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JUNf o 2005
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R,CHARD
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5 IN THE TINITEDSTATESDISTRICT COI'RT

6 FORTHE NORTHERNDISTRICT OF CAIIFORNIA

8 RUSSELLAILEN NORDYKE, et al., - No. C 99-04389}{JJ

9 Plaintiffs,
10 V. ORDER GRANTING IN PART AND
DET\IYINGIN PART DEFENDANTS'
1 ' . - i 1 1 MARY V. KING, et al., MOTION TO DISMISS
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\r'E t2 Defendants.
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:lr¡ 15 INTRODUCTION
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(ta z T6 kt this 42 U.S.C. $ 1983action, Mary V. King and the County ofAlameda, et al.
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t 7 ("Defendants")move to dismissRussellAllen Nordyke's, et al. ("Plaintiffs") secondamended
1 8 complaint. For the reasonsset forth below. the Court GRA¡ITS IN PART AND DENIES IN
7 9 PART Defendants' motion.
20 FACTUAL BACKGROUND

2l This casearosewhen an Alameda County ordinance prohibiting firearms possessionon

22 county-ownedproperty ("the Ordinance") allegedly prevented Plaintiffs from continuing their

23 businessof organizing gun trade shows on Alameda County Fairgrounds. Plaintiffs have legally
24 conductedtrade shows on the fairgrounds since February TggL The Alameda County Board of
25 Supervisorsadoptedthe Ordinanceon August 17, 1999. 'While gun shows were not bannedper se,
2'6 the Ordinance effectively prohibited any actual guns from being shown, used or sold on the
an fairprounds.

28 Plaintiffs initially claimed that the Ordinance effectively put a stop to their businessand
 1 subsequentlyfiled a Motion for a Temporary Restraining Order and Injunctive Relief. On November
2 3,1999, this Court deniedthe aforementionedmotions. Following an interlocutoryappeal,the Ninth
a
J Circuit certified a question of statelaw regarding a statelaw preemption issueto the California

4 SupremeCourt. On April 22,2002, the California SupremeCourt issuedits answerand on February

5 18,2003, the Ninth Circuit issuedits ruling upholding the Court's order denyingPlaintiffs' request

6 for a preliminary injunction. The Ninth Circuit denied Plaintifß' request for einbanc yeviewand the
United StatesSupremeCourt subsequentlydenied certiorari.

8 On February 14,2005, the Courf granted in part and denied in part Plaintifß' motion to f,rlea

9 secondamendedcomplaint. Specifically, the Court denied Plaintiffs' motion for leave to add a
1 0 SecondAmendment claim, a Ninth Amendment claim, and to add new Alameda Country board
I
l 1 membersas Defendants. However, the Court grantedPlaintiffs leave to amendtheir Complaint to
¡

\./ .5 t 2 add "as applied" challengesto their First Amendment claims. Plaintiffs filed a secondamended
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1 3 complainton March 11,2005.
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^r-i * .Ã t4 ln their SecondAmended Complaint, Plaintifß assertthat, as applied to their use of the
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t ) Y 1 5 fairgrounds,the Ordinancehas the effect of banning gun shows. Plaintiffs also allege that the
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(t) z t 6 Ordinancewas designedto have the effect of driving Plaintiffs out of businessin Northem
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18 LEGAL STA}IDARD

( : t9 A Rule 12(bX6) motion to clismisstests the legal sufficiency of the claims assertedin the

20 complaint. Cahíll v. Liberty MuL Ins. Co.,8O F.3d 336, 337 (gthCir. 1996). Dismissalof an action
2l pursuaq[to Rule 12(b)(6) is appropriateonly where it "appearsbeyond doubt that the plaintiff can

22 prove no set of facts in support of his claim which would entitle him to relief." Levine v.
23 Díamanthuset,
1nc.,950F.2d 1478,1482(9th Cir. l99l). !

24 In determining a motion to dismiss, courts must assumeall factual allegations to be true and

25 must construethem in the light most favorable to the non-movingparty. SeeN. Star Int'l v. Ariz.
26 Corp. Comm'n,720F.2d578,530(9th Cir. 1983). However,courtsneednot acceptas true
27 unreasonableinferences,unwarranteddeductionsof fact, or conclusorylegal allegationscastin the
28 form of factualallegations.,S¿¿W.Mining Councilv. Watt,643F.2d6L8,624 (9th Cir. 1981).
 1 Courts will dismiss the complaint or any claim in it without leave to amendonly if "it is

2 clear, upon de novo review, that the complaint could not be savedby any amendment." Schneiderv-
a
J Cal.Dep't of Corr.,l51 F.3d IIg4, !196 (9th Cir. 1998).

