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I DonaldE.J.Kilmer,Jr.,(SBNt 179986)
2 A Professional
126l LincolnAvenue,Suite111
Telephone: 4081998-8489
'J 4 Facsimile: 4081998-8487
E-Mail: DKIawOfc@sbc global.net
l )
Attornevfor Plaintiffs


t6 (Bob) ADAMS, ROGERBAKER, MIKE 3-2cf,6
HearingDate: ödT.
t7 Hearing Time: 9".2o A .tu .
18 Judge: Martin J. Jenkins
vs. Courthouse: U.S.Court House
t9 450 GoldenGateAve.
20 MARY V. KING, GAIL STEELE,V/ILMA California 94102

ffi 23

@ 24

ru 25 I, JessB. Guy, declareas follows:

4 26


I am one of the namedplaintiffs in the above-entitledaction.

Iamacitizenhesident of the Stateof California.

Douald Kllmer
Attomey at fåw 2 8 I 3. I am a citizen of the United States.
l26t Lincoln Ave.
Suite I I I
San Jose, CA 95125
Vc: 408/998-8489
Fx: 408/998-8487
Nordykev. King Paee1 of 14 Declaration:JessB. Guv
I 4. My addressfor serviceof processin this action is: Law Offices of Donald Kilmer; 1261

2 Lincoln Avenue,Suite 111;SanJose,CA 95125.

J 5. I hold a Bachelor of Arts Degree - Law EnforcementAdministration - 1970 from San

4 Jose StateUniversity.

) 6. I hold a Master of ScienceDegree-Criminal Justice- 1989from SanJoseState

6 University.

7 7. I hold a Juris DoctorateDegree- 1998 - from Lincoln Law School of SanJose.

8 8. I was employed by the Bureau of Alcohol, Tobacco & Firearms (ATF) from 1970to

9 1998 as a Special Agent and as a Supervisorof Special Agents. I received initial training

l0 in firearms and explosivesat the TreasuryLaw EnforcementOfficers School and ATF

1l Basic Academy in V/ashington,D.C. I received further training in firearms and

t2 explosives from the U.S. Anny at Ft. Belvoir, the Federal Law Enforcement Training

13 Center, and various Explosives OrdnanceDisposal Units in the U.S. Army and Navy.

t4 9. In the course of my employment with ATF, I have conductedthousandsof firearms

l5 examinationsfor the pqposes of determining identification, functioning, origins and

t6 meaningsof markings on firearms.

T 7 10. I have also conductedhundredsof firearms application and compliance inspectionsof

i' 18 federally licensed firearms and explosive dealers,examining records, f,trearmsand

t "..'
l9 explosives, and auditing the businesspractices of the licensees. This work included

20 regulatory and enfoicement actions of gun shows throughout the jurisdiction that was

2T assignedto me.

22 11. I have personal knowledge of the evolution of gun shows from the early 1970'sthrough

23 the date of this declaration. (Seebelow for more details.)

24 12. I have instructed federal and state law enforcementofficers, members of the U.S.

25 Department of Justice,stateand local prosecutors,in various states,on the identification

26 and functioning of firearms and explosives. I have testified in federal and statecourts

27 throughout the western United Statesand the Territory of Guam as an expert on firearms
Donald Kilmer z1Q
Anomeyat Lâw Lv and explosivesover 60 times.
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I 13. I have also been a contract consultantto the Stateof California, under two Attorneys

2 General of the Department of Justice on issuesrelating to firearms, assaultweapons,junk

3 guns and machineguns. I have also conductedtraining coursesto membersof the

4 California Department of Justice in firearms identification and operation. I have also

5 been previously retained by the California Departmentof Justiceto assistin the

6 preparationof law enforcementtele-coursesregarding the conduct of firearms

7 investigationsand execution of high risk searchwarrants. I have provided expert

8 assistanceto the Departmentof Justice on the preparationof a field manual regarding

9 firearms identification and firearms laws for law enforcementofficers.

10 14. I have co-authoreda textbook for college coursesentitled "Legal and Illegal Arms

11 Trafficking" (Charles Thomas Publishers). I taught part-time at San JoseState

t2 University in its Criminal Justicecourses.

