Boiling point reached in gun case

By Lyndsie Kiebert and Zach Hagadone
Reader Staff

As the Bonner County v. City of Sandpoint weapons ban lawsuit enters its fifth month, tensions have steadily increased, boiling over when an encounter between members of the public on either side of the issue resulted in a battery charge.

Steve Wasylko, left, and Don Holland, right, in the hallway outside the Bonner County Board of Commissioners business meeting Tuesday, Jan. 28. Photo by Rebecca Holland.

During the regularly scheduled Board of Bonner County Commissioners business meeting on Tuesday, Jan. 28, Rebecca and Don Holland made public comments questioning the amount of money so far spent on the lawsuit, while Steve Wasylko commented to thank the commissioners for defending his gun rights with his tax money. After the public comment period, the Hollands and Wasylko exited the hearing room. Minutes later, raised voices could be heard down the hallway.

Wasylko told the Reader that Don Holland asked him to “talk to him in the hallway,” then was being “super belligerent” and “grabbed [him] by the arm” when he tried to leave.

“He asked me if I knew someone who was a white supremacist that lived in Bonner County,” Wasylko said, recalling the conversation leading up to the incident. “That’s when I said, ‘When you compare me to a white supremacist this conversation is over.’”

Holland maintains that he was not comparing Wasylko to a white supremacist, but rather sharing an experience he had with a white supremacist in which he met with the man several times to “create a dialogue” between people on opposite ends of the political spectrum. He said he wanted to open the same kind of dialogue with Wasylko, this time about the gun issue.

“[Wasylko] mischaracterized what I said,’’ Holland told the Reader, adding, “this needn’t be a binary issue.”

A county employee escorted the Hollands from the Bonner County Administration Building and notified Sandpoint Police of the incident. Holland told the Reader on Jan. 29 that he had picked up his citation for misdemeanor battery. Under Idaho Code, if found guilty he could be fined a maximum of $1,000 or held in county jail for up to six months — or both. No court date has been set.

A video of the incident, taken by Rebecca Holland and shared online, shows the moment when Holland briefly contacted Wasylko’s right arm with his left hand as the latter turned to leave the conversation. While Wasylko reacted angrily to Holland’s gesture — in a raised voice telling him “do not touch me, sir” — debate on social media swiftly turned on whether Holland’s action constituted battery.

Idaho statute defines battery as: “Willful and unlawful use of force or violence upon the person of another; or actual, intentional and unlawful touching or striking of another person against the will of the other; or unlawfully and intentionally causing bodily harm to an individual.” 

According to an official summary of the incident by the city of Sandpoint, “an investigation is underway and will be forwarded to the Bonner County Prosecuting Attorney for a review of charges.”

The Bonner County Commissioner’s office announced on Facebook shortly after the incident that “due to the physical altercation/battery resulting from public comment outside of our BOCC Business Meeting today, ALL public comment at BOCC Business Meetings has been suspended until further notice.”

If people still wanted to comment, the post continued, they could submit a one-page, typed statement to the clerk prior to the meeting.

All comments on the Facebook post regarding the limitation of public input were deleted and, hours later, the entire BOCC page was taken down.

Jessi Webster, the BOCC deputy clerk responsible for managing the page, said deleting comments on the BOCC Facebook page is common practice, as the page was meant to be “purely informational.”

“Yesterday afternoon I could no longer effectively do my job and manage the nasty comments on the BOCC Facebook page,” Webster told the Reader. “I consulted legal, and I was advised to temporarily unpublish it.”

Seth Grigg, executive director of the Idaho Association of Counties, told the Reader that Bonner County is only required to allow public comment when holding public hearings, not during regular business meetings. If commissioners do open a business meeting to public comment, Grigg said they are able to limit the scope and length of those comments.

Commission Chairman Dan McDonald took to his personal Facebook page to defend the decision to limit public comment in business meetings, adding his thoughts on the incident between Holland and Wasylko.

“We have seen violent attacks by the left and their storm troopers Antifa, this assault appeared to be from members of a senior citizens platoon of Antifa,” McDonald wrote. “It’s disturbing that once again the left proves their level of hate and violence.”

A status conference for the lawsuit, held later the same day, marked the first time the gun-ban case appeared formally before a judge. At the core of the suit, the county is seeking a declaratory judgement regarding The Festival at Sandpoint’s policy barring weapons from the annual concert series. The county maintains that the prohibition of guns on public property — in this case, War Memorial Field — violates Idaho Code. Meanwhile, the city claims that because it leases the field to The Festival, the nonprofit is responsible for the rules and policies it chooses to enforce.

