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I DonaldE.J.Kilmer,Jr.,(SBN:179986) il' r i $ I l'¡ ';1;'i.

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LAW OFFICESOF DONALD KILMER


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E-Mail: DKLawOfc@aol.com

Attorney for PIaintiffs


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

11

t2

1 3 RUSSELLALLEN NORDYIG andSALLIE CaseNo.: C 99 04389 MJJ


ANN NORDYKE,dbaTS TRADE SHO'WS,
t 4 JESSB. GUY, DUANE DARR, WLLIAM
J. JONES,DARYL N. DAVIS,,TASIANA SECONDAMENDED and/or
1 5 WERTYSCFIYN,JEAN LEE, TODD SUPPLEMENTAL COMPLAINTI FOR
(Bob) DAMAGES, INJTJNCTION,AND
I 6 BALTES,DENNISBLAIR, R. L. DECLARATORY JTJDGMENT
ADAMS, ROGERBAKER,MIKE
l 7 FOURNIERandVIRGIL McVICKER. (VIOLATTONSOF 42 U.S.C.$ 1983,
FIRST AND FOURTEENTH
18 AMENDMENTS)
i r..-.'
l9 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

26

27 t This amendedcomplaintcomplieswith this court's February 14,2005 orderpermitting

DonaldKilmer
he filing of an amendedcomplaintwithout Plaintiff s proposedcausesof action underthe
Attomeyat Law 28 and Ninth Amendment to the United StatesConstitution.
l26l LincolnAve.
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I INTRODUCTION

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

3 RestrainingOrder and Injunctive Relief. Plaintiffs filed a timely appeal.

4 2. On September12,2000,the Ninth Circuit Court of Appealscertifieda questionof state

5 law, with respectto the statelaw preemption issues,to the Califomia SupremeCourt

6 under rule 29.5 of the California Rulesof Court. See: Nordyke v. King ("Nordyke I"),
-
I 229 F.3d 1266(9th Cir. 2000).

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

9 question:"conclud[ing]that the municipal ordinancein question,insofar as it concerns

10 gun shows,is not preempted. Other aspectsof the ordinancemay be partíally preempted,
' j

ll but we neednot addresstheseaspectsin this case.rrSee:Nordyke v. King ("Nordyke tr"),

t2 27 Cal.4th875,44P.3d133,138,118Cal.Rptr.2d 76r (cal.2002).

1 3 4. On July 26,2002, the Ninth Circuit Panelinvited the partiesto f,rlesimultaneous

T4 supplementalbriefs 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

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

r 1 8 5. On February18,2003 the Ninth Circuit issuedits ruling publishedat Nordyke v. King


1 r
( J
\....' 19 ("Nordyke III"), 3 19 F.3d 1185 (9th Cir. 2003)upholding the District Court's order

20 denying the Plaintiff s requestfor a preliminary injunction.

2 l 6. Plaintiff/Appellants requesteden banc review. That petition was denied in an order filed

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

23 7. Plaintiff/Appellants then sought a writ of certiorari in the United StatesSupremeCourt,

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

2 5 8. Plaintiffs' First AmendedComplaintwas 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


DonaldKilmer
Attomeyat Law
? 8
L that filing and legal issuesaddressedin the appellatedecisions.
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suiteI | |
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I 9. Thisactionis broughtpursuantto 42 U.S.C.$$ 1983and1988.Plaintiffsareseeking

2 injunctiverelief anddeclaratoryrelief to protecttheir rightsundertheFirst,and


damages,
a
J FourteenthAmendments
of the Constitutionof theUnitedStatesof America.

4 JURISDICTION AND VENUE

5 10. ThisCourthassubjectmatterjurisdictionpursuant
to 28 U.S.C.$ 1343(3)which

6 providesfor originaljurisdictionin suitsbroughtunder42 U.S.C.$$ 1983and1988.

1 11. this Courtalsohasjurisdiction


As this actionarisesundertheUnitedStatesConstitution

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

9 12. As the Plaintiffsareseekingdeclaratoryrelief,this Courthasjurisdictionoverthis action


10 pursuant
to 28 U.S.C.$$2201and2202.
1 1 13. principleson Freedomof
To theextentthatThe Stateof California'sConstitutional

t2 Expression this Courthasjurisdictionpursuantto 28 U.S.C.$ 1367.


areimplicated,

l 3 14. Venuefor this actionis properlyin this Districtpursuantto 28 U.S.C.$ 1391.Theaction

t4 aroseandthe Defendants
residein the NorthernDistrict of California.

15

t6 PLATNTIFFS

t 7 15. Plaintiffs RUSSELL ALLEN NORDYKE and SALLIE ANN NORDYKE, doing

18 businessas TS TRADE SHO'WS,are in the businessof promoting trade shows[a.k.a.-


i r
!1
19 gun shows] throughout the Stateof California. This involves the exhibition, display and

20 offering for sale of firearms. The TS TRADE SHOW also hosts vendors for the

2T exhibition, display and offering for sale of: coins, knives, ammunition, camping

22 equipment,gun safes,jewelry, antiques,militaria, art work, food stuffs, toys, t-shirts,

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

24 always been the policy of the Plaintiffs to permit political candidates/parties,and

25 community seryice organizationsto have tables free of chargeon a first come first serve

26 basis. Plaintiffs' businessaddressis in Willows, Califomia. They had been conducting

27 trade shows at the Alameda County Fairgroundssince February, 199T.


Donald Kilmer
Attomcy at Law
) R 16. Plaintiffs RUSSELL ALLEN NORDYKE and SALLIE ANN NORDYKE, dba TS
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I TRADE SHOWS, also assertthird party rights of their vendors, exhibitors and patrons

2 with TS TRADE SHOV/S. Thesethird partieswould find it difficult to assert


associated
a
J their own rights.fsee: NAACP v. Alabama,357 U.S. 449 (1958)l

4 n. Plaintiffs RUSSELL ALLEN NORDYKE and SALLIE ANN NORDYKE, dba TS

5 TRADE SHOWS, also assertthird party rights for similarly situatedvendors,exhibitors

6 with TS TRADE SHOWSbecausethe injuries sufferedby the


and patronsassociated

7 named Plaintiffs adverselyaffects their relationshipsto thesethird party vendors,

8 exhibitorsand patronswho are customersof TS TRADE SHOWS. lSee; Craig v. Boren,

9 4 2 9 U . 5 . l e 0( 1 e 7 6 ) l

10 18. Plaintiffs RUSSELL ALLEN NORDYKE and SALLIE ANN NORDYKE, dba TS

1l TRADE SHOWS, also assertthird parry rights for similarly situated vendors,exhibitors

t2 and patronsassociatedwith TS TRADE SHOWS,as thesegroupsof peopleattending

13 gun showspromoted by the named Plaintiffs collectively constitute a significant portion

t4 of the legitimate "gun culture." This "gun culfure" is composedof


and cross-section

l5 firearm owners and those interestedin firearms who enjoy the shooting sports;collectors

r6 who enjoy collecting and admiring all manner/typeof firearms; professional and amateur

l7 historians who collect and study firearms as artifacts of historical events; artists and art

l8 collectors who enjoy and admire the wood and metal work of certain firearms for their

t9 purely aestheticvalue; and ordinary gun ownerswho buy, sell, trade, keep and bear arms

20 as symbols of that uniquely American strandof political philosophy - embodiedby the

2l SecondAmendment - which includes the belief (regardlessof the current stateof the law

22 in California and the Ninth Circuit) in a citizen's inalienable right to keep and bear arms

23 for the defenseof himselflherself, family, community and nation.

24 t9. Plaintiff JESSB. GUY is an Attorney at Law, shooting enthusiast and collector of used

25 and antique firearms. He is a frequent patron and intended exhibitor at the gun showsrun

26 bythe TS TRADE SHOV/S.

27 20. Plaintiff DUANE R. DARR is a private citizen,shooting enthusiast, and collector of


Don¡ld Kilmer
Attomey at Law 28 antique firearms. He is a frequent patron and exhibitor at gun shows run by the TS
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I TRADE SHOWS.

2 21. Plaintiff WILLIAM J. JONES is a private citizen. He is a founding chairmanand officer


a
J of the AmericanCivil V/ar Associationa FederalU.D. # 17-03979621andState[I.D. #

4 19532131Non-ProfitEducationalCorporationthat usesliving history as a meansof

5 helping the public gain a better understandingof the American Civil War. He and his

6 organizationhave been frequent exhibitors at the gun shows run by TS TRADE SHOWS.
1
22. Plaintifß DARYL N. DAVIS, TASIANA WERTYSCHYN, JEAN LEE, TODD

8 BALTES and DENNIS BLAIR are private citizens,shooting enthusiasts and collectors

9 of new and used modern firearms. They are frequentpatrons of the TS TRADE SHOV/S.

l 0 23. Plaintiff R. L. (BOB) ADAMS is a private citizen. He is a custom rifle maker and

il gunsmithwith his principal place of businessin Sunnyvale,California. He is a frequent

t2 patronof the TS TRADE SHOV/S.He also instructsand adviseshis clients/customers


on

13 the proper proceduresfor purchasingused rifles at gun shows.

t 4 24. Plaintiff ROGER BAKER is a private citízen and owner of Roger's Relics. He is a

l5 collector/dealerof commemorative,antiqueand collectablefirearms.His specialtyis

l6 commemorativellinchesterrM rifles. He is a frequent exhibitor at the TS TRADE

17 SHOW. He also instructs and adviseshis customerson the proper proceduresfor

l8 purchasingcommemorative,collectable,antiqueand usedrifles.
l l

t 9 25. Plaintiff MIKE FOURNIER is a private citizen and part o\ilner of The Gun Exchangea

20 licensedfirearms dealer with its principal place of businessin Santa Clara County,

2l California. He is a frequent Exhibitor at the TS TRADE SHOV/S. He also instructsand

22 adviseshis customerson the proper proceduresfor purchasing new and used firearms.