4 ANALYSIS

5 "Section 1983providesa causeof action for the 'deprivationof any rights,privileges,or

6 immunities securedby the Constitution and laws' of the United States." Wilder v. Virg. Hosp. Ass'n,
7 496 U.S. 498, 508 (1990)(quoting42 U.S.C.$ 1983). To statea claim under g 1983,aplaintiff
8 must allegetwo essentialelements:(1) that a right securedby the Constitution or laws of the United
9 Stateswas violated and (2) that the allegedviolation was committed by a person acting under the
1 0 color of statelaw, statute,ordinance,regulation custom, or usage. See Westv. Atkins,487 TJ.S.42,
i l
1 1 a8 (1988);Ketchumv.AlamedaCounty,8ll F.2d 1243,1245(9th Cir. Ig87).

\J .5 72 L First Amendment Claims

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' - v 13 A. Free Expression
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l4 Plaintiffs allege that the Ordinanceviolates their freedom of expressionunder the First
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* ) x 1 5 Amendment since it makes gun shows at the fairgrounds "virtually impossible." While this Court
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o T 6 previously assumedthat Plaintifß' First Amendment claims were "as applied" challenges,the Ninth
( ) 5
+) fr t 7 Circuit construedPlaintiffs' challengesto the Ordinanceas facial challenges. SeeNordyke v. King,
1 8 319 F.3d at 1190(9th Cir. 2003). While theNordyke court rejectedPlaintiff s First Amendment
i " r9 facial challengeto the Ordinance,the court also noted that its holding did not foreclosea future as

20 applied challengeto the ordinance. Id. at 1190n. 3. The court explained that:
21 --Grur possessioncan be speechwhere there is an intent to convey apartic;.tlanzed
message,and the likelihood is greatthat the messagewould be understoodby
22 thosewho viewed it. As the district court noted, a-gunprotestor burning a gun
maybe engagedin expressiveconduct. So might a gqn supporter waiving a gun
23 at an anti-gun control rally . . . . Typically a peison péssessìñga gun hasno intent
to convey a particular message,nor is anyparticulai messagelikely to be
24 understoodby those who view it. The lawitself applies broadly to ban the
possessionof all guns for whatever reasonon County property.
25
Id. at | 190 (citations, internal quotation marks, and alteration omitted).
26
As the Court previously noted in its preliminary injunction order, the SupremeCourt has
27
warned that there is a "limitless variety of conduct that can be 'speech' whenever the conduct intends
28
therebytoexpressanidea." UnitedStatesv.O'Brìen,391 U.S. 367,376 (1968). Theprotectionis
 I not limited to the written or spokenword. A person also may expresshis thoughtsthrough conduct

2 in which he purposefully engages. The SupremeCourt has recognizedthat such symbolic speechor
a
J expressiveconduct lies within the confines of the First Amendment'sprotection of free speech. ,See,

4 e.g.,Brownv. Louisiana,383U.S. 131 (1966)(silentsit-inbyblacks demonstrating

againsta

5 segregatedlibrary); Tinker v. Des Moines IndependentCommunitySchool Dtst.,393 U.S. 503 (1969)

6 (studentswearing armbandsto protest American miliary involvement in Vietnam); Schachtv. United

States,398U.S. 58 (1970) (the wearing of United Statesmilitary uniforms during a dramatic

I performanceto criticize American intervention in Vietnam).

9 Here, Plaintiffs have alleged that they have historically brought firearms to the County

1 0 Fairgroundsfor someof the following purposes:1) mediumsofpolitical messagesthat are

ll inextricably intertwined with the actual firearm; 2) emphasizethemiliary and historical importance

O Ë t2 of guns; 3) instruction in safe and responsiblegun storageand handling; 4) facilitation of the legal
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1 3 educationof the generalpublic and to inform them of their rights and duties as gun ownersunder
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.t-) H 15 Basedon theseallegations,the Court finds that Plaintiffs have not adequatelyallegedthat
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(t) z 1 6 they intendedto convey a particulartzed messageby possessingguns on County property. See
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+) f& T 7 Spencev. Washington,4lSU.S. 405, 410-Il (1974). For example,Plaintiff s mere recital of
1 8 'þolitical messagesthat are inextricably interfwined with the actual firearm" fails to allegethe
T 9 'þaficularized" natvre of the political messagebeing communicatedby gun possession.
20 Furthermore, given the ambiguousnature of the alleged'þolitical message,"it is completely unclear
2l from theface of the complaint that the likelihood was great that this messagewould be understood

22 by those who receivedit.

