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I DonaldE.J.Kilmer,Jr.,(SBN:179986) "/LúrÅr
LAW OFFICESOF DONALD KILMER
2 A ProfessionalCorporation flþt rtfu,-"¿¿/
126l LincolnAvenue,Suite111
a
J SanJose,California95125-3030
Telephone: 4081998-8489
4 Facsimile: 408/998-8487
E-Mail: DKlawOfc@sbc global.net
5
Attorneyfor Plaintifß
6
7
I
UNITED STATES DISTRICT COURT
9
F'ORTHE NORTHERN DISTRICT OF CALIFORNIA
10
11
t2
RUSSELLALLEN NORDYKE and CaseNo.: C 99 04389 MJJ
13 SALLIE ANN NORDYKE, dbaTS TRADE
SHOWS, JESSB. GUY, DUANE DARR, DECLARATION OF MIKE F'OURMER,
l4 WILLIAM J. JONES,DARYL N. DAVIS,, Plaintiff.
TASIANA WERTYSCHYN,JEAN LEE,
15 TODD BALTES, DENNISBLAIR, R. L.
t6 (Bob) ADAMS, ROGERBAKER, MIKE
Ifearing Date: -A c - T . 3 t % o o Â
FOURMER and VIRGIL McVICKER.
t7 HearingTime: ?: go ,4."u .
Plaintifß,
/1 18 Judge: Martin J. Jenkins
vs. Courthouse: U.S.Court House
19 450 GoldenGateAve.
SanFrancisco
2 0 ) MARY V. KING, GAIL STEELE,WILMA California 94102
I CHAN, KEITH CARSON,SCOTT
2 r l HAGGERTY, The COUNTY OF
I ALAMEDA, and The COUNTY OF
22 1 ALAMEDA BOARD OF SUPERVISORS.
,,"1
"^'.1
ffi '"1 Defendants.

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,61
I, Mike Fournier, declareas follows:

4 ,ril2.
1. I am one of the namedplaintifß in the above-entitledaction.

I am a citizenhesidentof the Stateof California.

DoD.Ìld Ktlmer
/Áüomcy at I¡w 28 ll 3. I am a citizen of the United States.
l26l Lincolo Avc.
Suitc il I
San Jose, CA 95 125
Vq 408/998-8489
Fx: 408/998-8487
Nordyke v. Kine Page I of 7 Declaration: Mike Fournier
 1 4. My addressfor serviceof processin this action is: Law Offices of Donald Kilmer; 1261

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

I
J 5. I am a National Rifle Association CI{RA) member and recruiter.

4 6. I am a proud member of the gun culture and regularly attend gun shows throughout

) Northern California (where they still exist), Nevada, and the world's largest gun show in

6 Oklahoma.

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

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

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

10 and bear arms" is essentialfor the preservationof all rights.

l1 b. It is my strongly held belief that so long as I continue to exercisea personalright

t2 to possessfirearms, while meeting with like-minded individuals, that I am

13 contributing to the preservationof rights and the marketplace of ideasby

l4 translating abstractrights into tangible and concreteaction.

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

t6 convey a particularized messageto people opposedto my views. By reminding

1,7 gun control activists, and people who are neutral on the issue, that gun o\ryners

18 are made up of diverse and responsiblemembersof society,

t9 8. When I attend gun shows and seeother patrons,vendors and exhibitors possessingand

20 displaying firearms, I am in turn on the receiving end of many of the messagesI intend to

2l convey by my possessionof guns as set forth above. Additionally:

'When
22 a. I seemy fellow citizens exercising their right to acquire and possess

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

24 working for gun rights, making financial donations and recruiting new members.)

25 b. When I engagein commerceat gun shows, and show people how to safely buy

26 and handle frrearms,I am creating allies in my political beliefs.

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

Donald Kilmer
Attomey at Iáw 28 am reminded that I am not alone in mv belief that a virtuous and armed citizenry
t26l Lin@lnAve.
SuireI I I
Sm Jose,CA 95125
Vc: 408/998-8489 Nordvkev. Kins Page2 of 7 Declaration: Mike Fournier
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 I is a bulwark againstany person, or group of persons,who could be a potential

2 threat to liberfy.
a
J d. When I seeadvocatesof stricter gun control at gun shows protesting my right to

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

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

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

7 rhetoric about the SecondAmendment.

8 e. If I were to seea group of anti-gun protestersat a gun show burning and/or

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

10 messagethat they hate guns.

