Professional Documents
Culture Documents
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Attornev for Plaintiffs
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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27 anddenying in part Defendants'Motion to Dismiss. The pf"uffit@tðthe dismissedcauses
DonaldKil¡ner
of actionandaddsnew languagein an attemptto perfectthe Fiíst Amendmentclaim. The new
Attomey at [åw 2 8 First Amendmentlanguagewill be designatedassuchin thebody this pleading.
126I LincolnAve.
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Nord)¡ke v. Kine 40
f;age,1.of 3'o Amended Complaint
I INTRODUCTION
5 law, with respectto the statelaw preemption issues,to the California SupremeCourt
6 under rule 29.5 of the California Rules of Court. See: Nordyke v. King ("Nordyke I"),
8 3. On April 22,2002, the California SupremeCourt issued its answerto the certified
i ) 1 0 gun shows, is not preempted. Other aspectsof the ordinancemay be partially preempted,
11 but we need not addresstheseaspectsin this case." See:Nordyke v. King ("Nordyke II"),
T2 27 Cal.4th875,44P.3d133,138,118Cal.Rptr.2d 761(CaL.2002).
t3 4. On July 26,2002, the Ninth Circuit Panel invited the parties to file simultaneous
,.,, r 18 5. On February 18, 2003 the Ninth Circuit issued its ruling published at Nordyke v. King
l9 ("Nordyke III"), 319 F.3d I 185 (9th Cir. 2003) upholding the District Court's order
22 April 5, 2004. SeeNordyke v. King ("Nordyke [V") ,364 F .3d 1025(gth Cir. 2004).
26 action is pending back before the trial court five (5) years later, Plaintiffs find it
2 10. This Court's Order Denying In Part and Granting In Part Defendants'Motion to Dismiss
a
J the SecondAmended Complaint was filed on June 10, 2005.
4 11. This action is brought pursuantto 42 U.S.C. $$ 1983and 1988. Plaintiffs are seeking
5 damages,injunctive relief and declaratoryrelief to protect their rights under the First and
t2 pursuant
to 28 U.S.C.$ 1331.
l4 pursuant
to 28 U.S.C.$$2201and2202.
t7 16. Venuefor this actionis properlyin this Districtpursuantto 28 U.S.C.$ 1391.The action
| , 18 aroseandthe Defendants
residein theNorthernDistrict of California.
t9
20 PLAINTIFFS
2l 17. Plaintiffs RUSSELL ALLEN NORDYKE and SALLIE ANN NORDYKE, doing
22 businessas TS TRADE SHOWS, are in the businessof promoting trade shows [a.k.a. -
23 gun shows] throughout the Stateof California. This involves the exhibition, display and
24 offering for sale of firearms. The TS TRADE SHO\ i also hosts vendors for the
25 exhibition, display and offering for sale of: coins, knives, ammunition, camping
26 equipment, gun safes,jewelry, antiques,militaria, art work, food stuffs, toys, t-shirts,
6 associated
with TS TRADE SHOWS.Thesethird partieswould find it difficult to assert
7 theirown riehts.lSee:NAACPv. Alabøma,357U.S.449 (1958)l
l0 andpatronsassociated
with TS TRADE SHOWSbecausethe injuriessufferedby the
11 namedPlaintifß adverselyaffectstheir relationshipsto thesethird partyvendors,
13 42eU.S.re} (re76)l
t4 20. Plaintiffs RUSSELL ALLEN NORDYKE and SALLIE ANN NORDYKE, dba TS
15 TRADE SHOWS, also assertthird party rights for similarly situatedvendors, exhibitors
l7 gun shows promoted by the named Plaintiffs collectively constitute a significant portion
18 and cross-sectionof the legitimate "gun culture." This "gun culture" is composedof
I9 firearm owners and those interestedin firearms who enjoy the shooting sports; collectors
20 who enjoy collecting and admiring all manner/ty,peof firearms; professional and amateur
2l historians who collect and study firearms as artifacts of historical events; artists and art
22 collectors who enjoy and admire the wood and metal work of certain firearms for their
23 purely aestheticvalue; and ordinary gun owners who buy, sell, trade,keep and bear arms
25 SecondAmendment - which includes the belief (regardlessof the current stateof the law
26 in California andthe Ninth Circuit) in a citizen's inalienable right to keep and bear arms
2 and antique firearms. He is a frequent patron and intended exhibitor at the gun shows run
4 22. Plaintiff DUANE R. DARR is a private citizen, shooting enthusiast, and collector of
6 TRADE SHOWS.
7 23. Plaintiff WILLIAM J. JONES is a private citizen. He is a founding chairman and officer
10 helping the public gain a better understandingof the American Civil War. He and his
l1 organizationhave been frequent exhibitors at the gun shows run by TS TRADE SHOWS.
t3 BALTES and DENNIS BLAIR are private citizens, shooting enthusiasts and collectors
14 of new and used modern firearms. They are frequent patrons of the TS TRADE SHOWS.
