PDA

View Full Version : Genesis of 2A Claim in Nordyke


Lex Arma
05-21-2009, 6:33 AM
There has been a lot of discussion posted in another thread about how the Second Amendment issue was raised in the Nordyke case. The context of the discussion includes various opinions about the wisdom of bringing 2A claims in the Ninth Circuit and which cases are better vehicles for litigating these claims.

The purpose of this thread is to set the record straight on some issues.

1. Prior to this case, the Nordykes funded (i.e., paid attorneys a lot of money) to litigate Nordyke v. Santa Clara County. They won that case, sort of. The attorney fee award did not cover all their legal bills and no one stepped in to make up the difference, but gun shows went on at the Santa Clara County Fairgrounds. They still do.

2. In 1999 Alameda passed its ordinance seeking to ban gun shows at the Pleasanton Fairgrounds, but dressed it up as a public safety law. The Nordykes could not afford top shelf legal counsel again, and no one was offering to work pro bono, so they came to me. I took the case with an agreement the Nordyke's would pay what they could, and I would continue to work on the case on a 42 USC 1988 contingency regardless of payment.

3. The County of Los Angeles passed a similar ordinance that was challenged by a well financed (by NRA and a wealthy gun show promoter) and legally talented team in the Southern California. The case was Great Western v. Los Angeles.

4. Nordyke v. King started out as a First Amendment (pure and commercial speech), Equal Protection and Preemption case. We did not raise the Second Amendment because it was a dead issue in the Ninth Circuit based on Hickman v. Block (2A is collective right) and Fresno Rifle and Pistol Club v. Van de Kamp (2A doesn't apply to states; which incidentially was another well financed and litigated NRA case).

5. After the case was filed, the County amended it ordinance.

6. Nordykes sought injunctive relief.

7. In denying the request for injunctive relief, in an order filed in 1999, Judge Jenkins raised (on his own initiative) the Second Amendment in his discussion of why the county ordinance was not preempted.

8. We ignored his comments and keep our eye on First Amendment and preemption.

9. The Nordyke case was related to the Great Western case for purposes of appeal.

10. We argued to the Ninth Circuit. They sent us to the California Supreme Court on the limited issue of preemption.

11. We lost preemption at the CA Supreme Court.

12. We went back to the Ninth Circuit for supplemental briefing on First Amendment issues.

13. In the mean time, the Emerson decision out of the Fifth Circuit broke, and the Attorney General had issued a position paper that the Emerson was essentially correct.

14. The first Silveira decision (the original panel, not the en banc opinion) was argued and submitted. It came out of the blue.

15. It was only after Silveira was argued and submitted, after the AG opinion letter and after the Emerson case that we researched any Second Amendment application to the facts of Nordyke.

16. The problem, we hadn't plead or asked for relief under the Second Amendment in our original complaint. But we had the gratuitous statement on the Second Amendment from the trial judge's denial of our request for an injunction.

17. On that basis alone and with nothing to lose, we asked the court for, and were granted permission to brief the Second Amendment.

18. The rest is well documented.

19. In the denial for rehearing en banc in Nordyke, Judge Kleinfeld thought Nordyke the better vehicle for a circuit discussion of the Second Amendment. Look it up if you're interested.

sreiter
05-21-2009, 6:44 AM
Can you clarify something for me please?

So incorporation because you guys brought it up, or because the judge just sort of out of the blue added it to the opinion?

Seems to me (I might be totally wrong), it was the latter. I mean, didnt you guys actually lose the case? If you guys brought the 2a into the case and argued on the merits of 2a, you would have won.

Sorry if I'm totally off on this, but that's my laymen's take on the case

Lex Arma
05-21-2009, 7:02 AM
I am sorry, but if I start running a clinic on Federal Rules of Civil Procedure and Federal Rules of Appellate Procedure, I will not get any work done and I have to prepare a brief for en banc consideration of the Nordyke case.

You have the facts. Read the case law and trust in your own judgments and opinions.

These rights belong to all of us, not just the lawyers and judges.

ilbob
05-21-2009, 7:13 AM
The whole thing makes my head spin. But what I think happened is they were allowed to go back and say the 2A might be an issue because of a new SCOTUS case (Heller) that says the 2A protects an individual right. If the 2A protects that right from infringement by states, it might have an effect on the case.

The court heard the argument that the 2A applies to the states and agreed that it did.