13 15. I am a member of the California Association of Criminal JusticeEducators,California

T4 District Attomeys Association, California Public DefendersAssociation, SantaClarc

15 County PeaceOfficers Association, California Bar Association, and the SantaClara

T6 County Bar Association.

t7 16, I am presently employed by the Santa Clara County Alternate Defender's Office as a

'\ 18 criminal defenseattorney representingindigent defendants.I do not speakfor any past or

t9 presentemployer, or anybody else but myself in this declaration.

20 17. I amaNational Rifle Association (NRA) life member.

2l 18. I am a proud member of the gun culture and regularly attend gun shows throughout

22 Northern California (where they still exist) and Nevada.

23 t9. I believe that the "right to keep and bear arms" as a core political right that can be

24 conveyed via the possessionof firearms at a gun show for the following reasons:

25 a. Possessionof a gun at a gun show also supportsmy belief that the "right to keep

26 and bear arms" is essentialfor the preservationof all rights. For example:

27 i. Before the Turks could engagein the attemptedgenocideof

Do¡ald Kilmer
Attomey at lzw 28 Armenian Christians,the Ottoman Empire first had to disarm its
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I intendedvictims. This is a historicalfact.

2 ii. This sad fact of history, which has been repeatedin Germany,
J China, Cambodia, The Soviet Union, Uganda and Rwanda,must

4 never be forgotten. This history is recountedin the documentary

5 film: InnocentsBetrayed. It is a movie produced by Jews for the

6 Preservationof Firearm Ownership.I have watched this movie.

7 iii. To help keep the concept of an armed and ever vigilant citizewy,

8 jealous of its liberry, alive; I take every opportunity I can to

9 exercisemy " right to keep and bear arms." This includes

10 attending and participating in gun shows where I have the freedom

ll to purchase,handle, inspect, admire, sfudy and discussreal

T2 firearms.

l3 b. It is my strongly held belief that so long as I continue to exercisea personalright

t4 to possessfrrearms,while meeting with like-minded individuals, that I am

l5 contributing to the preservationof rights and the markeþlace of ideas by

t6 translating abstractrights into tangible and concreteaction.

t7 c. It is also my firmly held belief that my possessionof guns at a gun show can

l8 convey a particularized messageto people opposedto my views. By reminding

r9 gUn control activists, and people who are neutral on the issue, that gun owners

20 are made up of diverse and responsiblemembersof society,

2l d. When I was an attorney in private practice, I was in the process of making plans

22 to contract with TS TRADE SHOV/S for a table at their gun shows. As I plan my

23 retirement from the Public Defenders Office, I plan to resumemy work as a

24 private attorney specializing in firearm related litigation (both criminal and civil).

25 As I have specialknowledge with regard to federal and state firearms laws, I want

26 to conduct mini-seminarsby displaying various firearms to illustrate to patrons

27 and potential clients how to comply with California law. By prohibiting the
Attomey at Iåw 28 possessionof firearms on County property, the ordinance effectively preventsme
126l LincolnAve.
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I from rendering this educational serviceto potential clients.

2 e. Gun òhowsprovide one of the best locations for education and familiarization of
J the various types of firearrns found within the United States. There are avaÅety

4 of firearms at each show, ranging from those of unique historical significanceto

5 modern firearms which may not be found in storesor evidencevaults.

6 f. The complex nature of firearms laws sometimesrequires knowledge of the legal

statusof a firearm or class of fïrearms,whether it be for federal or statelaw

8 enforcementpurposes.Minor alterationsin markings, parts characteristics(both

9 internal and external), measurements,actualmodes of operationsall are critical to

10 identification of a firearm's lawful statusunder federal and state law. which are

1l overwhelmingly felony matters.

t2 a
Þ' Gun shows bring hundreds,if not thousands,of firearms to one location, where

t3 examination is both convenient, and educational. This venue allows for

t4 discussionof types, markings, operation and statusof firearms with owners,

l5 manufacturers,dealers,collectors, and other interestedparties. The proximity of

t6 all involved generatesdiscussionswhich are both stimulating and thought-

t7 provoking.

18 h. The information and material that I obtain at gun shows is used in maintaining my
l ì
19 own statusas a bona fide expert in firearms for court matters.

