You are on page 1of 44

.

^;:
. ' l T * ,' .9
¿ .
L'
! i., Ë
tt :l

I DonaldE.J.Kilmer,Jr.,(SBN: 179986) ' . ,


LAW OFFICESOF DONALD KILMER ,. ,t -t ..¡' i , 1 , , , , , , , . : , ' j

, . ít :, ¡",
L ' r
*

2 A ProfessionalCorporation ,-;1
t:l .,,, ., , ¡ t ,. . : . :'.'t .
L''

J
T26l LincolnAvenue,Suite111
SanJose,California95125-3030
¡
¿r'¡l,r(¡i+;;
"¡i jlj
Telephone: 4081998-8489
4 Facsimile: 4081998-8481
E-Mail: DKLawOfc@aol.com
5
Attornev for Plaintiffs
6

8
UNITED STATES DISTRICT COURT
9
FOR THE NORTHERN DISTRICT OF CALIFORNIA
10

11

l2

l3 RUSSELLALLEN NORDYKE and SALLIE CaseNo.: C 99 04389 MJJ


ANN NORDYKE, dbaTS TRADE SHOWS,
t4 JESSB. GTry, DUANE DARR, WILLIAM
J. JONES,DARYL N. DAVIS,,TASIANA THIRD AMENDED and/or
15 WERTYSCHYN,JEAN LEE, TODD SUPPLEMENTAL COMPLAINTI FOR
BALTES,DENNISBLAIR, R. L. (Bob) DAMAGES, INJUNCTION, AND
l6 DECLARATORY JUDGMENT
ADAMS, ROGERBAKER, MIKE
t7 FOURNIERandVIRGIL McVICKER. (vroLATroNS oF 42 U.S.C.$ 1983,
FIRST AND FOURTEENTII
18 Plaintiffs, AMENDMENTS)
t9 DEMAND FOR JURY TRIAL
vs.
20 MARY V. KING, GAIL STEELE,WILMA
CHAN, KEITH CARSON,SCOTT
2l HAGGERTY,The COUNTY OF
ALAMEDA, and The COUNTY OF
22 ALAMEDA BOARD OF SUPERVISORS.
23
Defendants.
24

25
*R*
26
--*nt complies
withthiscourt's
r*ffirffirffiámw"}g,antins
inpart
"t**"4"4
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.
SuiteI | |
Sð Jose,C,{ 95125
Vc:408/998-8489
Fx:408/998-8487
Nord)¡ke v. Kine 40
f;age,1.of 3'o Amended Complaint
I INTRODUCTION

2 1. On or aboutNovember3,1999 this Court deniedPlaintiffs' Motion for Temporary


a
J Restraining Order and Injunctive Relief. Plaintiffs filed a timely appeal.

4 2. On Septembet12,2000, the Ninth Circuit Court of Appeals certified a question of state

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"),

I 229 F.3d 1266(gth Cir. 2000).

8 3. On April 22,2002, the California SupremeCourt issued its answerto the certified

9 question: "concludfing] that the municipal ordinancein question,insofar as it concerns

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

l4 supplementalbrieß addressingthe impact of the California SupremeCourt's answerto

15 the certified question. At or near the sametime, PlaintifflAppellants requestedan

t6 opportunity to brief additional First and SecondAmendment issuesthat had developed

l7 since the casehad first been arguedin the Summer of 2000.

,.,, 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

20 denying the Plaintiff s requestfor a preliminary injunction.

2l 6. PlaintifflAppellants requesteden banc review. That petition \ryasdenied in an order filed

22 April 5, 2004. SeeNordyke v. King ("Nordyke [V") ,364 F .3d 1025(gth Cir. 2004).

23 7. PlaintifflAppellants then sought a writ of certiorari in the United StatesSupremeCourt,

24 Docket No.: 03-1707. The petition was deniedon or about October4,2004.

25 8. Plaintifß' First AmendedComplaint was filed on or aboutNovember 10,1999. As this

26 action is pending back before the trial court five (5) years later, Plaintiffs find it

27 appropriateto amendtheir complaint to addressfactual issueswhich have arisen since


Donald KiLner ) g
Attomey at Law that filing and legal issuesaddressedin the appellatedecisions.
126l LincolnAve.
Suite I I I
Sæ Jose,CA 95125
Vc: 408/998-8489
Fx: 408/998-8487
u++"++ Pagç2 of 40 3'd Amended Complaint
I 9. Plaintiff s SecondAmendedComplaintwas filed on or aboutMarch 1I,2005.

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

6 FourteenthAmendmentsof the Constitution of the United Statesof America.

8 JURISDICTION AND VENUE


9 12. This Courthassubjectmatterjurisdictionpursuantto 28 U.S.C.$ 1343(3)which
r l r o providesfor originaljurisdictionin suitsbroughtunder42 U.S.C.$$ 1983and1988.

11 13. As this actionarisesunderthe United StatesConstitutionthis Courtalsohasjurisdiction

t2 pursuant
to 28 U.S.C.$ 1331.

l3 14. As the Plaintiffsareseekingdeclaratoryrelief, this Courthasjurisdictionoverthis action

l4 pursuant
to 28 U.S.C.$$2201and2202.

l5 15. To the extentthat The Stateof California'sConstitutionalprincipleson Freedomof

l6 Expressionareimplicated,this Courthasjurisdictionpursuantto 28 U.S.C.$ 1367.

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,

27 books and bumper-stickers.In addition to providing a marketplace for commerce,it has


Donâld Kilrner
Attomey at Law
) e always been the policy of the Plaintiffs to permit political candidates/parties,and
126I LincolnAve.
.SuiteI I I
Sæ Jose,CA 95125
Vc:408/998-8489 : Nord]'ke v. Ki4g Page,3of 40 3'd Amended Complaint
Fx: 408/998-8487
I communityserviceorganizations
to havetablesfreeof chargeon a first comefirst serve
2 basis. Plaintiffs' businessaddressis in V/illows, California. Theyhadbeenconducting
a
J tradeshowsat the AlamedaCountyFairgroundssinceFebruary,1991.

4 18. PlaintiffsRUSSELLALLEN NORDYKE andSALLIE ANN NORDYKE, dbaTS

5 TRADE SHOWS,alsoassertthird partyrightsof their vendors,exhibitorsandpatrons

6 associated
with TS TRADE SHOWS.Thesethird partieswould find it difficult to assert
7 theirown riehts.lSee:NAACPv. Alabøma,357U.S.449 (1958)l

I 19. PlaintiffsRUSSELLALLEN NORDYKE andSALLIE ANN NORDYKE, dbaTS

9 TRADE SHOV/S,alsoassertthird partyrights for similarly situatedvendors,exhibitors

l0 andpatronsassociated
with TS TRADE SHOWSbecausethe injuriessufferedby the
11 namedPlaintifß adverselyaffectstheir relationshipsto thesethird partyvendors,

T2 exhibitorsandpatronswho arecustomersof TS TRADE SHOWS.fsee: Craig v. Boren,

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

t6 and patrons associatedwith TS TRADE SHOV/S, as thesegroups of people attending

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

24 as symbols of that uniquely American strand of political philosophy - embodiedby the

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

27 for the defenseof himself/herself, family, community and nation.


Donald Kilner
Attomey at láw 28
l26t LincolnAve.
SuiteI I I
Sm Jose,CA 95125
Vc:408/998-8489
Fx: 408/998-8487
Nordyke v. Kine Pagg4 of 40 3'oAmended Complaint
I 21. Plaintiff JESS B. GLIY is an Attomey at Law, shooting enthusiast and collector of used

2 and antique firearms. He is a frequent patron and intended exhibitor at the gun shows run

J by the TS TRADE SHOWS.

4 22. Plaintiff DUANE R. DARR is a private citizen, shooting enthusiast, and collector of

5 antique firearms. He is a frequent patron and exhibitor at gun showsrun by the TS

6 TRADE SHOWS.

7 23. Plaintiff WILLIAM J. JONES is a private citizen. He is a founding chairman and officer

8 of the American Civil V/ar Associationa FederalU.D. # 77-03979621andState[I.D. #

9 19532131Non-Profit Educational Corporation that usesliving history as a meansof

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.

t2 24. Plaintiffs DARYL N. DAVIS, TASIANA WERTYSCHYN, JEAN LEE, TODD

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

16 gunsmith with his principal place of businessin Sunnyvale,California. He is a frequent

t7 patron of the TS TRADE SHOWS. He also instructs and adviseshis clients/customerson

18 the proper proceduresfor purchasingused rifles at gun shows.

t9 26. Plaintiff ROGER BAKER is a private citizen and owner of Roger's Relics. He is a

20 collector/dealerof commemorative,antique and collectable firearms. His specialty is

2l coÍrmemorative WinchesterrMrifles. He is a frequent exhibitor at the TS TRADE

22 SHOV/. He also instructs and adviseshis customerson the proper proceduresfor

23 purchasing commemorative, collectable, antique and used rifles.

