NO CCW in Lincoln City Parks - NFOA Legal thoughts?

[TwoSwords]

Here is what ruined my day.

I came across this article:
http://journalstar.com/news/local/govt-and-politics/hicks-you-can-t-tear-up-parks-looking-for-loot/article_731b5bc5-a999-5c9f-9b45-01d32c05fc40.html

The topic was you can't dig stuff up in a Lincoln City Park when Metal Detecting, then listed all the other stuff you can't do in a Lincoln City Park.

"No Guns even with a Permit"  Now they had my interest.

Go here, sure enough no guns in Lincoln Parks.   See - 12.08.200 Weapons Prohibited in Parks and Park Facilities.
http://www.lincoln.ne.gov/city/attorn/lmc/ti12/ch1208.pdf   

I called the Lincoln City attorney and said, I don't think they can do that and ban CCW in the Park.

NE Statute 18-1703.
Cities and villages shall not have the power to regulate the ownership, possession, or transportation of a concealed handgun, as such ownership, possession, or transportation is authorized under the Concealed Handgun Permit Act,

He replied via email, and came back they can control the "property"  Using 69-2441
a permitholder may not carry a concealed weapon in any “place or premises where the person, persons, entity, or entities in control of the property . . . has prohibited permitholders from carrying concealed handguns into or onto the place or premises . . . .”

The city "controls" the property so they can ban CCW in the parks was the justification.

I then asked about 69-2441 (2)
If a person, persons, entity, or entities in control of the property or an employer in control of the property prohibits a permitholder from carrying a concealed handgun into or onto the place or premises and such place or premises are open to the public, a permitholder does not violate this section unless the person, persons, entity, or entities in control of the property or employer in control of the property has posted conspicuous notice that carrying a concealed handgun is prohibited


I basically argued then if you control the property then you have to put up the signs at "every public entrance" 

And exactly how do you do that around a 10 acre park?    *Crickets*

City Attorney Refused to answer.
Lincoln PD - Yes guns are banned in the parks, nothing else.

They want to ban the guns with 69-2441 but refuse to post the sign around the entire perimeter of a park to everyone approaching on foot because they know its  ridiculous.

It's the little stuff like this that gets me the most upset because of the attitude taken with the law.  Pick and choose. 

As conservative as Nebraska is supposedly supposed to be, you pull back the covers a bit and this is what you get.  Liberal mandated control using the laws to their choosing.

And it will never change unless every last one of you call and email the Lincoln City Council and demand they drop the ordinance or put up 6000 signs around every Lincoln City park because that is what the law says.

So it stays on the books because nobody wants to be the test case in a minor issue.  I get that.

Here is the City Council email list

    demery@lincoln.ne.gov,
 lgaylorbaird@lincoln.ne.gov,
 rchristensen@lincoln.ne.gov,
 tfellers@lincoln.ne.gov,
 mmmeyer@lincoln.ne.gov,
 jcamp@lincoln.ne.gov,
 jcook@lincoln.ne.gov,
 ceskridge@lincoln.ne.gov


 

[Husker_Fan]

I saw that article and had the same thought. Personally, I don't believe the city can ban a permit holder from carrying a concealed handgun in a park any more than on a sidewalk. Both are in the city's "control."

Sure, if the park was private, the owner could ban guns by conspicuously posting all entrances. However, the city is preemted from doing so, at least as it applies to a CHP holder. Even if they had the right to do so, then they would have to post every entrance conspicuously.

The only place where the city could conceivably enforce a ban is on property where it acts as a landlord such as a city office building. I think the statute may even prevent them from doing that.

Of course, my legal opinion on the matter is worth precisely what you paid for it.

IIRC, the previous city attorney in Omaha agreed with my interpretation of the statute and the Omaha Police were trained that concealed carry by a permit holder in a park is legal.

[Husker_Fan]

Maybe you can be the test case. Since you have a response from the city attorney and the police saying you cannot carry, they have imposed a prior restraint on the exercise of a constitutional right. That may be enough to create standing to sue.

[SemperFiGuy]

FWIW...........

The Nebraska State Patrol has a Contact Us email portal on the NSP website.

Responses to inquiries come back very quickly and are usually from an NSP attorney.

Might wanna try that option for information on this issue.   Looks as if this Lincoln ordinance may be treading on NSP's turf.  Could be presented as a constitutional issue.

sfg

[newfalguy101]

The city can and it seems HAS banned CCW on City property, not any different than a private business barring CCW on their property.

[Dan W]

The Lincoln City Council is under full control of the Democrats and it is futile to call them and demand anything.

It is also futile for the City attorney and the LPD to defy state law by knowingly giving false information concerning the legal carry of concealed handguns in the parks.

The State Patrol has issued the rules and regulations, and in the definitions they list

002.13 “Posted conspicuous notice” shall mean a clearly visible sign posted at each public entrance to a place or premises open to the public which shall clearly state that concealed handguns are not allowed in the place or on the premises. A recommended format for the sign can be found in Section 018.04 of these regulations.