1l 9. I have personally witnessed,over the past 10 years, the closing of many venuesfor the

L2 "gun culture." Many storeswhich used to carry ftearms have been closed or zoned out

t3 of existence. Shooting rangesin the Bay Area have been closed. Gun shows have been

t4 bannedat fairgrounds in Marin County, Santa Cruz, San Mateo, Sonomaand of course

15 Alameda County. I would never attend a gun show that did not permit its patrons,

T6 exhibitor and vendors to possessand/or display acfual (as opposedto pictures of)

I7 firearms. The idea that a gun show can take place without guns presentstrains the

t8 boundariesofreason.
\. ,',
ß 10. I am a founding chairman, and offrcer of the Gun Exchange,a California Corporation

20 uD#77-01993621.
2l a. My principalplaceof business
is SanJose,wheremy storefront
retailshophas
22 been locatedsinceAugust of 1987.

23 b. I am a licensedFirearms Dealer under federal and state law.

24 c. I do not have a Concealed'WeaponsCarry permit as defined and regulatedby

25 PenalCode g 12050.

26 d. I am a frequent patron and firearms vendor at gun shows throughout the Bay

27 Area, including the shows at the Alameda County Fairgrounds when they took
DonaldKi¡meUa
Attomeyat [áw -v place there.
l26l LincolnAve.
SuiteI I I
SanJose, CA 95125
Vc:408/998-8489
.Fx:
408/998-8487
Nordlyke v. Kins Page3 of 7 Declaration: Mike Fournier
 I e. As part of my work asa licensedfirearmdealer,he oftenattendsgun showsto

2 buy, sell andtradefirearms.

3 I will not engagein the trade,saleor purchaseof usedfirearmswithoutbeingable

4 to physicallyinspectthemaspart of the negotiationprocess.

5 g. It is my opinion,baseduponyearsof experiencein the retail firearmsbusiness,

6 thatmany- if not most- of my customerswould not engagein the trade,saleor

.7
purchaseof firearmswithoutbeingableto physicallyinspectthe merchandise.

8 h. I freely admitthatit is possibleto orderfirearmsfrom a catalogue,but it is as

9 unwiseto bind yourselfcontractuallyto actuallypurchasea firearm,withoutthe
10 right to physicallyinspectit, asit is to purchasea car or home,withouttheright
11 of inspection.

12 I am alreadyrequiredby federalandstatelaw to takeprecautionsto secure

13 firearmsthat arepart of my inventoryat both my storefrontshopandat gun

t4 shows.
15 j. It is my understanding,
thatwith tongueplantedfirmly in cheek,the Countyhas
t6 soughtto assurethis HonorableCourtthat they arenot banninggun shows,andin
t7 fact maintainthatthe saleof gunsat gun showswithout gunsis still perfectly
18 lawful undertheir ordinance.
t9 k. However,the Alamedaordinancein questiontreatsme unequallyby denyingme
20 accessto the AlamedaCountyFairgroundsfor the displayof my inventory,while

2l excepting- andthereforeirrationallydiscriminating- in favor of otherpersons,

22 which presumablyincludesotherlicensedfirearmdealers,who hold concealed
23 weaponcarrypermitspursuantto Cal PenalCode$ 12050.
24 11. As a vendor of new andusedmodernfirearms,the ordinancebanningthepossession
of
25 actualgunsat gun showsabridgesmy right to engagein re speechactivitieswith my
26 customersin the following ways:

27 a. We aredeniedthe opportunityto discussanddebatevarioustechnological,

Donald Kilmer
Attomey at I¡w 28 scientificandsafetyaspectsof modernfrrearms,havingthe acfualfirearmpresent
l26l LincolnAve.
SuiteI I I
Sm Jose,CA 95125
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Nordykev. Kine Page4 of 7 Declaration: Mike Fournier
 I for thesediscussionsis necessarybecause:

2 (l) Firearms, even of the samemake and model, evolve over the years

3 with regard to certain features,including but not limited to: (1)

4 safety devices for preventing accidental discharge,(2) decocking

5 mechanismsfor safely lowering the hammer or firing mechanism,

6 (3) interlock mechanismsfor preventing inadvertent movementof

,7
the firing pin, and (4) loaded cylinder indicators.

8 (2) It is not possible to compare/contrast,and therefore discuss/debate,

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

( ) 1 0 betweennew and old models of firearms without the actual

11 f,rrearnsfor side-by-sidecomparisonand physical inspection.

l2 b. My customersand I are also being denied the opportunity to observe,enjoy and

t3 discussthe symbolic aspectsand featuresof new and used modern

I4 "commemorative" firearms that have various symbols, pictures and messages

15 inscribed on them. Furthermore,it is not possible to truly appreciatetheseworks

t6 of art without the opportunity to observethe worlananship and engravingson

I7 thesecommemorativefirearms and works of art.