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,

26 California. He is a frequent Exhibitor at the TS TRADE SHOWS. He also instructs and

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
126l LincolnAve.
SuiteI I I
SÐ Jose,CA 95125
Vc: 408/998-8489
Fx:408/998-8487.
Nofd]¡ke v. Kine Page5 of 40 3'dAmended Complaint
I with its registeredplace of businessin CarsonCity, Nevada. The Madison Societyhas

2 chaptersthroughout California. The society is a membershiporganizatioîwhose purpose

J is preservingand protecting the legal and constitutional right to keep and bear arms for its

4 membersand all responsiblelaw-abiding citizens. He is a frequent Exhibitor at the TS

5 TRADE SHOWS.

7 DEFENDANTS

8 29. Defendantshave acted under color of law to deprive Plaintifß - and other third parties

9 similarly situated- of their Constitutional Rights associatedwith attending gun shows at

10 the Alameda County Fairgrounds located in Pleasanton,California. The actions, customs

11 and practicesof all the Defendantsand their agents,assignsand employees,a.re

t2 performed under color of law. Theseactions, customsand practicestherefore constitute

t3 stateaction as defined by the FourteenthAmendment to the United StatesConstitution.

t4 Furthermore,these actions, customsand practiceshave been carried out with the

l5 knowledge and intent that they would violate the well establishedconstitutional rights of

l6 the Plaintiffs and third parties similarly situated.

17 30. The Defendant COUNTY OF ALAMEDA is a political subdivision of California.

t i 18 31. The Defendant COUNTY OF ALAMEDA BOARD OF SUPERVISORS is the duly

t9 electedlegislative body with the power to passordinancesin accordancewith the county

20 charterand in accordancewith the laws of the Stateof California. The BOARD OF

2l SUPERVISORS also has ultimate administrative authoritv over the Pleasanton

22 Fairgrounds.

23 32. DefendantsMARY V. KING, GAIL STEELE, WILMA CHAN, KEITH CARSON,

24 SCOTT HAGGERTY, are duly electedmembers of the Board of Supervisorsfor the

25 County of Alameda, California. As Supervisors,they are chargedwith authority over the

26 County of Alameda. They are being suedin their official capacity as theyhave ultimate

27 authority over the Alameda County Fairgroundslocated in Pleasanton,California.


Donald Kilrn€r
Attoney at Law 28 GENERAL ALLEGATIONS
12ól LincolnAve.
SuiteI I I
Sæ Jose,CA 95125
Vc:408/998-8489 Nordykev. Kine Page6 of 40 3'd Amended Complaint
Fx: 408/998-8487
I Fairgroundsas Public Forum

2 JJ. The Alameda County Fairgrounds (aka: The PleasantonFairgrounds)is located in


a
J Alameda County. Public and private eventsare scheduledat the fairgrounds on a regular

4 basis.Many of these eventsare of interest to the news media, businesses,community

5 groups and agencies,and the generalpublic.

6 34. The Alameda County Fairgroundsis situatedwithin a Public and lnstitutional zoning

7 district on unincorporatedcounty property within the City of Pleasanton,California. The

8 Fairgroundswere awardedto the County in a Final Order of Condemnationfiled on

9 November 17, 1965 "for public pu{poses,namely, for the construction thereon of

10 necessarypublic buildings, . . ." [See:County of Alamedav. Meadowlark Dairy Corp.

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

t4 County Fair Association is required to operatethe fairgrounds in compliance with all

l5 Federal,State and County laws.

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

2l displeasurewíth"spineless people hidíng behind the constitution" {emphasisadded},

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.
126I Lincoh Ave.
SuiteI I I
Sæ Jose,CA 95125
Vc: 408i998-8489 Nordyke v. King PageTof 4Q 3'o Amended Complaint
Fx: 408/998.8487
I 38. Without conducting any criminological study directly linking gun shows to crimes of

2 violence and/or public safety concerns,the Defendantspassedan ordinancedesigned,


a
J intended and with the ultimate effect of banning gun shows at the County Fairgrounds.

4 39. V/ithout conducting any criminological study indirectly (or secondarily)linking gun

5 shows to crimes of violence and/or public safetyconcerns,the Defendantsenactedan

6 ordinancedesigned,intended and with the ultimate effect of banning gun shows at the

County Fairgrounds.

8 40. On or about August l7 , 1999 the Alameda County Board of Supervisorsadoptedan

9 ordinanceprohibiting the possessionof firearms on County property. Said ordinancewas

10 specifically designedand intended to prohibit gun shows at the Alameda County

11 Fairgrounds.

t2 41. On or about September28, 1999 the Alameda County Board of Supervisorsamendedthe

13 ordinanceprohibiting the possessionof firearms on County property. Said amendment

t4 adds to the list of exceptionsto the ordinance: "authorized participant[s] in a motion

l5 picture, television, video, dance, or theatrical production or event..." Said ordinanceis

t6 still specifically designedand intended to prohibit gun shows at the Alameda County

t7 Fairgrounds.Simply adding gun shows,which necessarilyimplicate the First and Second

18 Amendments,to the list of events exempt from the generalprohibition would have been

t9 sufficient to prevent this particular lawsuit from being filed.

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

24 really about banning shows.

25 b. The body of the letter contains languagepurporting to demonstratethat the

26 ordinancedoes not make gun showsper se illegal. The letter goes on to statethat:

27 "Firearms accessoriesand other paraphernaliathat are not within the definitions of


Donald Kilrner
Attomey at [¿w 28 section 9.12.120 of the ordinancemay be displalted and sold at any gun show."
126I LincolnAve.
SuiteI I I
Sa Jose,CA 95125
Vc: 408/998-8489 Nord)¡ke v. Kine Page8 of 40 3'd Amended Complaint
Fx: 408/998=8487
1 {emphasisadded} The letter also statesthat: "The ordinance also doesnot
2 proscribe the sale of firearms or afirmunition provided that such articles cannotbe
a
J displa])edon the premises." {emphasisadded,again}

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

8 Plaintifß, prohibits gun shows at the PleasantonFairgrounds.2

r l 0 The Effect of the Ordinance on Plaintiffs Russ & Sallie Nordyke

t1 43. Since 1999 when Alameda enactedthis ordinance, other counties (Marin, San Mateo,

l2 Sonomaand Santa Cruz) in California have enactedalmost identical ordinances,all

13 aimed at banning gun shows from those counties' fairgrounds.

l4 44. These ordinanceswere desisred to. and have had the effect of drivins Plaintiffs

l5 RUSSELLandSALLIE NORDYKE out of businessin NorthernCalifornia. The

l6 NORDYKESwereforcedto seekthe protectionof thebankruptcycourtsduringthis

t7 litigation in orderto stayin business.

,, , 18

l9 History of Gun Showsat the Fairgrounds

20 45. TS TRADE SHOWShadtypicallyrentedthe fairgroundsfor up to five (5) gun showsper

2l year. Attendanceat each show is estimatedto have been at least 4,000 persons.Revenue

22 from theseshowsprofited the Fairgroundsin the amount of $78,000 annually through

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.

27 The California SupremeCourt made a somewhatstronger finding: "[T]he effect on the


DonaldKil¡ner a o
Nordykes of the Ordinancebanning guns on county property is to make gun shows on such
'LO
Atlomeyat Iåw
126l LincolnAve.
property virtually impossible." Nordyke v. King (Nordyke II) , 27 Cal. 4th 815, 882.
SuiteI I I
Sæ Jose,CA 95125
Vc: 408/998-8489 Nqrd)¡ke v. Kine Page9 of 40 3'd Amended Complaint
Fx:408/998-8487 ,
I the people of Alameda County.

