Difference between revisions of "Nordyke v. King"

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== Introduction ==
 
== Introduction ==
  
Nordyke v. King is a case challenging an effective ban on gun shows on county property by the county of Alameda. While the case was originally about gun shows on county property, it's mainly interesting recently (Mar 2009) because it may be the first case to "incorporate" the Second Amendment against the states.
+
''Nordyke v. King'' was challenging an effective ban on gun shows on county property by the county of Alameda.
  
 
== Status ==
 
== Status ==
* July 13, 2010 Attorney Don Kilmer (representing Nordykes) filed a [http://www.hoffmang.com/firearms/Nordyke-v-King/Motion-for-Supp-Brief-Filed-2010-07-13.pdf motion for supplemental briefing] to the 3-judge panel.
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PACER case number [https://ecf.ca9.uscourts.gov/cmecf/servlet/TransportRoom?servlet=CaseSummary.jsp&caseNum=07-15763&incOrigDkt=Y&incDktEntries=Y 07-15763] filed in [http://www.ca9.uscourts.gov/ U.S. Court of Appeals for the Ninth Circuit] (San Francisco).
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* July 12, 2010 9th Circuit en banc panel files [http://www.ca9.uscourts.gov/datastore/opinions/2010/07/12/07-15763.pdf an order] stating
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The panel opinion in Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), is
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vacated and the case is remanded to that panel for further consideration
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in light of McDonald v. City of Chicago, No. 08-1521, slip op. (U.S.
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June 28, 2010).
+
  
* July 9, 2010: Don Kilmer files a [http://www.hoffmang.com/firearms/Nordyke-v-King/Nordyke-28j-post-McDonald.pdf "28J"] letter with 9th Circuit asking that the McDonald decision be considered in the en banc proceeding.
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===Nordyke VI===
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[http://scholar.google.com/scholar_case?case=16141834160372842342 Nordyke v. King, 681 F. 3d 1041 - Court of Appeals, 9th Circuit 2012]
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{| border="1"
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!colspan="1" bgcolor="#F2ECCE" |NORDYKE OPINION
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|- align="center"
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|bgcolor="yellow"|January 8th, 2013: After 12 years of litigation, Nordyke v. King is finally over. The ruling did not impact the 2A right.  Gun shows may be held on County property provided that the Nordykes' comply with the ordinance by tethering guns to tables like other merchandise at retail stores.  The Nordykes' were not awarded prevailing party status by the court and despite petitioning the Supreme Court, fees and costs are not recoverable.
 +
|}
  
* September 24, 2009: The ''en banc'' panel heard oral arguments in the morning. Later in the afternoon, the panel vacated the submission, effectively deferring to SCOTUS for a resolution of [http://wiki.calgunsfoundation.org/index.php/McDonald_v._Chicago ''McDonald v. City of Chicago''].
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*November 28, 2011: Chief Judge KOZINSKI issues an [http://www.calguns.net/calgunforum/attachment.php?attachmentid=124497&d=1322531368 order] to rehear the case en banc:
 +
''Upon the vote of a majority of nonrecused active judges, it is ordered that
 +
this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel
 +
opinion shall not be cited as precedent by or to any court of the Ninth Circuit.
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Judge Rawlinson did not participate in the deliberations or vote in this case.
 +
''
  
* September 14,2009: The ''en banc'' panel has been [http://www.ca9.uscourts.gov/datastore/calendaring/2009/09/14/sf92109eb.pdf set]: Chief Judge Kozinski, Pregerson, Reinhardt, O'Scannlain, Rymer, Hawkins, Graber, Gould, Tallman, M. Smith, Ikuta.
+
* July 18, 2011, Appellants filed a Leave to file Reply Brief in Support of Rehearing for En Banc
  
* August 21, 2009: Oral argument set for 10:00 am Thursday, September 24, in Courtroom One at the James R. Browning Courthouse, located at 95 Seventh Street in San Francisco, California.
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* July 11, 2011, Appellees filed a response to Combo PFR Panel and En Banc rehearing.
  