Representing the county, Davillier Law Group attorney Mauricio Cardona told Kootenai County District Court Judge Lansing L. Haynes that he’d filed an amended complaint with the court earlier in the day. In order for the city’s lawyers to review the amendment, another status conference was set for Tuesday, Feb. 25 at 1:30 p.m. at the Bonner County Courthouse.

This comes after the initially scheduled status conference, set for Nov. 26, was canceled due to the judge falling ill.

The running total

In response to a records request filed Jan. 27 by the Reader asking for the “sum cost to date” of the specific case, Bonner County replied Jan. 28 that it had paid Davillier Law Group $36,563. This comes after a records request filed in December revealed Davillier had billed Bonner County $28,510.50 in the case as of Dec. 19.

Meanwhile, the most recent accounting from the city of Sandpoint — from an invoice due Jan. 4 — shows $8,170.08 paid to Coeur d’Alene-based Lake City Law Group, which is representing the city in the case and whose principal partner, Andy Doman, was hired as city attorney in October. That figure is almost certainly higher, as it does not include billings from the month of January, which will not come due until after Feb. 1.

These totals are specific to the gun-ban lawsuit — they do not include money paid to Davillier for work on other Bonner County cases or Lake City Law’s other efforts on behalf of the city. Requests by the Reader for specific invoices and line item costs for the case against the city have been denied by the county. Requests for sum totals have also been denied on numerous occasions, but ultimately fulfilled after multiple exchanges between the Reader and Bonner County prosecutor’s office.

Based only on totals, the county has spent an average of about $8,000 per month on the case since filing in mid-September.

The lawsuit’s price tag has become a point of public concern, even among those who openly oppose The Festival’s weapons policy.

After the Reader reported the initial $28,510.50 total on Jan. 2, vocal Idaho Second Amendment Alliance member Scott Herndon — who attempted to enter The Festival with a firearm in August 2019 and helped raise money for ISAA to file their own suit against the city, which hasn’t yet happened — took to Facebook with his questions.

“How is it possible, before any hearings for the county to have incurred this much expense?” Herndon wrote.

McDonald was quick to comment, writing: “I’ve seen and approved the invoices. With all the research, the initial letter construction for the city and the filing and case prep it’s actually a deal these days especially with this specific issue. Are you saying the price for personal freedom and our rights is too high?”

“I think you guys are getting ripped off, sorry to say,” Herndon wrote later in the comment thread. “And since that money is partly my money, then I’ll feel free to opine in whatever forum.”

Many have questioned whether Bonner County could have avoided the lawsuit altogether — and mitigated the associated costs — by reaching out to the office of Idaho Attorney General Lawrence Wasden for an opinion prior to pursuing legal action against the city. Bonner County Deputy Prosecutor Scott Bauer spoke to that issue at the Jan. 28 BOCC business meeting.

“The attorney general is helpful, we get a lot of help from them [from] time to time,” Bauer said, “but one thing they don’t do, that I’ve learned, for intergovernmental disputes … is offer themselves as mediators, moderators or arbitrators.”

The amended complaint

Sheriff Daryl Wheeler, who is also listed as a plaintiff in the case, weighed in with a statement posted Jan. 28 to Facebook announcing he had petitioned for an amendment, which led to rescheduling of the status conference. The amendment “asks the court to declare whether the gun ban violates Idaho law, so that the City, the County, Sheriff Wheeler, and the Sandpoint Police Department can effectively coordinate to ensure public safety at the 2020 Festival,” according to the statement.

Sandpoint officials responded to Wheeler’s amendment in their own statement released Jan. 28, restating the city’s position that it upholds the Second Amendment and has instituted no policy banning firearms from any publicly owned property — nor has it turned anyone away from city-owned facilities for carrying firearms. 

As it has argued since August, when the issue of guns at Memorial Field first came to the fore, the city emphasized that The Festival instituted the no-weapons policy as a private lessee of the field and in continuation of a decades-long practice of barring firearms from the concert series. Additional security and screening measures were put in place two years ago by event organizers in order to satisfy performance contracts from artists.

In the statement, Mayor Shelby Rognstad said Sandpoint is far from the only municipality to lease public property to private entities, including for concerts and other events where firearms are prohibited.

“Although we believe we have acted legally, we are working with other jurisdictions and organizations throughout the state and our state legislators to hopefully provide legislative relief in the form of a specific exception for these activities,” Rognstad stated. “Such an exception already exists at Idaho college and university functions with more than 1,000 people. This solution would provide more clarity for all of us and reduce the financial burden of a court case brought by Bonner County and Sheriff Wheeler upon our residents.”

