Omaha, Lincoln responses to new concealed handgun law could be headed to court

Omaha City Council took additional steps Tuesday

By: - October 31, 2023 10:48 pm

Nebraska State Sen. Mike McDonnell warns the Omaha City Council about adopting gun-related ordinances and resolutions proposed by City Councilman Pete Festersen he said a state lawyer said would run afoul of Legislative Bill 77, which he supported. (Aaron Sanderford/Nebraska Examiner)

OMAHA — Since the Nebraska Legislature this year limited cities’ authority to regulate concealed handguns more strictly than the state does, Omaha and Lincoln have restricted people from carrying concealed handguns on some city land.

Omaha City Council members Pete Festersen, left, and Aimee Melton listen to testimony on two city ordinances and two resolutions related to handguns. (Aaron Sanderford/Nebraska Examiner)

Omaha Mayor Jean Stothert, a Republican, and Lincoln Mayor Leirion Gaylor Baird, a Democrat, issued executive orders this summer asserting that their cities would not allow guns on most city-owned properties, citing an exception in Legislative Bill 77.

Stothert, announcing her order in August, said she wanted people visiting city buildings, parks and facilities to “feel safe.” In a statement Tuesday, Gaylor Baird said she “took action” to protect people in “the public spaces … we manage.” 

“Recognizing the epidemic of gun violence claiming innocent lives across our nation and that LB77 eliminates common sense safety training for gun owners, I took action to safeguard City … employees and community members,” Gaylor Baird said.

Three major changes

Legislative Bill 77 made three big changes to state law: It lets people carry concealed handguns without a permit. It lets them carry the weapons without undergoing state-mandated training. And it aims to eliminate cities’ authority to enact gun ordinances.

Lawyers representing Omaha and Lincoln and the Legislature’s Government and Military Affairs Committee disagree on whether language in LB 77 allows cities to restrict guns on city-owned and city-leased property as long as the cities post signs.

Omaha City Attorney Matt Kuhse said LB 77 created the crime of concealed handgun possession in a restricted place if signs are posted banning them. The Cities of Omaha and Lincoln restricted guns at parks, on trails, and in libraries and most city buildings.

Patricia Harrold of Nebraska Firearms Owners Association testifies against a set of gun-related ordinances and resolutions Tuesday in Omaha. (Aaron Sanderford/Nebraska Examiner)

“The (mayor’s) executive order did not create a crime,” Kuhse said. “LB 77 says that these firearms can be prohibited on public property as long as conspicuous notice is given.”

Potential lawsuits

Like other gun rights advocates contacted this week, the law’s sponsor, State Sen. Tom Brewer, said both cities “will be sued and they will lose.” He said he has asked Attorney General Mike Hilgers for an opinion on what he called the cities’ “illegal” orders.

“The law is clear and their actions are clear…,” Brewer said. “I look forward to the fight.”

Anthony Schutz, a professor at the University of Nebraska-Lincoln College of Law, said LB 77 was written to end local firearms ordinances and regulations. But the executive actions by the mayors raise interesting questions about the management of city property, Schutz said.

He said when he teaches classes on local government, he calls cities “regulators” and “quasi-proprietary firms.” They do own and operate property, he said. The question is whether cities, like other property owners and renters, can prohibit firearms on their property. 

Festersen proposes more changes

On Tuesday, the Omaha City Council took things a step further, adopting a resolution expressing support for the mayor’s action and passing a city ban on possessing kits that can be used to build guns without serial numbers.

The council delayed a vote on a ban on bump stocks, a gun accessory that former President Donald Trump tried to outlaw administratively after a mass shooting in Las Vegas. That effort, continued by President Joe Biden, is tied up in federal courts.

People wait to testify for and against a set of gun-related ordinances and resolutions in front of the Omaha City Council on Tuesday. (Aaron Sanderford/Nebraska Examiner)

The council passed a resolution urging “safe and responsible” gun owners to seek training and keep the weapons properly stored in locked containers. That measure drew the support of gun-rights groups.

Stothert said she would evaluate the two ordinances and two resolutions individually with Omaha Police Chief Todd Schmaderer to make sure they help the city’s “efforts to further reduce crime while also not infringing on one’s right to have firearms.”

