(CN) – A long-running dispute over firearm restrictions in California should head to mediation, the full 9th Circuit ruled Wednesday, as the court’s chief judge remarked that the move made the panel “look foolish.”
“The parties have not asked for mediation; they have said nothing that suggests mediation would be fruitful; when asked about it in court, they displayed obvious distaste for the idea,” Chief Judge Alex Kozinski wrote in a pointed dissent joined by Judge Ronald Gould.
“We overstep our authority by forcing the parties to spend time and money engaging in a mediation charade. Our job is to decide the case, and do so promptly. This delay serves no useful purpose; it only makes us look foolish. I want no part of it.”
This is the second time a full, 11-judge panel of the San Francisco-based federal appeals court has attempted to rule on the issue, which involves a 1999 Alameda County ordinance that made it a misdemeanor to possess firearms or ammunition on county property.
Gun show promoters Russell and Sallie Nordyke claimed in a federal lawsuit, now more than a decade old, that the ordinance was actually an attempt by the county to outlaw gun shows that the couple had hosted at the Alameda county fairgrounds since 1991.
After finding that the county did not violate the Nordykes’ rights under the First Amendment and the equal-protection clause, a federal judge refused to let the couple add Second Amendment claims in an amended complaint.
The Nordykes appealed to the 9th Circuit, and the issue eventually went before a full, en banc panel, and back to a three-judge panel, which last year ruled that the couple should be allowed to amend their complaint. The panel ruled that the Supreme Court has developed most modern Second Amendment law during the years since the Nordykes first raised their claims.
After the case went before a second en banc panel last month, the court ordered the Nordykes and the county to settle their differences with a mediator.
“The panel believes that the parties should attempt to settle this dispute by agreeing on the conditions for holding gun shows at the Alameda County fairgrounds, with the assistance of mediation,” according to the majority opinion published Wednesday. “The case is referred to the Circuit Mediation Office for mediation, and its submission is deferred for 45 days or pending further order of the court.”
Judge Milan Smith wrote a two-sentence concurring opinion, saying the court should have proposed a decision “so that the parties would know what they would face in the event mediation fails.”
The parties must give the court a status report on the mediation in 45 days.