By Paul Hamel
Nebraska Examiner
LINCOLN — A lawsuit can go forward challenging a Lincoln city ordinance banning the carrying of weapons – even by those with a state concealed carry permit – in city parks and other city property, the state’s highest court ruled on Friday.
The Nebraska Supreme Court, in a 22-page opinion on Friday, ruled that even though the law had not yet been enforced, four individual gun owners named in a lawsuit could challenge the law because there was a “credible threat” that they could be harmed by the ordinance in the future.
The ruling, written by Chief Justice Jeffrey Funke, agreed partly with a district judge’s prior ruling that the Nebraska Firearm Owners Association, as an organization, lacked the ability to challenge the Lincoln law.
But it stated that the individual firearm owners had legal standing and could sue – thus sending the lawsuit back to the Lancaster District Court for further proceedings.
The gun rights lawsuit was spawned by passage of Legislative Bill 77 in 2023 that eliminated the requirement to obtain a state permit to carry a concealed handgun. It also barred cities and villages from adopting “certain regulation of weapons.” Individuals can still obtain a state concealed carry permit, so they can legally carry in other states.
On the date the law went into effect, Lincoln Mayor Leirion Gaylor Baird signed an executive order banning the carrying of “weapons” in “vehicles, buildings, or facilities owned, leased, controlled, or maintained by the city.” The order was later amended slightly, but continued to bar anyone — even those who had passed a gun safety class and obtained a state concealed carry permit — from carrying a weapon on city property, including public parks.
The NFOA and four individuals – Terry Fitzgerald, Dave Kendle, Raymond Bretthauer and D.J. Davis – sued to block the Lincoln order. They also challenged city ordinances that required any firearm purchase in the City of Lincoln to be reported to law enforcement and barred the sale or possession of “multiburst trigger activators and switch-blade knives.” Such trigger activators allow a semi-automatic weapon to significantly increase a gun’s rate of firing.
The individuals, all of whom had state concealed carry permits, argued that they regularly carry concealed guns in city parks and city trails to protect themselves and their families. Three of the plaintiffs said they carried concealed weapons “100% of the time.”
Lancaster County District Court Judge Andrew Jacobsen dismissed the lawsuit, ruling that both the NFOA and the four gun owners lacked standing, or the ability, to challenge a law that had not yet been enforced. The judge said the Nebraska Supreme Court had not yet determined how someone could establish standing to challenge a law who had not yet been impacted by the law.
The Supreme Court, in clarifying who has standing to sue, stated Friday that the individual gun owners, because they faced an “imminent and substantial” threat of harm, had the ability to sue the city. The ruling, however, stated that the NFOA, which claimed membership of 10,000, lacked standing to sue on behalf of its members.
There was one exception – the high court ruled that both the NFOA and the four gun owners lacked standing to challenge one Lincoln ordinance, one regulating the storage of guns in vehicles. Three Supreme Court judges – Lindsey Miller-Lerman, Jonathan Papik and Stephanie Stacy – issued brief concurring opinions to the unanimous ruling.
“We are pleased that now we can challenge these laws on the merits,” said Ryan Morrison, senior counsel at the Liberty Justice Center, which represented the gun owners. “Following this victory, we will show the local governments of Lincoln and Omaha, that their firearms regulations violate the Second Amendment and state law.”
Chris Triebsch, the chief communications officer for the City of Lincoln, said Friday that “public safety” is the top priority for the city and the reason for gun restrictions within the public spaces and city properties. Triebsch said the city stands ready to “demonstrate our case on the merits in district court.”