State wide preemption exists

"Cities and villages shall not have the power to regulate the ownership, possession,  or transportation of a concealed handgun, as such ownership, possession, or transportation is authorized under the Concealed Handgun Permit Act, except as expressly provided by state law. Any existing city or village ordinance, permit, or regulation regulating the ownership, possession, or transportation of a concealed handgun, as such ownership, possession, or transportation is authorized under the act, is declared to be null and void as against any permitholder possessing a valid permit under the act."

So, the only thing missing here is legal precedent, and in a court of law I don't think the Lincoln City Attorney has a chance of upholding his view of the ordinance in question, because the City has not met the burden of the state rules on posted conspicuous notice.

The 2nd Amendment Foundation would probably love a case like this.

[Dave1215]

(2) If a person, persons, entity, or entities in control of the property or an employer in control of the property prohibits a permitholder from carrying a concealed handgun into or onto the place or premises and such place or premises are open to the public, a permitholder does not violate this section unless the person, persons, entity, or entities in control of the property or employer in control of the property has posted conspicuous notice that carrying a concealed handgun is prohibited in or on the place or premises or has made a request, directly or through an authorized representative or management personnel, that the permitholder remove the concealed handgun from the place or premises.

Since a park is wide one with generally no specific "entrance" then how do you post a conspicuous notice?

[Dan W]

Since a park is wide one with generally no specific "entrance" then how do you post a conspicuous notice?

Not my problem!

[NE Bull]

.This has been a big sliver in my back side for quite a while, too.  I have voiced my concern many a time. I'm not sure if this is something the NFOA can lobby the council on, or if it would in fact take court action. .....

BUT I will say this; I WILL NOT go to places like Wilderness or Hiking the trails of Pioneers unarmed.  Take that as you like.

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[NE Bull]

I wonder if a presence at a council meeting and raising  question to the ' law' would do any good.  We would have to have our crap together; citing the homicides, attacks, sexual predators, drug busts, etc. that are know to happen in or in the vicinity of Lincoln Parks, including the famed miles and miles of bike trails.
Antelope valley Ditch? Oak Lake? Bowling Lake? The other lake on the other side of town? Holmes? ( whew, late night brain belch)
Anyone have the time and means to collect that data?
If we can get a group together to bring this forward, I WILL see what I can do on this end ( and what our organization's boundaries may be), and see if this is something SAF might be interested in taking on- without a test case, I'm not so sure.



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[bkoenig]

I agree with Dan - I think the city council is a dead end.  If the SAF would be willing to assist I think that would be the best route.

[NE Bull]

I would have to agree with that, BUT, why not go the "civil" route first?  My thoughts are to approach the Council with a well thought out / planned argument- BUT only, with the SAF card up our sleeve. 
Much like we did with Omaha. We make contact and when the council snubs it's nose, we smack 'em with a court case!  Then hopes are the come contacting us to see what can be done.

(OR we tell 'em it's good for UNL athletics and we are golden. )

[Husker_Fan]

The city can and it seems HAS banned CCW on City property, not any different than a private business barring CCW on their property.

It is very different. The city is prohibited from regulating possession of a firearm by a CHP holder. The city also owns the public roads and some sidewalks. Does that allow them to ban any pedestrian on that city property from carrying?

[Dan W]

The city also owns the public roads and some sidewalks. Does that allow them to ban any pedestrian on that city property from carrying?

Attorney General Bruning has issued an official opinion on that question...they can not.

http://www.ago.ne.gov/ag_opinion_view?oid=4133

[Husker_Fan]

Oh, I know. I was just trying to get a discussion going.

[newfalguy101]

Actually, cities, generally speaking, do NOT own the sidewalks or streets..........those projects are paid for by homeowners, by way of property taxes.

[Husker_Fan]

That's why I said some sidewalks as residential sidewalks are owned by the homeowner. Downtown sidewalks are another matter and often are owned by the city. Streets are owned by an SID when a new development goes in (at least in Omaha). When the SID gets annexed that property is owned by the city.

The fact remains that even if the city is acting in its capacity as the property owner and not the government, it is still the city and the statute prohibits the city from regulating possession of a firearm as to a permit holder.

[grumpy old man]

Until we get state legislators to pass a State Constitutional Ammendment stating Nebraska is a "Constitutional Carry" state these issues will persists.  We must get the Legislature to write a bill and get it passed!!

[SeanN]

The city can and it seems HAS banned CCW on City property, not any different than a private business barring CCW on their property.

Actually, cities, generally speaking, do NOT own the sidewalks or streets..........those projects are paid for by homeowners, by way of property taxes.

I would argue it is completely different. Government owned properties are public property. It isn't one group of people that purchased it and have exclusive rights to it. Everyone whose tax money was used for that property owns a part of it and helped purchase it. Therefore, I don't think it's a stretch to say it should be open to everyone.

[NE Bull]

^THIS

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