Festival gun ban lawsuit returns on appeal before Idaho Supreme Court

By Zach Hagadone
Reader Staff

An appeal of the 2021 District Court decision in favor of the city of Sandpoint and Festival at Sandpoint over the legality of a weapons ban at the summer concert series is moving through the Idaho Supreme Court.

Justices heard arguments in the case Feb. 6 in Boise, brought by Sen. Scott Herndon, R-Sagle; area resident Jeff Avery; Boise-based gun rights lobby group Idaho Second Amendment Alliance; and Washington-based Second Amendment Foundation.

Herndon and Avery prompted the issue in 2019, when they attempted to enter the Festival bearing firearms and were told to leave their weapons in their vehicles or they would be trespassed from War Memorial Field, which the city owns and leases to the nonprofit for two weeks each summer. Weapons of any kind are prohibited from the Festival.

The incident triggered a lawsuit from Bonner County and Sheriff Daryl Wheeler against the city, which Judge Lansing B. Haynes dismissed in September 2020 for lack of standing. Herndon and Avery filed their lawsuit against the city and the Festival, supported by ISAA and ISAF, arguing their constitutional rights had been violated.

Scott Herndon, left, now a state senator representing District 1, argues with city of Sandpoint attorney Will Herrington, right, outside the gates of the Festival at Sandpoint in 2019 after attempting to enter the venue while carrying a weapon. Photo by Ben Olson.

In addition, the Herndon et al. case argued that the city could not convey authority to the Festival, as a leaseholder, to preempt firearms possession protected by Idaho Code on publicly-owned property.

Haynes dismissed that complaint in June 2021, ruling, “There are no genuine issues of material fact as to whether the city has promulgated any rule or ordinance in conflict with I.C. l8-3302J [the firearms preemption portion of state law]; likewise, no genuine issues of fact exist as to whether the Festival has violated state law or any constitutional rights of plaintiffs.”

The lawsuits surrounding the weapons ban cost the county and city more than $320,000 in fees and attorney bills, with the county ultimately being ordered to reimburse Sandpoint more than $71,000.

In his 2021 ruling in the Herndon et al. case, Haynes sought to settle the argument over the Festival’s right to ban weapons at War Memorial Field, writing, “The city’s lease does not delegate firearms banning authority to the Festival; rather, the city simply leases [the field] to the Festival for the purpose of conducting a music festival. The city’s conveyance of a leasehold interest entitles the Festival to exclusive possession of the property.”    

In the appeal, plaintiffs argue, “[T]hey were entitled to a declaratory judgment and summary judgment on the civil rights claims, and the district court erred in applying judicial estoppel. The Plaintiffs also argue the district court erred in denying their motion for an extension of time to object to attorney fees,” according to the court filing.

Idaho Reports wrote Feb. 6 that attorney Donald Kilmer, who is representing the appellants, returned to the allegation that Herndon’s and Avery’s Second Amendment rights had been violated and that a lessee cannot bar firearms from public property. 

Attorney Katharine Brereton, of Lake City Law, representing Sandpoint, told justices that siding with the appellants would set a dangerous precedent.

“People who rent from a public housing authority would have no right to exclude someone from their home who is carrying a firearm,” Brereton said, according to Idaho Reports. “… This would effectively deprive people of their right to defend their castle.” 

A written decision is forthcoming at an unspecified date.