23 26. Plaintiff VIRGIL MoVICKER is presidentof the Madison Society, a Nevada Corporation

24 with its registeredplace of businessin CarsonCity, Nevada. The Madison Societyhas

25 chaptersthroughout Califomia. The society is a membership organization whosepurpose

26 is preservingand protecting the legal and constitutional right to keep and bear armsfor its

27 membersand all responsiblelaw-abidingcitizens.He is a frequentExhibitor at the TS


Donald Kllmer
Attomey at L¿w 28 TRADE SHOV/S.
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I DEFENDANTS

2 27. Defendantshave actedunder color of law to deprive Plaintiffs - and other third parties

3 similarly situated - of their Constitutional Rights associatedwith attendinggun shows at

4 the AlamedaCounty Fairgroundslocatedin Pleasanton,California. The actions,customs

5 and practicesof all the Defendantsand their agents,assignsand employees,are

6 performed under color of law. Theseactions,customsand practicesthereforeconstitute


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

8 Furthermore,theseactions,customsand practiceshave beencarriedout with the

9 knowledge and intent that they would violate the well establishedconstitutionalrights of

10 the Plaintiffs and third parties similarly situated.

1 1 28. The DefendantCOUNTY OF ALAMEDA is a political subdivisionof California.

l 2 29. The Defendant COLINTY OF ALAMEDA BOARD OF SUPERVISORSis the duly

13 electedlegislative body with the power to passordinancesin accordancewith the county

t4 charter and in accordancewith the laws of the State of California. The BOARD OF

15 SUPERVISORS also has ultimate administrative authoritv over the Pleasanton

l6 Fairgrounils.

t 7 30. DefendantsMARY V. KING, GAIL STEELE, WILMA CHAN, KEITH CARSON,

18 SCOTT HAGGERTY, are duly electedmembersof the Board of Supervisorsfor the

l9 County of Alameda, California. As Supervisors,they are chargedwith authority over the

20 County of Alameda. They are being suedin their official capacityas they have ultimate

2t authority over the Alameda County Fairgroundslocated in Pleasanton,California.

22

23 GENERAL ALLEGATIONS

24 Fairgroundsas Public Forum

25 31. The Alameda County Fairgrounds(aka:The PleasantonFairgrounds)is locatedin

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

21 community
basis.Many of theseeventsare of interestto the news media, businesses,
DonaldKilmer
I
r Âttomcyat Law
),8 groupsand agencies,and the generalpublic.
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I a^
JL. The Alameda County Fairgroundsis situatedwithin a Public and Institutional zoning

2 Califomia. The
district on unincorporatedcountypropertywithin the City of Pleasanton,

3 Fairgroundswere av¿ardedto the County in a Final Order of Condemnationfiled on

4 November 17,1965 "for public purposes,namely,for the constructionthereonof

5 necessarypublic buildings, . . ." [See:County of Alamedav. MeadowlarkDairy Corp.

6 Ltd.; CaseNo.:3227221
a a
7 JJ. The Alameda County Fair Associationis a non-profit corporationwhich managesthe

8 fairgrounds through an OperatingAgreementwith the County of Alameda. The Alameda

9 County Fair Association is required to operatethe fairgrounds in compliancewith all

10 Federal,Stateand County laws.

ll

t2 The Ordinance

l 3 34. On or about l;4ay 20, 1999- former county supervisor MARY V. KING contacted

t4 County Counsel Richard Winnie and askedhim to draft an ordinanceto get rid of gun

l5 shows on County property. Indicating her hostility toward the First Amendment and her

t6 displeasurewith"spinelesspeople híding behind the constitution" {emphasisadded},

t7 MARY V. KING soughtto abridgeone and punish the other by prohibiting gun shows on

18 county properfy.

t 9 35. On or about July 20, 1999- former county supervisor MARY V. KING held a press

20 conferencewherein she statedthat her aim, and the purpose of the ordinance,is to

2l "outlaw (gun) shows on countyproperty." MARY V. KING admitted in her press

22 releasethat she is unawareof any violations of law taking place at the Alameda County

23 Fairgrounds.

24 3 6. Without conducting any criminological study directly linking gun shows to crimes of

25 violence and./orpublic safetyconcerns,the Defendantspassedan ordinancedesigned,

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

27 3 7. Without conducting any criminological study indirectly (or secondarily)linking gun


Donald Kilmer
Attomey at Law 28 shows to crimes of violence and/orpublic safety concerns,the Defendantsenactedan
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I ordinancedesigned,intendedand with the ultimate effect of banning gun showsat the

2 County Fairgrounds.

J 38. On or about August 17, 1999the Alameda County Board of Supervisorsadoptedan

4 ordinanceprohibiting the possessionof firearlnson Countyproperty. Saidordinancewas

5 specifically designedand intendedto prohibit gun shows at the Alameda County

6 Fairgrounds.

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

8 ordinanceprohibiting the possessionof f,rrearrnson County property. Said amendment

9 adds to the list of exceptionsto the ordinance:"authorizedparticipantfs] in a motion

10 picture,television,video, dance,or theatricalproductionor event..." Said ordinanceis

l1 still specifically designedand intendedto prohibit gun shows at the Alameda County

I2 Fairgrounds. Simply adding gun shows,which necessarilyimplicate the First and Second

13 Amendments, to the list of eventsexempt from the generalprohibition would have been

t4 sufficient to prevent this particular lawsuit from being filed.

1 5 40. On information and belief, Plaintiffs allegethat on or aboutAugust 23,1999, County

16 Counsel for Alameda County sent a letter to Richard K. Pickering - GeneralManagerof

l7 the Alameda County Fairgrounds- in which County Counsel indicatesthe following:

18 a. The subject matter of the letter links and therefore infers that the ordinanceis

I9 really aboutbanningshows.

20 b. The body of the letter containslanguagepurporting to demonstratethat the

2l ordinancedoesnot make gun showsper se lllegal. The letter goeson to statethat:

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

23 section 9.12.120of the ordinancemay be displa:¿edand sold at any gun show."

24 {emphasisadded}The letter also statesthat: "The ordinancealso doesnot


25 proscribe the sale of firearms or ammunition provided that such articles cannotbe

26 displqted on the premises." {emphasisadded, again)

27 Under this set of facts Defendantsclaimed during argumentsbefore the Ninth Circuit that
Donald Kilmer
Attomey at Law 28 the ordinancedoesnot ban gun shows,it only bans guns at gun shows(?!). This
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I propositionhasbeenthoroughlydiscreditedby the both the Califomia SupremeCourt

2 and the Ninth Circuit. The law of the caseis now that the ordinance"as applied"to these

3 Plaintiffs,prohibits gun showsat the PleasantonFairgrounds.2

5 The Effect of the Ordinanceon Plaintiffs Russ & Sallie Nordyke

6 4r. Since 1999when Alamedaenactedthis ordinance,other counties(Marin, SanMateo,

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

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

9 42. Theseordinanceswere designedto, and have had the effect of driving Plaintiffs

10 RUSSELL and SALLIE NORDYKE out of businessin Northern California. The

1l NORDYKES were forced to seekthe protection of the bankruptcy courts during this

t2 litieation in order to stavin business.

13

t4 History of Gun Shows at the Fairgrounds

1 5 43. TS TRADE SHOWS had typically rentedthe fairgrounds for up to five (5) gun showsper

t6 year. Attendanceat each show is estimatedto have been at least 4,000 persons.Revenue

T7 from theseshows profited the Fairgroundsin the amount of $78,000 annually through

18 building rental fees,parking fees and food sales.This is revenueno longer availableto
t t9 the people of Alameda County.

20 44. Plaintiffs allege that the gun shows at the PleasantonFairgrounds were conductedin

2l accordancewith all federal, state and local laws in existenoeat the time the ordinancewas

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

23 Pleasantonstating that gun shows pose no particular threat to public safety in his city.

24
' "The Ordinancewould forbid the presenceof firearms at gun shows, such as Nordyke's,
25
at the Fairgrounds.Practically, the Ordinancemakesit unlikely that a gun show could
26 fitably be held there."Nord)'kev. King (Nord)¡keI) ,229 F .3d 1266, 1268.

27 The Califomia SupremeCourt made a somewhatstronger f,rnding: "[T]he effect on the


Donald Kilmer
ordykes of the Ordinancebanning guns on county property is to make gun shows on such
Attomey al Law 28 II) ,27 CaL 4th 875,882.
rfy virtuallyimpossible."Nordykev. King (Nord)¡ke
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I 45. Plaintiffs RUSSELL and SALLIE NORDYKE allege,and the other Plaintiffs allegeon

2 informationand belief that TS TRADE SHOV/Sabidesby the MandatorytShow

3 Producer Rules andthe RecommendedShowProducer Rules of the National Association

4 of Arms Shows lncorporated. In addition, TS TRADE SHOW abidesby the Contract For

5 Held at District Agricultural Associations(District.l WhereFirearms or


Shows/events

6 Other WeaponsAre Displa)¡ed wheneverthey hold shows at those venues. TS TRADE

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

8 compliancewith all its contractprovisions,federal,stateand local laws.

9 46. Plaintiffs RUSSELL and SALLIE NORDYKE allege,and the other Plaintiffs allegeon

10 information and belief that TS TRADE SHOV/S has always complied by the terms of

ll their contractsfor the use of the Fairgroundsand have paid all appropriatetaxes and

t2 obtainedthe necessarybusinesslicensesfrom the City of Pleasantonto conductbusiness

13 atthe Alameda County Fairgrounds.

T4

15 The Ordinance'WasNever lntendedto Address Public Safety or Crime,

t6 nor Is the Ordinance Narrowl)¡ Tailored to Address These Issues.

t 7 47. Plaintiffs allege that gun shows at the PleasantonFairgroundswere not the sourceof any

18 of the crimes cited in the findings of the ordinance.

l 9 48. Plaintiffs allegeon information and belief that sincethe passageof the ordinancein1999,

20 there hasbeenno reduction in crimes of violence3in the County of Alameda. Therefore

2T the law is not narrowly tailored to prevent the "evils to be addressed"by the ordinance,

22 becausethe ordinance as it applies to gun shows doesnothing to prevent the crimes set

23 forth in the ordinance's findings.

24 49. Plaintiff s allege that the County of Alameda now employs metal detectorsat the

25
3 In fact, homicide rates in Alameda County had been steadily declining from a high of
26
96 in 1995to a low of 85 in 1999(the ordinancewas passedin Septemberof that year). Since
27 the homicide rate has steadilv risen to a hieh of 144 in2002. These statistics are avallable
the Califomia Departmentof Justice'Website. See:
Donald Kilmer
Attomey at Law 28
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I fairgroundsto prevent shootingsat the County Fair, such as the July 4, 1998incident

2 referredto in the findings of the ordinance. This remedy is a less restrictive alternative
a
J availableto the Counfy for combatingthe "evils to be addressed"by the ordinance.

