NORDYKE v KING, 9917551o
U.S. 9th Circuit Court of Appeals
NORDYKE v KING
9917551o
RUSSELL ALLEN NORDYKE; ANN
SALLIE NORDYKE, dba TS Trade
Shows; JESS B. GUY; DUANE DARR;
WILLIAM J. JONES; DARYL DAVID;
TASIANA WERTYSCHYN; JEAN LEE, No. 99-17551
TODD BALTES; DENNIS BLAIR; R.A.
D.C. No.
ADAMS; ROGER BAKER; MIKE
CV 99-04389 MJJ
FOURNIER; VIRGIL MCVICKER,
ORDER
Plaintiffs-Appellants,
CERTIFYING
v.
QUESTION TO
MARY V. KING; GAIL STEELE; THE CALIFORNIA
WILMA CHAN; KEITH CARSON; SUPREME COURT
SCOTT HAGGERTY, COUNTY OF
ALAMEDA; THE COUNTY OF
ALAMEDA BOARD OF SUPERVISORS,
Defendants-Appellees.
Filed September 12, 2000
Before: Arthur L. Alarcon, Diarmuid F. O'Scannlain, and
Ronald M. Gould, Circuit Judges.
_________________________________________________________________
ORDER
We certify to the California Supreme Court the question set
forth in Part III of this order.
All further proceedings in this case are stayed pending
receipt of the answer to the certified question. This case is
withdrawn from submission until further order of this court.
If the California Supreme Court accepts the certified question
for answer, the parties shall file a joint report six months after
date of acceptance and every six months thereafter advising
us of the status of the proceedings. This case is being certified
jointly with Great Western Shows, Inc. v. Los Angeles, No.
99-56605, which raises a closely related issue of preemption.
I
Pursuant to Rule 29.5 of the California Rules of Court, a
panel of the United States Court of Appeals for the Ninth Cir-
cuit, before which this appeal is pending, certifies to the Cali-
fornia Supreme Court a question of law concerning the
possible state preemption of local gun control ordinances. The
decisions of the Courts of Appeal of the State of California
provide no controlling precedent regarding the certified ques-
tion, the answer to which may be determinative of this appeal.
We respectfully request that the California Supreme Court
answer the certified questions presented below. Our phrasing
of the issue is not meant to restrict the court's consideration
of the case. We agree to follow the answer provided by the
California Supreme Court. If the Supreme Court declines cer-
tification, we will resolve the issue according to our percep-
tion of California law.
II
Nordyke, et al., are deemed the petitioners in this request
because they are appealing the district court's ruling on this
issue. The caption of the case is:
RUSSELL ALLEN NORDYKE; ANN SALLIE
NORDYKE, dba TS Trade Shows; JESS B. GUY; DUANE
DARR; WILLIAM J. JONES; DARYL DAVID; TASIANA
WERTYSCHYN; JEAN LEE, TODD BALTES; DENNIS
BLAIR; R.A. ADAMS; ROGER BAKER; MIKE
FOURNIER; VIRGIL McVICKER,
Plaintiffs - Appellants,
v.
MARY V. KING; GAIL STEELE; WILMA CHAN;
KEITH CARSON; SCOTT HAGGERTY, COUNTY OF
ALAMEDA; THE COUNTY OF ALAMEDA BOARD OF
SUPERVISORS,
Defendants - Appellees.
Counsel for the parties are as follows:
For Nordyke, et al.: Donald E.J. Kilmer, Jr., Suite 108,
1261 Lincoln Avenue, San Jose, California 95125. Telephone:
(408) 998-8489.
For King, et al.: Richard E. Winnie, County Counsel,
County of Alameda, Suite 463, 1221 Oak Street, Oakland,
California 94612. Telephone: (510) 272-6700.
Sayre Weaver, Richards, Watson & Gershon, 44 Montgom-
ery Street, San Francisco, California 94104. Telephone: (415)
990-0901.
III
The question of law to be answered is:
1. Does state law regulating the possession of firearms
and gun shows preempt a municipal ordinance prohibiting
gun possession on county property?
IV
The statement of facts is as follows:
Russell Nordyke and Sallie Nordyke (dba TS Trade Shows)
("Nordyke") have been promoting gun shows at the Alameda
County Fairgrounds ("Fairgrounds") since 1991. The Fair-
grounds are located on unincorporated county land in the City
of Pleasanton.1 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.
In August 1999, Alameda County ("County") passed an
ordinance making illegal the possession of firearms on
County property ("Ordinance"). The Ordinance would forbid
the presence of firearms at gun shows, such as Nordyke's,
held at the Fairgrounds. Practically, the Ordinance makes it
unlikely that a gun show could profitably be held there.