Then they considered whether the 2A prohibited the county's actions and decided it did not.

Legasat
05-21-2009, 7:18 AM
We'll be pulling for you!!!

Thanks for what you are doing!

383green
05-21-2009, 8:06 AM
Thanks for posting about the Nordyke timeline. It appears to have been a complex roller-coaster of a case.

sreiter
05-21-2009, 8:10 AM
The whole thing makes my head spin. But what I think happened is they were allowed to go back and say the 2A might be an issue because of a new SCOTUS case (Heller) that says the 2A protects an individual right. If the 2A protects that right from infringement by states, it might have an effect on the case.

The court heard the argument that the 2A applies to the states and agreed that it did.

Then they considered whether the 2A prohibited the county's actions and decided it did not.

Ah, that makes sense, thanks

Brings up another question though, is the fact that the court needed to determine the predicate of the argument before hearing the argument enough to FORCE a case law decision?

In other words, could the court have decided amongst themselves "ok, we'll hear that argument because we cant say the 2a argument is moot." without including the decision making process of hearing the 2a argument in the opinion (actually stating for the record that they believe the 14th incorporates the 2nd because of Heller).

Couldn't the court just as easily never bring up the incorporation issue in the opinion?

DDT
05-21-2009, 8:17 AM
1) Nordykes lost in Cal Supreme court on their state preemption claim.

2) Nordykes didn't want to give up the fight.

3) Kilmer looked for a way to continue the fight for his clients

4) You can't just add crap willy nilly to a suit.

5) Judge Jenkins had previously introduced the second amendment to the case.

6) You CAN amend suits based on issues brought up in the course of the proceedings


7) Nordyke petitioned the courts to add a second amendment claim to the suit based on the fact that Judge Jenkins had injected the 2A into the case.

8) Nordyke was denied this petition by District Court.

9) Nordyke appealed to 9th circuit.

10) We are now post Heller.

11) 9th circuit accepts and reviews Nordykes appeal.

12) 9th circuit decides that the Nordykes do have protection from infringement from the states as well as from the feds.

THIS IS INCORPORATION

13) 9th circuit decides that even with incorporated 2A protections the ordinance being challenged would not be unconstitutional.

14) Since the court decided that the 2A claims would not have substantially changed the outcome of the district court findings they denied the Nordykes request to amend their complaint.

I hope this is both accurate and instructive. If anyone has factual corrections let me know and I will update this post as a reflection of the sequence of events.

DDT
05-21-2009, 8:21 AM
In other words, could the court have decided amongst themselves "ok, we'll hear that argument because we cant say the 2a argument is moot." without including the decision making process of hearing the 2a argument in the opinion (actually stating for the record that they believe the 14th incorporates the 2nd because of Heller).

Couldn't the court just as easily never bring up the incorporation issue in the opinion?

Do a search for dicta on the boards it's been covered a lot.

Basically no, they could not have ignored incorporation and come up with the same ruling. Unless they find for incorporation of the second amendment the ordinance in question is not bound by the proscriptions of the second amendment. If they had found the 2A wasn't incorporated the basis for denying the amendment to the claim would have been completely different. They could have stopped at incorporation and remanded the case to district for decision of the "sensitive areas" issue though.

FABIO GETS GOOSED!!!
05-21-2009, 8:23 AM
What date was the motion to file supplemental briefing on a 2A claim filed in Nordyke III?

sreiter
05-21-2009, 8:59 AM
Do a search for dicta on the boards it's been covered a lot.

Basically no, they could not have ignored incorporation and come up with the same ruling. Unless they find for incorporation of the second amendment the ordinance in question is not bound by the proscriptions of the second amendment. If they had found the 2A wasn't incorporated the basis for denying the amendment to the claim would have been completely different. They could have stopped at incorporation and remanded the case to district for decision of the "sensitive areas" issue though.

thanks

The question wasn't if they could have ignored incorporation, i realize they couldnt have ignored it. My question is did they HAVE to mention it in their opinion. And if they didnt have to mention it, and choose not to mention it in the opinion, would we still have incorporation.

I read about Dicta, still not sure of the answer to my question

thank you again.

oaklander
05-21-2009, 9:05 AM
Thank you Don for this time line.

Lex Arma
05-21-2009, 9:09 AM
What date was the motion to file supplemental briefing on a 2A claim filed in Nordyke III?