* July 29, 2009: Judge Kozinski filed an [http://www.ca9.uscourts.gov/datastore/opinions/2009/07/29/0715763ebo.pdf order] that the case will be heard en banc. Oral argument to be the week of September 21, 2009. Further status from the 9th Circuit at [http://www.ca9.uscourts.gov/enbanc/view.php?pk_id=0000000037 this link].
+
* June 14, 2011 [http://www.calguns.net/calgunforum/showthread.php?t=444689 9th Circuit Orders Alameda County to file Brief in ''Nordyke v. King'']
 +
   
 +
* May 23, 2011 [http://www.hoffmang.com/firearms/Nordyke-v-King/179-1-Petition-for-En-Banc-Review.pdf Request for rehearing and rehearing en banc]
  
En Banc discussion thread [http://www.calguns.net/calgunforum/showthread.php?p=2850243#post2850243 here].
+
===Nordyke V===
  
* June 8, 2009 Alameda files its en banc [http://www.hoffmang.com/firearms/Nordyke-v-King/Alameda-en-banc-Brief-2009-06-08.pdf brief].
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* [http://scholar.google.com/scholar_case?case=16860306062835348173 Nordyke v. King, 644 F. 3d 776 - Court of Appeals, 9th Circuit 2011]
  
*June 6, 2009 The Nordykes have [http://www.hoffmang.com/firearms/Nordyke-v-King/EN-BANC-BRIEF-w-APP-2009-06-08.pdf filed their en banc brief] and a [http://www.hoffmang.com/firearms/Nordyke-v-King/APPELLANT-28(J)-LTR-2009-06-08.pdf 28(j) letter] discussing the 7th Circuit's ruling in NRA & McDonald v. Chicago.
+
* May 2, 2011 - Nordyke V Opinion is [http://www.ca9.uscourts.gov/datastore/opinions/2011/05/02/07-15763.pdf released].  Nordyke loses and is sent back to district court to argue the second amendment claim. If no other action is taken, this will reset the timeline approximately another two years.
  
*May 18, 2009  Late the afternoon of Monday May 18th, the 9th Circuit informed  all parties in Nordyke that a judge of the 9th Circuit has has  called for a vote to determine whether the case will be reheard  en banc.  
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* October 19, 2010 - Oral Arguments heard at 1:30 PM at the James M. Browning Courthouse in San Francisco. Recording of the arguments [http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000006368 here].
  
Calguns discussion [http://www.calguns.net/calgunforum/showthread.php?t=185619 here]
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* September 13, 2010 [http://www.calguns.net/calgunforum/attachment.php?attachmentid=68665&d=1284458011 Don filed a copy 28j letter calling the courts attention to the ''Anderson v. City of Hermosa Beach'' 1A case]  
  
 +
* September 9, 2010 Oral arguments scheduled for October 19, 2010 at 1:30 PM at the James M. Browning Courthouse in San Francisco.
  
*April 20, 2009 Opinion of the court - see below.
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* August 18, 2010 - [http://www.calgunlaws.com/index.php/current-litigation/53-court-filings/907-multiple-legal-briefs-filed-in-nordyke-v-alameda-ninth-circuit-case-may-determine-the-standard-of-review-for-scrutinizing-laws-facing-second-amendment-challenges.html Multiple legal briefs filed in ''Nordyke v King'' ]
 +
 +
* Amicus Brief of the CRPA Foundation;
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* Amicus Brief of the NRA;
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* Amicus Brief of the Calguns Foundation;
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* Brief on behalf of the Nordykes;
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* Amicus Brief of LCAV;
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* Amicus Brief of SAF;
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* Amicus Brief of Gun Owners of California, Inc.;
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* Brief on behalf of the County of Alameda
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* Amicus Brief of Brady Center
  
== Commentary and Analysis ==
+
* August 17, 2010 - CRPAF files [http://www.calgunlaws.com/images/stories/Docs/Nordyke/1crpa.pdf a brief]. Calgunlaws.com (C.D. Michel) would appreciate it if you would [http://www.calgunlaws.com/index.php/register.html register] there so you may receive updates in the future.
  