4 Furthermore,this remedy, along with federal and statelaws regulating guns shows,will

5 leave in tact the First and SecondAmendment activities at gun shows without depriving

6 the County of the meansof preventing violence at other eventsat the Fairgrounds.
-
5 0. Plaintiffs further allege that existing stateand federal gun laws and other lessonerous

8 regulations,would be sufficient to addressthe govemment interest soughtto be advanced

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

10 Amendment characteristicsof gun shows.

ll 51. Plaintiffs further allege the merely including gun shows in the list of exceptions(along

t2 side movies, plays, theaterand dancerecitals) to the ordinancewould have alleviatedthe

l3 necessityof theseparticular Plaintiffs having to suethe Defendantsin order to continue

I4 conductinggun shows at the Fairgrounds.

l 5 52. Plaintiffs further allege on information and belief that the County of Alameda has only

l6 engagedin token enforcementof the ordinancesince is passagein 1999,and only against

17 Plaintiffs and other membersof the "sun culture."

18

t9 Cancellation of Gun Shows at the PleasantonFaírgrounds

20 5 3 . Plaintiffs further allege that TS TRADE SHOWS had a gun show scheduledfor

2l November6 &.7 ,1999. This gun show was canceledwhen the Court declinedto granta

22 Temporary Restraining Order prohibiting enforcementof the Alameda Ordinance. Both

23 the order denying the Temporary RestrainingOrder and the defendantshave made

24 statementsassertingthat the ordinancein question does not ban gun shows or gun sales,

25 but only the possessionof guns on countyproperty.However, given the long historyof

26 gun shows as a place where actual firearms are displayed for various purposes,said show

27 was canceledby the promoters RUSSELL and SALLIE NORDYKE for three primary
Donald Kilmer
Attomey al Law 28 reasons:
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I à. To prevent the false and misleading impressionin their advertisingthat a gun

2 show, as that word has customarily and historically been defined,would take
a
J place at the Alameda County Fairgrounds;thus preventing anylegàl

4 exposure/liability they might incur for falsely and misleadingly advertisinga gun

5 show where no actual (though unloadedand safety-locked)guns could be shown.

6 b. After the Court's November3'ddecisiondenyingthe TemporaryRestraining


.7
Order, more than half of the exhibitors and vendors canceledtheir contractswith

8 TS TRADE SHOV/ stating that they would not attend or participatein a gun show

9 where actual (though unloadedand safety-locked)firearms could not be displayed.

l0 c. Lastly, as the FairgroundsAssociation had required Plaintiffs to provide a written

1l plan as to how TS TRADE SHOW will conduct a gun show at the Fairgrounds

t2 and remain in compliancewith an ordinancethat prohibits frrearmson county

13 properfy. For the reasonsstateabove,RUSSELL and SALLIE NORDYKE dba as

I4 TS TRADE SHOV/ concludedthat they could not conduct a gun show, as that

l5 term has been historically and customarily defined, at the Fairgroundswhile at the

l6 sametime complying with the County's ordinance.

l 7 5 4. Plaintiffs RUSSELL and SALLIE NORDYKE allege, and the other Plaintiffs allege on

18 information and belief, that TS TRADE SHOW requires weeks to plan and preparefor

t9 eachevent at the Alameda Counfy Fairgrounds.Furthermore, the mere specterof the

20 Counfy's ordinance [with its criminal sanctions]chilled the attendanceof the November

21 617,1999show suchthat evenbeforethe Court issuedits decisionon November3,1999,

22 more than 10% of the exhibitors and vendorscanceledtheir contractswith TS TRADE

23 SHOW for eventsat the Alameda County Fairgrounds.

24 5 5 . Plaintiffs allege, that TS TRADE SHOïVS also had datesfor the year 2000 reservedand

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

26 Plaintiffs fuither allege that but for the ordinance,they would still be conductinggun

27 showsat the PleasantonFairerounds.


Donald Kilme¡
Attomey at Law
28
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I Characteristicsof Gun Shows

2 56. Plaintiffs allegethat in a minority state like Califomia (46 other stateconstitutions
a
J contain arms bearing guarantees)where no stateconstitutionalright4to "keep and bear

4 armsrrexists,coupledwith currentNinth Circuit caselaw, gun showsin and of

5 themselvesare eventsthat areimbued and intertwined with so many First and Second

6 Amendmentactivitiesthat the eventitself hasbecomea form of protectedexpression.


4
57. Plaintiffs allege that TS TRADE SHOWS has hostedgun shows at the Alameda County

8 Fairgroundsfor various combinationsof Non-FirearmsVendors,EgearmgVendqrs,

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

10 Fairgroundsfor a number of different reasons,including but not limited to the following

1l purposes[as quoted from declarationssubmittedunder separatecover]:

12 a. To obtain political information regardingmy Constitutional Rights,

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

t4 b. To assemblewith other individuals and organizationsto discuss

15 the issuesand pending legislation that effect my Constitutional

t6 Rights, including but not limited to, my right to own, possess,and

t7 trade firearms;

18 c. To obtain the latest information regardingthe safe,responsibleand

t9 lawful ownership and storageof firearms;

20 d. To obtain the latest information regarding the f,trearmsindustry,

2l with specific referenceto developmentsin technology and safety;

22 e. To purchaseand/or sell firearms, firearm accessories,ammunition,

23 safety devicesand gun safes;

24
o See:Kaslerv. Lockyer.23 CaL4th472 (2000): "This fundamental right plaintiffs
25
whichprovides:"All peopleareby
te in articleI, sectionI of theCaliforniaConstitr¡tion,
26 free and independentand have inalienable rights. Among theseare enjoying and defending
ife and liberty, acquiring, possessing,and protecting propetfi, andpursuing and obtaining
21 fety, happiness,and privacy." If plaintiffs are implyingthat a right to bear arms is one of the
Don¡ld Kilmer
ights recognizedin the Califomia Constitution's declaration of rights, they are simply wrong. No
Attomcy at Law 28 on is madein it of a right to bear arms.(See:ln re Rameriz (1924) 193 Cal. 633,65I)"
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I f. To petitionpolitical candidates,both thoseelectedand currently

2 campaigning,on issuesof governmentpolicy;

3 g. both thosein
To obtaininformation from political candidates,

4 office and campaigning,on issuesof governmentpolicy;

5 h. To obtainand/oroffer for salehistoricaland philosophic

6 information from organizationssympatheticto, but not directly

involved,with firearms issues;

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

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

l0 k. To obtain information and engagein the trade of antiques and/or


(
ll othercollectibles;

t2 l. To obtain information and engagein the trade of historical and

l3 military memorabilia;

I4 m. To obtain information and engagein the trade of political souvenirs

t5 suchas:buttons,bumper-stickers,t-shirts,books and signs;

t6 n. To circulateand sign petitionsfor stateand local initiatives;

t7 o. To engagein the fellowship and affiliation of like-minded

18 individuals in a market-placeof ideasand products, and to enjoy

l9 our common culture and collective heritage.

20 5 8 . Plaintiff JESSB. GUY specificallyalleges,and all otherPlaintiffs allegeon information

2l and belief the following:

22 a. Plaintiff GLfY is a criminal defenseattomey and a former agent of the Bureauof

23 Alcohol, Tobacco& Firearms with more than 25 years of experienceenforcing

24 federal and statefirearms law. Plaintiff GUY is also a frequent patron and

25 intendedexhibitor at the gun shows run by the TS TRADE SHOWS at all of the

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

27 b. Plaintiff GtfY has special knowledge with regard to federal and statefirearms
Donald Kilmer
Attomey at Law 28 laws, he was planningto conductmini-seminarsby displaying variousactual
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I f,trearmsto illustrate to patronswhat types of firearms do and do not require

2 registrationunder the new Califomia AssaultWeaponsStatute. This new statute


a
J basesits registrationrequirementon various physical characteristicsof the

4 firearm. Thesecharacteristicsare best demonstratedby referenceto actual

5 firearms. By prohibiting the possessionof firearms on County propert¡ the

6 ordínanceeffectively preventsPlaintiff GLfY from rendering this serviceto the


n
community at large.

8 c. As a criminal defenseattorney Plaintiff GUY must keep current on the practical

9 aspectsof firearms identif,rcationas to characteristics,operation and markings.

10 d. ln order to accomplish his duty to his clients it has been necessarythat Plaintiff
a ll GUY physically examine as many different makes and models of firearms as he

I2 can in order to become familiar with the unique characteristicsand identiffing

I3 marks, as well as the method of operationof each firearm.

l4 e. Gun showsprovide one of the best locationsfor education and familiarization of

l5 the various types of firearïns found within the United States. There are a variety

t6 of firearms at eachshow, ranging from those of unique historical significanceto

i
t7 rnodern,up to date firearms which may not be found in storesor evidencevaults.

18 ln order to determinethe legal statusof a firearm or class of firearms, whetherit


I

I t

I t9 be for federal or statelaw enforcementpurposes,it is necessaryfor Plaintiff GI-IY

20 to physically examine firearms. Minor alterationsin markings, parts

2l characteristics(both intemal and external),measurements,actual modesof

22 operationsall are critical to identification of a firearm's lawful statusin court

23 cases,which are overwhelmingly felony matters.

24 o Gun showsbring hundreds,if not thousands,of firearïns to one location, where

25 examinationis both convenient,and educational. This venue permits the

26 discussionof types, markings, operationand status of firearms with owners,

27 manufacturers,dealers,collectors,and other interestedparties.Thesemeetingof


Donâld Kilmer
Attomey at Lâw 28 the gun culture generatesstimulating and thought-provoking discussionson guns.
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I h. The information and material that Plaintiff GUY obtains at gun showsis usedin

2 maintaining his expertisein firearms for court matters.


a
J i. As a California admitted criminal defenseattorneand former ATF agentPlaintiff
Á
I GIIY was trained in the legal aspectsof buying and selling of firearms by private

5 parties and licensedf,rrearmsdealers. He knows that federal and statelaw require

6 specificinformationto be documentedfor the lawful saleor dispositionof

7 firearms. This informationincludes,but is not limited to, identificationof

8 manufacturer,identification of importer, identification of model, identification of

9 serial number, and identification of caliber. Importer's markings on many

10 firearms are extremely small and difficult to locate.