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

4 passed.Indeed,Plaintiffs have a sworn statementfrom the Chief of Police of the City of

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

8 Producer Rules andtheRecommendedShow Producer Rules of the National Association

9 of Arms Shows Incorporated.In addition, TS TRADE SHOW abidesby the Contract For

10 Shows/eventsHeld at Dístrict Agricultural Associatíons(District) WhereFírearms or

11 Other WeaponsAre Displa]¡ed whenever they hold shows at those venues. TS TRADE

l2 SHOWS in turn requires contractswith its exhibitor/vendorsthat are designedto insure

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

t7 obtained the necessarybusinesslicensesfrom the City of Pleasantonto conduct business

l . j
18 at the Alameda County Fairgrounds.

l9

20 The OrdinanceWas Never Intended to Address Public Safety or Crime,


nor Is the OrdinanceNarrowlv Tailored to Address These Issues.
2l
49. Plaintiffs allege that gun shows at the PleasantonFairgrounds were not the sourceof any
22
of the crimes cited in the findings of the ordinance.
23
50. Plaintiffs allege on information and belief that since the passageof the ordinance in1999,
24
there has been no reduction in crimes of violence3in the Countv of Alameda. Therefore
25

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:
126I Li¡coi¡ Ave.
SuiteI I I
Sæ Jose,CA 95125
Vc: 408/998-8489
Fx: 408/998.8487
Nord]¡ke v. Kine Page10 of 40 3'oAmended Complaint
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

l2 regulations, would be sufficient to addressthe governmentinterest sought to be advanced

13 by the ordinanceand that theseless restrictive meanswould leave in tact the First

t4 Amendment characteristicsof gun shows.

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

l7 necessityof theseparticular Plaintifß having to suethe Defendantsin order to continue

18 conducting gun shows at the Fairgrounds.

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

2l Plaintiffs and other membersof the "gun culture."

22

23

24 Cancellationof Gun Showsat the Pleasanton


Fairgrounds
25 55. Plaintiffs furtherallegethat TS TRADE SHOWShada gun showscheduledfor

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
126I LincolnAve.
SuiteI I I
Sil Josc,CA 95125
Vc: 408i998-8489 Nordyke v. King Page 1 l o f 4 0 3'd Amended Complaint
Fx: 408/998-8487
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

10 place at the Alameda County Fairgrounds;thus preventing any legal

11 exposure/liability they might incur for falsely and misleadingly advertising a gun

l2 show where no actual (though unloaded and safety-locked)guns could be shown.

13 b. After the Court's November 3'ddecision denying the Temporary Restraining

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

T6 where actual (though unloaded and safety-locked)firearms could not be displayed.

l7 c. Lastly, as the FairgroundsAssociation had required Plaintiffs to provide a written

l8 plan as to how TS TRADE SHOW will conduct a gun show at the Fairgrounds

t9 and remain in compliance with an ordinance that prohibits firearms on county

20 property. For the reasonsstateabove, RUSSELL and SALLIE NORDYKE dba as

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

23 sametime compllng with the County's ordinance.

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
126I LincolnAve.
SuiteI I I
Sæ Jose,CA 95125
Vc: 408/998-8489
Fx: 408/998-8487
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

J SHOW for events at the Alameda County Fairgrounds.

4 57. Plaintiffs allege, that TS TRADE SHOWS also had datesfor the year 2000 reservedand

5 scheduledfor the months of February,April, September,November, and December.

6 Plaintiffs further allege that but for the ordinance,they would still be conducting gun

shows at the PleasantonFairgrounds.

9 Characteristicsof Gun Shows

10 58. Plaintiffs allege that in a minority statelike California (46 other stateconstitutions

11 contain arms bearing guarantees)where no state constifutionalnghta to "keep and bear

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

t6 Fairgrounds for various combinations of Non-Firearms Vendors, Eirçarmg_Yendors,,

l7 Exhibitors, and Patrons.Thesepersonsattendedgun shows at the Alameda County

i l 18 Fairgrounds for a number of different reasons,including but not limited to the following

I9 pu{poses[as quoted from declarationssubmitted under separatecover]:

20 a. To obtain political information regarding my Constitutional Rights,

2T including but not limited to the right to keep and bear firearms;

22 b. To assemblewith other individuals and organizationsto discuss

23 the issuesand pending legislation that effect my Constitutional

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)"
126I LincolnAve.
Suite I I I
Sm Jose,CA 95125
Vc: 408/998-8489
.
Nordlzke v. King P,age13,of 40 3'oAmended CqmplainJ
Fx: 408i998-8487
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

4 lawful ownership and storageof firearms;

5 d. To obtain the latest information regarding the firearms industry,

6 with specific referenceto developmentsin technology and safety;

I e. To purchaseandlor sell firearms, firearm accessories,ammunition,

8 safety devices and gun safes;

9 f. To petition political candidates,both those electedand currently

) 1 0 campaigning,on issuesof governmentpolicy;

11 g. To obtain information from political candidates,both those in

t2 office and campaigring, on issuesof governmentpolicy;

t3 h. To obtain andlor offer for sale historical and philosophic

t4 information from organizationssympatheticto, but not directly

15 involved, with firearms issues;

t6 i. To obtain information and engagein the trade of stampsand coins;

t7 j. To obtain information and engagein the trade of knives;

il , 18 k. To obtain information and engagein the trade of antiquesand/or


l

l9 other collectibles;

20 l. To obtain information and engagein the trade of historical and

2l military memorabilia;

22 m. To obtain information and engagein the trade of political souvenirs

23 such as: buttons, bumper-stickers,t-shirts, books and signs;

24 n. To circulate and sign petitions for state and local initiatives;

25 o. To engagein the fellowship and affiliation of like-minded

26 individuals in a market-placeof ideas and products, and to enjoy

27 our common culture and collective heritage.


DonaldKilner
Attomeyat Law
1e
Lv 60. Plaintiff JESS B. GUY specifically alleges,and all other Plaintiffs allege on information
126I LincolnAve.
Suite I I I
Sa Jose,CA 95125
Vc:408/998-8489 Nordvkev. Kins P.age,l4of 40 , 3'o Amended Complaint
Fx: 408/998-8487
I and belief the following:

2 a. Plaintiff GUY is a criminal defenseattorney aîd a former agentof the Bureau of

J Alcohol, Tobacco & Firearms with more thanZl yearsof experienceenforcing

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

6 various locations including gun shows at the Alameda County Fairgrounds.

7 b. Plaintiff GLfY has specialknowledge with regard to federal and statefirearms

8 laws, he was planning to conduct mini-seminars by displaying various actual

9 firearms to illustrate to patronswhat types of firearms do and do not require

10 registration under the new Califomia Assault Weapons Statute. This new statute

11 basesits registration requirementon various physical characteristicsof the

t2 firearm. These characteristicsare best demonstratedby referenceto actual

13 firearms. By prohibiting the possessionof firearms on County property, the

t4 ordinance effectively preventsPlaintiff GUY from rendering this service to the

15 community atlarge.

l6 c. As a criminal defenseattorneyPlaintiff GffY must keep current on the practical

t7 aspectsof firearms identification as to characteristics,operation and markings.

18 d. In order to accomplish his duty to his clients it has been necessarythat Plaintiff

19 GUY physically examine as many different makes and models of firearms as he

20 can in order to become familiar with the unique characteristicsand identifuing

2l marks, as well as the method of operation of each firearm.

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

24 of firearms at each show, ranging from those of unique historical significance to

25 modern, up to date firearms which may not be found in storesor evidencevaults.

26 f. In order to determine the legal statusof a firearm or classof firearms, whether it

27 be for federal or statelaw enforcementpurposes,it is necessaryfor Plaintiff GUY


Donald Kilrner
Attomey at [åw 28 to physically examine firearms" Minor alterations in markings, parts
126I LincolnAve.
SuiteI I I
Sa Jose,CA 95125
Vc: 408/998-8489 Nordykev. Kins Page15 of 40 3'o Amended Complaint ,
Fx: 408/998-8487
I characteristics(both internal and external),measurements,actual modes of

2 operations all are critical to identification of a firearm's lawful statusin court

J cases,which are overwhelmingly felony matters.

4 Gun shows bring hundreds,if not thousands,of firearms to one location, where

5 examination is both convenient,and educational. This venuepermits the

6 discussion of t¡1pes,markings, operation and statusof firearms with owners,

7 manufacturers,dealers,collectors, and other interestedparties. Thesemeeting of

8 the gun culture generatesstimulating and thought-provoking discussionson guns.

9 h. The information and material that Plaintiff GIIY obtains at gun shows is used in

10 maintaining his expertisein firearms for court matters.

