Shortly after the Nebraska state legislature adopted a Constitutional Carry bill last year, the mayors in Lincoln and Omaha responded by adopting new executive orders aimed at disarming citizens in all city-run properties, including public parks. Both cities were then sued by both individual plaintiffs and groups like the Nebraska Firearms Owners Association, and a judge granted a preliminary injunction against Omaha’s new “gun-free zones” back in February. 

But in a decision late last week, a Douglas County judge threw out the lawsuit against Lincoln, ruling that the plaintiffs don’t have standing to sue. 

In the order last week, [Lancaster County District Judge Andrew] Jacobsen said mere allegations that the men had visited city parks and trails in the past but no longer do wasn’t enough to show an injury to bring the case. They didn’t say any enforcement action had been taken against them when they carried concealed firearms in city parks or on trails or that they had been asked to leave or face prosecution. 

“The injury alleged by plaintiffs is conjectural, hypothetical, not sufficiently imminent, not concrete in a temporal sense, and therefore insufficient to show an injury in fact,” the judge wrote.

For the same reason, Jacobsen found that the Nebraska Firearms Owners Association lacked standing to challenge the city’s park weapons ordinance, which was adopted long before LB77, or other city codes that require those selling a firearm to report the sale to the police department and make it unlawful to keep a firearm in an unlocked, unoccupied vehicle. 

He said there was no allegation of any actual enforcement of the challenged ordinance or any factual allegations to support a credible threat of enforcement. 

To the contrary, Jacobsen said, according to the factual allegations the city ordinance has never been enforced against the four, “notwithstanding plaintiffs’ continuous violation of the ordinance over the years.”

“Without any factual allegations that plaintiffs have suffered or will suffer an injury in fact due to this challenged ordinance, plaintiffs are without standing to challenge an ordinance merely because they find it confusing,” he said. 

Therefore, the claims must be dismissed, Jacobsen said. 

This is at least the second time that I’m aware of that a judge has tossed a lawsuit because of it’s supposed lack of enforcement. The other case also dealt with carrying in parks; specifically, state parks in Connecticut. In that case, however, the Second Circuit Court of Appeals reinstated the lawsuit, finding that plaintiff David Nastri did not have to actually be threatened with arrest or prosecution before he could challenge the law. 

Jacobsen’s decision is especially silly since the executive action in question was only issued last year. This isn’t some long-forgotten ordinance that’s remained on the books for decades without being enforced. This was the direct response from the sitting mayor to the passage of Constitutional Carry. Why would Mayor Leirion Gaylor Baird have issued her order if she had no intention of seeing it enforced? 

In fact, in her statement to the Journal-Star after learning of Jacobsen’s decision, the mayor declared the ruling affirmed “our work to implement measures that ensure the well-being of everyone who lives in, works in, or visits our city.” 

That certainly doesn’t sound like Baird has no plans of enforcing the “gun-free zones”. 

Jacobsen’s decision imposes a ridiculous requirement on anyone who seeking to challenge an unconstitutional ordinance, and I hope that the Nebraska Firearms Owners Association and the individual plaintiffs will appeal Jacobsen’s decision. They can point to the fact that another Nebraska judge has found cause to suspend the executive order in Omaha, but they can also point to federal courts like the Second Circuit, which held that unless the state of Connecticut disavows enforcement of the law, “we thus presume that the state intends to enforce it.”

The same should hold true in Lincoln. If the plaintiffs truly have no fear of prosecution, then the city should rescind the executive order because it’s not being enforced. But so long as they keep the “gun-free zones” in place, even on paper, then the courts should assume that city officials do plan on enforcing the measure, and residents have the right to challenge the order in court.