July 20, 2010 - [http://www.examiner.com/x-30407-LA-AntiEstablishment-Examiner~y2010m7d20-The-next-gun-rights-battle-is-a-turkey-shoot The next gun rights battle is a turkey shoot] by Charles Nichols
+
* July 13, 2010 - Attorney Don Kilmer (representing Nordykes) filed a [http://www.hoffmang.com/firearms/Nordyke-v-King/Motion-for-Supp-Brief-Filed-2010-07-13.pdf motion for supplemental briefing] to the 3-judge panel.
+
== Incorporation ==
+
  
A provision of the Federal [http://en.wikipedia.org/wiki/United_States_Bill_of_Rights Bill of Rights] is [http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights) incorporated] when the Supreme Court declares that the [http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution 14th Amendment] prohibits state governments from violating the right.
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===Nordyke IV - VACATED - ===
  
In 1833 the US Supreme Court decided in [http://en.wikipedia.org/wiki/Barron_v._Baltimore Barron v Baltimore] that the states could violate the Bill of Rights, because the Bill of Rights only restrained the federal government. After the civil war, the 14th Amendment was passed to protect the rights of blacks and former slaves from violation by state governments. But in seeming defiance of the plain meaning of the 14th Amendment, the Supreme Court decided in the [http://en.wikipedia.org/wiki/Slaughter-House_Cases Slaughter-House Cases], that the 14th Amendment only protected the "privileges and immunities" of US citizens against state violations, not their rights. The courts are very reluctant to overturn their prior rulings, but finally in the early 20th century, the Supreme Court came up with a way to get around their Slaughter-House rulings without expressly overturning themselves.  In the case of [http://en.wikipedia.org/wiki/Gitlow_v._New_York Gitlow v. New York], they declared that the 14th Amendment prohibited the states from violating some of the rights of citizens without "due process". But the court stopped short of "incorporating" all of the bill of rights at once. Instead each amendment or even part of an amendment, had to be incorporated by the court individually. The Second Amendment is one of the last rights in the Bill of Rights that has not been incorporated.
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* [http://scholar.google.com/scholar_case?case=4652598510156282452 Nordyke v. King, 611 F. 3d 1015 - Court of Appeals, 9th Circuit 2010 ] Nordyke IV - VACATED
  
== Background ==
+
* July 12, 2010 - 9th Circuit en banc panel files [http://www.ca9.uscourts.gov/datastore/opinions/2010/07/12/07-15763.pdf an order] stating
 +
The panel opinion in Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), is
 +
vacated and the case is remanded to that panel for further consideration
 +
in light of McDonald v. City of Chicago, No. 08-1521, slip op. (U.S.
 +
June 28, 2010).
  
In August 1999, Alameda County passed an ordinance making illegal the possession of firearms on County property. In pertinent part, the Ordinance reads: “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.” [http://municipalcodes.lexisnexis.com/codes/alamedagen/_DATA/TITLE09/Chapter_9_12_FIREARMS_AND_DANG.html#11 Alameda County, Cal., Ordinance § 9.12.120(b)]. The Ordinance would forbid the presence of firearms at gun shows held at the Fairgrounds. As a practical matter, the Ordinance makes it unlikely that a gun show could profitably be held there.
+
* July 9, 2010 - Don Kilmer files a [http://www.hoffmang.com/firearms/Nordyke-v-King/Nordyke-28j-post-McDonald.pdf "28J"] letter with 9th Circuit asking that the McDonald decision be considered in the en banc proceeding.
  
Russ and Sallie Nordyke who own the TS Trade Show and various gun rights supporters represented by [http://www.dklawoffice.com/ Don Kilmer] filed suit against the County of Alameda alleging that Alameda's Ordinance was preempted by state law and violated various of their First Amendment rights.
+
* September 24, 2009 - The ''en banc'' panel heard oral arguments in the morning. Later in the afternoon, the panel vacated the submission, effectively deferring to SCOTUS for a resolution of [http://wiki.calgunsfoundation.org/index.php/McDonald_v._Chicago ''McDonald v. City of Chicago''].
  
== Preliminary Injuction ==
+
* September 14,2009 - The ''en banc'' panel has been [http://www.ca9.uscourts.gov/datastore/calendaring/2009/09/14/sf92109eb.pdf set]: Chief Judge Kozinski, Pregerson, Reinhardt, O'Scannlain, Rymer, Hawkins, Graber, Gould, Tallman, M. Smith, Ikuta.
  
