guns, preemption, Second Amendment, state preemption, weapons, right to bear arms

RELEVANT LEGAL DEFINITIONS:

Preemption: preemption refers to displacement of U.S. state law by U.S. Federal law. The term is also used in the United States to refer to the displacing effect state laws might have on ordinances enacted by municipalities.

Facial challenge: In U.S. constitutional law, a facial challenge is a challenge to a statute in which the plaintiff alleges that a law is always unconstitutional, and therefore void.

As-applied challenge: an as-applied challenge is a challenge to a statute in which a plaintiff alleges that the law or its part is unconstitutional as applied to the individual plaintiff or a particular set of circumstances.