15 25. Plaintiff R. L. (BOB) ADAMS is a private citizen. He is a custom rifle maker and
t9 26. Plaintiff ROGER BAKER is a private citizen and owner of Roger's Relics. He is a
24 27. Plaintiff MIKE FOURNIER is a private citizen and part owner of The Gun Exchange a
25 licensed firearms dealer with its principal place of businessin Santa Clara County,
27 adviseshis customerson the proper proceduresfor purchasing new and used firearms.
Donâld Kil¡ner
Attomey at Law 28 28. Plaintiff VIRGIL McVICKER is president of the Madison Society, a Nevada Corporation
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Nofd]¡ke v. Kine Page5 of 40 3'dAmended Complaint
I with its registeredplace of businessin CarsonCity, Nevada. The Madison Societyhas
J is preservingand protecting the legal and constitutional right to keep and bear arms for its
5 TRADE SHOWS.
7 DEFENDANTS
8 29. Defendantshave acted under color of law to deprive Plaintifß - and other third parties
l5 knowledge and intent that they would violate the well establishedconstitutional rights of
22 Fairgrounds.
26 County of Alameda. They are being suedin their official capacity as theyhave ultimate
6 34. The Alameda County Fairgroundsis situatedwithin a Public and lnstitutional zoning
9 November 17, 1965 "for public pu{poses,namely, for the construction thereon of
ll Ltd.; CaseNo.:3227221
t2 35. The Alameda County Fair Association is a non-profit corporation which managesthe
13 fairgrounds through an Operating Agreement with the County of Alameda. The Alameda
t6
t7 The Ordinance
18 36. On or about }lday 20, 1999 - former county supervisor MARY V. KING contacted
l9 County Counsel Richard Winnie and askedhim to draft an ordinance to get rid of gun
20 shows on County property. lndicating her hostility toward the First Amendment and her
22 MARY V. KING sought to abridge one and punish the other by prohibiting gun shows on
23 county property.
24 a-
J t . On or about July 20, 1999 - former county supervisorMARY V. KING held a press
25 conferencewherein she statedthat her aim, and the purpose of the ordinance, is to
26 "outlaw (gun) shows on county property." MARY V. KING admitted in her press
27 releasethat she is unaware of any violations of law taking place at the Alameda County
Donald Kil¡ner
Attomeyat Law 28 Fairgroundsduring gun shows sponsored,attendedand patronizedby the Plaintifß.
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I 38. Without conducting any criminological study directly linking gun shows to crimes of
4 39. V/ithout conducting any criminological study indirectly (or secondarily)linking gun
6 ordinancedesigned,intended and with the ultimate effect of banning gun shows at the
County Fairgrounds.
11 Fairgrounds.
t6 still specifically designedand intended to prohibit gun shows at the Alameda County
18 Amendments,to the list of events exempt from the generalprohibition would have been
20 42. On information and belief, Plaintiffs allege that on or about August 23,1999, County
2l Counsel for Alameda County sent a letter to Richard K. Pickering - General Managerof
22 the Alameda County Fairgrounds - in which County Counsel indicates the following:
23 a. The subject matter of the letter links and therefore infers that the ordinanceis
26 ordinancedoes not make gun showsper se illegal. The letter goes on to statethat:
4 Under this set of facts Defendantsclaimed during argumentsbefore the Ninth Circuit that
5 the ordinancedoesnot ban gun shows, it only bans guns at gun shows(?!). This
6 proposition has been thoroughly discreditedby the both the California SupremeCourt
7 and the Ninth Circuit. The law of the caseis now that the ordinance "as applied" to these
t1 43. Since 1999 when Alameda enactedthis ordinance, other counties (Marin, San Mateo,
l4 44. These ordinanceswere desisred to. and have had the effect of drivins Plaintiffs
,, , 18
2l year. Attendanceat each show is estimatedto have been at least 4,000 persons.Revenue
23 building rental fees,parking fees and food sales.This is revenue no longer available to
24
' "The Ordinancewould forbid the presenceof firearms at gun shows, such as Nordyke's,
25
held at the Fairgrounds.Practically, the Ordinancemakes it unlikely that a gun show could
26 profitably be held there."Nordyke v. King fNordyke I) ,229 F.3d 1266, 1268.
2 46. Plaintiffs allege that the gun shows at the PleasantonFairgroundswere conductedin
J accordancewith all federal, state and local laws in existenceat the time the ordinancewas
5 Pleasantonstating that gun shows pose no particular threat to public safety in his city.
6 47. Plaintifß RUSSELL and SALLIE NORDYKE allege, and the other Plaintiffs allege on
7 information and belief that TS TRADE SHowS abidesby the Mandatory Show
9 of Arms Shows Incorporated.In addition, TS TRADE SHOW abidesby the Contract For
11 Other WeaponsAre Displa]¡ed whenever they hold shows at those venues. TS TRADE
t3 compliance with all its contract provisions, federal, stateand local laws.
l4 48. Plaintiffs RUSSELL and SALLIE NORDYKE allege, and the other Plaintiffs allege on
15 information and belief that TS TRADE SHOV/S has always complied by the terms of
76 their contractsfor the use of the Fairgrounds and have paid all appropriatetaxes and
l . j
18 at the Alameda County Fairgrounds.
l9
26
3 In fact, homicide rates in
Alameda County had been steadily declining from a high of
27 196 in 1995 to a low of 85 in 1999 (the ordinancewas passedin Septemberof that year). Since
Donald Kilmer
then the homicide rate has steadily risen to a high of 144 in2002. These statistics are available
Attomey at Law 28 from the California Department of Justice Website. See:
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1 the law is not naffowly tailored to prevent the "evils to be addressed"by the ordinance,
2 becausethe ordinanceas it applies to gun shows doesnothing to prevent the crimes set
a
J forth in the ordinance'sfindings.
