Gov. signs Herndon bill limiting leaseholder rights to regulate weapons on public property

By Zach Hagadone
Reader Staff

Idaho Supreme Court justices ruled unanimously in June 2023 that the Festival at Sandpoint had the right to ban firearms on city-owned War Memorial Field during the term of its lease for the summer concert series — apparently settling a yearslong dispute over whether private entities could regulate weapons on leased public property.

However, Gov. Brad Little signed a bill March 27 proposed by Sen. Scott Herndon, R-Sagle, that imposes a number of limitations on the rights of leaseholders of public property regarding the prohibition of weapons. Now event organizers like the Festival and its lessor the city of Sandpoint are wondering how to navigate the new rules.

Specifically, Herndon’s legislation blocks lessees of public property from banning concealed weapons unless they are renting public property “for a private event by invitation only, or for a commercial event that charges admission.” 

“For any such private event or commercial event, it must appear to a reasonable person that the general public does not have unrestricted access to the designated public property, or any subset of such property, that is normally and habitually open to the public,” the legislation states.

Sen. Scott Herndon. Courtesy photo.

Herndon and Bonner County resident Scott Avery touched off the issue in 2019, when the two men attempted to gain entry to the Festival carrying firearms and were told to leave their guns in their vehicles or be trespassed due to the event’s no-weapons policy.

The incident prompted Bonner County and Sheriff Daryl Wheeler to sue the city of Sandpoint, claiming that the Festival’s policy created uncertainty for law enforcement. Judge Lansing B. Haynes dismissed that suit in 2020 citing lack of standing — but not before costing the county and city in excess of a combined $320,000, with the county being ordered to reimburse Sandpoint more than $71,000.

Herndon, Avery, Boise-based gun lobby group Idaho Second Amendment Alliance and Washington-based Second Amendment Foundation then filed their own suit, based on alleged constitutional violations as well as centering the argument on whether Idaho Code allowed a public entity to convey authority on a leaseholder to bar firearms possession on public property. State statute explicitly limits government entities from prohibiting firearms in public spaces.

Haynes again ruled that the city of Sandpoint had made no such policy banning weapons at War Memorial Field, and it was the Festival’s prerogative as the private lessee to do so.

Herndon and his fellow complainants filed an appeal in February 2023, which the Idaho Supreme Court rejected in June, writing that,“The Festival was granted a possessory interest in War Memorial Field as the lessee of the property. As the holder of the possessory interest, The Festival had the right to the use and benefit of the leased property, which includes the authority to set limitations on those who come onto the property.

“These principles do not morph depending on the nature of the third-party rights at play.”

What’s more, the court determined that Herndon et al. overstated their constitutional claims.

“[B]oth the Second Amendment and Article I, Section 11 of the Idaho Constitution apply only to government actors, not private parties,” the ruling stated. “Thus, the lease does not violate the public policy stated in Idaho Code section 18-3302J, the Second Amendment or the Idaho Constitution, Article 1, section 11.”    

Following the June 2023 Supreme Court ruling, Herndon promised to “go to the mat to find a legislative solution” to close what he described as a “massive legal loophole in Idaho’s firearm laws,” stemming from the decision.

He celebrated Little’s signing of S.B. 1374 on social media, writing on March 27, “This will take some ground for Idaho’s gun owners after last summer’s Herndon v. Sandpoint. In that case, the Idaho Supreme Court stated that under the common law, any public property rented to a private person becomes private property. 

“S1374 changes some of that. When public land is normally and habitually open to the public, it will become difficult for private groups to simply ban firearms,” he added.

In a separate Facebook post two days before the bill signing, Herndon wrote, “S1374 states that in order to invoke a ban on guns, private users will have to restrict access to their events. It will have to be abundantly clear that their event is NOT freely open to all members of the public, and it will have to be clear that the access is restricted in some way. They will not be allowed to just place GUN FREE ZONE signs.

“This is not everything I wanted,” he added. “In my opinion, all taxpayer owned property in Idaho, except jails, should allow the public to carry concealed weapons. Idaho’s law-abiding gun owners are the first responders when a criminal throws it down.”

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.

Asked by the Reader to clarify how S.B. 1374 would affect events such as the Festival, Herndon wrote that the legislation would not apply to the concert series “since access is restricted.”

“The standard is the well-known reasonable person standard, and it will have to be clear that the event has actual restricted access. It will not be sufficient to just place Gun Free Zone signage,” he wrote. “The restriction of firearms can only be invoked if the access to the public is restricted at an event.”

Despite that, Festival at Sandpoint organizers told the Reader that S.B. 1374 would have a chilling effect.

“This legislation will directly impact future Festival plans and other organizations’ ability to book talent for no-cost events, which could ultimately result in total event cancellations,” the Festival stated in an email to the Reader shortly after Little signed the legislation. “Senate Bill 1374 and its impact on free events will limit accessibility to arts and cultural events for Idaho citizens by hindering and even eliminating essential community events.”

Since the onset of the dispute over weapons regulation at War Memorial Field, the Festival has maintained that it must adhere to contract requirements from performers who stipulate that venues be free of weapons before they will appear — “regardless of whether an event is free or not,” the organization stated.

“This legislation will restrict the Festival at Sandpoint from hosting free performances at our current venue or future venues that are classified as state, city or county lands,” the Festival added.

Sandpoint Mayor Jeremy Grimm told the Reader in a phone interview that the city — as the lessor to the Festival and a number of other private parties — sought clarification from Herndon about the potential ramifications of the bill prior to Little signing it into law, but “never got a response from him.”

“I have reservations and concerns about the impact of this legislation on traditional historical free events,” he said, adding that it could “curtail the public’s access to performers” whose contracts require weapons-free venues and “erode the freedoms of enjoyment of these spaces by the public.”

In addition to War Memorial Field, the city also leases its property to a number of private parties including Panhandle Special Needs Inc. and — notably — Bonner General Health, with critical portions of its campus on Alder Street between Second and Third avenues on city property.

Herndon said BGH’s weapons-free policy wouldn’t be affected by his law.

“Hospitals would not fit the definition of normally and habitually open to the public,” he told the Reader, apparently citing the “reasonable person standard.”

BGH officials did not respond to a request for comment by press time. 

Asked to assess whether Herndon’s law would run counter to the hospital’s prohibition on weapons in the portions of its campus that are located on city property, Grimm said, “I would agree that your interpretation is correct [that it would].”

“I think that it’s worth mentioning that events taking place at a hospital can be emotionally charged; there can be assaults, people recovering from assaults, there can be perpetrators of crimes being treated … mixing high emotion activities and firearms would seem to be concerning,” he added.

The city of Sandpoint is preparing to renew its lease with the Festival, though Grimm said that “we’ve made no provisions for that bill in this lease.” 

The new law goes into effect July 1.

Meanwhile, Grimm worried about further complications stemming from the legislation.

“We are reactive to whatever laws are on the books and we are always looking for legal advice on how to respond to new legislation,” he said. “That would be unfortunate if the passage of this legislation requires further clarification, made — possibly — through litigation. We have a multitude of high-priority issues that affect our residents, such as our aging wastewater treatment facility, our roads, our water distribution system, and to expend effort and resources on clarification on a matter that occurs annually and has great financial benefit to the city would be frustrating.”

Finally, while underscoring that the city fully adheres to and supports all constitutional rights of residents — including the Second Amendment — Grimm added that, “Knee-jerk reactions never give the time to think through ramifications and impacts, which is why thoughtful weighing of pros and cons and impacts should always be considered when making legislation.”