To prevent the Ordinance's enforcement, Nordyke brought
suit against the County in the United States District Court for
the Northern District of California. Nordyke 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 injunc-
tion and denied it. The judge noted that under either test for
a preliminary injunction, a litigant must at least show a fair
chance of success on the merits and ruled that Nordyke had
failed to do so. Because he concluded that Nordyke had little
chance of success on the merits, he did not reach the balance
of the hardships determination.
Nordyke then filed an interlocutory appeal in the United
States Court of Appeals for the Ninth Circuit.
V
We respectfully submit that the question needs certification
for the following reasons:
A
"A county or city may make and enforce within its limits
all local, police, sanitary, and other ordinances and regula-
tions not in conflict with general laws. " CAL. CONST. art XI,
S 7 (emphasis added). A local law that conflicts with state law
is invalid. See Sherwin-Williams Co. v. City of Los Angeles,
4 Cal.4th 893, 897 (1993). "A conflict exists if the local legis-
lation duplicates, contradicts, or enters an area fully occupied
by general law, either expressly or by legislative implication."
Id. (quotations and citations omitted). The district court con-
cluded that the County did not legislate in an area the state
had expressly or impliedly preempted. California law offers
no clear guidance concerning the possible preemption of the
Alameda Ordinance.
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 misde-
meanor." Alameda County Code S 9.12.120(b). Although not
explicit in the Ordinance, the law effectively hinders Nor-
dyke's efforts to hold gun shows at the Fairgrounds. In an
effort to ward off application of the Ordinance, Nordyke
argues first that the state has preempted the field of firearm
possession. Second, he contends that, at least by implication,
state regulation of gun shows, which provides for the posses-
sion of weapons, precludes local prohibitions of firearms at
these shows.
Section 12071 of the Penal Code regulates the sales of fire-
arms in California, expressly providing for the possession of
firearms at gun shows. It reads in relevant part:"A person
licensed pursuant to subdivision (a) may take possession of
firearms and commence preparation of registers for the sale,
delivery, or transfer of firearms at gun shows or events . . . .
A person conducting business pursuant to this subparagraph
shall be entitled to conduct business as authorized herein at
any gun show or event in the state without regard to the juris-
diction within this state that issued the license . . . provided
the person complies with . . . (ii) all applicable local laws, reg-
ulations, and fees, if any." Cal. Penal CodeS 12071(b)(1)(B).
In addition, California Penal Code S 12071.1 regulates gun
shows throughout the state. Finally, the state legislature
enacted a series of gun show regulations effective January 1,
2000. See Cal. Penal Code SS 12071.1; 12071.4. These laws
clearly pertain to the possession of firearms at gun shows.
From these provisions, one could well conclude that, as the
state allows for the presence of and regulates the possession
of firearms, a local government may not forbid it. On the
other hand, the proviso allowing for local regulation may
mean that municipal prohibitions are not preempted.
The Courts of Appeal of the State of California have
responded in seemingly conflicting ways to this type of argu-
ment in the area of local gun regulation preemption. The argu-
ment finds most support in Doe v. City & County of San
Francisco, 136 Cal. App. 3d 509 (1982). In that case, the
court inferred from the legislature's restriction on local hand-
gun permit requirements an intent to foreclose local laws ban-
ning possession citywide. Id. at 518. "A restriction on
requiring permits and licenses necessarily implies that posses-
sion is lawful without a permit or a license. It strains reason
to suggest that the state Legislature would prohibit licenses
and permits but allow a ban on possession." Id.; see also
Northern California Psychiatric Society v. City of Berkeley,
178 Cal. App. 3d 90 (1986) (holding that a city ordinance pro-
hibiting the use of electroshock therapy throughout the city
was preempted by state regulations evincing a clear intent to
allow it). Moreover, an Attorney General opinion regarding
the preemption of local ammunition sale bans adopts the same
reasoning, relying explicitly on Doe. See Attorney General's
Opinion No. 94-212 (July 7, 1994). In that Opinion, the Attor-
ney General relied on the fact that the state banned ammuni-
tion over a certain caliber to conclude that a city could not ban
smaller-caliber ammunition. Likewise, the state legislature's
having expressly provided for the presence of firearms at gun
shows may imply that local ordinances, like that of Los Ange-
les, banning the possession of such weapons are preempted.
More recently, however, in California Rifle and Pistol
Ass'n, Inc. v. City of West Hollywood, 66 Cal.App.4th 1302
(1998), the Court of Appeal for the Second Appellate District
of California appears to have disavowed the logic underlying
the district court's conclusion and the pertinent part of Doe.