4 51. Plaintiff s allege that the County of Alameda now employs metal detectorsat the
5 fairgrounds to prevent shootingsat the County Fair, such as the July 4,1998 incident
6 referred to in the findings of the ordinance. This remedy is a less restrictive alternative
available to the County for combating the "evils to be addressed"by the ordinance.
8 Furthermore, this remedy, along with federal and statelaws regulating guns shows,will
9 leave in tact the First and SecondAmendment activities at gun shows without depriving
10 the County of the meansof preventing violence at other eventsat the Fairgrounds.
1 1 52. Plaintiffs further allege that existing state and federal gun laws and other less onerous
13 by the ordinanceand that theseless restrictive meanswould leave in tact the First
15 53. Plaintiffs further allege the merely including gun shows in the list of exceptions(along
l6 side movies, plays, theaterand dancerecitals) to the ordinancewould have alleviated the
t9 54. Plaintifß fuither allege on information and belief that the County of Alameda has only
20 engagedin token enforcementof the ordinance since is passagein 1999, and only against
22
23
26 November6 & 7, 1999. This gun show wascanceledwhenthe Court declinedto granta
27
Donâld Kil¡ner
Attomey at Law 28 http ://www. caag.state.ca.us/cjsc/pubs.htm
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1 Temporary RestrainingOrder prohibiting enforcementof the Alameda Ordinance. Both
2 the order denying the Temporary Restraining Order and the defendantshave made
J statementsassertingthat the ordinance in question does not ban gun shows or gun sales,
4 but only the possessionof guns on county properfy. However, given the long history of
5 gun shows as a place where actual firearms are displayed for various pu{poses,said show
6 was canceledby the promoters RUSSELL and SALLIE NORDYKE for three primary
7 reasons:
8 a. To prevent the false and misleading impression in their advertising that a gun
9 show, as that word has customarily and historically been defined, would take
11 exposure/liability they might incur for falsely and misleadingly advertising a gun
t4 Order, more than half of the exhibitors and vendors canceledtheir contractswith
15 TS TRADE SHOW stating that they would not attendor participate in a gun show
l8 plan as to how TS TRADE SHOW will conduct a gun show at the Fairgrounds
2l TS TRADE SHOW concludedthat they could not conduct a gun show, as that
22 term has been historically and customarily defined, at the Fairgrounds while at the
24
25 56. Plaintiffs RUSSELL and SALLIE NORDYKE allege, and the other Plaintiffs allege on
26 information and belief, that TS TRADE SHOW requires weeks to plan and prepare for
27 each event at the Alameda County Fairgrounds.Furthermore, the mere specterof the
DoDâldKil¡ner
Attomey at l¿w 28 County's ordinance [with its criminal sanctions] chilled the attendanceof the November
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Nordvke v. Kine Page12of40 3'd Amended Complaint
I 6/7,1999 show suchthat evenbeforethe Court issuedits decisionon November 3,1999,
2 more than 10% of the exhibitors and vendors canceledtheir contractswith TS TRADE
4 57. Plaintiffs allege, that TS TRADE SHOWS also had datesfor the year 2000 reservedand
6 Plaintiffs further allege that but for the ordinance,they would still be conducting gun
10 58. Plaintiffs allege that in a minority statelike California (46 other stateconstitutions
t2 arms, exists, coupled with current Ninth Circuit caselaw, gun shows in and of
13 themselvesare eventsthat are imbued and intertwined with so many First and Second
l4 Amendment activities that the event itself has become a form of protecteclexpression.
15 59. Plaintiffs allege that TS TRADE SHOWS has hosted gun shows at the Alameda County
i l 18 Fairgrounds for a number of different reasons,including but not limited to the following
2T including but not limited to the right to keep and bear firearms;
24
o See:Kasler v. Lockyer. 23 CaL 4th
472 (2000): "This fundamentalright plaintiffs
25
locate in article I, section 1 of the California Constitution, which provides: "All people are by
26 nature free and independentand have inalienable rights. Among theseare enjoying and defending
life and liberty, acquiring, possessing,and protecting property, and pursuing and obtaining
27 safety,happiness,and privacy." If plaintiffs are implying thataright to bear arms is one of the
Donald Kilmer
rights recognizedin the California Constitution's declaration of rights, they are simply wrong. No
Attomey at Law 2 8 mention is made in it of a right to bear arms.(See:In re Rameriz(1924) 193 CaL.633,651)"
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I Rights, including but not limited to, my right to own, possess,and
2 trade firearms;
a
J c. To obtain the latest information regarding the safe,responsibleand
l9 other collectibles;
2l military memorabilia;
4 federal and state firearms law. Plaintiff GUY is also a frequentpatron and
, 5
intended exhibitor at the gun showsrun by the TS TRADE SHOWS at all of the
10 registration under the new Califomia Assault Weapons Statute. This new statute
15 community atlarge.