, { ,
11 j. Failure to documentrequired information subjectsboth buyer and seller to severe

t2 federal and statepenalties.

13 k. In order for a flrrearmto be sold, it must be physically examinedby both the seller

T4 and buyer to insure that this required information is presentand documentedon

15 federal and statepaperwork

I6 l. The markings required on a firearm can only be determinedby physical

t7 examination of that particular firearm. In many casesthe serial number plays a

18 critical role in determining the legality of a firearm. For example: Certain firearms
('''' lg manufacturedprior to 1968 do not require a serial number. Examination of these

20 firearms is critical to insure they are legally without a serial number or to

2T determine if the serial number has been removed.

22 m. Federallaw and California law [CA PenalCode $$ 12090et seq.l proscribe


' 2 3 possessionof firearïns with the manufacturer'sserial number removed or altered.
' 2 4
California law also prohibits the renroval/alterationof any manufacturer'sor

25 which is a felony, is presumptive


importer's markings. Mere possession,

26 evidencethat the possessorhas accomplishedthe removal.

21 n. Markings on similar appearingfirearms also determine their statusunder


DonaldK¡lmer
Altomeyat Law
) 8 California statelaw as to "assaultweapon" status. In many casesit is only what ts
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I stampedon the firearm which determinesits lawful status. Again, careful

2 physical examinationof the firearm insuresavoidanceof legal sanctions.

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

4 law enforcementagencies. Officers and agentscan inspect firearms offered for

5 sale at gun shows,and insurecompliancewith existinglaws. Therewould be no

6 way for such examinationto occur if only photographswere seenat the gun show.
.7
There would be no verif,rcationthat the photographis what it purports to be in the

8 recordsof a licensee.Increasedcostswould impact law enforcement

9 examinationsof theselicensees,someof whom only sell at gun shows.


'Whether
10 p. Many firearms at gun shows are used firearms. by ageor alteration,
-
ll many times they are not as originally manufactured. In the matter of a purchaser

T2 looking for a hunting or sporting rifle or shotgun,there is a real need for personal

t3 fitting of that firearm to the individual. A person's height, weight, gender,arm

14 length,visual acuity (glassesor non-dominanteye),position of handplacementon

l5 stocks, all play a role in the proper fit of a frearm for purchase. The fit of a

l6 telescopeon a rifle is important to the eye-relief of a purchaser. Actual hands-on

l7 fitting and handling of the firearm is essentialfor a safe accuratefit to the

18 consumer.

tg q. V/hile not a common occurrence,but one of seriousimpact, many firearms which

20 look like semi-automaticfirearms, are or have been convertedto fire fully

2I automatically. This is usually unlawful (felony) under federal and statelaw.

22 Additionally, someolder firearms, through use and./orabuse,have worn parts in

23 them which facilitate full automatic f,rre. The only manner of examination which

24 insuressafeand lawful saleand possessionof such firearmsis a physical

25 examination of the firearm and the operation of the mechanismto replicate firing.

26 r. The use of photographsas a substitutefor the actual firearms offered for sale

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


Donald Kilmer
Attomcy at Law
) Q
Lv purposes.
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Suite 1l I
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1 s. Plaintiff GUY is also a certified instructorfor the NationalRifle Associationin

2 Gun showsare a source


rifle, pistol, safehome storage,and personalself-defense.
a
J of firearmstraining for all personsinterestedin safefirearmshandling.Classes

4 are offered to the public atlarge in safefirearm handling. If firearms are not

5 allowed at guns shows,hands-ontraining, in mattersof firearm safety will suffer,

6 which will inevitablyleadto an increasein the risk of firearmsaccidents.


-
I t. Lastly, as a patron of gun shows throughout the Statesof California andNevada,

8 Plaintiff GUY declarescategorically that he will avoid a "gun show" where actual

9 guns cannotbe shown.

1 0 59. Plaintiff DUANE DARR specifically alleges,and all other Plaintiffs allege on

1l informationand belief the following:

t2 a. Plaintiff DARR is a patron and exhibitor at the gun shows operatedby TS

13 TRADE SHOWS at all of the various locations throughoutNorthern California -

t4 including, but not limited to the gun shows at the Alameda County Fairgrounds.

15 b. As a collector of 19thCentury antique frrearms,the ordinancebanning the

I6 possessionof actualgunsat gun shows,abridgesPlaintiff DARR's right to engage

T7 in pure speechactivitiesassociatedwith his hobby in the following ways:

18 1. He is deniedthe opportunity to discussand debatevarious historical and

T9 technologicalaspects- including the authenticity - of antique firearms

20 with other collectors who also display actual fireanns at TS TRADE

2T SHOWS,because:

22 (l) Slight differencesin markings,placementof screwsor seemingly

23 minor parts all play highly important roles in identiffing and

24 authenticatingantique firearms for the purpose of discussingtheir

25 historicalimportanceand relevance.This requiresa hands-on

26 inspection of the specimenson display such that photographsand

27 picturesarewholly inadequateto this task.


Donald Kilmer
Attomey at Law
) R (2) It necessaryto examine a {rearmin a good, strong light to examine
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1 the finish on the firearm. Use of a magnifying glassis requiredto

2 detect scratchmarks, pitting and rust. Use of a magnifying glassis


a
J also necessaryto uncover forgeriesor faked firearms that have

4 been"re-engraved"byunscrupulousdealers.Picturesand

5 photographsare wholly inadequateto accomplishthis task.

6 (3) It is evenpossibleto determineif the finish of a firearm hasbeen

I alteredby its smell.

8 (4) Is also necessaryto perform a handson inspection to determinethe

9 caliber of the ftrearm, as many were retooled and machinedto

10 acceptdifferent ammunition throughout their service life.

ll (5) Lastly, it is also sometimesnecessaryto disassemblesomefirearms

t2 to authenticatetheir origin and manufacturer,as many of these

t3 marking are hidden by moving parts and the wooden stock.

t4 2. He is alsobeing deniedthe opportunityto enjoy and discussthe symbolic

l5 aspectsof antique firearms with other collectors who also display actual

l6 firearmsat TS TRADE SHOWS,because:

t7 (l) Many of theseantique firearms arcpartof American History. For

18 example, Plaintiff DUANE DARR currentlypossessantique


i
\, ,' lg firearmsthat were usedduring the Civil'War. fcirca: 1860- 1865].

z0 (2) Plaintiff DUANE DARR is, in effect, a custodian of a piece of

2l history, and gun shows have provided a forum for a kind of

22 traveling museum where DUANE DARR is a conduit for the

23 verbal transmissionof variousfeaturesand aspectsof someof the

24 artifacts that are symbols of America's struggle to maintain its

25 freedom.

26 (3) The syrnbolic aspectsof theseactual antique firearms can be

27 particularly appreciatedat gun shows becausethese forums are


Donald Kilmer
Attomeyat Lâw
) e widely advertisedand provide a place for like-minded individuals
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I to assembleand show their appreciationandrespectfor the tools of

2 liberty as illustrated in the magazinearticle, Freedom'sFirearms,


a
J from the May 1998editionof the American Rifleman.

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

5 collectorrepresentan opportunityto observeand leam the hobby

6 of antique firearm collecting due to the wide assortmentof


-
specimensand examplesbrought to the shows.

8 c. Plaintiff DUANE DARR also alleges thata "gun show" where actual guns cannot

9 be shown is a fraud upon the public and a perversion of the English language.

l0 Preventingthe public from viewing actual guns at gun shows stifles education,

1l retards advancesin the arts and breedscontempt for firearm regulations that

t2 might actuallyaccomplisha lesseningof violence in our communities.

t 3 60. Plaintiff IVILLIAM J. JONES specifically alleges,and all other Plaintiffs allege on

I4 informationandbelief the following:

15 a. Plaintiff JONES is a frequent patron and exhibitor of the gun showsoperatedby

I6 TS TRADE SHOW, including, the gun shows at the PleasantonFairgrounds.

t7 b. The AlamedaCounty ordinanceprohibiting the possessionof actualfirearmsat

18 the Alameda County Fairgroundswill prevent his American Civil War

l9 Association- a Federal[I.D. #77-0397962]andState[I.D. # 1953213]Non-

20 Profit Educational Corporation - from displaying replica and antique firearms

21 used as part of their living history display at the TS TRADE SHOV/. Theseliving

22 history displays are a meansof helping the public gain abetter understandingof

23 the American Civil'War.

24 c. as part of the living


The presenceof actualfirearmsis specif,rcallynecessary

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

26 the Civil War period.

27 d. The presenceof actualfirearmsis specificallynecessaryas part of the living


Donald Kilmer
Attomey at Law
28 history display to illustrate the technological advancementsin firearm
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I developmentthat aroseout of the Civil War. For example,it was during this time

2 period that the breachloadingand repeatingrifles were developed,primarily by


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

4 Thesedevelopmentswere a factor in the outcomeof that war. Onlyby displaying

5 and letting the public interact with actual original and replica f,trearmsfrom the

6 period can thesekinds of history lessonsbe broughtto life.

l e. The presenceof actualfirearmsis also necessaryto show the public what the life

8 of a soldier was like, as a soldier'srifle is as much apart of him as his uniform.

9 The presenceof actual firearms is also necessaryto conduct recruiting for the

10 organization. Usually, the first thing that recruits want to know about, are the

11 fypes and kinds of f,trearmsthey must acquire to becomea fully integrated

t2 memberof the organization.

13 ç The presenceof f,irearmsis necessaryto conduct safetyclassesand to maintain the

t4 degreeof safety consciousnessrequired by the organization's regulations.

15 h. As presidentof the AmericanCivil War Association,Plaintiff JONEScan state

t6 categorically that his organizationcannot - and will not - contractwith or attend

t7 gun shows that prohibit the display of the actual frrearms,as they arean integral

l8 part of the information he imparts to the public in his pursuit of educatingpeople

L9 about the American Civil War.

20 6 1 . PlaintiffsDARYL DAVIS, TASIANA WERTYSCHYN,JEAN LEE, TODD BALTES

2T andDENNIS BLAIR specificallyallege,andall otherPlaintiffsallegeon informationand

22 beliefthefollowing:

23 a. These Plaintiffs are frequentpatrons of the gun shov/soperatedby TS TRADE

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

25 but not timited to the gun shows at the Alameda County Fairgrounds.

