Friday, June 01, 2012

Nordyke v. King (9th Cir. - June 1, 2012)

Sometimes cases end not with a bang, but with a whimper.  Even if they've lasted over a decade and have been repeatedly taken en banc.

Sometimes oral argument matters.  Especially when attorneys make concessions at oral argument.

This case exemplifies both of these propositions.

It's the Nordyke case, which involves gun shows at the government-owned Alameda County Fairground.  The case lawsuit was filed in the twentieth century.  It's been before the Ninth Circuit a plethora of times.  The Second Amendment -- or at least its interpretation in the federal courts -- has repeatedly changed during this period.  Time and time again the case gets decided, appealed, remanded, decided again, appealed again, remanded, etc.

But now it ends.

But it ends very simply.  Plaintiffs say that the relevant county ordinance prohibits gun shows.  But counsel for Alameda County says at oral argument before the en banc court that, no, our definitive interpretation of the statute now says that an (otherwise somewhat unclear) exception applies, which allows guns to be at the show as long as they're secured to a table.

I watched the entirety of the hour-long oral argument.  It was clear from that argument that this concession radically changed the case.  Before it was a straightforward (though tough) Second Amendment case about whether the government could ban gun sales on its property.  After the concession, it's about a much, much easier issue:  Whether it's a reasonable restriction to require that the guns be secured to a table or the like (by a cable) when they're not in the hands of a participant.  That issue, as opposed to the ban, is not very hard to decide; indeed, the en banc court resolves it (as well as ancillary issues) unanimously, at least with respect to the ultimate outcome.

No settlement, despite an order by the Ninth Circuit to go to mediation.  No attorney's fees, because the federal courts don't allow a catalyst theory.  (Though I wouldn't be surprised to see plaintiffs file a motion given their partial practical victory, it'll be denied.)  No grand Second Amendment holding.  Just a decision that, yeah, what the County now says seems reasonable.

There you have it.  Twelve-plus years.  Only to end a case with a partial concession.

Too bad it couldn't have come earlier, eh?