18 d. In order to accomplish his duty to his clients it has been necessarythat Plaintiff
22 e. Gun shows provide one of the best locations for educationand familiarization of
23 the various types of firearms found within the United States. There are a variety
4 Gun shows bring hundreds,if not thousands,of firearms to one location, where
9 h. The information and material that Plaintiff GIIY obtains at gun shows is used in
l2 GIIY was trained in the legal aspectsof bulng and selling of firearms by private
l3 parties and licensed firearms dealers. He knows that federal and statelaw require
2l k. In order for a firearm to be sold, it must be physically examinedby both the seller
26 critical role in determining the legality of a firearm. For example: Certain firearms
2 m. Federallaw and California law ICA Penal Code $$ 12090 et seq.l proscribe
4
J possessionof firearms with the manufacturer's serial number removed or altered.
I
4 California law also prohibits the removal lalterationof any manufacturer'sor
:
5 importer's markings. Mere possession,which is a felony, is presumptive
11 o. Under current federal and statelaw, gun shows are monitored by federal and state
13 sale at gun shows, and insure compliancewith existing laws. There would be no
t4 way for such examination to occur if only photographswere seenat the gun show.
t9 many times they are not as originally manufactured. In the matter of a purchaser
20 looking for a hunting or sporting rifle or shotgun, there is a real need for personal
23 stocks, all play a role in the proper fit of a firearm for purchase. The fit of a
26 consumer.
27 q. While not a common occuffence,but one of serious impact, many firearms which
Donald K¡l¡ner ,ra
Attomeyat Law -o look like semi-automaticfirearms. are or have been converted to fire fullv
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I automatically. This is usually unlawful (felony) under federal and statelaw.
2 Additionally, some older firearms, through use and/or abuse,have wom parts in
5 examination of the firearm and the operation of the mechanismto replicate firing.
6 r. The use of photographsas a substitutefor the actual firearms offered for sale
8 pu{poses.
9 Plaintiff GIfY is also a certified instructor for the National Rifle Association in
I2 are offered to the public at large in safe firearm handling. If firearms are not
15 t. Lastly, as a patron of gun shows throughout the Statesof California and Nevada,
18 6t. Plaintiff DUANE DARR specifically alleges,and all other Plaintiffs allege on
22 including, but not limited to the gun shows at the Alameda County Fairgrounds.
23 aspectsof antique firearms with other collectors who also display actual
5 freedom.
t2 (4) Gun shows are not just a place to buy and sell firearms, but for the
t6 c. Plaintiff DUANE DARR also alleges that a "gun show" where actual guns cannot
l7 be shown is a fraud upon the public and a perversion of the English language.
18 Preventing the public from viewing actual guns at gun shows stifles education,
t9 retards advancesin the arts and breeds contempt for firearm regulations that
2l 62. Plaintiff V/ILLIAM J. JONES specifically alleges,and all other Plaintiffs allege on
23 a. Plaintiff JONES is a frequent patron and exhibitor of the gun shows operatedby
2 history displays are a meansof helping the public gain a better understandingof
9 developmentthat aroseout of the Civil War. For example,it was during this time
11 the North, which gave the Union Forces a significant advantageover the South.
l3 and letting the public interact with actual original and replica firearms from the
15 e. The presenceof actual firearms is also necessaryto show the public what the life
I6 of a soldier was like, as a soldier's rifle is as much apart of him as his uniform.
l7 f. The presenceof actual firearms is also necessaryto conduct recruiting for the
18 orgarizatíon. Usually, the first thing that recruits want to know about, are the
t9 types and kinds of firearms they must acquire to become a fully integrated
23 h. As president of the American Civil War Association, Plaintiff JONES can state
24 categorically that his organization cannot - and will not - contract with or attend
25 gun shows that prohibit the display of the actual firearms, as they are an integral
J a. These Plaintiffs are frequent patrons of the gun shows operatedby TS TRADE
5 but not limited to the gun shows at the Alameda County Fairgrounds.
11 collectors, who also display and offer for sale/tradenew and used actual
t3 (l) Firearms, even of the samemake and model, evolve over the years
23 functional checks.
2 coÍLmemorativefi rearms.
7 heroes.
20 How is a contract for "sale" supposedto take place when there can be no
27 check the size of the gnp and weight and balanceof the firearm to
Donald Kilmer I o
Anomeyat Law Lo insure that the gun is not too big or little for the intended owner.