20 As a former ATF agentI was trained in the legal aspectsof buying and selling of

2T firearms by private parties and licensedfirearms dealers. I know that federal and

22 state law require specific information to be documentedfor the lawful sale or

23 disposition of firearms. This information includes, but is not limited to,

24 identification of manufacturer,identification of importer, identification of model,

25 identification of serial number, and identification of caliber. Importer's markings

26 on many firearms are extremely small and difficult to locate.

27 J. Failure to documentrequired information subjectsboth buyer and seller to severe

Donald Kilmer
Attomey at Låw 28 federal and statepenalties.
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I k. In order for a firearm to be sold, it must be physically examinedby both the seller

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

J federal and statepaperwork.

4 L The markings required on a firearm can only be determinedby physical

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

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

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

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

9 determineif the serial number has been removed.

10 m. Federallaw and California law [CA PenalCode $$ 12090et seq.] proscribe

11 possessionof firearms with the manufacturer's serial number removed or altered.

T2 California law also prohibits the removaValterationof any manufacturer's or

l3 importer's markings. Possessionof a firearm with an obliterated serial number is

t4 a felony.

15 n. The date of manufactureof certain "assault weapons" makes them legal or illegal

T6 under federal law. The only method of determining the lawful statusof these

17 firearms is by physically examining the serial number and any other markings

1R found on the firearm. Buyers must examine and understandthe markings in order

t9 to avoid non-willful violations of law.

20 o. Markings on similar appearingfirearms also determine their statusunder

2l California state law as to "assault weapon" status. In many casesit is only what

22 is stampedon the firearm which determinesits lawful status. Again, careful

23 physical examination of the firearm insures avoidanceof legal sanctions.

24 p. Under current federal and state law, gun shows are monitored by severalfederal

25 and state law enforcementagencies. Officers and agentscan inspect firearms

26 offered for sale at gun shows, and insure compliance with all existing laws. There

27 would be no way for such examination to occur if only photographswere seenat

the gun show. There would be no verification that the photograph is what it
I)onald Kilmer '¡Q
Attomcy at låw L o
126l Lincoh Ave.
SùiteI I I
SanJose,CA 95125
Vc: 408/998-8489 Nordyke v. Kine Page6 of 14 Declaration: JessB. Guy
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I purports to be in the records of a licensee. This would impact law enforcement

2 examinationsof theselicensees,some of whom only sell their guns at gun shows.

3 q. Many firearms at gun shows are used firearms. by ageor alteration,

4 many times they are not as originally manufactured. In the matter of a purchaser

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

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

7 length, visual acuity (glassesor non-dominant eye), position of hand placement

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

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

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

11 consumer.

t2 r. While not a common occurence, but one of seriousimpact, many firearms which

I3 look like semi-automaticfirearms, are or have been converted to fire fully

t4 automatic. This is usually unlawful (felony) under federal and state law.

15 Additionally, some older firearms, through use and/or abuse,have worn parts in

t6 them which facilitate full automatic fire. The only manner of examination which

T7 insures safe and lawful sale and possessionof such firearms is a physical

18 examination of the firearm and the operation (unloaded) of the mechanismto

I9 replicate firing.

20 s. The use of photographsas a substitutefor the actual firearms offered for sale

2l effectively negatesthe realities of physical examination for all of the above

22 purposes.

23 I am also a certified instructor for the National Rifle Association in rifle, pistol,

24 safe home storage,and personal self-defense.Gun shows are a source of firearms

25 training for all personsinterestedin safe firearms handling. Classesare offered to

26 the public atlarge in safe firearm handling. If flrrearmsare not allowed at guns

27 shows, hands-ontraining, in matters of firearm safety will suffer, which will

Donald Kilmer
Attomey at Law 28 inevitably lead to an increasein the risk of firearms accidents.
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I u. Lastly, as a patron of gun shows throughout the Statesof California and Nevada,I

2 declarecategorically that I will avoid a "gun show" where actual (though

J unloaded and safety-locked) guns cannot be shown. While there may be many

4 other important and worthwhile reasonsto attend such a show, they hold little

5 utility to me, my clients, my potential clients or firearms enthusiastsin general.