Silveira was argued and submitted on Feb. 15, 2002. It came out of the blue, no Second Amendment attorneys I knew in California (Kates, Michel, Colodny, Halbrook, etc...) were assisting or any way involved in the case.

We took a look at the briefs and the trial court record and decided to "lend an assist" by filing our own request for supplemental briefing on August 20, 2002. This was done after a lot of research and consultation with the above mentioned 2A lawyers. I made the final call to request that supplemental briefing include 2A issues.

The Court ganted that request on September 6, 2002.

The decision in Silveira was filed in December 2002.

An amended opinion was filed in Silviera in January 2003, in part because I submitted a request for judicial notice in my case that Silveira had cited the fraudulent work of Michael Bellesilles. <sp>

The decision (critical of Silveira) in Nordyke was filed in Feb. 2003.

Now go read what the judges had to say about both cases during en banc proceedings and quit speculating.

Lex Arma
05-21-2009, 9:10 AM
1) Nordykes lost in Cal Supreme court on their first amendment claim.

I hope this is both accurate and instructive. If anyone has factual corrections let me know and I will update this post as a reflection of the sequence of events.

Wrong. The issue before the Cal Supremes was preemption.

FABIO GETS GOOSED!!!
05-21-2009, 9:28 AM
14. The first Silveira decision (the original panel, not the en banc opinion) was filed. It came out of the blue.

15. It was only after Silveira was filed, after the AG opinion letter and after the Emerson case that we researched any Second Amendment application to the facts of Nordyke.

You said the first Silveira decision came out of the blue, and it wasn't until after the decision was filed that you researched the second amendment application to the facts of Nordyke. But you researched the second amendment application to Nordyke and filed the motion for supplemental briefing on the 2A before the first Silveira decision was filed. No need to say any more here.

Lex Arma
05-21-2009, 9:55 AM
You said the first Silveira decision came out of the blue, and it wasn't until after the decision was filed that you researched the second amendment application to the facts of Nordyke. But you researched the second amendment application to Nordyke and filed the motion for supplemental briefing on the 2A before the first Silveira decision was filed. No need to say any more here.

Go back and read what is now posted. I had to spend about 20 minutes pulling my notes and the old orders out of the file. I edited the timeline to note that the argument and submission of the Silveira came before we tried to add a 2A cause of action. I had forgotten that this was the "Silveira trigger" that made us want to use the limited 2A value of the Nordyke facts. We took a look at what work had been done in that case and decided the Second Amendment needed whatever assist we could lend.

Read Kleinfeld's en banc dissent (Nordyke IV) in the Nordyke case for a reasoned opinion on why Nordyke would have been the better case to address 2A issues in the Ninth Circuit.

Please also note that I did not "go it alone" just because I thought I was right. I consulted with experts in their field. I researched the issue long and hard. I lined up significant amicus help before filing my case.

Our legal system is set up so that "loners" can litigate important constitutional issues. That is what 42 USC s 1983 is all about.

Because its possible, does not mean its advisable.

FABIO GETS GOOSED!!!
05-21-2009, 10:22 AM
Thanks for the clarification. My reason in bringing it up in the first place in the other thread was that the collective wisdom was that the Silveira decision was the "nail in the coffin" and it wasn't until after that decision that 2A was pursued on the Nordyke III appeal at which time there was nothing to lose because the pooch had already been screwed. (This version was corroborated by your initial unedited post in this thread.) It didn't happen that way and that was the point I wanted to make. If the district court judge gratuitously brought up 2A in the order denying the TRO presumably that assisted the Nordykes when they decided to "lend an assist" by filing a motion for supplemental briefing in the Nordyke III appeal. Less of a forcing of the hand by the district court judge than seizing an opportunity presented by the order denying the TRO. It would be interesting to read that order. I haven't decided in my own mind whether Gorski deserves to be crucified for Silveira but this clarification is helpful. Good luck on Nordyke and your other cases.

1JimMarch
05-21-2009, 10:31 AM
Don, is this a typo?

19. In the denial for rehearing en banc in Nordyke, Judge Kleinfeld thought Nordyke the better vehicle for a circuit discussion of the Second Amendment. Look it up if you're interested.

Did you mean to say "In the denial for rehearing en banc in Silveira"?

CCWFacts
05-21-2009, 10:31 AM
Because its possible, does not mean its advisable.

Yes, wisdom of the Simpsons:

I guess one person can make a difference, but most of the time, they probably shouldn't.