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Nord)¡kev. Kins P,ageZ3of 40 3'd Amended Complaint
1 (2) When purchasing a usedrevolver - (1) The hammer should turn
4 (3) The chambersshould align with the bore. (4) Push againstthe
5 spur of the cocked hammer to make sure the gun stayscocked and
that swings out with the cylinder on some revolvers, should fit
9 (3) On a used self loading pistol - (l) the slide shouldbe pulled back
11 insure that the hammer doesnot follow the slide down. (3) The
t7 Pull - this is directly related to the length of the shooter's arm and
24 64. Plaintiff R.L. (Bob) ADAMS specifically alleges,and all other Plaintiffs allege on
26 a. He has been a custom rifle maker for 47 years and a patron of TS TRADE
6 are not easily detectedby the novice and untrained eye. The gun shows provide
7 an excellent opporhrnity for him to educatehis clients due to the large number and
10 and date of manufactureof a rifle. This is possible only by referenceto the actual
t2 e. Plaintiff ADAMS would never advise a client to purchasea rifle that they could
t3 not physically inspect.Neither would he buy a rifle for himself that he could not
t7 65. Plaintiff ROGER BAKER specifically alleges,and all other Plaintiffs allege on
20 SHOWS throughout Northern California - including, but not limited to the gun
24 "commemorative" WínchestersrM.
7 e. Many of these "commemorative" firearms are actual working firearms that are
9 f. Many of these "commemorative" firearms are actual working firearms that have
11 g. Many of these "commemorative" firearms are actual working firearms that have
t3 h. And lastly, many of these "commemorative" firearms are actual working firearms
l7 no reason for him contract with or attend a gun show without guns.
18 66. Plaintiff MIKE FOURNIER specifically alleges,and all other Plaintiffs allege on
25 c. His principal place of businessis San Jose,where his storefront retail shop has
4 ç
Þ' As part of his work as a licensed firearm dealer,he often attendsgun shou/sto
6 h. For many of the samereasonsstatedby the other Plaintiffs (supra),he would not
7 engagein the trade, sale or purchaseof firearms without being able to physically
8 inspect them.
t2 j. This Plaintiff is required by federal and state law to take precautionsto secure
t3 firearms that are part of his inventory at both his storefront shop and at gun shows.
15 denying him accessto the Alameda County Fairgrounds for the display of his
2I 67. Plaintiff VIRGIL McVICKER specifically alleges,and all other Plaintiffs allege on
23 a. This Plaintiff is personally presentas a patron and exhibitor at the gun shows
2 and protecting the legal and constitutional right to arms of its membersand of
a
J law-abiding, responsibleAmericans in general.
5 and nationwide, exercising its, and its members' First Amendment rights.
9 f. The political and educational activities are especiallyfruitful and effective at the
i r l 0 gun shows,including but not limited to the gun shows that have historicallybeen
15 h. Madison Society would like to continue to hold such drawings at the gun shows at
I9 of the gun show that was scheduledfor the weekend of November 617,1999 at
2l i. This ordinance would also prevent the display of any firearm offered by my
24 where donors can examine the personalfit and quality of the firearm offered as
27 k. While the Madìson Society would like to continue to attend eventswhere they can
Donald Kil¡ner t a
Attoney at låw La find and recruit like-minded individuals; it would appearthat the Alameda Statute
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Nord)¡ke v. King Page2Sof 40 3'o Amended Complaint
I imposing criminal sanctionsfor the possessionof - even unloaded and safety-
2 locked - firearms has had a chilling effect on people willing to attend gun shows
a
J at the Alameda venue.
5 Plaintiffs' Losses
6 68. As a result of Defendants' unlawful and unconstitutional actions,the Plaintifß are being
7 denied the exerciseof fundamentalrights protectedby the Equal Protection and Due
tl California Constitution. Plaintiffs have suffered, are now suffering and will continue to
16 d. Goodwill that has been, or will be disrupted,by the gun show cancellationsand
i' 18 e. Medical expensesbrought on from the stressof having their livelihood threatened;
20 69. Plaintiffs will also suffer damagesby reasonof being denied substantialrights that once
23
27 7I. Plaintiffs allegesthat the Alameda Ordinance,which makes gun shows at the fairgrounds
DotrâldK¡lner I A
Attomeyat Law L0 "virtually impossible" violates their Freedomsof Expression as that right is protectedby
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Nordl¡ke v. Kine Page29of 40 3'o Amended Complainl
I the First Amendment to the United StatesConstitution and as applied to state action by
J 72. Plaintiffs allegesthat the Alameda Ordinance,which makesgun shows at the fairgrounds
4 "virtually impossible" violates their Freedomsof Expressionas that right is also protected
6 73. Plaintiffs have historically used the Alameda County Fairgrounds to assembleand
discussissuesof political and social importance, including but not limited to their Second