23 Plaintiffs' additional allegations fare no better. Clearl¡i, for gun possessionto constitute

24 speech,there must be a concreteand necessaryrelationship between the possessionof the gun and
2 5 the messagebeing communicated.SeeNordyke,3l9 F.3d at 1190 ("[A] gun supporterbuming a gun
26 may be engagedin expressiveconduct. So might a gun supporter waving a gun at an anti-gun
27 control rally."). In other words, the particulanzed messagebeing communicatedmust originate from
2 8 and be closely tetheredto the actual act of gun possession. Here, Plaintiffs' allegationsthat they
 1 intended to communicatethe military and historic importanceof guns, the legal educationof the
2 generalpublic about guns, and instruct in safe and responsiblegun storageand handling are
a
J insufficient. Simply stated,theseallegationslack the requirednexis betweenthe communication(the

4 particulanzed message)and the actual act gun possession.Theseintended communicationsdid not

5 stem from Plaintiffs' actualpossessionof a gun. In fact, eachof thesemessagescould havebeen

6 clearly communicatedwithout the use of a gun at all.
7 Given Plaintiff s failure to adequatelyallegethat their possessionof gunsintendedto convey

8 a particular message,their "as applied" First Amendment challengemust fail. Accordingly, the
9 Court GRAI\TS Defendants' motion to dismiss Plaintifß' freedom of expressionclaim with leaveto
1 0 amend.
11 B. Commercial Speech

v . ã t2 Plaintifß assertthat the OrdinancejeopardizedPlaintiffs' commercial speechrights. The

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' <- )9G 1 3 Ninth Circuit previous consideredand rejectedthis argument. "As possessionitself is not
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1 4 commercial speechand aban on possessionat most interfereswith sales that arenot commercial
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+ ) Ë 1 5 speech,we agreewith the district court's conclusionthat the County's prohibition on possession
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ùtt zo t 6 doesnot infringe Nordyke's right to free commercialspeech." Nordyke,3lg F.3d at ll9l.
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't-, f! t 7 Accordingly, Defendants'motion to dismiss Plaintiffs' commercial speechclaim is GRANTEI)
1 8 without leave to amend.
t9 C- Free Assembly and Assocíatíon

20 Plaintiffs allege that the Ordinanceimpermissibly infringes on their rights to Freedomof

2 7 Assembly and Association. Plaintiffs assertthat they have historically used the County Fairgrounds
22 to assemble,associateand discussissuesof political and cultural importance. Defendantscontend
23 that the Ordinance only bans the possessionof firearms, and therefore does not serveto restrain
24 Plaintiffs' ability to assembleand associate.
25 The right to freely associatewith one's fellow citizens for the pu{pose of uniting around a

26 common causeis not violated unless the regulation at issue "directly and substantially interferes"
27 with the ability to associatefor that purpose. Lying v. Internatìonal (Jnion,485 U.S. 360,366
2 8 (1988). The Court finds that the Ordinancehas no such effect. Under the Ordinance. attendeesof
 1 the gun shows are capableof gatheringtogether and expressingtheir views regardingguns in a
2 varietyways, including speeches,leafleting,and salesof expressproductswithout the possessionof
a
J guns' Plaintiffs also remain free to offer to sell and to sell guns, as long as thosesalesare not

4 consummatedon County property. Therefore,the Ordinance doesnot "directly and substantially''

5 interfere with Plaintifß' ability to associatewith other gun owners and firearm enthusiasts.For these
6 reasons,the Court GRANTS Defendants'motion to dismissPlaintifß' FreeAssemblvand
1
Association claims without leave to amend.

8 il. 14th Amendment Claims

9 A. Equal Protection

10 Plaintiffs allege that the Ordinanceviolates their equal protection rights becausethe County

1 1 has targetedonly gun shows and patronsof gun shows becauseof their political and cultural views
1 2 about guns and the role they play in society. Defendantsrespond that the Ordinancedoes not treat
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' - 9 t 3 similarly situatedpeople differently.
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l4 In order to establishan Equal Protection claim, a plaintiff must allege "that the law is applied
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q ) F 1 5 in a discriminatory manner or imposesdifferent burdens on different classesof people." Freeman v.
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rra z T 6 City of SantaAna,68 F.3d I 180, I I 37 (9th Cir. I 995). Additionally, a plaintiff must allegethat
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+¡ t! t 7 "similarly situated" individuals were treateddifferently. Id.
18 Here, Plaintiffs have adequatelyallegedthat the Ordinance was applied to them in a

t 9 discriminatory marìner. Specifically, the Complaint statesthat the Ordinance "irrationally

20 discriminatesby prohibiting the possessionof guns on County property by participants of a gwr
2l show, yet allows the possessionof guns by authorizedparticipants in 'motion picture, television,