6 v. Finally, by possessinga gun - especially at gun shows in Northern California,

7 where they are in dangerof becoming extinct - I am supporting the National Rifle

8 Association's position on the SecondAmendment by engagingin the conduct that

9 that right guarantees,according to the NRA's interpretation of the "right to keep

10 and bear arms."

1 1 20. When I attend gun shows and seeother patrons,vendors and exhibitors possessingand

t2 displaying frrearms,I am in turn on the receiving end of many of the messagesI intend to

13 convey by my possessionof guns as set forth above. Additionally:

t4 When I seemy fellow citizens exercising their right to acquire and possess

l5 firearms at gun shows,I am encouragedto remain active in the NRA. (i.e.,

16 working for grassroots gun rights, making financial donations and recruiting new

T7 members.)
l8 b. I give safety instructions at gun shows, and show people how to safely
r t
t9 handle f,rrearms,I am creating allies in my political beliefs.

20 c. When I seefellow membersof the gun culture possessingfirearms at gun shows,I

2I am reminded that I am not alone in my belief that a virtuous and armed citizenry

22 is a bulwark againstany person, or group of persons,who could be a potential

23 threat to liberty.

24 d. When I seeadvocatesof stricter gun control at gun shows protesting my right to

25 "keep and bear arms" I am reminded of how important the right of dissentis in

26 this country. Thus the conflict of ideas regarding the very nature of acquiring and

27 possessingfirearms, helps to keep the First Amendment alive, while we engagein

Attomey at Lâw 28 rhetoric about the SecondAmendment.
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I e. If I were to seea group of anti-gun protestersat a, gtî show burning and/or

2 otherwise mutilating firearms, I would understandthat they intend to convey a

messagethat they hateguns.

4 21. I have personallywitnessed,over the past 10 years,the closingof many venuesfor the

5 "gun culture." Many storeswhich used to carry fireanns have been closed or zoned out

6 of existence. Shooting rangesin the Bay Area have been closed. Gun shows have been

7 banned at fairgrounds in Marin County, Santa Ctuz, San Mateo, Sonomaand of course

8 Alameda County. Although I am supportive of Russ and Sally Nordyke and consider

9 them good friends, I would never attend a gun show that did not permit its patrons,

10 exhibitor and vendors to possessand/or display actual (as opposedto pictures of)

l1 firearms. The idea that a gun show can take place without guns present strainsthe

12 boundariesofreason.

r 3 22. On the weekendof April 8 &,9,2006,I attendeda T&S Gun Show in SanJoseat the

T4 Santa Clara County Fairgrounds. I was presentwhen the photographsset forth in the

15 attachedexhibits were taken. Based on my own observationsand experience,I

t6 respectfully presentthe following explanationsof thosepictures in the context of the

t7 legal issuesand facts arising in this case:

18 EXHIBIT A. This seriesof picturesshowsentranceto the building at the Santa

t9 werethe gun showtakesplace. Pleasenotethe following:


20 The National Rifle Association is presentat every gun show I have

2T ever attended. They dependupon the draw of patrons attending a

22 gun show (with real gun present)to recruit members and lecture

23 about their interpretation of the SecondAmendment.

24 ll. The table at the front door with the armed security guard standing

25 behind it, is for the purpose of checking all firearms entering the

26 building to make surethey are: (1) legal, (2) unloaded,(3) lawfully

27 transported,and (4) safety tied. This is a new developmentin gun

Do¡ald Kilmer
Attomey at Iåw 28 shows and is part of the Gun Show Enforcement Act of 2000. I
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I can personally testiff that gun shows that were conductedduring

2 my tenure as an ATF agent from the 1970'sthrough my retirement

J in 1998were not conductedwith this much attention to safety and

4 compliance. In my opinion the Nordykes run one the most (if not

5 the most) safe and legally compliant gun shows in Northern

6 California.

7 iii. I am presentin the pictures showing the mandatory signage

I required under the Gun Show EnforcementAct of 2000.

9 iv. The rest of this exhibit are establishingshots of the fairground

10 entrancethe signs posted outside the gun show.