The Nordykes moved for a temporary injunction to allow their shows to go on at the District Court level in front of [http://en.wikipedia.org/wiki/Martin_Jenkins Judge Jenkins]. Jenkins sua sponte introduced the Second Amendment, treated the motion for temporary injunction as one for a permanent injunction and then denied that motion. The Nordykes filed an interlocutory appeal of that denial.
+
* August 21, 2009 - Oral argument set for 10:00 am Thursday, September 24, in Courtroom One at the James R. Browning Courthouse, located at 95 Seventh Street in San Francisco, California.
  
== Question Certified to the California Supreme Court ==
+
* July 29, 2009 - Judge Kozinski filed an [http://www.ca9.uscourts.gov/datastore/opinions/2009/07/29/0715763ebo.pdf order] that the case will be heard en banc.  Oral argument to be the week of September 21, 2009. Further status from the 9th Circuit at [http://www.ca9.uscourts.gov/enbanc/view.php?pk_id=0000000037 this link].
  
The Ninth Circuit Court of appeals panel consisting of [http://www.fjc.gov/servlet/tGetInfo?jid=19 Alarcón], [http://en.wikipedia.org/wiki/Diarmuid_Fionntain_O'Scannlain O’Scannlain] and [http://en.wikipedia.org/wiki/Ronald_M._Gould Gould] certified the preemption question to the California Supreme Court. In April 2002, the California Supreme Court ruled in [http://www.hoffmang.com/firearms/S091549.pdf Nordyke v. King 44 P.3d 133, 138 (Cal. 2002)] that state law did not preempt cities and counties from banning gun shows on their property.
+
* June 8, 2009 - Alameda files its en banc [http://www.hoffmang.com/firearms/Nordyke-v-King/Alameda-en-banc-Brief-2009-06-08.pdf brief].
  
== Appeal after the Certified Question ==
+
*June 6, 2009 - The Nordykes have [http://www.hoffmang.com/firearms/Nordyke-v-King/EN-BANC-BRIEF-w-APP-2009-06-08.pdf filed their en banc brief] and a [http://www.hoffmang.com/firearms/Nordyke-v-King/APPELLANT-28(J)-LTR-2009-06-08.pdf 28(j) letter] discussing the 7th Circuit's ruling in NRA & McDonald v. Chicago.
  
The Ninth Circuit panel then turned to the merits of the Nordyke's First and Second Amendment claims. The panel [http://www.ca9.uscourts.gov/datastore/opinions/2003/02/18/9917551.pdf held] that on motion for permanent injunction, the Nordykes did not prevail in their first amendment claims. The court also rejected Nordyke's Second Amendment claims citing binding precedent from Hickman that only states have standing to bring Second Amendment claims. However, the panel strongly suggested (and Gould's concurrence stated plainly) that it did not believe that the previous Second Amendment rulings in [http://www.guncite.com/court/fed/81f3d98.html ''Hickman''] and [http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/gunlawsuits/silvlckyr120502opn.pdf ''Silveira''] were good law. The case returned to Judge Jenkins.
+
*May 18, 2009 - Late the afternoon of Monday May 18th, the 9th Circuit informed  all parties in Nordyke that a judge of the 9th Circuit has has  called for a vote to determine whether the case will be reheard  en banc.  
  
== District Court Ruling on the Merits ==
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===Nordyke IV===
  
At the district court the Nordykes recast their argument from a facial challenge under the First Amendment to an as applied challenge. In April of 2007, Judge Jenkins [http://www.hoffmang.com/firearms/Nordyke-v-King/Nordyke-v-King-Summary_Judgement_Order-2007-04-17.pdf ruled against] the Nordykes holding that the ordinance was not specifically targeted at speech and therefor passed rational basis scrutiny.
+
*[http://scholar.google.com/scholar_case?case=5678782307901693880 Nordyke v. King, 563 F. 3d 439 (9th Cir. 2009) (“Nordyke IV”)]
  
== Appeal of the Merits Ruling ==
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===Nordyke III===
  