Lex Arma
05-21-2009, 10:40 AM
Thanks for the clarification. My reason in bringing it up in the first place in the other thread was that the collective wisdom was that the Silveira decision was the "nail in the coffin" and it wasn't until after that decision that 2A was pursued on the Nordyke III appeal at which time there was nothing to lose because the pooch had already been screwed. (This version was corroborated by your initial unedited post in this thread.) It didn't happen that way and that was the point I wanted to make. If the district court judge gratuitously brought up 2A in the order denying the TRO presumably that assisted the Nordykes when they decided to "lend an assist" by filing a motion for supplemental briefing in the Nordyke III appeal. Less of a forcing of the hand by the district court judge than seizing an opportunity presented by the order denying the TRO. It would be interesting to read that order. I haven't decided in my own mind whether Gorski deserves to be crucified for Silveira but this clarification is helpful. Good luck on Nordyke and your other cases.


Well, we did feel that the pooch got screwed when we looked at the Silveira case after it had been argued and submitted. The danger of having Reinhardt on the panel (and having him write the opinion) was that 2A rights would be set back years because: (a) the Ninth Circuit is a big circuit, and (b) an adverse, well written (even if wrong) opinion would be used by other circuits to justify the nonsensical "collective rights" theory.

You are correct when you say my hand wasn't forced by the trial judge. He merely left the door open, the Silveira case was the crying baby we heard inside the house. We stepped into the 2A issues because we felt compelled to bring all resources to bear while the issue was hot in the Ninth Circuit.

It turns out we were correct and the Nordyke panel dumped on the Silveira panel for writing a treatise on collective rights instead of summarily invoking Hickman v. Block.

The war of words between the judges in the Ninth Circuit in both cases gave us a kind of head count on how 2A issues were viewed by those judges who signed on to the dissents in Silveira and Nordyke.

Lex Arma
05-21-2009, 10:43 AM
Don, is this a typo?



Did you mean to say "In the denial for rehearing en banc in Silveira"?

No, go back and read Nordyke v. King, 364 F.3d 1025 (2004), Kleinfeld dissenting.

FABIO GETS GOOSED!!!
05-21-2009, 10:50 AM
This and the procedural history are fascinating. I figured that the "head count" would prove useful. Thanks again for the insights.

DDT
05-21-2009, 11:40 AM
Wrong. The issue before the Cal Supremes was preemption.

thanks, fixed.

DDT
05-21-2009, 11:51 AM
My question is did they HAVE to mention it in their opinion. And if they didnt have to mention it, and choose not to mention it in the opinion, would we still have incorporation.


We have incorporation ONLY because of this decision so, if they hadn't written about it we would not have it. (There are other cases in both 2nd and 7th circuits addressing 2A incorporation.)

Could they have just ignored incorporation? Yes, they could have simply relied upon Cruikshank which was the standing case law that held the 2A only applied to the federal and not state or local government. If they did this they would have simply denied the amendment on grounds of there is RKBA protection from the states.

The problem is that almost all other individual rights assured in the BoR have (since Cruikshank) have been incorporated. (Cruikshank also held that the states weren't required to abide by the 1st amendment either.) Since Cruikshank had been so undermined on other points that the 2A non-incorporation was the only part standing. Once Heller decided that 2A is an individual right and NOT a collective right the issue of incorporation became an open issue because the core case stating it wasn't incorporated was already widely considered flawed.


No problem it's excellent that Don started this thread specifically for "getting the record straight."

sreiter
05-21-2009, 12:26 PM
thanks DDT -

just glad they decide to WRITE IT in the opinion - lets hope en banc doesnt go forward

wash
05-21-2009, 12:39 PM
Don, I've read that the judge that requested en banc will be kept anonymous. Do they give you any information? Do they have to state a reason for the en banc?

Since you didn't request it, will you say that you don't want it or ask for them to look at sensitive places or some other way to pull out a win for the gun shows?

bwiese
05-21-2009, 12:41 PM
Don, I've read that the judge that requested en banc will be kept anonymous. Do they give you any information? Do they have to state a reason for the en banc?

Since you didn't request it, will you say that you don't want it or ask for them to look at sensitive places or some other way to pull out a win for the gun shows?

Let's not tip our hand right now. We'll see everything when it's ready.