In California Rifle, the court confronted a challenge, on pre-
emption grounds, to a city ban on sales of certain handguns
known as Saturday Night Specials. Id. at 1306-07. The court
expressly considered an argument analogous to the one Nor-
dyke makes here--that because state law envisions possession
at gun shows, the County cannot foreclose possession at gun
shows. There, the court confronted the argument that because
under state law sales of firearms are regulated, but legal, a
city cannot ban the sale of certain types of firearms. See id.
at 1323. The court rejected this reasoning as tautological:
"Again, it is no doubt tautologically true that something that
is not prohibited by state law is lawful under state law, but the
question here is whether the Legislature intended to strip local
governments of their constitutional power to ban the local sale
of firearms which the local governments believe are causing
a particular problem within their borders." Id. at 1324. This
reasoning appears to be at tension with the reasoning of Doe.
Furthermore, the court's discussion of preemption in Cali-
fornia Rifle suggests that the Ordinance may very well not be
preempted. First, the court held that the California legislature
has not expressly preempted local regulation of handgun
sales. See id. at 1311-17. Next, the court examined whether,
as the district court concluded here, the local law was
impliedly preempted. "[I]mplied preemption can properly be
found only when the circumstances `clearly indicate' a legis-
lative intent to preempt." Id. at 1317 (quoting Sherwin-
Williams, 4 Cal.4th at 898).
When the Legislature has passed laws to overturn a court's
decision that a local government's laws are not preempted, it
has tailored them narrowly, refusing at every turn to preempt
the entire field of gun control. This history demonstrates "a
legislative intent to permit local governments to continue to
apply their police power according to the particular needs of
the community." California Rifle, 66 Cal. App. 4th at 1318;
see also Suter v. City of Lafayette, 57 Cal. App. 4th 1109,
1119 (1997). The careful wording of the legislature's
response may indicate that it does not wish to preclude local
actions in areas where it has not expressly preempted. See
California Rifle, 66 Cal. App. 4th at 1319-20 (discussing
Suter, 57 Cal. App. 4th at 1120-21). Finally, the Courts of
Appeal of the State of California appear to have foreclosed an
argument for gun sale preemption based on the assertion that
the adverse affects of a local law on transient citizens out-
weigh the benefit to the municipality. See California Rifle, 66
Cal.App.4th at 1320-21.
The California cases teach that when examining the pre-
emption issue in the field of gun control, courts are to look
narrowly at the specific conduct at issue--here, the sale of
guns on County property. The Ordinance here does not ban
possession at all gun shows held in the County, it bans posses-
sion on County property only. This may distinguish it from
the Ordinance held impliedly preempted in Doe . See 136 Cal.
App. 3d at 518. While the Ordinance may have the practical
effect foreclosing shows Nordyke has traditionally held at the
County Fairgrounds, it does not speak at all to gun shows held
on any non-County property in the county. But the question
we face is whether the extensive state regulation of gun
shows, all of which foresees the sale of firearms, precludes
even such action. Also uncertain is whether the state law pro-
visions requiring gun shows to comply with all local regula-
tions allow municipalities to completely prohibit possession at
these shows, an action that may have the practical effect of
shutting them down.
In sum, there is tension in the reasoning underlying several
decisions of the Courts of Appeal of the State of California
and an Opinion of its Attorney General. In addition, no Cali-
fornia court, to our knowledge, has yet confronted the possi-
ble preemptive impact of the new gun show regulations that
went into effect January 1, 2000. We are mindful of the con-
siderations of comity when we are being asked to invalidate,
on federal constitutional grounds, a local California law. Res-
olution of the state law issue may obviate the need to decide
the federal constitutional question. The area of gun control
regulation is a sensitive area of local concern with which we
hesitate to interfere, particularly where we are asked to deter-
mine unclear questions of state law. A clear statement by the
California Supreme Court would provide guidance to local
governments with respect to the powers they may exercise in
passing local gun control regulations.
VI
The Clerk of Court is hereby directed to transmit forthwith
to the California Supreme Court, under official seal of the
Ninth Circuit, a copy of this order and request for certification
and all relevant briefs and excerpts of record pursuant to Cali-
fornia Rule of Court 29.5(c).
IT IS SO ORDERED.
_______________________________________________________________
FOOTNOTES
1 Thus, the jurisdictional issue raised in Great Western Shows, Inc. v.
DIARMUID F. O'SCANNLAIN
U.S. Circuit Judge
for the Ninth Circuit