The Nordykes have appealed the ruling of the District Court. Judge Jenkins has since left the Federal Courts for a state appellate appointment. The Nordykes and Alameda County filed motions for supplemental briefing on the Second Amendment questions in light of ''Heller''. On July 18th it became clear that the original panel of Alarcón, O’Scannlain and Gould would retain jurisdiction in the case. Briefings on the Second Amendment Incorporation issues were filed September 11, 2008 ([http://www.hoffmang.com/firearms/Nordyke-v-King/Nordyke_Supp_2A_Brief_Final.pdf Nordyke] and [http://www.hoffmang.com/firearms/Nordyke-v-King/1084793_1.pdf Alameda]) and reply briefs from both sides were filed October 2, 2008 ([http://www.hoffmang.com/firearms/Nordyke-v-King/Nordyke_2A_Reply_Final_w-app.pdf Nordyke], [http://www.hoffmang.com/firearms/Nordyke-v-King/Alameda_Supplemental_Reply_Brief.pdf Alameda].) Amicus Briefs filed include [http://www.hoffmang.com/firearms/Nordyke-v-King/SAF_Nordyke_Amicus.pdf Second Amendment Foundation], [http://www.calgunlaws.com/documents/NRA_Amicus_Brief.PDF NRA/CPRA], [http://www.calgunlaws.com/documents/Law_Professors_Amicus_Brief.PDF Pro-Incorporation Law Professors], and [http://www.calgunlaws.com/documents/Amicus_Brief_Professors_of_Law.pdf Various Pro-Incorporation Professors]. Alameda's amici filed a [http://www.hoffmang.com/firearms/Nordyke-v-King/2008-10-02_Nordyke_LCAV_Amicus_Brief.pdf joint brief]. Oral argument was Thursday January 15, 2009. C-SPAN's recording of the arguments is available [http://video.google.com/videoplay?docid=8503876057040470652&hl here]. A transcript of the oral arguments is available [http://www.calguns.net/calgunforum/showthread.php?p=1949095#post1949095 here.]
+
*[http://scholar.google.com/scholar_case?case=15142229077642329656& Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir. 2003) (“Nordyke III”)]
  
== April 20, 2009 Opinion ==
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===Nordyke II===
  
The full [http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf opinion] is posted.
+
* [http://scholar.google.com/scholar_case?case=15739810071406599158 Nordyke v.King, 44 P.3d 133, 138 (Cal. 2002) (“Nordyke II”)]
  
===Preliminary summary===
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===Nordyke I===
  
* the ordinance is upheld; the Nordykes may not hold gunshows on County property in violation of the ordinance
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* [http://scholar.google.com/scholar_case?case=3438675193782582092 Nordyke v. King, 229 F. 3d 1266  (9th Cir. 2000 (“Nordyke I”)]
* '''the Second Amendment is incorporated against states and local governments,''' but the ordinance does not violate the protections the amendment affords.
+
  
==== Commentary on the April 20 Opinion ====
+
== Calguns discussions ==  
 +
* [http://www.calguns.net/calgunforum/showthread.php?p=7577326&posted=1#post7577326 Nordyke v. King update: 9th Circuit to Rehear En Banc (Order Nov 28 2011)]
 +
* [http://www.calguns.net/calgunforum/showthread.php?p=7104928 Nordyke: Request for Rehearing and Rehearing En Banc] May, 2011
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=427991 NORDYKE OPINED MAY 2] May, 2011
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=354321 Nordyke III Audio is released:] October, 2010
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* [http://www.calguns.net/calgunforum/showthread.php?t=354241 NORDYKE III Orals.] October, 2010
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=340719 Could Anderson v. Hermosa Beach (1A Tattoo shop victory) be relevant to Nordyke?] September, 2010
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=340816 Oral arguments scheduled in Nordyke] September, 2010
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=333268 MORE NORDYKE BRIEFS FILED] August, 2010
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=333298 CGF Nordyke Amicus Brief - Ban limits supply - has no crime effect] August, 2010
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=320837 Nordyke: En Banc Dismissed, Remanded to Panel] July, 2010
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=225435 BREAKING Nordyke: Order entered] September, 2009
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=215071 Nordyke: en banc Oral Arguments 9/24 10AM] August, 2009
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=207630 Volokh: Nordyke goes en banc] July, 2009
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=185619 Nordyke: 9th Request en banc Briefing] May, 2009
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=175296 Nordyke is out!] April, 2009
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=145478 Oral Arguments in landmark Nordyke v. King case - 100+ cal-gunners in attendance.] January, 2009
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=124203 Nordyke: Reply and Amicus Briefs] October, 2008
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=120437 Nordyke: 2A/14A Briefs are filed] September, 2008
 +
* [http://www.calguns.net/calgunforum/showthread.php?t=111557 Nordyke: Important breaking news - same panel remains] July, 2008
  