1l As a California admitted criminal defenseattorne and former ATF agentPlaintiff

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

t4 specific information to be documentedfor the lawful sale or disposition of

15 firearms. This information includes, but is not limited to, identification of

l6 manufacturer, identification of importer, identification of model, identification of

t7 serial number, and identification of caliber. lmporter's markings on many

18 firearms are extremely small and difficult to locate.

t9 J. Failure to document required information subjectsboth buyer and seller to severe

20 federal and statepenalties.

2l k. In order for a firearm to be sold, it must be physically examinedby both the seller

22 and buyer to insure that this required information is presentand documentedon

23 federal and statepaperwork.

24 The markings required on a firearm can only be determinedby physical

25 examination of that particular firearm. In many casesthe serial number plays a

26 critical role in determining the legality of a firearm. For example: Certain firearms

27 manufacturedprior to 1968 do not require a serial number. Examination of these


Donald Kil¡ner
Attomey at Law 28 firearms is critical to insure they are legally without a serial number or to
I 26I LincolnAve,
SuiteI I I
Sæ Jose,CA 95 125
Vc: 408/998-8489
Fx: 408/998-848'l
Nord]¡ke v. Kine Page16of 40 3'd Amended Complaint
I determineif the serial number has beenremoved.

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

6 evidencethat the possessorhas accomplishedthe removal.

7 n. Markings on similar appearingfirearms also determine their statusunder

8 California statelaw as to "assault weapon" status. [n many casesit is only what is

9 stampedon the firearm which determinesits lawful status. Again, careful

1 1 0 physical examination of the firearm insuresavoidanceof legal sanctions.

11 o. Under current federal and statelaw, gun shows are monitored by federal and state

l2 law enforcementagencies. Officers and agentscan inspect firearms offered for

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.

15 There would be no verification that the photograph is what it purports to be in the

t6 records of a licensee. Increasedcostswould impact law enforcement

t7 examinationsof theselicensees,some of whom only sell at gun shows.


'Whether
|
1 i
18 p. Many firearms at gun shows are used firearms. by age or alteration,

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

2l fitting of that firearm to the individual. A person's height, weight, gender,arm

22 length, visual acuity (glassesor non-dominant eye), position of hand placementon

23 stocks, all play a role in the proper fit of a firearm for purchase. The fit of a

24 telescopeon a rifle is important to the eye-relief of a purchaser. Actual hands-on

25 fitting and handling of the firearm is essentialfor a safe accuratefit to the

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
I 26I Lincol¡ Ave.
SuiteI I I
Sa Jose,CA 95125
Vc:408/998-8489 Nordykev. Kins PageIT 9f 40 3'oAmended Cornplaint
Fx:408i998-8487 .
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

J them which facilitate full automatic fire. The onlymanner of examinationwhich

4 insuressafe and lawful sale and possessionof such firearms is a physical

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

7 effectively negatesthe realities of physical examination for all of the above

8 pu{poses.

9 Plaintiff GIfY is also a certified instructor for the National Rifle Association in

10 rifle, pistol, safe home storage,and personalself-defense.Gun shows are a source

11 of firearms training for all personsinterestedin safe firearms handling. Classes

I2 are offered to the public at large in safe firearm handling. If firearms are not

13 allowed at guns shows, hands-ontraining, in matters of firearm safetywill suffer,

l4 which will inevitably lead to an increasein the risk of firearms accidents.

15 t. Lastly, as a patron of gun shows throughout the Statesof California and Nevada,

l6 Plaintiff GUY declarescategoricallythat he will avoid a "gun show" where actual

t7 guns cannot be shown.

18 6t. Plaintiff DUANE DARR specifically alleges,and all other Plaintiffs allege on

t9 information and belief the following:

20 a. Plaintiff DARR is a patron and exhibitor at the gun shows operatedby TS

2l TRADE SHOWS at all of the various locations throughout Northern California -

22 including, but not limited to the gun shows at the Alameda County Fairgrounds.

23 b. As a collector of 19thCentury antique firearms, the ordinance banning the

24 possessionof actual guns at gun shows, abridgesPlaintiff DARR's right to engage

25 in purespeech activities associatedwith his hobby in the following ways:

26 1. He is denied the opportunity to discussand debatevarious historical and

27 technological aspects- including the authenticity - of antique firearms


Donald Kilmer
Attom€y at Irw 28 with other collectors who also display actual firearms at TS TRADE
126I LincolnAve.
SuiteI I I
Sæ Jose,CA 95125
Vc: 408/998-8489 Nordvke v. Kins Page,18
of 40 3'o Amended Complaint
Fx: 408i998-8487
I SHOWS,because:

2 (1) Slight differences in markings, placementof screwsor seemingly

J minor parts all play highly important roles in identiffing and

4 authenticatingantique firearms for the purposeof discussingtheir

5 historical importance and relevance.This requiresa hands-on

6 inspection of the specimenson display such that photographsand

7 pictures are wholly inadequateto this task.

8 (2) It necessaryto examine a firearm in a good, strong light to examine

9 the finish on the firearm. Use of a magnirying glassis required to


.ir! 10 detect scratchmarks, pitting and rust. Use of a magniffing glassis

1l also necessaryto uncover forgeries or faked firearms that have

l2 been "re-engraved"by unscrupulousdealers. Pictures and

13 photographsare wholly inadequateto accomplishthis task.

T4 (3) It is even possible to determineif the finish of a firearm has been

l5 altered by its smell.

t6 (4) Is also necessaryto perform a hands on inspection to determinethe

T7 caliber of the firearm, as many were retooled and machined to


,q."
lR acceptdifferent ammunition throughout their service life.
t l
t9 (5) Lastly, it is also sometimesnecessaryto disassemblesome firearms

20 to authenticate their origin and manufacfurer, as many of these

2l marking are hidden by moving parts and the wooden stock.

22 2. He is also being denied the opportunity to enjoy and discussthe symbolic

23 aspectsof antique firearms with other collectors who also display actual

24 firearms at TS TRADE SHOV/S, because:

25 (1) Many of these antique firearms arepart of American History. For

26 example,Plaintiff DUANE DARR currentlypossessantique

27 firearmsthatwereusedduringthe Civil War. [circa:1860- 1865].


Dotrâld Kiltner
Anomey at l¿w
1a
Lo (2) Plaintiff DUANE DARR is, in effect,a custodianof a pieceof
l26l LincolnAve.
Suite I I I
Sm Jose,CA 95125
Vc: 408/998-8489 Nordyke v. Kine Page19of 40 3'dAmended Complaint
Fx: 408/998-8487
I history, and gun shows have provided a forum for a kind of

2 traveling museum where DUANE DARR is a conduit for the

J verbal transmissionof various featuresand aspectsof sorneof the

4 artifacts that are symbols of America's struggleto maintain its

5 freedom.

6 (3) The symbolic aspectsof theseactual antique firearms can be

7 particularly appreciatedat gun showsbecausetheseforums are

8 widely advertisedand provide a place for like-minded individuals

9 to assembleand show their appreciationand respectfor the tools of

10 liberty as illustrated in the magazinearticle, Freedom's Fírearms,

11 from the May 1998 edition of the American Rifleman.

t2 (4) Gun shows are not just a place to buy and sell firearms, but for the

13 collector representan opportunity to observeand learn the hobby

t4 of antique firearm collecting due to the wide assortmentof

15 specimensand examplesbrought to the shows.

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

20 might actually accomplish a lesseningof violence in our communities.

2l 62. Plaintiff V/ILLIAM J. JONES specifically alleges,and all other Plaintiffs allege on

22 information and belief the following:

23 a. Plaintiff JONES is a frequent patron and exhibitor of the gun shows operatedby

24 TS TRADE SHOW, including, the gun shows at the PleasantonFairgrounds.

25 b. The Alameda County ordinanceprohibiting the possessionof actual firearms at

26 the Alameda County Fairgroundswill prevent his American Civil War

27 Association- a FederalU.D. # 77-03979621andState[I.D. # 1953213]Non-

Profit Educational Corporation - from displaying replica and antique firearms


Donald Kilrner
Attomey at Law 28
l2ó I LincolnAve.
SuiteI I I
SÐ Jose,CA 95125
Vc:408/998-8489 Nordykev. King Page2} of 40 3'd Amended Complaint
Fx;408/998-8487
I used as part of their living history display at the TS TRADE SHOW. These living

2 history displays are a meansof helping the public gain a better understandingof

J the American Civil War.

4 c. The presenceof actual firearms is specifically necessaryas part of the living

5 history display to give instruction on the history of firearm developmentduring

6 the Civil War period.

