The Epoch Times

Nebraska Gun Rights Group Sues Over Mayoral Orders Prohibiting Guns on Public Property

December 20, 2023

(The Epoch Times)—Nebraska’s two largest cities have been sued over their refusal to comply with a state law permitting the concealed carry of weapons without a permit.

On Dec. 18, the Liberty Justice Center, a non-profit, public interest litigation firm, sued the cities of Omaha and Lincoln in their respective counties.

In the Omaha case, the Nebraska Firearms Owners Association (NFOA), Lonny Sund, Justin Armsbury, Michael O’Donnell, Robert Robinson, and Alan Koziol filed suit in the District Court of Douglas County.

Liberty Justice Center is also representing NFOA, Terry Fitzgerald, Dave Kendle, Raymond Bretthauer, and D.J. Davis in their lawsuit in the District Court of Lancaster County.

Liberty Justice Center president Jacob Huebert expressed confidence in the strength of his client’s cases. He said Nebraska law is unambiguous in stating that local government derives its power from the state and that the legislature can preempt local law.

“There’s no reason to think the Nebraska State Courts in particular would ignore what the state law says,” Mr. Huebert told The Epoch Times.

Legislative Bill 77 (LB77), signed into law last April 25 by Gov. Jim Pillen, also repealed all local firearms ordinances or regulations. But officials in Lincoln and Omaha were unmoved by the new law.

On Aug. 30, Omaha Mayor Jean Stothert signed an executive order banning firearms in public areas, including sidewalks, parks, hiking trails, and other areas.

The Omaha City Council repealed their city’s existing firearms ordinances. Then, it adopted new ordinances outlawing kits to build firearms, so-called “ghost guns,” and accessories to increase a gun’s rate of fire.

On Sept. 1, Lincoln Mayor Leirion Gaylor Baird issued an executive order similar to Ms. Stothert’s order. The Lincoln City Council left its existing firearms ordinances in place.

According to a Dec. 18, legal opinion from Nebraska Attorney General Michael Hilgers, the cities’ gun control efforts likely violate state law.

“Municipalities lack authority to regulate the possession of firearms and certain weapons in quintessential public spaces, such as parks, trails, and sidewalks,” the opinion reads.

Mr. Brewer predicted the cities will not fare well if they go to court.

“I think it’s probably setting the table for a difficult time,” Mr. Brewer told The Epoch Times. “I think it’s going to be an expensive and painful experience for them.”

Officials in Omaha and Lincoln did not return calls seeking comment.

According to Mr. Huebert, Mr. Brewer’s confidence is warranted.

Nebraska has a unicameral legislature, and under the state’s constitution, cities and counties derive their authority from the state. Therefore, if the legislature declares an issue of “statewide interest,” local governments can’t issue any ordinances, laws, or policies that conflict with the state.

He said the lawsuits are asking the court to strike down the cities’ orders and block them from enforcing any aspect of them. Mr. Huebert said the orders violate the U.S. and Nebraska Constitutions.

The lawsuits also claim the executive orders violate the Constitutional separation of powers. According to the cases, as an executive, the mayor can only enforce the law. Since the executive orders set penalties for violating the rules, the orders constitute legislative power, which is reserved for the city councils.

“This case is very simple. We should be able to win this,” Mr. Heubert said.

According to Mr. Hilgers’s opinion, the cities can regulate facilities they have “proprietary” authority over. Carrying weapons in areas such as courts, schools, and meeting rooms can be controlled for safety and security, among other reasons. But municipalities only have “regulatory” authority over areas that are open to the general public, such as parks, sidewalks, and streets.

State Overrules Local Laws

“LB 77 deprives municipalities of regulatory authority over the possession of firearms or other weapons. And municipalities cannot use their common law proprietary authority to evade this regulatory restriction,” the opinion reads.

Mr. Brewer said that the new law didn’t really change much. He pointed out that LB 77 preserves a list of prohibited places where firearms are not allowed. He said the legislature also kept the permitting process for those who want to have the license as well.

“We’re not asking to change where you can have concealed carry,” he said.

LB 77 made Nebraska the 27th state to adopt Constitutional Carry.

Nebraska is a relatively sparsely populated, largely rural state where most of the population is politically conservative, Mr. Brewer said. He said most of the anti-gun sentiment is located in Omaha and the state capitol of Lincoln.

Because Nebraska has only one chamber in its legislature, a minority can delay legislation through a filibuster. Each bill in the Nebraska legislature must survive three votes to make it to the governor’s desk, and each is subject to the filibuster.

Mr. Brewer spent seven years pushing LB 77 and said he withstood a 44-hour filibuster to get the final, filibuster-proof vote on April 19.