8 Amendment Rights.
9 74. Plaintifß further allege that they have historically brought firearms onto county property
I4 firearm,
15 b. The display and handling of firearms that have military and historical importance,
l8 c. The display and handling of firearms to facilitate the legal education of the
T9 generalpublic and to inform them of their rights and duties as gun owners under
23 firearms,
24 f. The display and handling of firearms for the purposeof instruction in safe and
26 g. The display and handling of firearms for the purpose of conductingpnze drawings
2 The display and handling of firearms as part of cultural events,and various formal
a
J and informal meetingsof rod and gun clubs through out the bay areawhich
6 accessoriesthat onlymatch certain tlpes and models of firearms - such as: extra
7 barrels, carr1ying
cases,scopes,optical sights, holsters and trigger locks,
8 k. The display and handling of firearms for the purposeof contracting for the repair
l0 l. The display and handling of firearms for the pu{poseof receiving an appraisalof a
t2 75. Plaintiffs fuither allege that many of the Defendantshave expressedopen hostility to the
13 traditional American practice and custom regarding the private ownership of firearms as
18 to political groups that support the private ownership of firearms as set forth in the
20 76. Plaintifß further allege that the Ordinance is motivated by, and intended to suppressthe
23 interest that is servedby banning the possessionof guns at gun show events,while
25 assertedby the ordinanceis the prevention of the criminal misuse of firearms, that
27 managersthan it is with guns in the hands of licensed gun dealers,as the characterof
Donald Kilrns
Attomey at Law 28 firearm dealersis more thoroughly scrutinized by public officials, pursuant to statelaw,
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1 than that of theatrical prop managers. Therefore a licensed firearms dealermust be
2 considered a less likely threat to the public than a theatrical prop manager. Furthermore,
a
J if the governmentalinterest is to prevent the criminal acquisition or theft of firearms,
5 the regulations relating to the physical security of firearms [to prevent theft] is more
6 onerous for the licensed firearm dealer than it is for the theatrical prop manager. Finally,
7 the exception for theatrical eventsof a law that is applied to gun show eventscannot be
I rationally justified and demonstratesthat the motivation behind the ordinanceis actually
10 77. Plaintifß allege that the Defendants' ban on the possessionof firearms on county
t3 78. Plaintiffs further allege that the Ordinancein question does not servea compelling or
15 already addressedby local regulations and State and/or Federal law. Nor is the Ordinance
1 8 79. Plaintiffs allege that the Ordinance is vague and overbroad as it applies to gun shows.
t9 80. Plaintiffs allege that the Ordinance is not a proper "time, place and manner" regulation of
20 speech.
2l 81. Plaintiffs allege that the Ordinance functions as a prior restraint on speechby failing to
22 distinguish between guns shows as cultural eventsand the exceptionsto the ordinance for
23 "motion picture, television, video, danceor theatrical events" This exception claims to
24 make a distinction between firearms as syrnbolsin movies, but neglectsto attribute any
25 symbolism to guns at gun shows. The Ordinance implies that context matters and that
27 82. Plaintifß further allege that they have a liberty interestsin attending,participating,
Donald Kilner
Attomey at Law 28 preserving and perpetuatingan historical and cultural event that has both practical and
126I Lircoln Ave.
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I symbolic value in preserving and advocatingtheir "right to keep and bearsarmsrt-
2 however that right is defined in California and throughout the United States.Former
a
J SupervisorMARY V. KING admits in her pressreleasethat she considersgun show
6 implications, the attempt by MARY V. KING to describeand classify gun show attendees
7 as members of a "gun culture" is more accuratethan not; but it is also no different from
8 describing and classiffing personswho are part of the "surf culture" of SantaCruz; or part
9 of the "gulf culture" of PebbleBeach; or part of the "football culture" of the San
10 Francisco49ers or Oakland Raider fans. Plaintiffs further allegethat this cultural activity
t2 actions.
t3 83. Plaintiffs further allege that Defendants' actions are arbitrary and capricious, and a
15 84. Plaintiffs further allege that the ordinanceis not even a regulation of expressiveconduct,
I6 but rather a complete ban on the expressiveconduct taking place at gun shows.
i , 18 they can have a gun show, but they cannot have guns presentat the gun show. This
t9 "Kafkaesque" mangling of thc dcfinition of a gun show is irrational to the point of not
2l 85. Plaintiffss further allege that the ordinance "chills", and has already abridged,the freedom
22 of expressionof the various plaintiffs and patrons (whose rights this court has already
23 found the Nordykes' have the right to assert)by prohibiting the possessionof a firearm
25 86. Plaintifß further allege that possessionof a firearm during a gun show is necessaryand
27
5 Paragraphs85 and
Donâld Xilmer
86 (a-g) are the new languageof this pleading attempting to perfect
)-v e
Anomeyat Law
I 26I Lincoh Ave.
the First Amendment Claim.
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Nord)¡ke v. King Page33 of 40 3'dAmended Complaint
I a. "From My Cold Dead Hand" is a quote from a speechgiven by the actor, and
4 would raise a rifle over his head to symbolize and emphasizehis messagethat the
5 National Rifle Association would fight for its members' urilht to keep and bear
6 arms." The possessionof the rifle and its use during that speechdid (and does)
9 hand over his head and saying the samewords would not convey the same
t4 real gun. That is why real guns with blanks are used in movies and plays.) Gun
15 shows are like mini-NRA conventions. As set forth above, gun shows are
t9 the First Amendment. The Alameda Ordinance, as applied to guns shows at the
22 b. Defendant MARY KING has admitted that guns convey the messageto gun show
23 patrons (she called them "gun worshipers") that guns are icons of patriotism. That
24 was one of the principle reasonsshe sponsoredthe ordinance and the rest of
27 firearm at gun shows would be the principle means of promoting the gun culture
Donald Kil¡ner
Attoney at I¿w 28 that is celebratedat those gun shows. The ordinance, as applied to the Nordykes'
126l LincoinAve.