7 d. The presenceof actual firearms is specifically necessaryas part of the living

8 history display to illustrate the technological advancementsin firearm

9 developmentthat aroseout of the Civil War. For example,it was during this time

10 period that the breachloading and repeatingrifles were developed,primarily by

11 the North, which gave the Union Forces a significant advantageover the South.

t2 These developmentswere afactor in the outcome of that war. Onlyby displaying

l3 and letting the public interact with actual original and replica firearms from the

l4 period can thesekinds of history lessonsbe brought to life.

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

20 member of the organization.

2l g. The presenceof firearms is necessaryto conduct safety classesand to maintain the

22 degreeof safety consciousnessrequired by the or ganization's regulations.

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

26 part of the information he imparts to the public in his pursuit of educatingpeople

27 about the American Civil V/ar.


Donâld Kil¡ner
Attomey at Law 28 63. Plaintiffs DARYL DAVIS. TASIANA V/ERTYSCHYN. JEAN LEE" TODD BALTES
I 26 I Lincoln Ave.
Suite I I I
SÐ Jose,CA 95125
Vc: 408/998-8489 Nordvke v.,Kine Page2l of 40 3'o Amended Complaint
Fx:408/998-8487
I and DENNIS BLAIR specifically allege, and all other Plaintifß allege on information and

2 belief the following:

J a. These Plaintiffs are frequent patrons of the gun shows operatedby TS TRADE

4 SHOW at all of the various locations throughout Northern California - including,

5 but not limited to the gun shows at the Alameda County Fairgrounds.

6 b. As collectors of new and used modem firearms, the ordinancebanning the

7 possessionof actual guns at gun sho'wsabridgesthesePlaintiffs' right to engagein

8 rc speechactivities associatedwith their hobbies in the following ways:

I l. They are denied the opportunity to discussand debatevarious

10 technological, scientific and safety aspectsof modem firearms with other

11 collectors, who also display and offer for sale/tradenew and used actual

12 firearms at TS TRADE SHOWS because:

t3 (l) Firearms, even of the samemake and model, evolve over the years

l4 with regard to certain features,including but not limited to: (1)

15 safety devices for preventing accidentaldischarge,(2) decocking

I6 mechanismsfor safely lowering the hammer or firing mechanism,

l7 (3) interlock mechanismsfor preventing inadvertentmovement of

18 the firing pin, and (4) loaded cylinder indicators.

t9 (2) It is not possible to compare/contrast,and therefore discuss/debate,

20 the relative merits - while at the gun show - of thesechanges

2I betweennew and old models of firearms without the actual

22 firearms for side-by-sidecomparison, physical inspection and

23 functional checks.

24 2. Theseparticular Plaintifß are also being denied the opportunity to

25 observe,ettjoy and discussthe symbolic aspectsand featuresof new and

26 used modern "commemorative" firearms that have various s¡rmbols,

27 pictures and messagesinscribed on them. Furthermore,Plaintiffs allege


Donâld Kil¡ner /) a
Attomey at Law Lo thatit is not possible to truly appreciatetheseworks of art without the
I 26 I Lincoln Ave.
surte I I I
Sæ Jose, CA 95 I25
Vc:408i998-8489
Fx:408/998-8487 .,:
Nordvkev. Kine Page22of 40 3'd Amended Complaint
I opporhrnity to observethe workmanship and engravingson these

2 coÍLmemorativefi rearms.

J (1) Many of these "commemorative" firearms are actual working

4 firearms that ne inscribed with depictions of historical events.

5 (2) Many of these "commemorative" firearms are actual working

6 firearms that have inscriptions that celebrateAmerican Cultural

7 heroes.

8 (3) Many of these "commemorative" firearms are actual working

9 firearms that have inscriptions that honor membersof the Armed

10 Servicesand Law Enforcement.

ll (4) And lastl¡ many of these "commemorative" firearms are actual

12 working firearms that are inscribed with re political messages.

t3 c. As collectors of new and usedmodern firearms, the ordinancebanning possession

t4 of actual guns at gun shows,infringes on theseparticular Plaintifß' right to

15 engagein commercial speechactivities associatedwith the purchase,sale and

l6 trading of firearms in the following ways:

t7 1. \Vith respectto used firearms, a proper assessmentof the condition of a

18 firearm cannot be made without inspecting the firearm. Therefore an

t9 agreementon price or value cannot be made with regard to that firearm.

20 How is a contract for "sale" supposedto take place when there can be no

2l meaningful discussionabout the essentialterms of that contract? The

22 NRA Condition Standardsfor Firearms Values recommendsa "hands-on"

23 inspection to determinethe condition of a firearm.

24 2. Furthermore the following specific safety inspectionsand measurements

25 for fit should be performed before contracting to purchasea handgun:

26 (1) On all new and used handgunsit is necessaryfor the purchaserto

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.
l26l LincolnAve.
SuiteI I I
Sil Jose,CA 95125
vc; 408/998-8489
Fx:408/998-8487 , ..
Nord)¡kev. Kins P,ageZ3of 40 3'd Amended Complaint
1 (2) When purchasing a usedrevolver - (1) The hammer should turn

2 the cylinder to the next chamber,and lock it in place. (2) A


a
J revolver, when cocked, should have very little play in the cylinder.

4 (3) The chambersshould align with the bore. (4) Push againstthe

5 spur of the cocked hammer to make sure the gun stayscocked and

6 doesnot inadvertently drop. Lastly, (5) the crane,which is the part

that swings out with the cylinder on some revolvers, should fit

8 snugly againstthe frame in the front with the cylinder closed.

9 (3) On a used self loading pistol - (l) the slide shouldbe pulled back

10 to be sure it locks open. (2) The releaseshould be pressedto

11 insure that the hammer doesnot follow the slide down. (3) The

t2 safety should be checkedfor proper operation. (a) The decocker,if

l3 available, should also be checkedfor proper operation.

t4 3. The following specific inspectionsshould be performed before contracting

15 to purchasea new or used long gun:

l6 (l) On a new or used shotgunit is necessaryto check:(1) Length of

t7 Pull - this is directly related to the length of the shooter's arm and

18 is a highly personal fit of the firearm to the purchaser.(2) Cast at

t9 Toe - which is related to a persons' chest size and is also a highly

20 personal fit of the firearm to the purchaser. (3) And of coursethe

2l weight and balance should also be checked.

22 (2) On a new or used rifle it is necessaryto inspect (1) weight and

23 balance,(2) tigger pull, (3) stock dimensions.

24 64. Plaintiff R.L. (Bob) ADAMS specifically alleges,and all other Plaintiffs allege on

25 information and belief the following:

26 a. He has been a custom rifle maker for 47 years and a patron of TS TRADE

2l SHOV/S, including the gun shows at the PleasantonFairgrounds.


Donald K¡lner
Atlomey at láw 28 b. The ordinancein question abridgesre speechrights bypreventing Plaintiff
126I LincolnAve.
Suite I I I
Sæ Jose,CA 95125
Vc: 408/998-8489 Nordykev. Kine P,age24of40 3'dAmended,Complaint
Fx: 408/998-8487.
I ADAMS from instructing his clients/customersat gun showsand showing them

2 how to purchase good used rifles.


a
J c. Specifically Plaintiff ADAMS gives instructions to his clients/customersby

4 accompanyingthem to a gun show and showing them pitted bores, cracked

5 receivers,excesshead-space,bumed and pitted bolt faces.Thesecharacteristics

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

8 variety of new and used firearms that are usually present.

9 d. Plaintiff ADAMS also showshis customershow to identiff the country of origin

10 and date of manufactureof a rifle. This is possible only by referenceto the actual

1l f,trearmand is necessaryto determinethe quality and value of the firearm.

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

t4 physically inspect while contracting for its purchase.

15 f. Plaintiff ADAMS allegesthat a gun show where guns cannotbe shown is an

t6 absurd contradiction in terms that defies logic and common sense.

t7 65. Plaintiff ROGER BAKER specifically alleges,and all other Plaintiffs allege on

18 information and belief the following:

T9 a. This Plaintiff is a frequent exhibitor at the gun shows operatedby TS TRADE

20 SHOWS throughout Northern California - including, but not limited to the gun

2l shows at the Alameda County Fairgrounds.

22 b. Plaintiff BAKER is a Federally Licensed Firearms Dealer. He deals almost

23 exclusively in antique, relic and collectible firearms. He specializesin

24 "commemorative" WínchestersrM.

