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NORDYKE v. COUNTY OF SANTA CLARA

July 3, 1996

RUSSELL ALLEN NORDYKE and SALLIE ANN NORDYKE, dba TRADE SHOWS, Plaintiffs,
v.
COUNTY OF SANTA CLARA, et al., Defendants.



The opinion of the court was delivered by: WARE

 I. INTRODUCTION

 This case involves one of the most controversial issues of our day: the right to bear arms and the authority of the government to control the exercise of that right. Based upon concern for public health and safety, the County of Santa Clara imposed a restriction against gun shows at the County Fairgrounds. The restriction was later clarified to allow shows, but only prohibits sales of guns at the shows. The Plaintiffs seek a preliminary injunction against the enforcement of the restriction on the ground that it is unconstitutional.

 The Court recognizes the threat to community health and safety caused by proliferation of firearms, too many of which end up in the hands of people who use them irresponsibly. Nevertheless, the Court finds unconstitutional the restriction on gun show sales at the County Fairgrounds. As set forth below, the Court enjoins the County from enforcing the restriction while this action is pending.

 II. BACKGROUND

 The Santa Clara County Fairgrounds is owned and operated by Santa Clara County and is funded by County taxpayers. The Fairgrounds is the center for a variety of organizations and activities, including the County Fair, religious meetings and services, cultural events, political speeches and various celebrations of all kinds. Since 1993, Plaintiffs have appeared at the Fairgrounds and conducted gun shows without incident on 20 occasions.

 On January 23, 1996, during a public meeting of the Santa Clara County Board of Supervisors, the Board passed an addendum to the County's lease for the County Fairgrounds. The addendum precludes the Santa Clara County Fairgrounds Management Corp. Inc. ("FMC") from leasing fairground space to vendors for the purpose of holding "gun shows". On April 16, 1996, the County confirmed in a letter to FMC that the addendum was limited to the "sale of guns" and did not prohibit a vendor from conducting a "gun show" as long as no guns were sold during the show on fairground property. (See Exhibit N to Plaintiffs' Complaint). The letter states in relevant part:

 
It is the intention of the Board only to prohibit any person from selling, offering for sale, supplying, delivering, or giving possession or control of firearms or ammunition to any other person at a gun show at the fairgrounds. This prohibition applies to any act initiating any of the foregoing transactions with the intent of completing them at a later date.

 Apparently in response to Plaintiffs' concerns and challenge to the addendum, a second public meeting was held by the Board on June 25, 1996. Plaintiffs' counsel addressed the Board, as did numerous members of the public, to voice concern over the passage of the addendum. Some county residents contend, as Plaintiffs do, that the addendum is unconstitutional and exceeds the Board's authority, while other residents applaud the Board's efforts for the attempt to control the rising incidences of violence associated with guns in this County.

 Following the hearing on June 25, the Board affirmed its earlier conclusions and decided to ban the sale of guns at the Fairgrounds. The Board clarified that the addendum bans only the sale of guns and does not prohibit any vendor from conducting a gun show at the Fairgrounds.

 Plaintiffs Russell and Sallie Nordyke, dba Trade Shows', ("Plaintiffs") filed this lawsuit and moved for entry of a preliminary injunction in the above-entitled action. Plaintiffs were present in Court and were represented by attorney Joseph D. Wargo of the law firm of Holland & Knight. Mr. Wargo was admitted to the Court pro hac vice. Defendants County of Santa Clara, Santa Clara County Fairgrounds Management Corp., Inc., and the individual members of the Santa Clara County Board of Supervisors ("Defendants") were represented by the County Counsel's Office and attorney Paul A. Bruno of the law firm of Thelan, Marrin, Johnson & Bridges.

 Based upon such addendum, Plaintiffs contend that Defendants have forbidden Plaintiffs access to a public forum - the Santa Clara County Fairgrounds - and have infringed upon Plaintiffs' Constitutional rights to free speech. Plaintiffs argue that Defendants' addendum cannot withstand judicial scrutiny and that Defendants must be enjoined from seeking to enforce the addendum.

 Defendants contend that the addendum does not regulate speech but regulates only non-protected conduct. Defendants invite Plaintiffs to host a gun show on the premises of the Fairgrounds - Plaintiffs are simply forbidden from selling guns at the Fairgrounds. Plaintiffs are free to make whatever verbal or written comments they wish about guns at the Fairgrounds; they simply must sell the guns at a different location. Defendants point out that there are over 136 locations throughout Santa Clara County which sell guns. The gun show may display guns; permit speakers to voice their opinions about guns; pass out literature regarding guns, etc. Defendants contend that there are no regulations or prohibitions on speech regarding guns.

 Defendants alternatively contend that, even assuming that the Court finds that the addendum prohibits a form of protected speech, that the addendum is constitutionally permissible because it places proper restrictions on purely commercial speech. Therefore, Defendants argue that ...


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