GuyW
05-21-2009, 1:02 PM
The Nordykes could not afford top shelf legal counsel again, and no one was offering to work pro bono, so they came to me.


Hey! No gratuitous self-deprecation allowed! That's the work for posters...


13. In the mean time, the Emerson decision out of the Fifth Circuit broke, and the Attorney General had issued a position paper that the Emerson was essentially correct.


Is that position paper posted somewhere?

.

ke6guj
05-21-2009, 1:16 PM
Is that position paper posted somewhere?

.

http://www.ccrkba.org/pub/rkba/Legal/AshcroftMemo.pdf

GuyW
05-21-2009, 1:45 PM
http://www.ccrkba.org/pub/rkba/Legal/AshcroftMemo.pdf

Ooops - I misread that as CA Attorney General...

Yeah, Ashcroft support is no surprise...
.

hoffmang
05-21-2009, 3:05 PM
Don, I've read that the judge that requested en banc will be kept anonymous. Do they give you any information? Do they have to state a reason for the en banc?

The only people that have any knowledge of who requested en banc are inside the 9th Circuit Court of Appeals and are bound by the equivalent of non disclosure agreements.

-Gene

wash
05-21-2009, 3:54 PM
I understand about the anonymity, but if Don had requested an en banc, he would have to give a reason for it, right?

If the defence didn't ask for en banc before, why would they have a reason this time?

So some judge asks for en banc, will the reason always be a mystery?

How is either side supposed to prepare a case if neither side knows the issue being argued?

It doesn't make sense to me.

DDT
05-21-2009, 6:38 PM
I understand about the anonymity, but if Don had requested an en banc, he would have to give a reason for it, right?

If the defence didn't ask for en banc before, why would they have a reason this time?

So some judge asks for en banc, will the reason always be a mystery?

How is either side supposed to prepare a case if neither side knows the issue being argued?

It doesn't make sense to me.

A judge asked for an en banc and that is all we will ever know. Since there is no assurance the judge requesting will be on the en banc panel (unless it's the chief justice) the motivations of the judge is irrelevant.

I don't know what the brief is supposed to contain by court rules.

obeygiant
05-21-2009, 7:00 PM
There has been a lot of discussion posted in another thread about how the Second Amendment issue was raised in the Nordyke case. The context of the discussion includes various opinions about the wisdom of bringing 2A claims in the Ninth Circuit and which cases are better vehicles for litigating these claims.

The purpose of this thread is to set the record straight on some issues.

Thank you for taking the time to set the record straight for all of us.

hoffmang
05-21-2009, 7:35 PM
A judge asked for an en banc and that is all we will ever know. Since there is no assurance the judge requesting will be on the en banc panel (unless it's the chief justice) the motivations of the judge is irrelevant.

The only thing we know is that by the Federal Rules of Civil Procedure, the requesting judge had to believe that one of two things was true. Either, the case conflicted with circuit precedent (which it didn't but some could try to claim) or it was a case of extreme importance. We're somewhat assuming it was the latter as it was the first case to apply an individual right to arms to a state via "due process" incorporation.

-Gene

DDT
05-21-2009, 8:32 PM
The only thing we know is that by the Federal Rules of Civil Procedure, the requesting judge had to believe that one of two things was true. Either, the case conflicted with circuit precedent (which it didn't but some could try to claim) or it was a case of extreme importance. We're somewhat assuming it was the latter as it was the first case to apply an individual right to arms to a state via "due process" incorporation.

-Gene

I guess we can all hope for the best and hope that at the end of this we'll end up with an en banc opinion declaring P&I incorporation AND that fairgrounds aren't "sensitive areas." I highly doubt we'll get it all but hey we can hope.

N6ATF
05-21-2009, 11:46 PM
Hopefully not just fairgrounds. Should be any place where the .gov is NOT 100% actively providing for your security, such as courthouses.

DDT
05-22-2009, 10:51 AM
Hopefully not just fairgrounds. Should be any place where the .gov is NOT 100% actively providing for your security, such as courthouses.

I like that definition. Rather than viewing "sensitive areas" from the perspective of suggesting firearms in the hands of law abiding citizens would be an un-acceptable danger turn it around. A "sensitive area" is one in which the state has an increased responsibility to provide protection for its citizens.

This is actually a VERY GOOD direction to move imo. It will also provide incentive for the state and local governments to limit the designation of "sensitive areas" because one thing they DON'T want is increased responsibility.