25 c. The Alameda ordinanceprohibiting the possessionof firearms at the TS TRADE

26 SHOWS at the County Fairgroundsinfringes on Plaintiffs BAKER's puq speech

27 rights. The "commemorative" firearms that he specializesin have various


Donald Kilrner
Attomey at I¿w 28 symbols, pictures and messagesinscribed on them. The ordinance denieshim and
126l Lincoi¡ Ave.
Suite I I I
Sil Jose, CA 95 125
Vc:408/998-8489 Nordvke v. King Page25of 40 3'oAmended Complaint
Fx: 408/998-8487,
I his customersthe opportunity to observe,erjoy and discussthe symbolic and

2 artistic aspectsand feafuresof thesecommemorativefirearms.


a
J d. Furthermore,this particular Plaintiff allegesthat it is not possible to truly

4 appreciatetheseworks of art without the opportunity to directly observethe

5 workmanship and engravingson thesecoÍrmemorative firearms. Mere pictures

6 vvould not renderjustice to the workmanship and beauty of thesefirearms.

7 e. Many of these "commemorative" firearms are actual working firearms that are

8 inscribed with depictions of historical events.

9 f. Many of these "commemorative" firearms are actual working firearms that have

10 inscriptions that celebrateAmerican Cultural heroes.

11 g. Many of these "commemorative" firearms are actual working firearms that have

t2 inscriptions that honor membersof the Armed Servicesand Law Enforcement.

t3 h. And lastly, many of these "commemorative" firearms are actual working firearms

l4 that areinscribed with re political messages.

15 i. Plaintiffs can statecategoricallythat without the ability to display these

t6 commemorative firearms and discusstheir messageswith his customers,there is

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

t9 information and belief the following:

20 a. This Plaintiff is a frequent exhibitor/vendor at the gun shows operatedby TS

21 TRADE SHOWS throughout Northern California - including, but not limited to

22 the gun shows at the Alameda County Fairgrounds.

23 b. He is a founding chairman, and officer of the Gun Exchange,a California

24 Corporation [ID# 77 -0199362].

25 c. His principal place of businessis San Jose,where his storefront retail shop has

26 been locatedsinceAugust of 1987.

27 d. He is a licensed Firearms Dealer under federal and statelaw.


Donald Kilner
Attomeyat Law
t e
Lv e. He does not have a Concealed'WeaponsCarry permit as defined and regulatedby
126l LincolnAve.
SuiteI I I
Sæ Jose,CA 95125
Vc:408/998-8489 Nord)¡ke v. Kine Page26of 40 3'oAmended Complaint
Fx:408/998-848'1
I PenalCode $ 12050.

2 f. He is a frequent patron and firearms vendor at TS TRADE SHOWS throughout

J the BayArea, including the shows at the Alameda County Fairgrounds.

4 ç
Þ' As part of his work as a licensed firearm dealer,he often attendsgun shou/sto

5 buy, sell and trade firearms.

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.

9 i. This Plaintiff further alleges,basedupon years of experiencein the retail firearms

10 business,that his retail customerswould not engagein the trade,sale or purchase

11 of used firearms without being able to physically inspect the merchandise.

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.

t4 k. Furthermore,he allegesthat the ordinancein question treatshim unequally by

15 denying him accessto the Alameda County Fairgrounds for the display of his

t6 inventory, while excepting - and therefore irrationally discriminating in favor of -

l7 other persons,which presumablyincludes other licensed firearm dealers,who

18 hold concealedweapon carrypermits pursuant to Cal Penal Code $ 12050.

t9 l. Lastly, Plaintiff FOURNIER statesthat he will not attend or contract as a vendor

20 at any gun show that does not permit actual firearms.

2I 67. Plaintiff VIRGIL McVICKER specifically alleges,and all other Plaintiffs allege on

22 information and belief the following:

23 a. This Plaintiff is personally presentas a patron and exhibitor at the gun shows

24 operatedby TS TRADE SHOWS at all of the various locations throughout

25 California - including the gun shows at the Alameda County Fairgrounds.

26 b. Plaintiff McVICKER is the president of the Madison Society, a Nevada

27 corporation with its registeredplace of businessin Carson City, Nevada. The


Donald K¡l¡ner
Attomey at L¿w 28 society has branch chaptersin California.
12óI Li¡coln Ave.
Suite I I I
Sm Jose,CA 95125
Vc: 408/998-8489
Fx: 408/998-8487
Nordyke v. King Page27qf 40 3'oAmended Complaint
I c. The Madison Society is a membershiporganizationwhose purposeis preserving

2 and protecting the legal and constitutional right to arms of its membersand of
a
J law-abiding, responsibleAmericans in general.

4 d. To accomplishthis the Society engagesin and/or supportslitigation in California

5 and nationwide, exercising its, and its members' First Amendment rights.

6 e. The Society also engagesin political, educationaland advocacythrough such

7 activities as public meetings, advertising,publishing and distribution of literature

8 and contactwith public officials.

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

11 conductedat the Alameda County Fairgroundsby TS TRADE SHOWS.

t2 g. In addition to political and educationalactivities conducted at gun shows,the

t3 Madison Society seeksdonations and funding byholdingpize drawings for

t4 various merchandisewhich are often firearms.

15 h. Madison Society would like to continue to hold such drawings at the gun shows at

T6 the Alameda County Fairgrounds,however the Ordinance that prohibits the

t7 possessionof firearms on County property has had a chilling effect on the

attendanceof gun shows at that venue, this apparentlyresulted in the cancellation

I9 of the gun show that was scheduledfor the weekend of November 617,1999 at

20 the Alameda County Fairgrounds.

2l i. This ordinance would also prevent the display of any firearm offered by my

22 organization as a prize drawing.

23 j. The Society dependsa greatdeal on the funding generatedby thesedrawings,

24 where donors can examine the personalfit and quality of the firearm offered as

25 thepnze. The Society would like to continue to conduct drawing where we

26 display actual firearms.

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
l26l Li¡col¡ Ave.
SuiteI I I
Sa Jose,CA 95125
vc: 408i998-8489
Fx: 408/998-8487
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

8 ProcessClausesof the FourteenthAmendment and the Freedomsguaranteedby the First

9 and SecondAmendmentsas made applicable to the statesthrough the Fourteenth

10 Amendment's Due ProcessClause and those supplementalprotections afforded by the

tl California Constitution. Plaintiffs have suffered, are now suffering and will continue to

T2 suffer damages- including but not limited to:

13 a. Expensesfor advertising future shows;

T4 b. Lost revenuefor past and future shows;

15 c. Loss of deposit on shows already scheduled;

16 d. Goodwill that has been, or will be disrupted,by the gun show cancellationsand

t7 loss of repeatbusinessfrom long standingvendors and patrons;

i' 18 e. Medical expensesbrought on from the stressof having their livelihood threatened;

t9 f. Attorneys fees and costs for bringing this suit.

20 69. Plaintiffs will also suffer damagesby reasonof being denied substantialrights that once

21 violated will be irreparableand for which there is no adequateremedy at law. Therefore

22 financial remedieswill not be adequateto make the Plaintiffs whole.

23

24 FIRST CLAIM: FREEDOM OF EXPRESSION . 'IAS APPLIED'' CHALLENGE

25 70. Plaintiffs incorporateby referenceeach and every allegation containedin Paragraphs1

26 through 69 as though fully set forth herein.

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
126I LincolnAve.
SuiteI I I
Sæ Jose,CA 95125
Vc: 408/998-8489
Fx: 408/998-8487
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

2 the FourteenthAmendment's Due ProcessClause.

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

5 by the California Constitution.

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

10 at the Alameda County Fairgroundsfor various syrnbolic and expressivepurposes

11 including but not limited to:

t2 a. The display and handling of commemorative firearms as objects of art and as

13 mediums of political messagesthat are inextricably intertwined with the actual

I4 firearm,

15 b. The display and handling of firearms that have military and historical importance,

t6 and as part of aliving history and/orhistorical re-enactmentexhibit that educates

t7 the public about our nation's history,

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

20 federal and statelaw,

2l d. The display and handling of antique firearms as objects of art,

22 e. The display and handling of firearms to facilitate conlmercial transactionsin

23 firearms,

24 f. The display and handling of firearms for the purposeof instruction in safe and

25 responsiblegun storageand handling,

26 g. The display and handling of firearms for the purpose of conductingpnze drawings

27 that benefit community service organizations,


Donald Kilner 1 a
Attomeyat L¿w LQ h. The display and handling of firearms for the purpose of engagingin the commerce
I 26I Lincol¡ Ave,
Suite I I I
SaJose,CA 95125
Vc:408/998-8489
Fx: 408/998.8487
Nordyke v; King Page30 of 40 3'oAmended Complaint
I oftrigger locks and gun safes,

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

4 congregateat gun shows,

5 i. The display and handling of firearms for the purposeof purchasingfirearms

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

9 or overhaul of firearms by qualified gunsmiths,

l0 l. The display and handling of firearms for the pu{poseof receiving an appraisalof a

11 firearm from a qualified expert.