26 b. As collectors of new and usedmodem f,rrearms,the ordinancebanning the

27 possessionof actualguns at gun shows abridgesthesePlaintiffs' right to engagein


DonaldKilmer
Attomeyat Law 28 with their hobbiesin the following rvays:
pule speechactivitiesassociated
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I 1. They are deniedthe opportunity to discussand debatevarious

2 technological,scientific and safety aspectsof modern firearms with other


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

4 firearmsat TS TRADE SHOWS because:

5 (1) Firearms,evenof the samemake and model, evolveover the years

6 with regardto certain features,including but not limited to: (1)

7 safetydevicesfor preventing accidentaldischarge,(2) decocking

8 mechanismsfor safely lowering the hammer or firing mechanism,

9 (3) interlock mechanismsfor preventing inadvertentmovement of

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

11 (2) It is not possible to compare/contrast,and thereforediscuss/debate,

t2 the relative merits - while at the gun show - of thesechanges

t3 betweennew and old models of firearms without the actual

t4 firearms for side-by-sidecomparison, physical inspection and

15 functional checks.

r6 2. Theseparticular Plaintiffs are also being denied the opportunity to

t7 observe,enjoy and discussthe s)¡mbolicaspectsand featuresof new and

18 used modern "commemorative" firearms that have various symbols,

19 pictures and messagesinscribed on them. Furthermore;Plaintiffs allege

20 that it is not possibleto truly appreciatetheseworks of art without the

2l opportunity to observethe workmanship and engravingson these

22 commemorativefirearms.

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

24 firearms thatare inscribed with depictions of historical events.

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

26 firearms that have inscriptions that celebrateAmerican Cultural

27 herôes.
Donald Kilmer
Attomey at Law 28 (3) Many of these"commemorative" firearms are actual working
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I firearms that have inscriptions that honor membersof the Armed

2 Servicesand Law Enforcement.


a
J (4) And lastly, many of these"commemorative"firearms are actual

4 working firearms that are inscribed with pure political messages.

5 c. As collectorsof new and usedmodernfirearms,the ordinancebanningpossession

6 of actual guns at gun shows, infringes on theseparticular Plaintiffs' right to

engagein commercialspeechactivitiesassociatedwith the purchase,saleand

8 trading of firearms in the following ways:

9 1. of the condition of a
With respectto used firearms,a proper assessment

10 firearm cannotbe made without inspecting the f,trearm.Therefore an

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

t2 How is a contractfor "sale" supposedto takeplace when therecan be no

13 meaningful discussionabout the essentialterms of that contract? The

L4 NRA Condition Standardsfor FirearmsValues recommendsa "hands-on"

t5 inspectionto determinethe condition of a firearm.

l6 2. Furthermorethe following specific safety inspectionsand measurements

t7 for fit should be performed before contracting to purchasea handgun:

18 (l) On all new and usedhandgunsit is necessaryfor the purchaserto

19 check the size of the grip and weight and balance of the firearm to

20 insure that the gun is not too big or liule for the intended owner.
'When
2l (2) purchasinga used revolver - (1) The hammer should turn

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

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

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

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

26 doesnot inadvertently drop. Lastly, (5) the ctaîe, which is the part

21 that swings out with the cylinder on some revolvers, should fit
Donald Kilmer
,q,ttomey at Law 28 snugly againstthe frame in the front with the cylinder closed.
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I (3) On a usedself loadingpistol - (1) the slide shouldbe pulled back

2 to be sureit locks open. (2) The releaseshouldbe pressedto


a
J insurethat the hammerdoesnot follow the slide down. (3) The

4 safetyshouldbe checkedfor properoperation.(a) The decocker,if

5 available,shouldalsobe checkedfor proper operation.

6 3. The following specificinspectionsshouldbe performedbeforecontracting

7 to purchasea new or usedlong gun:

8 (1) On a new or usedshotgunit is necessaryto check:(1) Lengthof

9 Pull - this is directly relatedto the length of the shooter's arm and

10 is a highly personalfit of the firearm to the purchaser.(2) Castat

1l Toe - which is relatedto a persons'chestsize and is also a highly

L2 personalfit of the firearm to the purchaser. (3) And of coursethe

13 weight and balanceshould also be checked.

T4 (2) On a new or usedrifle it is necessaryto inspect(1) weight and

l5 balance,(2) triggerpull, (3) stockdimensions.

r6 62. Plaintiff R.L. (Bob) ADAMS specificallyalleges,and all other Plaintiffs allegeon

17 information and belief the following:

r8 a. He has been a custom rifle maker for 47 yearsand a patron of TS TRADE

l9 SHOWS, including the gun shows at the PleasantonFairgrounds.

20 b. The ordinancein question abridgesry speechrights by preventing Plaintiff

2I ADAMS from instructing his clients/customersat gun shows and showing them

22 how to purchasegood usedrifles.

23 c. by
SpecificallyPlaintiff ADAMS givesinstructionsto his clients/customers

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

25 burnedand pitted bolt faces.Thesecharacteristics


receivers,excesshead-space,

26 are not easily detectedby the novice and untrained eye. The gun shows provide

27 an excellent opporfunity for him to educatehis clients due to the large number and
Donald Kilmer
Attomey at Law 28 variety of new and used f,rrearmsthat arc usually present.
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1 d. Plaintiff ADAMS also shows his customershow to identify the country of origin

2 and date of manufactureof a rifle. This is possibleonly by referenceto the actual


a
J firearm and is necessaryto determinethe quality and value of the firearm.

4 e. Plaintiff ADAMS would neveradvisea client to purchasea rifle that they could

5 not physicallyinspect.Neither would he buy a rifle for himself that he could not

6 physicallyinspectwhile contractingfor its purchase.

f. Plaintiff ADAMS allegesfhat a gun show where guns cannot be shown is an

I absurdcontradiction in terms that deflreslogic and common sense.

9 63. Plaintiff ROGER BAKER specificallyalleges,and all other Plaintiffs allegeon

10 informationand belief the following:

l1 a. This Plaintiff is a frequent exhibitor at the gun shows operatedby TS TRADE

t2 SHOWS throughout Northern California - including, but not limited to the gun

l3 shows at the Alameda County Fairgrounds.

t4 b. Plaintiff BAKER is a FederallyLicensedFirearmsDealer. He dealsalmost

15 exclusivelyin antique,relic and collectiblefirearms. He specializesin

t6 "commemorative" WinchestersrM.

l7 c. The Alameda ordinanceprohibiting the possessionof ftrearms at the TS TRADE

l8 SHOWS at the County Fairgroundsinfringes on Plaintiffs BAKER's putq speech

l9 rights. The "commemorative" firearms that he specializesin have various

20 symbols,picturesand messagesinscribedon them. The ordinancedenieshim and

2l his customersthe opportunity to observe,enjoy and discussthe symbolic and

22 artistic aspectsand featuresof thesecommemorative firearms.

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

24 appreciatetheseworks of art without the opportunity to directly observethe

25 workmanship and engravingson thesecommemorative firearms. Mere pictures

26 would not renderjustice to the workmanship and beauty of thesefirearms.

27 e. Many of these "commemorative"firearms are actual working f,trearmsthat are


Donald K¡lmer /) Q
Atfomey at Law Lo inscribedwith depictionsof historicalevents.
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I f. Many of these "commemorative"firearms are acfual working firearmsthat have

2 inscriptionsthat celebrateAmerican Cultural heroes.

3 g. Many of these "commemorative"firearms are acbJalworking firearmsthat have

4 inscriptionsthat honor membersof the Armed Servicesand Law Enforcement.

5 h. And lastly, many of these"commemorative" firearms are acfualworking firearms

6 that are inscribedwith pulg political messages.

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

8 commemorative firearms and discusstheir messageswith his customers,there is

9 no reason for him contractwith or attend a gun show without guns.

l 0 64. Plaintiff MIKE FOURNIER specifically alleges,and all other Plaintiffs allegeon

1l informationand belief the following:

t2 a. This Plaintiff is a frequent exhibitor/vendor at the gun showsoperatedby TS

l3 TRADE SHOV/S throughoutNorthern California - including, but not limited to

t4 the gun shows at the Alameda County Fairgrounds.

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

16 Corporation [ID# 77 -0T99362].

t7 c. His principal placeof businessis SanJose,where his storefrontretail shophas

18 been locatedsinceAugust of 1987.


-\r
,'l
f , r 1 9 d. He is a licensed FirearmsDealer under federal and statelaw.

20 e. He does not have a ConcealedWeapons Carry permit as defined and regulatedby

2l PenalCode $ 12050.

22 f. He is a frequent patron and f,rrearmsvendor at TS TRADE SHOWS throughout

23 the Bay Area, including the shows at the Alameda County Fairgrounds'

24 g. As part of his work as a licensedfirearm dealer, he often attendsgun shows to

25 buy, sell and trade firearms.

26 h. For many of the samereasonsstatedby the other Plaintiffs (supra),he woulclnot

27 engagein the trade,sale or purchaseof f,rrearmswithout being able to physically


Donald Kilmer
Attorney at ljw
) a
Lv inspectthem.
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1 i. This Plaintiff further alleges,basedupon yearsof experiencein the retail firearms

2 business,that his retail customerswould not engagein the trade,saleor purchase


a
J of used firearmswithout being able to physicallyinspectthe merchandise.

4 j This Plaintiff is requiredby federal and statelaw to take precautionsto secure

5 firearms that are part of his inventory at both his storefront shop and at gun shows.

6 k. Furthermore,he allegesthat the ordinancein questiontreatshim unequally by

7 denyinghim accessto the AlamedaCounty Fairgroundsfor the displayof his

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

9 other persons,which presumablyincludes other licensedfirearm dealers,who

l0 hold concealedweaponcarÐ/permitspursuantto Cal PenalCode $ 12050.


' Lastly, Plaintiff FOURNIER statesthat he will not attendor contract as a vendor
1l l.

t2 at any gun show that doesnot permit actual firearms.

l 3 65. Plaintiff VIRGIL MoVICKER specifically alleges,and all other Plaintiffs allege on

74 information and belief the following:

15 a. This Plaintiff is personallypresentas a patron and exhibitor at the gun shows

l6 operatedby TS TRADE SHOWS at all of the various locations throughout

t7 California - including the gun shows at the Alameda County Fairgrounds.

l8 b. Plaintiff McVICKER is the presidentof the Madison Society,a Nevada

corporationwith its registeredplace of businessin CarsonCity, Nevada. The

20 societyhas branchchaptersin Califomia.

