Sunday, December 10, 2023

Idaho Supreme Court hears Festival weapons case

Staff Writer | February 10, 2023 1:00 AM

Whether the Festival at Sandpoint can ban firearms at the summer music series was taken up by the Idaho Supreme Court on Monday.

The case is the latest filed by Scott Herndon, Jeff Avery, Idaho Second Amendment Alliance and Second Amendment Foundation over their denial by the Festival at Sandpoint to allow them to enter a 2019 concert with firearms.

Idaho law forbids curtailment of Second Amendment rights on public lands. War Memorial Field is owned by the city and leased to the Festival for two weeks in August.

The Festival began enforcing the weapons prohibition and conducting more thorough screening procedures in 2018 in order to fulfill contractual obligations of artists who perform during the concert series. The city maintains the Festival can enact its own security protocols because of the lease arrangement.

While the pair left, they later sued, contending their right to self-defense had been illegally taken from them.

In arguing before the Idaho Supreme Court, Caldwell attorney Donald Kilmer, representing Herndon, Avery and the two Second Amendment groups, said the city is the guardian of the public's property and cannot arbitrarily give rights associated with them away.

"War Memorial Field is today, and at all times relevant to this case, public property," Kilmer said. "Sandpoint's government is merely the guardians of a public trust, which means the city government has no power to regulate the public's right to carry firearms for self-defense on public property."

Holding a music festival at the public park does not change the character of that property, nor the requirement that the public be allowed. It also does not fall under places exempted for public carry such as a school or a courthouse.

Kilmer said the city's lease with the Festival was illegal from the start, violating Idaho municipal code requiring a resolution to lease out a public facility — and that that lease be fair and equitable.

Instead, the council passed a continuing resolution improperly delegating that authority to city officials. However, the resolution also failed to meet municipal code requirements.

While the city is allowed to manage its properties, Kilmer told the justices that they must do so in compliance with Idaho laws — including Idaho's laws of the right to keep and bear arms on public property.

The Caldwell attorney said that even if a private entity were to lease city property, that group is bound by the same requirements.

Kilmer said that since the city never found the property wasn't needed by the city, and would have to find that the lease is just and equitable under Idaho law.

"And under Idaho law preemption controls here … so the city would never have the power to exclude people at this event," he added.

Chief Justice G. Richard Bevan asked Kilmer how his argument fit with the court's previous ruling that the power to lease was a purely discretionary function entrusted to the elected officials.

Using the property or leasing the property isn't the issue, Kilmer responded. The issues is one of personal rights tied to each person, including the right to keep and bear arms.

"Fundamental rights … don't exist for the convenience of local government," he said. "They have to adjust their policies as well."

Regardless of the private nature of the group leasing the city property, it retains its public nature and those fundamental rights must be allowed.

He argued that the city's failure to prohibit the Festival from banning weapons amounted to a form of collusion. That interference could be drawn by the presence of the city attorney and police at the site in the event of problems.

"[It] was a pretty strong inference that this was a policy of the city to pretend," he told the justices. "like hear no evil, see no evil, speak no evil, that this is up to the Festival."

While the appellants contend the matter is about an illegal lease and the city negotiating away the right to self-defense, the city of Sandpoint's attorney, Katharine Brereton, said the matter is one of waiver. Having failed to prove their case in district court and at the Idaho Supreme Court, the appellants have again brought about a case that is unsupported by evidence.

"What this really comes down to is not whether or not the lease between the city and the Festival in 2019 was executed in a manner that complied with 50-1409," she told the justices. "Because what this case has always been about is the issue of private property rights and the misunderstanding of private property rights."

When the Legislature re-codified existing law, she said the legislation clearly recognize the rights of the private tenant, among them being the right to exclude.

In crafting pertinent legislation, lawmakers were specifically concerned about property rights, and ensuring that the statute would not alter the inherent rights of private parties.

In state statute, legislators intentionally safeguarded the rights of not only the private property owner, but the private tenant as well, Brereton said.

"This is a confusion of property rights with a limitation on regulatory authority," she told the justices. "There is no authority for the position that a private lessee of public property enjoys any less or different rights than a private lessee of private property."

The limit to a city's regulatory authority to regulate the possession or carrying of firearms flows from both the Idaho and U.S. constitutions. "However, those provisions do not concern private parties," Brereton said.

Otherwise, a homeowner would not be able to prevent someone from coming into their home, people renting from a housing authority could not keep someone from entering their home with a firearm.

"We talked about the hierarchy of fundamental rights to agree with this position would elevate the Second Amendment over property rights," Brereton told the justices. "It would elevate the Second Amendment over the right of someone in their home to say you cannot come in here. This would effectively deprive people of their right to defend their castle."

However, Brereton said the lack of a specific lease in 2019 is immaterial. While any number of arguments could be made against the appellants, she told the justices they only need to address the simplest one.

"Appellants have never provided argument or evidence that the city abused its discretion in leasing War Memorial Field," Brereton said. "Absent from any argument at the court below, or before this court, is any evidence of glaring informality or illegality in the execution of the lease. Instead, appellants have claimed that the city and the Festival had a premeditated plan, a conspiracy cloaked in the robes of a lease and that they were in collusion to violate public policy. What is glaringly apparent is that appellants make these claims without citing any evidence in the record, and without any legal authority to support these claims."

Brereton said the matter went beyond pleading alternative theories or unfounded claims of collusion.

"This is not an alternative theory, this is an alternative fact," she told the justices. "And [while the law] says you can plead alternative theories, this court has said, but you're not entitled to plead facts which are incongruent with the ones that you have asserted."

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