Case challenging firearm ban on City of Lincoln property will go forward after Nebraska Supreme Court ruling

A lawsuit against the City of Lincoln over municipal firearm regulations will proceed after the Nebraska Supreme Court ruled on Friday that the case was improperly dismissed in district court.

The Supreme Court decision did not address the merits of the case. Instead, it reversed a lower court’s order finding that individual firearm owners did not have standing to challenge the regulations since they had not been prosecuted or otherwise harmed by violating them.

In 2023, the Nebraska Legislature passed a permitless carry law, which allows people to carry concealed weapons without a permit. The law also nullified existing county or city regulations on the possession, storage or registration of firearms.

In response, the mayors of both Lincoln and Omaha enacted local ordinances banning concealed weapons on city property like parks, trails and city-owned buildings. Both cities were sued by the Nebraska Firearm Owners Association and by local gun owners, who argued that the ordinances were unenforceable because they are superseded by state law.

A Lancaster County judge dismissed the case against the City of Lincoln in June of 2024, finding that the association and the four firearm owners named as plaintiffs in the lawsuit did not have standing. In his order of dismissal, District Court Judge Andrew Jacobsen said the gun owners did not suffer an “injury in fact,” defined in Nebraska law as an injury that is “distinct and palpable.” The alleged harm must be “actual or imminent, not conjectural or hypothetical.”

In written and oral arguments in front of the state’s high court, attorneys for the gun owners and the Nebraska Firearm Owners Association said people should not have to break the law and risk a criminal trespassing charge in order to exercise their rights as defined under state law.

“A lawsuit brought before they violate the ban and are asked to leave is proper because it is the only way they can avoid the choice between forfeiting their asserted right and risking arrest,” the attorneys wrote in their brief.

In its Friday decision, the court largely agreed that the threat of prosecution is a sufficient injury for individuals to bring a lawsuit. It based this decision on case law from the U.S. Supreme Court, which has recognized preenforcement challenges for decades. The court said Nebraska case law on preenforcement challenges is “somewhat underdeveloped.”

The opinion clarified the high court’s approach to preenforcement challenges: “... A preenforcement challenge to a law may be brought, and the injury-in-fact requirement will be satisfied, if an appellant carries the burden of showing that the appellant faces a credible threat of future enforcement, which is sufficiently imminent.”

The court also found that the Nebraska Firearm Owners Association lacks standing to challenge the law on behalf of its members.

Liberty Justice Center, the law firm representing the firearm owners and the association in both the Omaha and Lincoln cases, celebrated the decision.

“We are pleased that now we can challenge these laws on the merits,” Ryan Morrison, Senior Counsel at the Liberty Justice Center, said in a statement. “Following this victory, we will show the local governments of Lincoln and Omaha, that their firearms regulations violate the Second Amendment and state law.”

The lawsuit against the City of Omaha is ongoing after a district court judge granted an injunction in 2024 to prohibit the city from enforcing the ordinance as the case makes its way through court. In her decision, Douglas County District Court Judge LeAnne Srb said the city regulations were likely superseded by state law.