(Nebraska Public Media)—The Nebraska Supreme Court heard oral arguments Thursday in a case likely to determine if a person must violate a law before they have standing to challenge the law in court.
The case stems from a lawsuit brought by gun owners against the City of Lincoln over an ordinance banning concealed weapons on city-owned properties. A Lancaster County judge dismissed the lawsuit, finding the petitioners lacked standing because they had not been prosecuted or imminently threatened with prosecution.
In 2023, Nebraska enacted a permitless concealed carry law. The law allows people to carry concealed weapons without a permit and nullified existing municipal-level restrictions.
In response to the new law, the mayors of Omaha and Lincoln enacted local ordinances banning concealed firearms at city buildings, parks, trails and other city-owned properties. The Nebraska Firearm Owners Association filed lawsuits in Douglas and Lancaster counties seeking to declare the ordinances unenforceable because they are superseded by state law.
In Douglas County, litigation is ongoing after a district court judge granted a preliminary injunction, which has been in effect since early 2024. The injunction prohibits Omaha from enforcing the ordinance as the case makes its way through court. The parties have been ordered to be ready for a bench trial by August.
But in Lancaster County, District Court Judge Andrew Jacobson found the petitioners, consisting of four firearm owners and the association, did not have standing to bring the lawsuit. In his order dismissing the suit, Jacobson said the gun owners did not suffer an “injury in fact,” which Nebraska law defines as an injury that is “distinct and palpable” with the alleged harm “actual or imminent, not conjectural or hypothetical.”
“Plaintiffs allege that because of the weapons policy, they have to refrain from visiting city parks and trails that they frequented in the past to avoid criminal prosecution,” Jacobson wrote. “However, mere allegations that plaintiffs visited the parks and trails in the past but no longer do so are not sufficient to show an injury in fact.”
The petitioners appealed the dismissal to the Nebraska Supreme Court. When the court issues its opinion, it will not address the merits of the challenge to the firearm ordinance – but if the court finds the petitioners did have standing, the case will return to Lancaster County for further proceedings.
Case poses novel legal question for Nebraska Supreme Court
The Nebraska Supreme Court has not directly addressed the issue of “pre-enforcement standing” in prior cases. Plaintiffs have pre-enforcement standing if they can challenge the legality or constitutionality of a law prior to it being enforced against them.
During Thursday’s arguments, Jacob Huebert, the attorney for the plaintiffs, argued that gun owners shouldn’t have to wait until they are charged with a crime to challenge the law.
“If this court was to find that your clients did not have standing, would that require your clients to have an armed encounter with a law enforcement officer in one of these prohibited places in order to bring this matter before the court again?” Justice John Freudenberg asked Huebert.
“As far as I can tell, it would,” Huebert said. “It seems like that’s what this requires. It requires them to go into the park, to have law enforcement tell them to leave, for them to refuse. It seems like they have to go all the way to that point.”
The U.S. Supreme Court recognizes pre-enforcement standing. In a unanimous decision from 2013, the court found that pre-enforcement challenges can be brought if the threatened enforcement is “sufficiently imminent.”
Yohance Christie, the attorney for the City of Lincoln, said Nebraska’s case law is different from federal law. A 2013 decision from the state’s high court found that a “threatened injury” is not sufficient to establish standing.