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

t4 embodied in the SecondAmendment. This hostility is specifically directed at gun owners

l5 that advocateand expressa political belief in a strict interpretation of the Second

t6 Amendment. It is further allegedthat the ban on the possessionof firearms at the

t7 Alameda County Fairgroundsis merely a pretext to suffocate,disperseand deny a forum

18 to political groups that support the private ownership of firearms as set forth in the

t9 SecondAmendment to U.S. Constitution.

20 76. Plaintifß further allege that the Ordinance is motivated by, and intended to suppressthe

2T expressionof "disfavored" views is illustrated by the exception in the Ordinance for

22 motion picture and television production events. There is no compelling government

23 interest that is servedby banning the possessionof guns at gun show events,while

24 exempting the possessionof guns at theatrical events. If the governmentalinterest

25 assertedby the ordinanceis the prevention of the criminal misuse of firearms, that

26 interest is in far greaterdangerwith respectto guns in the hands of theatrical prop

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,
| 26I LincolnAve.
SuiteI I I
Sm Jose,CA 95125
Vc:408/998-8489 Nord)¡ke v. Kine Page31 of 40 3'd Amended Complaint
Fx: 408/998-8487
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,

4 there is still no compelling reasonsfor excepting theatrical eventsfrom the ordinance,as

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

9 the suppressionof "disfavored" activities and expressionsat gun shows.

10 77. Plaintifß allege that the Defendants' ban on the possessionof firearms on county

11 property at the Alameda County Fairgroundsconstitutescontent basedregulation of

t2 symbolic and expressivespeechas applied to gun shows.

t3 78. Plaintiffs further allege that the Ordinancein question does not servea compelling or

t4 important governmentinterest. Moreover, the ordinance is unnecessaryas that interest is

15 already addressedby local regulations and State and/or Federal law. Nor is the Ordinance

t6 narrowly drawn to servethe governmentinterest asserted,so as not to infringe upon the

t7 Plaintiffs' freedom of expression.

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

26 mere possessionis different from possessionwhich is meant to convey a message.

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.
Suite I I I
Sæ Jose,CA 95125
Vc:408/998-8489 Nord]¡kev. Kins Page32of 40 3'd Amended Complaint
Fx:408/998-8487
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

4 attendeesto be part of some sub-culture that"displøy gunsfor worship as deitiesþr the

5 collectors who treat them as icons of patriotism." Without acceptingthe pejorative

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

11 (gun shows) is currently threatenedand will continue to be threatenedby Defendant's

t2 actions.

t3 83. Plaintiffs further allege that Defendants' actions are arbitrary and capricious, and a

t4 discriminatory denial of their fair use of public facilities.

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.

I7 Furthermore,the ordinanceputs the Plaintiffs in an untenable "Catch-22" situation where

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

20 being able to passeven a rational basis scrutiny.

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

24 during gun shows at the Fairgrounds.

25 86. Plaintifß further allege that possessionof a firearm during a gun show is necessaryand

26 that firearm possessioncan convey a particularized messagein the following ways:

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.
SuiteI I I
Sæ Jose,CA 95125
Vc: 408/998-8489
Fx:408/998-8487. ,
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

2 National Rifle Association President- Charlton Heston. At every conventionhe


a
J presidedover during his term of office, upon uttering those words, Mr. Heston

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)

7 convey a particularized messageconveyedby Mr. Heston and that messageis

8 understoodby the members of the National Rifle Association. Raising an empty

9 hand over his head and saying the samewords would not convey the same

10 message. (That Mr. Heston was an actor leads us to anotherexample of how

1l possessionof a gun can convey a message,but this example is one that ¿s

t2 permitted by the ordinance.An actor in a play pointing his finger at another

13 characterand saying "b*9, bang" does not have the dramaticlcinematiceffect of

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

l6 saturatedwith rhetorical and symbolic messagesintended to convey the message

t7 that the SecondAmendment to the United StatesConstitution protects a

18 fundamentalright of individuals, every bit as important as the rights protectedby

t9 the First Amendment. The Alameda Ordinance, as applied to guns shows at the

20 PleasantonFairgrounds,would prohibit that speech(and any like it) from being

2l performed by Mr. Heston or any other gun rights activist.

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

25 Alameda Board of Supervisorswere well aware of her views and endorsed/ratified

26 those sentiments. Therefore, by the Defendants' own admission, possessionof a

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.
SuiteI I I
Sæ Jose,CA 95125
Vc: 408/998-8489
Fx: 408i998-8487.
Nord}¡kev. King P,age34of 40 3'd Amended Complaint
1 gun shows,would chill, and has prevented,the disseminationof the messagethat

2 possessionof a firearm is necessaryto convey patriotism and gun worship.

fAlthough she apparentlydisagreeswith that messageand that particular form of


I
J

4 expression.]

5 c. During the2004 presidential campaign,Candidate(Senator)John Kerry sought to

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

9 eventswere meant to convey a particularized messageby the Kerry/Edwards'


i 1 0 campaigndirected at gun o\rynersand hunterswho were potential voters. The

11 ordinance,as applied to gun shows at the PleasantonFairgrounds,would "chill" or

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

t4 opportunity. [See CNNrM article attachedas Exhibit A.]

15 d. A gun that is unloaded, safety tied, and worn openly at a gun show is (at least

t6 temporarily) no longer a weapon. ln a state(California) and judicial Circuit (the

t7 Nintþ which is openly hostile to gun ownership and the principles of the Second

i 18 Amendment, such conduct at a cultural event is purely symbolic. As such it

t9 conveysthe messagethat the wearer is expressingsolidarity with the gun culture.

20 By "bearing" his arms, the personpossessingthe firearm in this symbolic manner

2l is conveying a messageobjectively understoodby him and his intended audience

22 that he supportsthe National Rifle Association's (and the Attorney General's, and

23 the Secretaryof State's) interpretation of the SecondAmendment. That message

24 is understoodby most, if not all, of the patrons of the gun shows sponsoredby the

25 Nordykes. The ordinance, as applied to gun shows at the PleasantonFairgrounds,

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-
SuiteI I I
Sæ Jose,CA 95I25
Vc: 408/998-8489
.
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

2 doesmake exceptionsfor "membersof the military forces of the Stateof

J California or of the United Stateswhile engagedin the performanceof his or her

4 duty." However, the ordinance does not make exceptionsfor Junior ROTC

5 members,or reservists,or veterans,who might have a desire to participate in these

6 ceremonieson county property. As applied to gun shows at the Pleasanton

7 Fairgrounds,the ordinance "chills" or makes such ceremoniesimpossible or

8 subjectto criminal prosecution.

9 As this Court and the Court of Appeals noted, "typically a person possessinga gun

10 has no intent to convey a particular message,nor is any particular messagelikely

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

T6 various pulposes,including but not limited to commercial, educational,patriotic

l7 and political messages. It is precisely within the context of a gun show that the

18 intent to convey a particularized message(and a messagewould be understoodby

t9 an audience)is greatest. Gun shows are precisely the venue where gun supporters

20 and protestersmight possessguns for various particularized demonstrations,both

2l supporting and decrying the private ownership of firearms. At the very least,

22 testimony and/ordeclarationsfrom gun show patrons, exhibitors and vendors

23 about the messagesand symbols that are presentat guns would be necessary

24 before any determination could be made about whether possessionof a firearm

25 could (or did) convey a particularized message.

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.
SuiteI I I
Sm Jose,CA 95125
Vc: 408/998-8489 Nordyke v. King Page36of 40 3'o Amended Complaint
Fx: 408/998-8487
I Irish-AmericanGay. Lesbianand BisexualGroup,515 U.S. 557,568 (1995)1"As

2 applied to gun shows at the PleasantonFairgrounds,the ordinance "chills" and


a
J prohibits all manner of messagesconveyedby patrons,vendors and promoters of

4 gun shows which would require, or be least be better understood,when the

5 speakeris allowed possessionof a firearm.