11 b. EXHIBIT B. This seriesof pictures was taken from the upstairs observation

t2 booth which permits an overview of the entire floor of the gun show. The

t3 building is L-shaped. The pictures showing an empty building are shotsof where

I4 vendors/tablesused to be placed before the gun shows startedsuffering from a

15 downturn in attendance.In my opinion this drop in attendanceis due in part to

t6 the television and newspaperreports that Alameda County has so far been

t7 successfulin closingthe gun showsin Pleasanton.I basethis opinion on my own

18 observation of gun shows at the Santa Clara Fairgrounds for the last 30 years,and
l r t9 I also base it on conversationsI have had with other patrons and vendors at gun

20 shows. The conventional wisdom is that the Alameda is winning the public

2l relations war to shut down gun shows by associatingthem with criminal activity

22 and gun violence.

23 c. EXHIBIT C. Shows a vendor displaying militaria, military medals and f,trearms

24 of historical significance.

25 d. EXHIBIT D. Shows a vendor displaying World War II artifacts, including

26 firearms, and sidearmsfrom that war.

27 EXHIBIT E. Shows vendors selling gun safesand locking containersfor

Dotr¡¡d Kilmer
Attomey at Låw 28 firearms. Both kinds of containersare required under California law for the safe
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I storageand transportationof firearms.

2 f. EXHIBIT F. Shows various firearms vendors.

J g. EXHIBIT G. Showscoin collectors/vendors.Many of thesevendorswill be

4 driven out of businessif the gun shows are closed becausethe draw of gun

5 owners attending the gun show is the only v/ay to generatethe traffic they needto

6 conducttheir own business.

7 h. EXHIBIT H. Shows one of the handgundealerswho regularly attendsT S Gun

8 Shows. Pleasenote the following:

9 i. The vendor offers the Basic Firearm Safety Courserequiredby

i' '\
10 California law before any person can lawfully purchasea firearm.

1l ii. This particular vendor usesan alarm system to prevent the

t2 unauthorizedpossessionand/or removal of the firearms he has on

13 display. If you look at the handguns,you can seea black cable

74 that runs through the trigger guards. Breaking the electrical

15 connection of that cable soundsan audible (loud) alarm. Though

t6 California law (the Gun Show Enforcement Act of 2000) only

t7 requires that the guns be safety tied, this vendor goes one step

18 further to insure the security of the firearms he has on display.

, \ j
r9 Pleasenote that he also has the guns safety tied in compliancewith

20 California Law. There is no federal counterpartto this regulation

2l and thus gun shows in Nevada do not require that handguns,or any

22 guns,be safety tied.

23 i. EXHIBIT I. Shows a display of antique and collectible long guns. (Rifles and

24 shotguns.)

25 j. EXHIBIT J. Showsa display of Hunting Shotgunsand Rifles.

26 k. EXHIBIT K. Shows a jewelry vendor. This would be another non-firearm

27 vendor driven out of the businessthat they can conduct at gun shows if they are
DoDaldKllmer ',
Attomeyat Law Lve banned from county property.
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Fxi 4081998-8487
I l. EXHIBIT L. Showsa knife vendor.

2 m. EXHIBIT M. Showsa gunpartsdealer/vendor.Gunpartsarenot regulatedby

J the Ordinance.Howeverthis vendorwould alsobe drivenout of businessby not

4 havinggun ownersattendinganyvenuewherethey expectto seefirearms.Please

5 notethat it alsosometimesnecessary
to bring a gunto a gun showwhenlooking
6 for partsto makesureyou arebuyingthe correctpart for a particularmodelor

7 seriesof frrearms.

8 n. EXHIBIT N. Showsa tablestaffedby political activiststhat havenothingto do

9 with firearms.

10 EXHIBIT O. Showsa coÍrmemorativefrrearms,possiblycelebratingsome

11 branchof the serviceor a particularbattleor military unit.

t2 p. EXHIBIT P. Showsan ammunitiondealer.The black furry objecton thetable

t3 is thevendor'sdog.

t4 q. EXHIBIT Q. Showscollectibleandhistoricallysignificantmilitary firearms.