2l c. TheMadison Societyisa membershiporgan izationwhose pu{poseis preserving

22 and protecting the legal and constitutional right to arms of its members and of

23 law-abiding,responsibleAmericansin general.

24 d. To accomplish this the Society engagesin and/or supportslitigation in California

25 and nationwide, exercisingits, and its members' First Amendment rights.

26 e. The Society also engagesin political, educational and advocacythrough such

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


Donâld Kilmer
Attomcy at Law
t R and contact'withpublic off,rcials.
1261 Lincoln Àve.
Suite I I I
San Jose,CA 95125
Vc: 408/998-8489 Nordyke v. Steele P a s e 2 7o f 4 l 2"dAmentled Cornplaiut
Fx: 408/998-8487
I f. The political and educationalactivities are especiallyfruitful and effective at the

2 gun shows,including but not limited to the gun shows that have historically been
a
J conductedat the Alameda County Fairgroundsby TS TRADE SHOWS'

4 g. ln additionto political and educationalactivitiesconductedat gun shows,the

5 Madison Societyseeksdonationsand funding by holding prize drawings for

6 various merchandisewhich are often firearms.


-
h. Madison Society would like to continue to hold such drawings at the gun showsat

8 the Alameda County Fairgrounds,however the Ordinancethat prohibits the

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

10 attendanceof gun shows atthat venue,this apparentlyresulted in the cancellation

ll of the gun show that was scheduledfor the weekendof November617,1999at

t2 the Alameda County Fairgrounds.

13 i. This ordinancewould also prevent the display of any firearm offered by my

t4 organizationas a prize drawing.

l5 j. The Society dependsa greatdeal on the funding generatedby thesedrawings,

t6 where donors can examine the personalfit and quality of the firearm offered as

t7 theprize. The Society would like to continue to conduct drawing where we

18 display actual firearms.

t9 k. While the Madison Societywould like to continue to attend eventswhere they can

20 find and recruit like-minded individuals; it would appearthat the Alameda Statute

2l imposing criminal sanctionsfor the possessionof - even unloaded and safety-

22 locked - firearms has had a chilling effect on people willing to attend gun shows

23 at the Alameda venue.

24

25 Plaintiffs' Losses

26 6 6. As a result of Defendants' unlawful and unconstitutional actions, the Plaintiffs arebeing

27 denied the exerciseof fundamentalrights protectedby the Equal Protection atrdDue


Donald K¡lmer
Attorney at I-aw 28 ProcessClausesof the FourteenthAmendment and the Freedomsguaranteedby the First
l26l Linæln Ave.
Suite I I I
San Josc,CA 95125
Vc: 408/998-8489 Nordvke v. Steele PageZ8of 4t 2"dAmended Complaint
Fx: 408/998-8487
I as made applicableto the statesthrough the FourteenthAmendment's Due Process

2 Clauseand those supplementalprotectionsafforded by the California Constitution.


a
J Plaintiffs have suffered, are now suffering and will continue to suffer damages-

T
Á includingbut not limited to:

5 a. Expensesfor advertising future shows;

6 b. Lost revenuefor past and future shows;


1
c. Loss of depositon shows aheadyscheduled;

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

9 loss of repeatbusinessfrom long standingvendorsand patrons;

to e. Medical expensesbrought on from the stressof having their livelihood threatened;


' rl f. Attomeys fees and costsfor bringing this suit.

t2 67. Plaintiffs will also suffer damagesby reasonof being denied substantialrights that once

l3 violated will be irreparable and for which there is no adequateremedy at law. Therefore

t4 f,rnancialremedieswill not be adequateto make the Plaintiffs whole.

l5
t6 FIRST CLAIM: FREEDOM OF EXPRESSION - ''AS APPLIED-'' CHALLENGE

t 7 68. Plaintiffs incorporateby referenceeachand every allegation contained in ParagraphsI

l 18 through 67 as though fully set forth herein.


t /' .'
( . , 1 9 69. Plaintiffs allegesthat the Alameda Ordinance,which makes gun shows at the fairgrounds

20 "virhrally impossible"violatestheir Freedomsof Expressionas that right is protectedby

2l the First Amendment to the United StatesConstitution and as applied to stateaction by

22 the FourteenthAmendment'sDue ProcessClause.


' z ^aJ Plaintiffs allegesthat the Alameda Ordinance,which makes gun shows at the fairgrounds
70.

24 "virhrally impossible"violatestheir Freedomsof Expressionas that right is alsoprotected

25 by the California Constitution.


:
26 71. Plaintiffs have historicallyusedthe AlamedaCounty Fairgrounds to assembleand

27 discussissuesof political and socialimportance,including but not limited to their Second


Donald Kilmer
Attomey at Law
),8 Amendment Rishts.
' 126l Linæln Ave.
I S u i l cl l l
; San Jose,CA 95125
I Vc:408/998-8489 Nordvke v. Steele PageZ9of 41 2"dAmended Comolaint
I Fx:408/998-8487
I 72. Plaintiffs further allege that they have historically brought firearms onto countyproperty

2 at the Alameda County Fairgroundsfor various symbolic and expressivepurposes


a
J includingbut not limited to:

4 a. The display and handling of commemorativefirearms as objects of art and as

5 mediumsof political messagesthat areinextricablyintertwinedwith the actual

6 firearm,
-
I b. The display and handling of firearms that have military and historical importance,

8 and as part of a living history andlorhistorical re-enactmentexhibit that educates

9 the public aboutour nation's history

10 c. The display and handling of firearms to facilitate the legal educationof the

11 generalpublic and to inform them of their rights and duties as gun ownersunder

I2 federal and state law,

l3 d. The display and handling of antique firearms as objects oî art,

t4 e. The display and handling of firearms to facilitate commercial transactionsin

15 frrearms,

I6 f. The display and handling of firearms for the purpose of instruction in safeand

t1 responsiblegun storageand handling,

t8 g. The display and handling of frrearmsfor the pu{pose of conductingprize drawings


( 1 9 that b enefit community service organizations,

20 h. The display and handling of firearms for the purpose of engagingin the commerce

2l oftrigger locks and gun safes,

22 i. The display and handling of firearms as part of cultural events,and various formal

23 and informal meetingsof rod and gun clubs through out the bay areawhich

24 congtegateat gun shows,

25 j. The display and handling of firearms for the purpose of purchasingfirearms

26 that only matchcertaintypesand models of firearms- suchas:extra


accessories

27 barrels,carryingcases,scopes,optical sights,holstersand trigger locks,


Donâld K¡lmer '1 Q
AttoneyatLaw z'o k. The display and handling of firearms for the purpose of contracting for the repair
l26l Lincoln Ave.
Suite I I I
San Josc,CA 95125
Vc:408/998-8489 Nordvke v. Steele Page30 of 4l 2ndAmended Complaint
Fx: 408/998-8487
I or overhaul of firearms by qualified gunsmiths,

2 l. The display and handling of firearms for the purposeof receiving an appraisalof a
a
J firearm from a qualified expert.

4 73. Plaintiffs further allegethat many of the Defendantshave expressedopen hostility to the

5 traditional American practice and custom regardingthe private ownership of firearmsas

6 embodiedin the SecondAmendment. This hostility is specificallydirectedat gun owners


,7
I that advocateand expressa political belief in a strict interpretationof the Second

I Amendment. It is further alleged that the ban on the possessionof firearms at the

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

l0 to political groups that support the private ownershipof firearms as set forth in the
r.. '
i ' l

l1 SecondAmendmentto U.S. Constitution.

1 2 74. Plaintiffs fuither allege that the Ordinanceis motivated by, and intended to suppressthe

13 expressionof "disfavored" views is illustrated by the exception in the Ordinancefor

t4 motion picture and television production events. There is no compelling govcmmcnt

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

t6 exempting the possessionof guns at theatrical events. If the governmentalinterest

t7 assertedby the ordinanceis the prevention of the criminal misuse of firearms, that

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

( ' , D managersthan it is with guns in the handsof licensedgun dealers,as the characterof

20 firearm dealersis more thoroughly scrutinizedby public officials, pursuant to statelaw,

2l than that of theatrical prop managers. Thereforea licensed firearms dealer must be

22 considered a less likely threatto the public than a theatrical prop manager. FurtheÍnore,

23 if the governmentalinterest is to prevent the criminal acquisition or theft of firearms,

24 there is still no compelling reasonsfor exceptingtheatrical events from the ordinance,as

25 the regulationsrelating to the physical security of firearms [to prevent theft] is more

26 onerousfor the licensedfirearm dealerthan it is for the theatrical prop manager. Finally,

27 the exception for theatrical eventsof a law that is applied to gun show eventscannotbe
DonâldKilmer
Attomeyat Lâw
) e
þv rationally justified and demonstratesthat the motivation behind the ordinance is actually
126I LincolnAve.
SuiteI I I
SanJosc,CA 95125
Vc: 408/998-8489 Nordyke v. Steele Pase31 of 41 2noAmended Complainl
Fx:408/998-8487
1 the suppressionof "disfavored"activitiesand expressionsat gun shows.

2 15. Plaintiffs allegethat the Defendants'ban on the possessionof firearrnson county


I
J property at the Alameda County Fairgroundsconstitutescontentbasedregulation of

4 symbolic and expressivespeechas appliedto gun shows.

5 7 6. Plaintiffs further allege that the Ordinancein questiondoesnot servea compelling or

6 important governmentinterest.Moreover, the ordinanceis unnecessaryas that interestis


-
already addressedby local regulationsand Stateand./orFederallaw. Nor is the Ordinance

8 narrowly drawn to servethe governmentinterestasserted,so as not to infringe upon the

9 Plaintiffs' freedomof expression.

1 0 77. Plaintiffs allege that the Ordinanceis vague and overbroadas it appliesto gun shows.

1 l 78. Plaintiffs allege that the Ordinanceis not a proper "time, place and manner" regulation of

t2 speech.

13 79. Plaintiffs allege that the Ordinancefunctions as a prior restraint on speechby failing to

I4 distinguish between guns shows as cultural eventsand the exceptionsto the ordinancefor

15 "motion picture,television,video, danceor theatricalevents"This exceptionclaimsto

t6 make a distinction betweenfirearms as symbols in movies, but neglectsto attribute any

t7 symbolism to guns at gun shows. The Ordinanoeimplies that context matters and that

18 mere possessionis different from possessionwhich is meantto conveya message.


