County doesn't feel gun show ban in jeopardy

Contra Costa Times ^ | 10/3/5 | Chris Metinko

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Even though a federal judge declined to dismiss a claim by gun show promoters that Alameda County's ordinance banning such events on county land is unconstitutional, the county's lead counsel said today he doesn't expect that to change or weaken the county's stance .

County Counsel Richard Winnie, however, said the judgment by U.S. District Court Judge Martin Jenkins Sept. 27 does not weaken the county's case. Winnie said getting a judge to dismiss a claim is difficult because the standard for such a judgment is so high.

Winnie said the county plans to file a motion for a summary judgment in the following months to help bring closure to the six-year-old case.

In his Sept. 27 ruling, Jenkins said plaintiffs Russell and Sally Nordyke and others in the gun shows industry had "sufficiently articulated" their argument that banning the shows is an infringement on their free speech and First Amendment right.

Alameda County attorneys had argued the claim should be dismissed, saying the gun ban is a public safety issue and not a constitutional one. But Jenkins denied the argument and will let the case proceed.

"This puts the burden back on the county now," said Don Kilmer, the San Jose-based attorney representing the Nordykes. "They have to prove that gun shows are a threat to the public."

The Nordykes filed suit against Alameda County and the Board of Supervisors claiming their 1999 ordinance prohibiting guns on county property effectively bans gun shows and other displays of firearms in violation of constitutionally protected freedom of speech rights.

The Nordykes had promoted gun shows at the Alameda County Fairgrounds in Pleasanton from 1991 to 1999, before the county passed an ordinance making it illegal to possess firearms on county property. The ordinance came just after the 1998 Alameda County Fair shooting in which 10 people on the fair's carnival midway were wounded.

However, the 9th U.S. Circuit Court of Appeals had ruled that at least on its face, the ordinance does not violate the First Amendment nor Second Amendment rights of gun show operators to possess weapons for sale on county property, but invited the plaintiffs to present further evidence to show how, in its actual application, the county law violates. The plaintiffs then appealed the ruling to the U.S. Supreme Court, which declined to take the case in October 2004.

However, in Jenkins' ruling he said the plaintiffs this time had "articulated a particularized political statement that they intend to convey through possessing guns at gun shows, and that there is a great likelihood that gun show participants will recognize this message."

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