. 1 0
/ ro c. For an excellent treatise on firearms as works of art, I would direct the attention

l9 of the Court to a book entitled: Steel Canvas- The Art of American Arms., by

20 R.L. Wilson. I sell many of the samekinds of artistic and commemorative

2I firearms discussedin that book at my store front location and at gun shows. [A

22 copy of the book will be lodged with Court as an appendbr/exhibitof this

23 declaration.]

24 12. As a vendor of new and used modern firearms, the ordinance banning possessionof

25 actual guns at gun shows, infringes mine and my customers' right to engagein

26 commercial speechactivities associatedwith the purchase,sale and trading of firearms in

27 the following ways:

Donald Kilmer
Anomeyat Iáw
t a
Le a. With respectto used frrearms,a proper assessmentof the condition of a firearm
''u'.:ili:'i,o*'
Sm Jose,CA 95125
Vc: 408/998-8489 Nordvke v. Kine Page5of 7 Declaration: Mike Fournier
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 I cannot be made without inspecting the firearm. Therefore an agreementon price

2 or value cannot be madewith regard to that firearm. Query: How is a contract

a
J for "sale" supposedto take place when there can be no meaningful discussion

4 about the essentialterms of that contract? The National Rifle Association

) Condition Standardsfor Firearms Values recommendsa "hands-on" inspectionto

6 determinethe condition of a firearm.

7 b. Furthermore the following specific safety inspectionsand measurementsfor fit

8 should be performed before contracting to purchasea handgun.For example:

9 (1) On all new and used handgunsit is necessaryfor the purchaserto

l0 checkthe sizeof the grip andweightandbalanceof the firearmto

1l insurethat the gun is not too big or too little for the intended
l2 owner.
t3 (2) Whenpurchasinga usedrevolver- (1) The hammershouldturn
t4 the cylinderto the next chamber,andlock it in place. (2) A
l5 revolver,whencocked,shouldhavevery little play in the cylinder.

t6 (3) Thechambersshouldalign with thebore.(4) Pushagainstthe

17 spurof the cockedhammerto makesurethe gun stayscockedand

( ' ) 18 doesnot inadvertentlydrop. Lastly,(5) the crane,which is thepart

T9 that swingsout with the cylinderon somerevolvers,shouldfit
20 snuglyagainstthe framein the front with the cylinder closed.
2I (3) On a usedselfloadingpistol- (l) the slideshouldbe pulledback
22 to be sureit locksopen. (2) Thereleaseshouldbe pressedto
23 insurethatthe hammerdoesnot follow the slidedown. (3) The
24 safetyshouldbe checkedfor properoperation.(a) The decocker,if
25 available,shouldalsobe checkedfor properoperation.
26 The following specific inspectionsshould be performed before contracting to

27 purchasea ne\ryor used long gun:

Doreld Kilmer
Aftomey at l¡w 28 (1) On a new or usedshotgunit is necessaryto check: (1) Length of
126l LincolnAve.
SuiteI I I
SanJose,CA 95125
Vc: 408/998-8489 Nordyke v. Kine Page6of 7 Declaration: Mike Foumier
Fx: 408/998.8487
 I Pull - this is directlyrelatedto the lengthof the shooter'sarm and
'''.'.
) the firearm to the purchaser.(2) Castat
is,a highly persöna1.fit.b,f
a
J Toe - which is relatedto a persons'chestsize and is also a highly

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

5 weight and balanceshould also be checked.

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

balance,(2) triggerpull, (3) stockdirnensions.

j

8 13. Lastly,I will not attendor contractasa vendorat anygun showthat doesnot permit

9 : presentat a "gun-lessgun show.'l

10

t1 I declareunder penaltv of p*erjuryunder the laws of California and the Utited Statesof

I2 Ame.ricathat the forgoing is true and correct and that this declaration \ryasexecutedin San Jose,

t3 Californiaon April 27,2006.

t4

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T6 Mike Fournier, Plaintiff.

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DotraldKilmer
Attomey at L¿w 28
126l LincolnAve.
SuiteI I I
SanJose,CA 95I25
Vc:408/998-8489 NordVkev. Kins PageTof 7 Declaration: Mike Foumrer
Fx: 408/998-8487
 SEE
STIPTJLATIOI{
AS AGREED
TO BY
PARTIES