15 Most arefrom World'WarsI & II. Pleasenotethe GarandCollector's

T6 Association.This is a groupthat studies,collectsandinstructsthe public about

1,7 the primarybattlerifle issuedto our citizensoldiersduringWWII.

18 r. EXHIBIT R. This seriesof photographsshowsthe displayof the GoldenState

: l
t9 SecondAmendment(GS2A)Foundation.I havelecturedat their meetingson

20 severaloccasionsin thepast. Therefoundationalphilosophyis that individuals

2l have(or oughtto have)the "Right to KeepandBearArms." Thoughthe

22 itself
NationalRifle Associationfocuseson nationalpolitics,the GS2Aconcerns

23 primarily with Californiaandlocal issues.For example,they arethe lead

24 organizationfor an ongoingattemptto amendthe CaliforniaConstitutionto adda

25 "right to keepandbeararms"for individualsto the libertiesprotectedby our state

26 constitution.Pleasenotethat oneof their fund raisingactivitiesincludesraffling

27 off a rifle. The presenceof the prize rifle at their boothhasboth a political and
Donald Kilmer
Ättomey at l2w 28 regardingthe acquisitionof fireanns. Their effortsare
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I particularlyurgentgiventherapidly deterioratingstatusof gun ownershipin

2 California. The CaliforniaSupremeCourtandNinth Circuit haveissuedopinions

J that individualshaveno "right to keepandbeararms"undereitherthe California

4 or FederalConstitutions.

5 s. EXHIBIT S. This exhibit showsa vendorof military andfirearmrelatedbooks

6 andartwork.

7 23. Thesepicturesareevidenceof a thriving (but diminished)gun cultureat a gun showat

8 the SantaClaraCountyFairgrounds.As notedearlier,I havewitnessedan almost

9 completerevolutionin theway gun showsareconductedthroughoutCaliforniain the

i -
past30 years. Todaytheseshowsaremoretightly regulatedthanthey werebefore

ll passageof the Gun ShowEnforcementAct of 2000;andthey aremoretightly regulated

t2 thangun showsin neighboringstates.For example:

t3 a. Thereis no "gun showloophole"for Californiagunshows. The loopholeis a

t4 supposeddefectin federallaw thatpermitsthe saleof gunsbetweenprivate

15 partieswithout backgroundchecksandwaiting periods.

t6 b. This is not a gun showloophole.Thesetransactions


17 saleoccursat a gun showor a streetcorner.

18 c. However,Californialaw doesnot permit the saleof any gun (handgunor long

t9 gun)unlessit goesthrougha licenseddealer,wherethebuyeris subjectedto a

20 backgroundcheckandthe gun is held for l0 days. This is true for all sales,

2l exceptfor curio andrelic long gunsolderthan50 years,whetherthat saletakes

22 placeinformallybetweenfriends,at a storefrontgun dealeror a gun show.

23 d. This is in starkcontrastto the way gun showsarestill conductedin (for example)

24 Nevada. At the sametime I have witnessed a downturn in gun show attendance

25 in California, I have witnesseda surge of attendanceat shows in Nevada. In my

26 opinion much of the gun buying public is simply moving their business

27 (legitimate or otherwise) to the relatively unregulatedgun shows in our

Donald Kilmer
Attomey at [¡w
ô o
LO neighboring states. Thus the closing of well regulated gun shows in Northern
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I California is probablyhavingthe unintendedconsequence
of increasingthe

2 of gunsand gun partsin states

numberof relatively unregulatedsales/acquisitions
J with more liberal gun laws thanthe stateof Califomia, or AlamedaCountyfor

4 that matter.

5 24. In my opinion gun showsthat are in compliancewith currentlyenactedCaliforniaand

6 FederalLaw areaboutas safeand well regulatedasthey canbe. They are certainlymore

7 well regulatednow than they were in the previous30 yearsthat I havebeenattending

8 showsas both a patronand as a law enforcementofficer.


t0 I declareunderpenaltyof perjury underthe laws of California and the United Statesof

1l Americathat the forgoing is true and correctand that this declarationwas executedin SanJose,

t2 Californiaon April 26,2006.

Don.ld Kilñer
/A,fromcy at [åw 28
126 | L¡ncoln Ave.
Suite I I I
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