, i l
I 9 80. Plaintiffs fuither allege that they have a liberty interestsin attending,participating,

20 preserving and perpetuatingan historical and cultural event that has both practical and

2l symbolic value in preservingand advocatingtheir "right to keep and bears arms" -

22 however that right is def,rnedin California and throughout the United States.Former

23 SupervisorMARY V. KING admits in her pressreleasethat she considersgun show

24 attendeesto be part of some sub-culture that " display gunsfor worship as deitiesfor the

25 collectorswho treat themas iconsof patriotism." Without acceptingthe pejorative

26 implications, the attemptby MARY V. KING to describeand classify gun show attendees

27 as membersof a "gun culture" is more accuratethan not;but it is also no different from


Donald Kilmer
Attomcy at Lâw 28 describing and classifying personswho are part of the "surf culture" of SantaCraz; or part
l26l Lincolr¡ Ave.
Suite I I I
San Jose, CA 95 125
Vc: 408/998-8489 Nordvke v. Steele Pase32of 41 2noAmended Complaint
Fx: 408/998-8487
I of the "gulf culture" of PebbleBeach; or part of the "football culture" of the San

2 Francisco49ers or Oakland Raider fans. Plaintiffs fuither allegethat this cultural activity
a
J (gun shows) is currently threatenedand will continue to be threatenedby Defendant's

4 actions.

5 81. Plaintiffs further allegethat Defendants'actionsare arbitraryand capricious,and a

6 discriminatorydenial of their fair use of public facilities.

82. Plaintiffs fuither allegethat the ordinance is not even a regulation of expressiveconduct,

8 but rather a completeban on the expressiveconduct taking place at gun shov/s.

9 Furthermore,the ordinanceputs the Plaintiffs in an untenable"Catch-2Z" situation where

10 they can have a gun show, but they cannot have guns presentat the gun show. This
t )
11 "Kafkaesque" mangling of the def,rnitionof a gun show is irrational to the point of not

t2 being able to passeven a rational basis scrutiny.

13

l4 SECOND CLAIM: FREEDOM OF COMMERCIALs


SPEECH - ''AS APPLIED'' CHALLENGE
15
83. Plaintiffs incorporateby referenceeach and every allegation containedin Paragraphs1
I6
through 82 as though fully set forth herein.
l7
84. Plaintiffs allege that their Commercial Speechrights arejeopardizedby the ordinancesas
18
those rights are defined by the United Statesand Califomia Constitution.
'
10
L J

85. Plaintiffs havehistoricallvusedthe Alameda Countv Fairsroundsto assembleand discuss


20
issuesof gun-relatedcommerceand other issuesof commercial importance.
2l

22
5 Plaintiffs concedethat the February 18, 2003 order affirming the trial court's denial of
23
pretrialinjunctive relief found no merit in Plaintifß' commercialspeechclaims. Nor do
24 Plaintiffs' expect the Defendantsto have to defend againstthis causeof action. However the trial
court took no evidenceon this issueother than written declarations. Nor is it entirely clear from
25
the February 18, 2003 order that the door left open for an "as applied" First Amendment
26 challengedid not include the commercial speechaspectsof this case. Therefore Plaintiffs are
keepingthis "as applied" causeof action in their amendedcomplaint in order to make a record in
27 the trial court on this issuefor any appellateconsiderationsavailable to the Plaintiffs from the
DonaìdKilmer
higherauthoritiesthat haveyet to addressthis caseafter entry ofjudgment. [i.e., the Ninth
28
Attomeyat Law
l26l Li¡col¡ Ave.
Circuit En Banc and/orthe U.S. SupremeCourt.l
SuiteI I I
SanJosc,CA 95125
Vc: 408/998-8489 Nordvke v. Steele Page33of 4l 2"dAmended Comolaint
Fx: 408/998-8487
I 86. Plaintiffs have historically brought firearms onto the Alameda County Fairgroundsto

2 conductthe following lawful commercialactivities:


a
J a. The displayof firearmsto facilitate commercialtransactionsin firearms,

4 b. The display, handling and inspection of firearms to insure that new and used gun

5 sales6will be conductedin accordancewith the law - for example:(1) Only a

6 handson inspectionof a firearm will enablea purchaserof a semi-automaticrifle


. F 7
I to determineif the firearm's characteristicstake it within the ambit of the federal

8 and stateassaultweaponslaws, (2) Only a handson inspectionof a firearm will

9 enablea purchaserto determine if the serial number on a firearm has been

10 obliteratedor tamperedwith, (3) Only a handson inspection and verification of


I

11 the firearm serial number by both the buyer and seller will enablethem to

I2 determineif the correct serial number is enteredon paperwork that must be

l3 submittedto authoritiesto conclude a lawful transaction.

T4 c. The display,handlingand inspectionof a gun to discussthe essentialterms of any

l5 contract for sale,including: condition, authenticity,special characteristicsand

I6 price [which is wholly dependentof the quality of the firearm offered for sale],

I7 d. The display and handling of firearms for the purposeof engagingin discussions

18 regardingthe sale of trigger locks and gun safes,


(
T9 e. The display and handling of firearms for the purpose of engaging in commercial

20 speechprior to the purchaseof firearms accessoriesthat only match certain types

2l and models of firearms - such as: extra barrels,carrying cases,scopes,optical

22 sights,holsters,safesand trigger locks,

23 f. The possessionand handling of firearms for the purpose of contracting with

24 custom rifle makers and gunsmiths.

25 8 7 . Plaintiffs allegethat the "as applied" commercialspeechand activities describedabove

26

21 o Defendantshavemadethe dubiousassertionthat "[T]he ordinancealso doesnot

Don¡ld Kilmer
ibe the sale of f,rrearmsor ammunition provided that such articles cannot be displayedon
1 A
Lo
Atfomey at Law
126l Lin@ln Avc.
he premises."
Suite I I I
San Jose,CA 95125
Vc: 408/998-8489 Nordyke v. Steele Pase34of 4l 2ndAmended Complaint
Fx: 408/998-8487
I are so "inextricably intertwined" with "as applied" pure speechactivities that the

2 commercialspeechshouldbe affordedthe sameconstitutionalprotectionsas purespeech.


a
J 88. Plaintiffs further allege that the Ordinancein questiondoesnot serye a compelling and/or

4 important govemment interest. Moreover, the ordinanceis unnecessaryas that interestis

5 alreadyaddressedby Stateand.iorFederallaw. Nor is the Ordinancenarïowly drawnto

6 servethe governmentinterest asserted,so as not to infringe upon the Plaintiffs' freedom

7 of commercialexpression.

8 89. Plaintiffs allegethat the Defendants'ban on the possessionof flrrearmson counfy

9 property at the Alameda County Fairgroundsconstitutescontent basedregulationof

10 commercial speech. Furthermorethe County's ban on the possessionof firearms at the

11 Fairgroundswould deny them the right to engagein the aforementionedconstitutionally

t2 protectedspeechand syrnbolic conduct, as guaranteedby the First Amendmentto the

13 United StatesConstitution as it is made applicableto the statesthrough the Fourteenth

t4 Amendment'sDue ProcessClause.

l 5 90. Plaintiffs fuither allege that as a result of Defendants' actions they have suffered,are

t6 currently suffering and will continue to suffer damagesbasedupon violations of their

t7 First Amendment rights as it is made applicableto the statesthrough the Fourteenth

l8 Amendment's Due ProcessClaus, and that they will continue to be irreparably deprived

I9 of theserights for which there is no plain, speedyor adequateremedy at law.

20

2l THIRD CLAIM: FREEDOM OF ASSEMBLY and ASSOCIATION


IIAS APPLIED'' CHALLENGE
22

23 9 1 . Plaintiffs incorporate byreference eachand every allegation containedin ParagraphsI

24 through 90 as though fully set forth herein.

25 92. Plaintiffs allegethat the ordinanceimpermissiblyinfringes on their Freedomof Assembly

26 and Association as that right is defined by First Amendment and made applicableto state

27 action through the FourteenthAmendment.


Donald Kilmer
Attomeyat Law 2 8 9 3. Plaintiffs allegethat their Freedomof Assemblyand Association as definedby the
126l LincolnAve,
SuiteI I I
Sm Josc,CÂ 95125
Vc: 408/998-8489 Nordyke v. Steels Page35 of 41 2noAmended Complaint
Fx: 408/998-8487
I California StateConstitutionis also implicated.

2 94. Plaintiffs havehistoricallyusedthe AlamedaCountyFairgroundsto assemble,associate


a
J and discussissuesof political and cultural importance.

4 95. Plaintiffs further allege that gunshowsat the Alameda County Fairgroundsprovide the

5 only well-advertised,well-attendedpublic eventwheregun ownersand firearms

6 enthusiastscan meet on a regular basis to petition their governmentfor changeand

7 engagein other forms of political actionthat is the lifeblood of a ConstitutionalRepublic.

8 Other examplesof potential claimants not currently named as plaintiffs are:

9 a. Patrons,exhibitorsand vendorsassembleat the gunshowshostedby TS TRADE

10 SHOV/S to buy, sell, give away and receive: books, magazines,t-shirts, campaign

11 buttons,bumper-stickersand pamphlets.Many of theseitems are of a political

l2 nature and specif,rcallyconcernthemselveswith issuesinvolving "right to keep

13 and bear arms.'r Without the draw from other patrons of the gunshow seekingto

T4 engagein the commerceof firearms, the gunshowswould become extinct, as a

15 result the other patrons,exhibítors and non-firearrnsvendors would lose a forum

T6 and marketplacefor their products and servicesand citizens seekingto become

t7 active participants in the democraticprocesswould be harmed.

l8 b. VetoTheGovernor.Orgwas an organizationthat was collecting signatureson a

t9 state-wide referendumto repealthe assault\ryeaponlaw passedby the Califomia

20 legislature.This organizationhad beenpresentat each and every TS TRADE

2l SHOW since the organizationspranginto existence.Without the draw from

22 patrons of the gunshow seekingto engagein the commerce of f,rrearms,

23 VetoTheGovernor.Orgwould not be able to reach the samenumber and same

24 quality of petitioner signersand petition gatherers.