Schmaderer told the council he had worked with Councilman Pete Festersen on the proposed ordinances on “ghost guns” and “bump stocks” and said he worked with Stothert on the city’s executive order. Each measure, he said, would improve safety for law enforcement officers and the public. 

Schmaderer said the lack of serial numbers on kit guns has made it harder to investigate gun crimes. He said police officers have seen the number of such weapons used in crimes increase from two in 2019 to 61 so far this year, nearly half carried by teens. 

City Councilwoman Aimee Melton said the “ghost gun” ban would only outlaw the kits before the guns were built and said the kit guns could be built outside the city limits and be legal once brought into Omaha. She and others said serial numbers need to be required.

Schmaderer and Brewer sparred during the legislative debate on LB 77 over provisions that Brewer and other gun owners wanted removed from the city code. Schmaderer argued the former ordinances helped police get guns out of the hands of gang members.

“The mayor and I are for legal gun ownership,” Schmaderer said. “We thought LB 77 went too far. What works in Kimball, Nebraska, does not necessarily work in the streets of Omaha.”

Tense moments

One tense moment during Tuesday’s testimony came when State Sen. Mike McDonnell of Omaha, a Democrat who supported LB 77, testified. He said attorneys for the Legislature’s Government and Military Affairs Committee question the legality of Festersen’s proposals and Stothert’s executive order.

The Omaha City Council in the Omaha City Council chambers. (Aaron Sanderford/Nebraska Examiner)

“I’m not asking you to change your positions,” McDonnell told Omaha City Council members. “If you would take a step back for two weeks and ask a legal opinion from the attorney general, I think you wouldn’t be putting taxpayers at risk of lengthy, costly litigation.”

Festersen declined to delay a vote on the measures, saying he trusts the city attorney and the police chief. Festersen said LB 77 forced Omaha to repeal more than 22 sections of city ordinance and curbed local control of public safety. 

“I requested a legal opinion on what common sense ideas we could pursue to rebuild our code,” Festersen said. 

McDonnell has flirted with running for Omaha mayor in 2025.

Festersen has declined to comment about considering his own mayoral bid, but several of his council colleagues hinted Tuesday at potential political motivations for his push to take action on guns.

One of them was Councilman Brinker Harding, another possible candidate for mayor if Stothert retires. He questioned Festersen’s motivations for proposing the resolution supporting Stothert’s executive order. 

“It does seem rather convenient or political,” Harding said.

Omaha Mayor Jean Stothert. (Courtesy of the Omaha Mayor’s Office)

Festersen said he chose the resolution rather than propose a council ordinance codifying the order because he wanted to show the council’s support for the mayor’s action and their belief that she has the authority to restrict guns on city property. He said after the votes that he remains confident the bump stock ban will pass in two weeks. 

Testimony split

Public testimony was fairly split but tilted slightly toward opponents.

Patricia Harrold of the Nebraska Firearms Owners Association told the council its proposals would not improve public safety.  She criticized language in a proposed ordinance describing bump stocks as overly broad, which led the council to delay its vote after consulting with a city lawyer on a possible fix. 

“It’s disappointing … that those we elect to help create laws are literally going to be breaking the law…,” Harrold said before the meeting. “The purpose of state preemption was to ensure that the state, cities and counties would not infringe on the law-abiding.”

Lincoln Mayor Leirion Gaylor Baird outside the County-City Building in Lincoln. (Courtesy of Leirion for Lincoln Mayor)

Several members of the Nebraska chapter of the anti-gun violence group Moms Demand Action testified in favor of the proposals. 

The group’s legislative lead, Katie Townley, said LB 77 harmed public safety. She said that the City of Omaha needs  to act because the Legislature is making Nebraskans less safe and that homemade guns were becoming the “choice for criminals.”

Erin Feichtinger of the Women’s Fund of Omaha said anything the council does to mitigate LB 77 might help make women and other victims of domestic violence safer. More than half of women killed by a partner die by guns, she said.


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Aaron Sanderford
Aaron Sanderford

Political reporter Aaron Sanderford has tackled various news roles in his 20-plus year career. He has reported on politics, crime, courts, government and business for the Omaha World-Herald and Lincoln Journal-Star. He also worked as an assignment editor and editorial writer. He was an investigative reporter at KMTV.