22 video, dance,or theatrical production or event[s]."' (Comp. at flI04.) The Court also finds that
23 Plaintiffs have adequatelyallegedthat the Ordinancetreated siinitarty situatedpersonsdifferently.
24 The Complaint statesthat the County has permitted the possessionof firearms at the Fairgrounds for
25 other events,including Outdoor and SportsmanShows and The Scottish Games. (Comp. at fl 103.)
26 Given that Plaintiffs' allegationsfulfill the two-prong Freeman test,Defendants' motion to dismiss
27 Plaintiffs' equal protection claim is DENIED.
28
 1 B. Procedural ønd Substantive Due Process

2 Plaintifß allege that the Ordinancehas deprived them of their liberty and property interestsin
a
J attending and participating in gun shows for the purposeof advocatingtheir views. The Court

4 disagrees.
5 To statea procedural due processclaim, a plaintiff must first prove that "the interest is within

6 the FourteenthAmendment's protection of liberty and property." Board of Regentsof State Colleges
v. Roth,408 U.S. 564,571 (1972). As noted above,the Ordinancedoesnot have any impact on

8 Plaintiffs' ability to attend and participate in eventson County property for the purposeof advocating
9 their views on guns, or other related subjects. The Ordinancesimply bans the possessionof firearms
1 0 on County property. Therefore,the Ordinance doesnot implicate Plaintifß' assertedliberty or
1 l property interests.

v.E t2 Furthermore,Plaintiffs' substantivedue processclaims must fail. "Where a particular

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'tl 9 1 3 Amendment provides an explicit textual sourceof constitutional protection againsta particular sort
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+ ) Y 1 5 process,must be the guide for arnlyzingtheseclaims. Albright v. Oliver,5l0 U.S. 266,273 (1994)
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18 For the foregoing reasons,the Court GRANTS Defendants' motion to dismiss Plaintifß' due

1 9 processclaims without leave to amend.

20 ilI. California State Law Claims

?I To the extent that Plaintifß' allege that the Ordinance violates freedom of expression,

22 commercial speechrights, and freedom of assemblyand association,as those rights are protectedby
23 the California Constitution, theseclaims fail for the samereasónsas their federal counterparts.r
24 Accordingly, Defendants' motion to dismiss Plaintiffs' California state law claims is GRANTED.
25
26
27
'This conclusion is not undermined by the fact that the California Constitution has broader
2 8 protections for free speechrights than the United StatesConstitution. See Gerawan Farming, Inc. v.
Lyons, 24 Cal. 4th 468, 491 (2000).
, 7 .
 I CONCLUSION

2 Basedon the foregoingreasons,Defendants'motion to dismissis GRANTED IN PART

a
J AND DENIED IN PART. Plaintiffs should file an amendedcomplaint, if they so choose,within

4 thirty (30) days from the date of this Order.

5
6 IT IS SO ORDERED
7
8 Dated:June-7 ,2005
J. JE6iKq{S
9 STATESDISTRICTJI-IDGE
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 mat
United
States District Court
for the
Northern District of Cal-ifornia
June 14, 2005

* * CERT]FICATE OF SERVICE * *

Case Number :3 : 99-cv-04389

Nordyke

vs

King

the undersigned, hereby certify that r am an employee in t.he Office of

the C1erk, U.S. District Court, Northern District òf California.

That on ,June 14, 2005, r SERVEDa true and correct copy(ies) of

t.he attached, by placing said copy(ies) in a postage pãia envelope
addressed to the person(s) hereinafter fisfed l-'rr Ácn6siting said
;;;ãi;p" in the u-.s. Mail, or by ptacirs-;;iä'"ãåviiã=l into an inter-office
delivery receptacle located in the Cferk,s office.

Donald E. ,f . Kilmer ,Jr, Esq.

Law Offices of Dona1d Kilmer
L26L Lincol-n Awenue
Suite 108
San Jose, CA 95]-25-3030

Donald E.J. Kilmer, Esq.

Law Offices of Donald Kil_mer
a26L Lincoln Avenue
Suite 108
San .Jose¿_ CA 95L25-3030

Richard E. Winnie, Ese.

County of Alameda
Office of County Counsel_
333 Hegenberger
Suite 400
Oakl-and, CA 9462r

Sayre Weaver, Esq.

Richards Watson & Gershon
355 South Grand Avenue
4Oth Floor
Los AngeÌes, CA 9 0 0 7 1 - 3 1 0 1
Gary E. Gans, Esg.
Richards Watson & Gershon
44 .Montgomery Street
Suite 960
San Francisco, CA 94104-4611,

rd W. Wieking, C1erk