[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/04/20/BA1V1760BI.DTL SFGate]
+
== Commentary and Analysis ==
  
[http://www.scotusblog.com/wp/second-amendment-extended/ SCOTUS Blog]
+
*Nov 28, 2011 - [http://www.mercurynews.com/crime-courts/ci_19427867? 9th Circuit agrees to rehear long-running Alameda County gun rights case] by Howard Mintz, MercuryNews.com
  
[http://volokh.powerblogs.com/archives/archive_2009_04_19-2009_04_25.shtml#1240247034 Law professor Eugene Volokh]
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*May 3, 2011 - [http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/05/02/BASI1JAQ2A.DTL&tsp=1 Alameda County gun show backers suffer setback] by Bob Egelko, Chronicle Staff Writer, SFGate.com
  
Note that at this early date, the Nordykes have not decided whether they will appeal.
+
*May 2, 2011 - [http://reason.com/blog/2011/05/02/the-legal-meaning-of-the-secon The Legal Meaning of the Second Amendment Further Clarified in Nordyke v. King] by Brian Doherty, ''Reason.com Online Blog''
  
== The Future of the Case ==
+
*May 2, 2011 - [http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202492744491 Circuit Won't Slam Door on Gun Ban Suit] by Ginny LaRoe, ''The Recorder, Law.com''
  
* The Opinion was 3-0; Alameda 'won' on the ordinance.
+
*September 22, 2010 - [http://www.examiner.com/la-in-los-angeles/october-19th-nordyke-v-king-gun-rights-case-to-be-heard October 19th - Nordyke v King gun rights case to be heard.] by Charles Nichols, ''LA History Examiner''
* The Ninth Circuit will hear the case ''en banc''.[http://volokh.com/archives/archive_2009_07_26-2009_08_01.shtml#1248906855]
+
  
 +
*August 19, 2010 - [http://www.examiner.com/gun-rights-in-seattle/saf-files-amicus-nordyke-case-10-year-olds-and-guns SAF files amicus in Nordyke case;] by Dave Workman, ''Seattle Gun Rights Examiner''
  
=== 9th Circuit Judge Calls for ''En Banc'' Briefing ===
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*July 20, 2010 - [http://www.examiner.com/x-30407-LA-AntiEstablishment-Examiner~y2010m7d20-The-next-gun-rights-battle-is-a-turkey-shoot The next gun rights battle is a turkey shoot] by Charles Nichols, ''LA Anti-Establishment Examiner''
Neither side chose to appeal this case ''en banc''. However, on May 18, 2009 an anonymous Judge of the Ninth Circuit Court of Appeals called for briefing from both sides on whether the case should go [http://www.ca9.uscourts.gov/rules/FRAP/rules.htm#frap35 ''en banc''].
+
 
 +
== Background ==
 +
 
 +
In August 1999, Alameda County passed an ordinance making illegal the possession of firearms on County property. In pertinent part, the Ordinance reads: “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.” [http://municipalcodes.lexisnexis.com/codes/alamedagen/_DATA/TITLE09/Chapter_9_12_FIREARMS_AND_DANG.html#11 Alameda County, Cal., Ordinance § 9.12.120(b)]. The Ordinance would forbid the presence of firearms at gun shows held at the Fairgrounds. As a practical matter, the Ordinance makes it unlikely that a gun show could profitably be held there.
 +
 
 +
Russ and Sallie Nordyke who own the TS Trade Show and various gun rights supporters represented by [http://www.dklawoffice.com/ Don Kilmer] filed suit against the County of Alameda alleging that Alameda's Ordinance was preempted by state law and violated various of their First Amendment rights.
  
On June 8, 2009 all 27 judges in the Ninth Circuit received a copy of the briefing for rehearing ''En Banc'' from both sides.
+
==Nordyke v. King Historical Notes==
 +
This case has a <u>long</u> and convoluted history.
  