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Nord}¡kev. King P,age34of 40 3'd Amended Complaint
1 gun shows,would chill, and has prevented,the disseminationof the messagethat
4 expression.]
6 convey the messagethat he was friendly to gun owners and huntersby taking
7 photo opportunities with hunters and gun enthusiastsin the Midwest. In those
8 pictures and video, Mr. Kerry conspicuouslypossesseda hunting shot gun. These
l2 prohibit CandidateJohn Kerry (or any other person running for public office)
13 from conveying that messageat a Nordyke gun show or other political photo
15 d. A gun that is unloaded, safety tied, and worn openly at a gun show is (at least
t7 Nintþ which is openly hostile to gun ownership and the principles of the Second
22 that he supportsthe National Rifle Association's (and the Attorney General's, and
24 is understoodby most, if not all, of the patrons of the gun shows sponsoredby the
26 "chills" or makesimpossiblesuchmessages.
27 e. Color guards and military ceremoniessaluting the flag and honoring the United
Donald Kilner
Altomeyat låw
ô o
Lo StatesArmed Forces are eventsin which possessionof a military firearm (the
I 26 | Li¡coln Ave-
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.
Nordvke v. King Pagg35 of 40 3'o Amended Complaint
Fx: 408i998-8487
I arsenalof democraÐ is an integral part of the ceremony. While the ordinance
4 duty." However, the ordinance does not make exceptionsfor Junior ROTC
9 As this Court and the Court of Appeals noted, "typically a person possessinga gun
1l to be understoodby those who view it." Plaintiffs allege that possessionof guns
I2 at gun shows are itatypical.rf Guns at gun shows are not weapons. They are not
13 being used to protect life or property. They are not being used for hunting or for
l4 the protection of livestock. They are not being fired at atarget or otherwise
15 discharged. Within the context of a gun show, guns are merely "on display" for
l7 and political messages. It is precisely within the context of a gun show that the
t9 an audience)is greatest. Gun shows are precisely the venue where gun supporters
2l supporting and decrying the private ownership of firearms. At the very least,
23 about the messagesand symbols that are presentat guns would be necessary
26 (} Finally, Plaintiff allege that gun shows are like stationary paradesof innumerable
Þ'
27 ideas and themes,which the United StatesSupremeCourt found did not require a
Donald K¡l¡ner
Attomey at Law 28 pafüculanzed messageto be afforded First Amendment Protection. [See Hurley v.
I 26I Lincoln Ave.
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I Irish-AmericanGay. Lesbianand BisexualGroup,515 U.S. 557,568 (1995)1"As
t2 88. Plaintifß have historically used the Alameda County Fairgrounds to engagein conduct
l4 89. Plaintiffs have obeyed all federal and Statelaws associatedwith the hosting and attending
15 of gun shows at the Alameda County Fairgrounds.The Defendants' actions affecting the
t6 historical use of the Fairgrounds for previously lawful conduct treats the Plaintiffs
T7 differently and unequally with respectto other personssimilarly situated. Moreover this
l l
l8 un-equal treatment infringes on the fundamentalrights akeadypleadedherein.
t9
20 6 The protected expressionthat inheres in a paradeis not limited to its banners and songs,
however, for the Constitution looks beyond written or spokenwords as mediums of expression.
2 T Noting that 'syrnbolism is a primitive but effective way of communicating ideas," West Virginia
22 Bd. of Ed. v. Barnette,319 U.S. 624,632,87 L. Ed. 1628,63S. Ct. ll78 (1943),our caseshave
recognized that the First Amendment shields such acts as saluting aflag (and refusing to do so),
23 id., at 632,642, wearing an armbandto protest awat, Tinker v. Des Moines Independent
CommunitySchoolDist.,393 U.S. 503, 505-506,21L.F,d.2d,731,89 S. Ct.733 (1969),
24 displayingaredflag,Strombergv.California,2S3U.S. 359,369,75L.F,d.lll7,51 S. Ct.532
(1931), and even "marching, walking or parading" in uniforms displaying the swastika, National
25
SocialistPartyof America v. Skokie,432U.S.43,53 L. Ed. 2d96,97 S. Ct. 2205 (1977). As
26 some of theseexamples show, a narrow, succinctly articulable messageis not a condition of
constitutional protection, which if confined to expressionsconveying a "particulanzed message,"
27 c f . S p e n c e vW 4 . C t . 2 7 2 7( 1 9 7 4 ) ( p e r
. a s h i n g f o n , 4 1 8 U . S . 4 0 5 , 4 l l , 4 1 L . E d . 2 d 8 4 2 , 9S
Donald Kilner
curiam), would never reach the unquestionablyshieldedpainting of JacksonPollock, music of
Attomey at Law 2 8 Amold Schoenberg,or Jabberwockyverse of Lewis Carroll.
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I 90. Plaintiffs allege on information and belief that the County of Alameda has permitted the
J not limited to: Outdoor and SportsmanShows and The ScottishGamessponsoredby the
4 Caledonian Club of San Francisco;all the while keeping gun shows from enjoying the
5 sameprivileges.