25 c. V/ithout the draw from patronsof the gunshow seekingto engagein the

26 commerceof firearms,NRA Members' Councils (and other gun rights

27 organizations)would not be able to reach the samenumber and samequality of


Donald Kilmer
Attomey at Law 28 potentialmembers.
l26l Lin@ln Ave.
Suite I I I
San Jose,CA 95 125
Vc: 408/998-8489 Nordvke v. Steele P a g e 3 6 o f4 l 2"dAmended Complaint
Fx: 408/998-8487
1 d. Patronsassembleat TS TRADE SHOWS to get informationfrom political

2 candidatesthat sharetheir viewpoints,especiallywith respectto firearmsissues.


a
J Without the draw from other patrons of the gun show engagingin the commerce

4 of firearms,the gun showswill discontinueleasingthe AlamedaFairgrounds.As

5 a result political candidatesand citizensseekingto participatein the democratic

6 processwill be deprivedof a forum for campaignand electionactivities.


-
96. Plaintiffs assertthat assemblyand associationalrights that arecloselylinked to other

8 rights and freedomsfound in the United StatesConstitution are deservingof broader

9 protection due to the FourteenthAmendment's unique role in striking down laws such as

10 the 1833Virginia Statuteproviding "[e]very assemblageof negroesfor the purposeof

1l religious worship, when such worship is conductedby a negro, . . . shall be an unlawful

l2 assembly."T

1 3 97. Plaintiffs fuither allege that the Defendants' actions have chilled, the assemblyand

t4 associationalrights of citizens who are actively engagedin the important and

15 controversial public debateon the role of firearms in our society.

1 6 98. Plaintiffs further allege that the Ordinancein question does not serve a compelling and/or

T7 important governmentinterest,that is not already addressedby State and./orFederallaw.

18 Nor is the Ordinancenarrowly drawn to seryethe governmentinterest asserted,so as not

T9 to infringe upon the Plaintiffs' freedom of assemblyand association.

20 99. Plaintiffs further allege that as a result of Defendants' actions they have suffered,are

21 currently suffering and will continueto suffer damagesbasedupon violations of their

22 First Amendment rights as it is made applicable to the statesthrough the Fourteenth

23 Amendment's Due ProcessClause;and that they will continue to be irreparably deprived

24 of theserights for which there is no plain, speedyor adequateremedy at law.

25

26

21
Donald Kilmer
Attomey at I¿w 28 t Akhil Reed,A.mar,The Bill of Rights 245 - 46 (1998) Yale
University Press
l26l Lincol¡ Ave.
Suite I I I
San Jose,CA 95125
Vc: 408/998-8489 Nordvke v. Steele Page37of 4I 2noAmended Complaint
Fx: 408/998-848?
I FOURTH CLAIM: EQUAL PROTECTION

2 100. Plaintiffs incorporateby referenceeachand everyallegationcontainedin Paragraphs1


a
J through 106 as thoughfully set forth herein.

4 101. Plaintiffs have historicallyusedthe AlamedaCountyFairgroundsto engagein conduct

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

6 102. Plaintiffs have obeyedall federaland Statelaws associatedwith the hostingand attending
,7
T of gun shows at the Alameda County Fairgrounds.The Defendants' actionsaffecting the

8 historical use of the Fairgroundsfor previously lawful conduct treatsthe Plaintiffs

9 differently and unequally with respectto other personssimilarly situated.Moreover this

l0 un-equal treatment infringes on the fundamentalrights alreadypleadedherein.

- ) rl 103. Plaintiffs allegeon informationand belief that the County of Alamedahaspermittedthe

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

13 not limited to: Outdoor and SportsmanShows and The Scottish Gamessponsoredby the

l4 CaledonianClub of SanFrancisco;all the while keepinggun showsfrom enjoyingthe

15 sameprivileges.

t 6 t04. Specifically,Plaintiffs allegethat the ordinancein questionirrationally discriminatesby

t7 prohibiting the possessionof guns on county property by participants of a gun show

l8 event, while exempting the possessionof guns on county property by authorized

t:, ¡ 1 9 participants in "motion picfure, television, video, dance,or theatrical production or

20 event[s]." The presenceof firearms at both of theseexpressiveand cultural activities are

2T already regulatedby stateand federal law. [Actually, gunshows- and the firearms

22 industry in general- are more thoroughly regulatedthat the firearm activities of motion

23 picture and television productions.] Basedupon the fundamental rights exercisedat both

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

25 interest that justif,restreating gun show participants differently from theatrical production

26 participants. Nor is the attemptto addressthe government interest that is asserted,

27 narrowly drawn to prevent infringement upon the fundamental rights of the of the named
.)
Donald Kilmer
Atlomcy at Law 'a
A
Plaintiffs and other third parties.
l26l Linæln Ave.
Suite I I I
San Jose, CA 95 125
Vc: 408/998-8489 Nordyke v. Steele Pase38 of 41 2ndAmended Complaint
Fx: 408/998-8487
I 105. Plaintiffs further allege,and Plaintiff MIKE FOURNIER in particular allegesthat the

2 ordinancein questionirrationally discriminatesbetweenand among Licensed Firearm


a
J Dealers. The Defendantsassertthat the Ordinancedoesnot prevent gun shows or even

4 the sale of guns at gunshowson county property. They further assertthat a dealer can

5 merely show pictures or written descriptionsof firearms offered for sale. Aside from the

6 expressiveand commercialspeechthat this Ordinancewould prevent,it is quite evident


-,
I that the practical aspectsof buying, selling and trading f,rrearmsis also affected.As a

8 frequentdealerat TS TRADE SHOWS, Plaintiff MIKE FOURNIER had historically

9 brought some of his inventory to the show for expressiveand commercial purposes.The

l0 Ordinance,which imposescriminal sanctions[which must thereforebe strictly construed


' i l
againstthe governmentunder the rule of lenity] for the possessionof f,trearmson county

t2 property now preventsa dealerfrom displaying his inventory, unless that dealer also

13 holds a valid licenceto carry a firearm pursuantto California PenalCode $ 12050. The

I4 Ordinancemakesno distinction betweenthe firearms the $ 12050licencee is authorized

l5 to carry, and the f,rrearmsthat arc part of that dealer's inventory. The exception in the

t6 Ordinanceis for the person,not the gun. Besides,all firearmsdealer,thosewith and

I7 without $ 12050permits, are alreadythoroughly regulatedby federal and state law.

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

r 1 9 governmentinterestthat justifies treating firearm dealerswith $ 12050 permits differently

20 from dealerswithout the permit.

2l 106. Plaintiffs allegethat Defendants'actionsare,and will result in, an unequal,irrational,and

22 discriminatory application of the law as the ordinanceis both vague and overbroad.

23 l0l . Plaintiffs further allege that as a result of Defendants' actions they have suffered, are

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

25 FourteenthAmendment's Equal Protection Clause; andthatthey will continue to be

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

21 remedyat law.
Donald Kilmer .,
e
Attomey at LÂw Le
l26l Li¡colnAve.
Suite I I I
Satr Jose, CA 95 125
Vc: 408/998-8489 Nordvke v. Steele Pase39of 41 2ndAmended Complaint
Fx: 408/998-8487
1 FIFTH CLAIM : DUE PROCESS

2 108. Plaintiffs incorporateby referenceeachand everyallegationcontainedin ParagraphsI


a
J through I 14 as though fully set forth herein.

4 109. Plaintifß allegethat they have a liberty interestsin attending,participating,preserving

5 and perpetuatingan historical and cultural eventthat has both practical and symbolic

6 value in preservingand advocatingtheir "right to keep and bears arms" - howeverthat

7 right is defined in California and throughout the United States.Former Supervisor

8 MARY V. KING admits in her pressreleasethat she considersgun show attendeesto be

9 part of some sub-culturethat "display guns for worship as deities for the collectorswho

10 treat them as icons of patriotism." Without acceptingthe pejorative implications, the

tr ,...' I I attemptby MARY V. KING to describeand classify gun show attendees as membersof

I2 a "gun culture" is more accuratethan not; but it is also no different from identiffing

13 personswho are part of the "surf culture" of SantaCruz; or the "gulf culture" of Pebble

t4 Beach,or the "football culture" of the SanFrancisco49ers or Oakland Raider fans.

l 5 110. Plaintiffs further allege that this cultural activity is currently threatenedand will continue

16 to be threatenedby Defendant'sactions.
' 1 7
11l. Plaintiffs fuither allege that Defendants' actionsare arbitrary and capricious, and a

l8 discriminatory denial of their fair use of public facilities.

i. I lg ll2. Plaintiffs fuither allege that as a result of Defendants' actions they have suffered,are

20 currently suffering and will continue to suffer damages for which there is no plain,

2l speedyor adequateremedy at law for violations of the Fourteenth Amendment's Due

22 ProcessClause.

23

24 PRAYER

25 V/HEREFORE,Plaintiffsrequestfrom this Court:

26 A. strikingdown the offendingordinance


A permanentinjunctionagainsttheDefendants

27 andprohibitingdiscriminatoryenforcement;
DonaldKilmer
Attomeyat Law
) R B. damages
An awardof compensatory to proof;
according
l26l LincolnAve,
SuiteI I I
SanJose, CA 95125
Vc: 408/998-8489 Nordvkev. Steele Page40 of 4l 2"dAmended Complaint
Fx: 408/998-8487
I C. An award of attorneysfees and costsof this lawsuit;

2 D. A declarationthat Plaintifß are entitled to continue to engagein the historical usesof the
a
J Alameda County Fairgrounds.

4 E. Such other and further relief as this Court deemsnecessaryand appropriateto the

5 administrationof justice.

6 JURY DEMAND

Pursuantto the FederalRules of Civil Procedure- 38(b), Plaintiff demanda jury trial on all
F,

8 issuesfor which that right exists.

9 Dated: March 9.2005

10 DonaldE. J. Kilmer,Jr.
LAW OFFICESOF DONALD KILMER
1l A ProfessionalCorporation
1261LincolnAvenue,Suite111
t2 SanJose,Califomia95125-3030
Phone:4:081998-8489 Fax: 4081998-8481
l3 g.Mait : Uft awOfc@aol.com

I4 AuomeVfor the Plaintiffs

l5

t6

t7

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I9

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2l

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27
Do¡ald Kilmer
Attorney at Law 28
l26l Lincoln Avc.
Suite I I I
San Jose,CA 95125
Vc: 408/998-8489 Nordyke v. Steele Page4l of 4l 2ndAmended Complaint
Fx: 408/998-8487

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