From Memorial Field to the Idaho Capitol

The conflict between Bonner County and the city of Sandpoint over The Festival’s weapons ban has already reached the Idaho Statehouse, with a bill drafted by Rep. Christy Zito, R-Hammett, amending the state’s Firearms Preemption law to strengthen prohibitions on gun regulation and put in place penalties for violations of the statute.

The draft legislation is intended to expand the scope of existing law to expressly state that, barring already established exceptions, no political entity in Idaho may by “tax, law, rule, regulation or ordinance” hinder the possession, sale, transfer, transportation, carrying or storage of firearms and/or ammunition — including, the legislation would add, on “public property that is leased to a private person or entity.”  

The amendment related to leased public property cuts to the core of the county vs. city lawsuit, as the policy banning guns from Memorial Field comes from The Festival, not the city. If adopted, Zito’s bill would put municipalities or other political subdivisions on the hook for such policies on public property, regardless of whether they come from a private, non-governmental entity.

What’s more, the measure would institute a range of penalties and avenues for legal recourse not currently included in the law. 

Specifically, the draft text classifies violations of the statute as a misdemeanor offense, while directing courts to invalidate whatever action constituted the violation and issue a permanent injunction against “the public or private offender.”

“It is no defense that the offender was acting in good faith or upon advice of counsel,” according to the draft. 

The bill goes on to prohibit the use of public funds to defend or reimburse “any person or entity found to have knowingly and willfully violated” the law and threatens that acting in an official capacity to enact or enforce any actions that contravene the preemption statute — even “under color of the law” — “shall be cause for termination of employment contract.”

Zito told the Reader in an email Jan. 29 that “there is no simple answer” to how that aspect of the bill would function, writing that, “Every city, county, agency or other political subdivision treats the firing of individuals differently.”

By way of a hypothetical example, she added that if a city council member asked a clerk to sign a document that “knowingly and willfully” violated the statute, the clerk would only risk losing their job if they honored that request while also “knowingly and willfully” running afoul of the law.

“To what extent someone is ‘knowingly and willfully’ violating the statute is a case-by-case basis,” Zito said.    

Under the provisions of the draft bill, individuals or organizations whose membership may “reasonably be adversely affected by a violation” of the preemption law would be entitled to sue “any person or entity in any court of this state having jurisdiction over any defendant to the suit for declaratory and injunctive relief and for actual damages.”

Those damages would be awarded to the prevailing defendant in the form of attorney’s fees and “costs in accordance with the laws of this state, including a contingency fee and the actual damages incurred.”

In an email sent Jan. 21 to House and Senate colleagues, Zito included a list of talking points to be used in support of the bill, underscoring that current Idaho Code does not attach any enforcement mechanisms or penalties to the firearms preemption law.

Highlighting the successful work of the Boise-based gun rights lobby group Idaho Second Amendment Alliance in overturning violations of the preemption statute across the state, Zito’s email specifically referred to the Bonner County suit against the city of Sandpoint, which she wrote “will cost both the city/county money because the mayor and City Council of Sandpoint are thumbing their nose at the law and disarming law-abiding citizens through a private security firm with the threa[t] of the Sandpoint Police Department by their side.”

Zito said that she has worked in the past with ISAA on issues related to firearms preemption in her south-central Idaho district and, “I know firsthand that this is an issue we need to address.”

 The ISAA, working in conjunction with several local gun rights activists — including Herndon — initially pressed the issue at the 2019 Festival, testing the event’s no-weapons policy by attempting to enter the field while carrying firearms. They were turned away by security at the gate, triggering the legal challenge by the county and Sheriff Wheeler.

Zito in her message to fellow lawmakers made particular note of Wheeler’s stance on the issue, writing that the misdemeanor violation contained in the draft bill “gives law enforcement the ability to enforce the law. When the city of Sandpoint was allowing a private security firm to violate the law, the Sheriff in Bonner County, Daryl Wheeler, informed citizens there was nothing he could do to enforce the law because there was no penalty listed.” 

She added: “This bill gives law enforcement the ability to take action when Idaho citizen’s right to keep and bear arms under firearm preemption is being violated.”

The bill has yet to receive a number, and it was unclear as of press time when it might be introduced.

As far as where the issue rests locally, it appears the next development in case will occur Tuesday, Feb. 25 at a status conference at the Bonner County Courthouse.

Additional reporting by Ben Olson.