In cases where rehearing ''En Banc'' is granted, the Ninth Circuit will usually (but not always) request new briefing and set oral arguments. That process takes about '''90 days from filing to oral arguments'''. Then there is a longer wait for the ''En Banc'' opinion. (Don Kilmer's last ''En Banc'' had oral arguments the morning Heller was released and the opinion came out 8+ months later (June 26, 2008 to March, 2009).
+
''The case was filed in 1999. It has been heard by the Ninth Circuit''
 +
''[four] times, including en banc after a sua sponte call for a vote,''
 +
''and had even passed through the California Supreme Court on a''
 +
''certified question. Following the panel’s next decision, it could''
 +
''well return before the en banc court, and perhaps reach the Supreme''
 +
''Court.''<ref name="Pena v. Cid Doc 27">Joint Status Report, [http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.27.0.pdf Document 27] filed in ''Pena v. Cid''</ref>
  
Once things are final in the ninth circuit, '''The Nordykes have approximately 90 days to file for certiorari with the Supreme Court'''. However, the Nordyke opinion remains the law of the Circuit unless and until SCOTUS grants cert.
+
''
  
The Nordykes have [http://www.hoffmang.com/firearms/Nordyke-v-King/EN-BANC-BRIEF-w-APP-2009-06-08.pdf filed their en banc brief] and a [http://www.hoffmang.com/firearms/Nordyke-v-King/APPELLANT-28(J)-LTR-2009-06-08.pdf 28(j) letter] discussing the 7th Circuit's ruling in NRA & McDonald v. Chicago. NRA filed an [http://www.hoffmang.com/firearms/Nordyke-v-King/NRA-Nordyke-en-banc-Amicus-2009-06-09.pdf amicus brief] in the en banc briefing on June 9, 2009.
+
For a concise history lesson on this case, please read [http://www.calgunlaws.com/index.php/current-litigation/82-cases-litigation/905-crpa-foundation-files-amicus-brief-in-ninth-circuit-case-.html here] or [http://www.crpa.org/_e/page/1573/mr08_17_10.htm here]
  
=== Timeline ===
+
[http://wiki.calgunsfoundation.org/index.php?title=Nordyke_v._King_Historical_Notes Old Nordyke v. King Wiki Historical Notes]
*It appears from the General Orders that once the parties file briefs on June 8, the Court has 21 days to issue memos internally. Once that 21 days expires, there are 14 days of voting. Therefore, the outcome of the ''En Banc'' vote was expected  by July 13, although it actuially was not issued until July 29.
+
*Because ''En Banc'' was granted, it is grant day plus about 90 days to oral arguments (October, 2009) and as much as 9 months after oral argument - approximately July 2010.
+
  
 +
== Notes ==
 +
<small>
 +
<references/>
 +
</small>
 
==External links==
 
==External links==
 
*[http://www.chicagoguncase.com/ ChicagoGunCase] provides info about a closely-related case in the Seventh Circuit.
 
*[http://www.chicagoguncase.com/ ChicagoGunCase] provides info about a closely-related case in the Seventh Circuit.
 
*[http://homepages.nyu.edu/~jmm257/mvc.html Maloney v. Rice: the Nunchaku Case] is a closely related case in the Second Circuit.
 
*[http://homepages.nyu.edu/~jmm257/mvc.html Maloney v. Rice: the Nunchaku Case] is a closely related case in the Second Circuit.

Latest revision as of 18:05, 8 January 2013

Introduction

Nordyke v. King was challenging an effective ban on gun shows on county property by the county of Alameda.

Status

PACER case number 07-15763 filed in U.S. Court of Appeals for the Ninth Circuit (San Francisco).

Nordyke VI

Nordyke v. King, 681 F. 3d 1041 - Court of Appeals, 9th Circuit 2012

NORDYKE OPINION
January 8th, 2013: After 12 years of litigation, Nordyke v. King is finally over. The ruling did not impact the 2A right. Gun shows may be held on County property provided that the Nordykes' comply with the ordinance by tethering guns to tables like other merchandise at retail stores. The Nordykes' were not awarded prevailing party status by the court and despite petitioning the Supreme Court, fees and costs are not recoverable.
  • November 28, 2011: Chief Judge KOZINSKI issues an order to rehear the case en banc:
Upon the vote of a majority of nonrecused active judges, it is ordered that
this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel
opinion shall not be cited as precedent by or to any court of the Ninth Circuit.
Judge Rawlinson did not participate in the deliberations or vote in this case.

