(Omaha World-Herald)—Attorneys for a gun owners group and the City of Omaha debated a fine point of Nebraska’s new constitutional carry legislation during oral arguments Friday in the gun owners’ lawsuit against the city.
Does an exception in state law under which property owners may prohibit concealed carry on their premises allow Omaha to ban firearms on city-managed property such as parks, trails and parking lots, sidewalks and driveways surrounding public spaces and buildings?
An attorney for the city said the exception does apply. Mayor Jean Stothert was acting under the parameters of the new state law when she issued an executive order banning firearms on city property, Deputy City Attorney Bernard in den Bosch said.
But an attorney for the gun owners, Jacob Huebert, said the exception does not apply. Unlike when it makes rules for a concert venue, the city is not acting as a property owner when it regulates concealed carry in parks and parking lots, but as a government exercising police power, Huebert said. And the new state law does not allow that, he said.
“The parks, trails and sidewalks are the most egregious part of this, because that’s what interferes with the plaintiffs’ ability to go about bearing arms in the way that the state law contemplated,” Huebert said.
The question played a key role in arguments made Friday in a preliminary injunction hearing in Douglas County District Court. The Nebraska Firearms Owners Association and five Omaha residents are suing Stothert and the city over her executive order banning firearms and new city ordinances banning bump stocks and ghost gun parts.
The lawsuit contends that the executive orders violate Nebraska’s new concealed carry legislation and the Nebraska Constitution. They ask the court to declare Stothert’s executive order and Omaha’s new gun ordinances unconstitutional and to issue an injunction against them. A similar suit has been filed against the City of Lincoln and Mayor Leirion Gaylor Baird.
A team of attorneys from the Chicago-based nonprofit Liberty Justice Center is representing the Nebraska plaintiffs without charging them, although they are seeking attorneys’ fees and costs in the lawsuit.
Friday’s hearing in the Omaha case was about the plaintiffs’ motion for a preliminary injunction. They want the court to prevent the city from enforcing the executive order and new ordinances while the case is pending.
District Judge LeAnne Srb did not immediately rule on the preliminary injunction.
LB 77 took effect in September. It allows Nebraskans 21 and older to carry concealed firearms without a permit. The state legislation invalidates any local ordinances limiting that ability.
Stothert, Omaha Police Chief Todd Schmaderer and a majority of the Omaha City Council had opposed LB 77. Stothert issued her executive order in late August. The City Council repealed 22 city gun ordinances and amended eight others because LB 77 made them invalid. The council later passed the ordinances banning bump stocks and ghost gun parts used to assemble firearms.
“There is no question that LB 77 … established constitutional carry in Nebraska,” in den Bosch said in court Friday. “But there’s also no question that the Legislature in their wisdom defined things in a certain way and laid out various limitations and exceptions making it clear it’s not an unfettered right. There are regulations that are permitted.”
That includes a newly revised statute that says a person or entity in control of a place or premises open to the public can prohibit concealed carry, in den Bosch said. The property owner has the obligation to put up conspicuous signs on the properties announcing the prohibition.
“And it is under that particular authority that the mayor entered her executive order,” in den Bosch said.
He said the legislative history of LB 77 does not differentiate between different types of city property. When it came to parks and trails during floor debate, LB 77 sponsor Tom Brewer “seems to focus on the difficulty with being able to conspicuously sign those particular facilities, not on there’s some special status for parks and trails that puts them in a special category,” in den Bosch said.
As for the ordinances, he said they regulate certain unassembled parts of firearms without serial numbers and firearms accessories, but don’t regulate firearms as defined by the Legislature. As codified in state statute, LB 77 “clearly indicates that the city cannot regulate the ownership, possession, storage, transportation, sale or transfer of firearms,” in den Bosch said. The city “doesn’t quibble” that the state law preempts such local regulations, he said. But he said there’s nothing in the language of the statutes that limits the city’s ability to control firearm components or accessories.
Huebert, president of the Liberty Justice Center, framed the issue presented by the preliminary injunction motion as “simple.”
“The State of Nebraska enacted legislation last year adopting constitutional carry statewide and in doing so, it also declared all local regulations of firearms to be null and void and prohibited city governments from enacting new regulations,” Huebert said.
Nonetheless, he said, the mayor promptly issued the executive order and the City Council passed the two ordinances.
“This plainly violates the state law that was passed that told local governments that they may no longer regulate firearms … except as expressly provided by state law,” Huebert said.
He said the executive order and ordinances infringe on the plaintiffs’ rights and are causing them irreparable harm. Huebert said the plaintiffs carry guns for defending themselves and their families and frequently use city parks and trails. Some of them assemble guns as a hobby, he said.
If someone is unable to exercise their right to bear arms, and needs to do that in order to defend their life, “the harm caused by not being able to defend their life would naturally be irreparable to them,” Huebert said.
The executive order “means that Nebraskans now are not free to bear arms as they go about their business in the city, because now apparently they can’t walk past a park or a library or another city building,” Huebert said. “Apparently, they can’t go in the park, they can’t go in the trails, they can’t even leave a firearm locked in their vehicle when it’s in a parking lot.
“That’s directly contrary to what the state established in the law last year.”
Huebert cited a legal opinion that Nebraska Attorney General Mike Hilgers issued in December in response to a request from Sen. Brewer, who opposes the Omaha regulations. Hilgers concluded that: “Municipalities lack authority to regulate the possession of firearms and certain weapons in quintessential public spaces, such as parks, trails, and sidewalks,” according to the summary of the opinion. It also said cities “cannot use their common law proprietary authority to evade” the regulatory restrictions of LB 77.
“Nonetheless, that’s what the city has done,” Huebert said. “And again, that’s why the executive order is preempted by LB 77 and should be enjoined.”
Judge Srb asked two questions. They had to do with parks and trails.
Prior to LB 77 being enacted, she asked in den Bosch, could a person with a concealed weapon permit take a firearm onto such city property as a park or trail?
Yes, he answered.
And now under the new executive order, “you can’t bring a firearm concealed or otherwise, correct?” Srb asked.
“Correct,” in den Bosch answered.
In an interview, Huebert said that doesn’t make sense “because the state intended to increase gun rights, not give cities an opportunity to decrease them.”
During the hearing, in den Bosch appeared to acknowledge that the parks and trails question is a thorny one for the city.
“If the court were to, in fact, find that there’s a difference between parks and trails and other city property, certainly the court could enter an order enjoining just a portion of the executive order that has to do with those things that the court would determine were inappropriate.”