9 SECOND CLAIM: EOUAL PROTECTION

10 87. Plaintiffs incorporate by referenceeach and every allegation containedin ParagraphsI

11 through 86 as though fully set forth herein.

t2 88. Plaintifß have historically used the Alameda County Fairgrounds to engagein conduct

13 that is lawful throughout the rest of the United Statesof America.

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.
126l LincolnAve.
SuiteI I I
Sd Jose,CA 95125
Vc: 408/998-8489 Nordyke v. King Page37of 40 3'd Amended Complaint
Fx: 408/998-8487
I 90. Plaintiffs allege on information and belief that the County of Alameda has permitted the

2 possessionof firearms at the Alameda County Fairgroundsfor other events,including but

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.

6 9r. Specifically, Plaintiffs allege that the ordinance in questionirrationally discriminates by

7 prohibiting the possessionof guns on county property by participants of a gun show

8 event, while exempting the possessionof guns on county property by authorized

9 participants in "motion picture, television, video, dance,or theatrical production or

l0 event[s]." The presenceof f,rrearmsat both of theseexpressiveand cultural activities are

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

I4 these events,the Defendantscannot asserta compelling, or even important, government

15 interest that justifies treating gun show participants differently from theatrical production

t6 participants. Nor is the attempt to addressthe governmentinterest that is asserted,

t7 narrowly drawn to prevent infringement upon the fundamental rights of the of the named

18 Plaintiffs and other third parties.

t9 92. Plaintiffs further allege, and Plaintiff MIKE FOURNIER in particular allegesthat the

20 ordinance in question irrationally discriminates between and among Licensed Firearm

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

24 expressiveand commercial speechthat this Ordinance would prevent, it is quite evident

25 that the practical aspectsof buying, selling and trading firearms is also affected. As a

26 frequent dealer at TS TRADE SHOWS, Plaintiff MIKE FOURNIER had historically

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
Sm Josc,CA 95125
Vc: 408/998-8489
,
Nordykev. Kins Page38 of 40 3'o Amended Complaint
Fx: 408/998-8487
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

4 Ordinancemakes no distinction betweenthe firearms the $ T2050licenceeis authorized

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

without $ 12050 permits, are alreadythoroughly regulatedby federal and statelaw.

8 Therefore the Defendantscannot asserta compelling, important, or even rational

9 governmentinterest that justifies treating firearm dealerswith $ 12050permits differently

10 from dealerswithout the permit.

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

t4 currently suffering and will continue to suffer damagesbasedupon violations of the

15 FourteenthAmendment's Equal Protection Clause; and that theywill continue to be

16 irreparably deprived of certain rights for which there is no plain, speedyor adequate

t7 remedy at law.

t l 18 PRAYER

t9 V/HEREFORE, Plaintiffs requestfrom this Court:

20 A. A permanentinjunction againstthe Defendantsstriking down the offending ordinance

2l and prohibiting discriminatory enforcement;

22 B. An award of compensatorydamagesaccording to proof;

23 C. An award of attorneys fees and costs of this lawsuit;

24 D. A declaration that Plaintiffs are entitled to continue to engagein the historical usesof the

25 Alameda County Fairgrounds.

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.
suite I I I
Sm Jose,CA 95125
Vc:408/998-8489
Fx: 408/998-8487
Nordyke v. Kine Page39 of 40 3'd Amended Complaint
I JURY DEMAND

2 Pursuantto the FederalRulesof Civil Procedure- 38(b),Plaintiff demandajury trial on all


a
J issuesfor which that right exists.

5 Dated:July 8, 2005

6 Donald E. J. Kilmer, Jr.


LAV/ OFFICES OF DONALD KILMER
7 A ProfessionalCorporation
126l Líncoln Avenue, Suite 111
8 SanJose,California 95125-3030
Phone: 4081998-8489Fax: 408/998-8487
9 E-Mail : DKlawOfc@aol. com

10 Attorney for the Plaintiffs

1l

l2

13

14

15

t6

t7

i ) 18

l9
20

2l

22

23

24

25

26

27
Donald KilnÊr
Attomey at Law 28
I 26 I LincolnAve.
SuireI I I
Sm Jose,CA 95125
Vc:408/998-8489 Nordyke v. Kine Page40 of 40 3'd Amended Complaint
Fxr 408/998-8487
Aim onGun\/otein RedStates
KerrySharpens -- 08llLl\004 Page1 of2

Kerry SharpensAim on Gun Vote in Red States


By RobertB. Bluey
CNSNews.com Commentarv
August 12,2004

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.

Before most voters were paying


attention to the candidatesseekingthe
Democrat nomination last year, Kerry
had reportersand photographerstrail
him on the plains of central Iowa where
they watched him shoot two pheasants.

Ever since that chilly October day,


pictures of Kerry in his blaze orange
vest with a shotgunin hand have
popped up in newspapersand in one of
his own campaignads. Immediately
after the hunt, Kerry mailed his
supportersthe image: Three months
later in January,he won the Iowa Ç a n d i d a t el o h n K e r r : yo n a h u n t
caucuses. i n l o r , V aU
; ohnKerry.com)

Potential voters who seethe pictures


might be left with the impressionthat
the Democrat is a hunting pal of Wayne LaPierre. But the National
Rifle Association's executivevice presidentisn't buying Kerry's use of
gun imagery.
i i
While keeping a distancefrom his l9-year Senatevoting record, Kerry
is serving as a "poster boy" in a schemehatchedby Americans for Gun
Safety (AGS), a group that has encouragedDemocratsto tone down
their anti-gun rhetoric, LaPierre said.

Recognizing that Gore lost threebattlegroundstatesin the 2000 race -


Arkansas,his home stateof Tennesseeand V/est Virginia, eachby six
or fewer percentagepoints - in part becausehe was unable to shedthe
anti-gun image, AGS and centrist Democratsvowed to reversecourse.

Last October, before the first votes were cast,Democrat strategists


outlined a softermessagefor candidatesto use.PollsterMark Penn
advisedDemocrats to supportthe SecondAmendment, while also
advocating"closing somegun law loopholesand enforcingthe laws on
the books."

Americans for Gun Safety adviserMatt Bennett, a former aide to


retired Gen. W'esleyClark's campaign,said he's not surprisedthe NRA

http://www.cnsnews.com/ViewCommentary;asp?Page:%5CCornm
entaryo/oilOærchivea/o5C:..'
7l11l20O5
Kerry SharpensAim on Gun \/ote in Red States-- 09ll2l}004 Page2of2

has attackedKerry. Although the NRA hasn't formally endorsed


President Bush, it plans to continue running adsthis fall highlighting
Kerry's anti-gun votes.

"The interesting thing aboutthis race is that John Kerry is no Al Gore


on the gun issue," Bennettsaid. "John Kerry is a gun owner, he's a
hunter, he's a good shot, and he's nobody's pushover on gun rights. It's
going to be much harderfor the NRA to pin that gun-grabberlabel on
John Kerry."

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."

The NRA is quick to note that despite frequently missing senatevotes


from last Septemberto March of this year, Keny made sure he
retumed to vote to ban semi-automaticrifles, outlaw gun shows and
oppose immunity for the firearms industry from so-calledjunk
lawsuits.

Throughout his career,Kerry has consistently voted 100 percentof the


time with the anti-gun coalition to stop Gun violence and the Brady
'When
Campaign to PreventGun Violence. he ran for re-election in
2002, the NRA gave him an "F" grade.

But when photos of Kerry and his shotgun show up in newspapersand


television commercials,somegun enthusiastsmight not recognizethe
camouflaged Kerry.

"Those kinds of events,while cleariy symbolic, are important,"


Bennett said in defenseof Kerry. "They send a signal to gun owners
that says, 'Look, I shareyour values becauseI am a gun owner. I'm not
going to do anything that'sgoing to infringe on the rights of law-
abiding citizens to own guns.' "

The tactic is working, accordingto the WashíngtonPosf,which


reported Monday that 42 percentof gun owners in the so-calledred
statesbelieve Kerry would be a less aggressiveadvocatefor gun
control. Wins in placeslike Arkansas,Tennesseeand V/est Virginia
might be all Kerry needsto capturethe White House.

' ' http:/lww\il.cnsne\rys.com/ViewGontmentary;asp?Fage:7¡5C€ornrrrcntarye/o5Oarahivee/o5Øtt:


il 1tr,112005
1 Re: Nordykev. Steele
U.S.DistrictCourt,CaseNo. C 99 04389MJJ
2
a
PROOFOF SERVICE
J

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
20
2l
22
23
24
25
ì,ri
26
27
28