11 already regulatedby state and federal law. [Actually, gunshows- and the firearms
12 industry in general - are more thoroughly regulated that the firearm activities of motion
t3 picture and television productions.] Based upon the fundamentalrights exercisedat both
15 interest that justifies treating gun show participants differently from theatrical production
t7 narrowly drawn to prevent infringement upon the fundamental rights of the of the named
t9 92. Plaintiffs further allege, and Plaintiff MIKE FOURNIER in particular allegesthat the
2l Dealers. The Defendantsassertthat the Ordinance doesnot prevent gun shows or even
22 the sale of guns at gunshowson county property. They further assertthat a dealer can
23 merely show pictures or written descriptions of firearms offered for sale. Aside from the
25 that the practical aspectsof buying, selling and trading firearms is also affected. As a
27 brought some of his inventory to the show for expressiveand commercial purposes.The
Donâld K¡lner
Attomey at Law 28 Ordinance, which imposescriminal sanctions [which must therefore be strictly construed
| 26 I LincolnAve.
SuiteI I I
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,
Nordykev. Kins Page38 of 40 3'o Amended Complaint
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I againstthe government under the rule of lenity] for the possessionof firearms on county
2 property now prevents a dealer from displaying his inventory, unlessthat dealer also
a
J holds a valid licence to carry a firearm pursuantto California Penal Code $ 12050. The
5 to carry, and the firearms that are part of that dealer's inventory. The exceptionin the
6 Ordinanceis for the person,not the gun. Besides,all firearms dealer,thosewith and
11 93. Plaintifß allege that Defendants' actions are, and will result in, an unequal, irrational, and
t2 discriminatory application of the law as the ordinanceis both vague and overbroad.
13 94. Plaintiffs further allege that as a result of Defendants' actions they have suffered, are
16 irreparably deprived of certain rights for which there is no plain, speedyor adequate
t7 remedy at law.
t l 18 PRAYER
24 D. A declaration that Plaintiffs are entitled to continue to engagein the historical usesof the
26 E. Such other and further relief as this Court deemsnecessaryand appropriateto the
27 administration of justice.
Donald Kilrner
Attomey at Law 28
126I LincolnAve.
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Nordyke v. Kine Page39 of 40 3'd Amended Complaint
I JURY DEMAND
5 Dated:July 8, 2005
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Donald KilnÊr
Attomey at Law 28
I 26 I LincolnAve.
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Fxr 408/998-8487
Aim onGun\/otein RedStates
KerrySharpens -- 08llLl\004 Page1 of2
Four years after Al Gore alienatedgun owners with his tough talk and
anti-gun record, this year'sDemocratpresidentialnominee has adopted
a new strategywhen it comesto firearms. John Kerry is using images
to make his caseto zun owners.
http://www.cnsnews.com/ViewCommentary;asp?Page:%5CCornm
entaryo/oilOærchivea/o5C:..'
7l11l20O5
Kerry SharpensAim on Gun \/ote in Red States-- 09ll2l}004 Page2of2
That won't stop the NRA from trying. SpokeswomanKelly Hobbs said
all it takes is a look at Kerry's record to understandhis view of the
Second Amendment.And as far as the Kerry vs. Gore comparison,
Hobbs said this year'sDemocratnominee differs greatly.
"He's far worse," Hobbs said of Kerry. "At least Al Gore was up front
with gun owners abouthis support for strict gun control. John Kerry,
despite voting againstgun owners over 50 times in the Senate,is
attempting to concealhis dismal second Amendment record with a
desperateelection year ploy."
I, David Speakman,
declarethat I am employedin the City of SanJose,Countyof Santa
4
Clan, Stateof California. I am overthe ageof 18yearsandnot apartyto this action;my business
5
address
is: 1261LincolnAvenue,Suite111;SanJose,California95125-3030
6
On July 11,2005,I servedthe followingdocuments:
7
1. THIRD AMENDED and/or SUPPLEMENTAL COMPLAINT FOR DAMAGES.
8 INJUNCTION. AND DECLARATORY JUDGMENT.
9 on the following interestedparty(Ðin this action:
t0 SayreWeaver RichardWinnie
T. PeterPierce CountyCounsel
1 1 RICHARDS,V/ATSON & GERSHON Countyof Alameda
355SouthGrandAvenue,40ùFloor l22l OakStreet,Suite463
1 2 LosAngeles, CA 90071-3101 Oakland,CA946l2
t 3 VIA MAIL - CCP $$ 1031(al.2015.5
T4 IXX] By placinga truecopythereofenclosedin a sealedenvelope(s), asstatedabove,
addressed
and placing each for collectionand mailing on the datedfollowing ordinarybusiness
15 practices.I amreadilyfamiliarwith my firm'sbusinesspracticeof collectionandprocessing
of correspondence for mailing with the United StatesPostalServiceand correspondence
l6 placedfor collectionandmailingwouldbe depositedwith theUnitedStatesPostalService
at SanJose,California,with postagethereonfully prepaid,that sameday in the ordinary
L7 courseofbusiness.
l8
1 l t9
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