  • July 18, 2011, Appellants filed a Leave to file Reply Brief in Support of Rehearing for En Banc
  • July 11, 2011, Appellees filed a response to Combo PFR Panel and En Banc rehearing.

Nordyke V

  • May 2, 2011 - Nordyke V Opinion is released. Nordyke loses and is sent back to district court to argue the second amendment claim. If no other action is taken, this will reset the timeline approximately another two years.
  • October 19, 2010 - Oral Arguments heard at 1:30 PM at the James M. Browning Courthouse in San Francisco. Recording of the arguments here.
  • September 9, 2010 Oral arguments scheduled for October 19, 2010 at 1:30 PM at the James M. Browning Courthouse in San Francisco.
* Amicus Brief of the CRPA Foundation;
* Amicus Brief of the NRA;
* Amicus Brief of the Calguns Foundation;
* Brief on behalf of the Nordykes;
* Amicus Brief of LCAV;
* Amicus Brief of SAF;
* Amicus Brief of Gun Owners of California, Inc.;
* Brief on behalf of the County of Alameda
* Amicus Brief of Brady Center
  • August 17, 2010 - CRPAF files a brief. Calgunlaws.com (C.D. Michel) would appreciate it if you would register there so you may receive updates in the future.

Nordyke IV - VACATED -

  • July 12, 2010 - 9th Circuit en banc panel files an order stating
The panel opinion in Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), is 
vacated and the case is remanded to that panel for further consideration
in light of McDonald v. City of Chicago, No. 08-1521, slip op. (U.S.
June 28, 2010).
  • July 9, 2010 - Don Kilmer files a "28J" letter with 9th Circuit asking that the McDonald decision be considered in the en banc proceeding.
  • September 24, 2009 - The en banc panel heard oral arguments in the morning. Later in the afternoon, the panel vacated the submission, effectively deferring to SCOTUS for a resolution of McDonald v. City of Chicago.
  • September 14,2009 - The en banc panel has been set: Chief Judge Kozinski, Pregerson, Reinhardt, O'Scannlain, Rymer, Hawkins, Graber, Gould, Tallman, M. Smith, Ikuta.
  • August 21, 2009 - Oral argument set for 10:00 am Thursday, September 24, in Courtroom One at the James R. Browning Courthouse, located at 95 Seventh Street in San Francisco, California.
  • July 29, 2009 - Judge Kozinski filed an order that the case will be heard en banc. Oral argument to be the week of September 21, 2009. Further status from the 9th Circuit at this link.
  • June 8, 2009 - Alameda files its en banc brief.
  • May 18, 2009 - Late the afternoon of Monday May 18th, the 9th Circuit informed all parties in Nordyke that a judge of the 9th Circuit has has called for a vote to determine whether the case will be reheard en banc.

Nordyke IV

Nordyke III

Nordyke II

Nordyke I

Calguns discussions

Commentary and Analysis

Background

In August 1999, Alameda County passed an ordinance making illegal the possession of firearms on County property. In pertinent part, the Ordinance reads: “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.” Alameda County, Cal., Ordinance § 9.12.120(b). The Ordinance would forbid the presence of firearms at gun shows held at the Fairgrounds. As a practical matter, the Ordinance makes it unlikely that a gun show could profitably be held there.

Russ and Sallie Nordyke who own the TS Trade Show and various gun rights supporters represented by Don Kilmer filed suit against the County of Alameda alleging that Alameda's Ordinance was preempted by state law and violated various of their First Amendment rights.

Nordyke v. King Historical Notes

This case has a long and convoluted history.

The case was filed in 1999. It has been heard by the Ninth Circuit
[four] times, including en banc after a sua sponte call for a vote,
and had even passed through the California Supreme Court on a
certified question. Following the panel’s next decision, it could
well return before the en banc court, and perhaps reach the Supreme
Court.<ref name="Pena v. Cid Doc 27">Joint Status Report, Document 27 filed in Pena v. Cid</ref>

For a concise history lesson on this case, please read here or here

Old Nordyke v. King Wiki Historical Notes

Notes

<references/>

External links