In Gun-Friendly Idaho, Dispute Over Sandpoint Festival Pits 2nd Amendment Against Property Rights
BY NICHOLAS DESHAIS
A gun ban at a popular music festival in North Idaho is splitting the community, leading to a lawsuit between Bonner County and its largest town, Sandpoint.
The ban at the Festival at Sandpoint went into effect last year, when the event’s hired security guards began searching bags and turning away people who carried firearms.
Gun advocates reacted swiftly, and the county sheriff and commissioners followed suit. Within weeks of the festival, the county sued Sandpoint, which leases War Memorial Field to the nonprofit group that runs the 10-day event.
In Bonner County v. City of Sandpoint, the county contends that state law prohibits banning firearms from any public facility other than courthouses, schools and jails.
The city disagrees, arguing that by leasing the land to the festival, it effectively cedes control of the public park during the term of the lease. Whatever rules the festival wants to apply during the lease is its decision, not the city’s.
Last month, the Sandpoint City Council unanimously approved this year’s lease for the festival. The council has also hired an outside attorney to defend it.
While no trial date has been set, the county and city have already begun making their arguments before Kootenai County District Court Judge Lansing Haynes, who is hearing the case at the Bonner County Courthouse.
The city has asked Haynes to dismiss the case. The county is in the discovery phase — essentially doing research. A hearing is scheduled for March 24.
Meanwhile, Sandpoint residents are stuck in the middle and on the hook for attorney fees from both sides. According to the Sandpoint Reader newspaper, the city has paid $11,000 to Peter Erbland, an attorney with the Lake City Law Group in Coeur d’Alene, for its defense. The county has paid Davillier Law Group $36,000 in the case.
5 Attorneys And 3 Small Children
The Festival at Sandpoint brings a parade of big-name musicians to the small North Idaho town every August.
For 10 days,4,000 people gather at the War Memorial Field to hear the likes of Johnny Cash, Wynton Marsalis, the Shook Twins and The Head and the Heart — acts that have headlined the festival since its founding in 1983.
When Scott Herndon showed up on Aug. 9, 2019, he had a ticket to see the Avett Brothers. But he wasn’t there to see the group. He was there with his holstered .380 handgun to challenge the firearm ban. And he had his camera rolling.
In the 24-minute video he uploaded to YouTube, he described in detail what he was up to. He didn’t really know the Avett Brothers. His goal was to get turned away, an action that would give him standing to sue the city and strike down the ban. And he was sure he was right.
“I believe that we are correct. I’ve looked at lawsuits in other states that if they were adjudicated here on this situation and they used the same application of law, we would prevail,” he said in an interview last month.
But before Herndon filed his lawsuit, Bonner County Sheriff Daryl Wheeler took the issue to the county board of commissioners. The commissioners and Sheriff Wheeler agreed: the ban was unconstitutional and violated state law — specifically section 18-3302J, otherwise known as the preemption of firearms regulation.
“If you look at the language of the statue, it’s very clearly written,” Commissioner Dan McDonald said in an interview. “Typically, Idaho statute, it takes five attorneys and three small children to figure out what they’re trying to say. This is very plainly written.”
McDonald said he’s gone to the Festival for 26 years, often with a legally concealed firearm. Nothing’s changed, he said, blaming politics for the gun ban.
“Nowadays everything’s politically charged, especially when it comes to firearms,” he said. “In Idaho, you have the people that extremely enjoy their Second Amendment rights, and then those that wish to take them away. Those that feel they shouldn’t have to be bothered by someone else possessing a weapon.”
Wheeler, the sheriff, said he believes the law doesn’t allow the gun policy, but says he also wants legal clarity.
“You shouldn’t be prohibited from enjoying yourself on property that is supported by taxpayer money,” he said. “But what does the law say? Is it a leased property? Do they have the ability to prohibit weapons? At this point, there is no clarity and that’s why we’re asking the judge to do it.”
He wants a ruling because he said he could get caught in the middle. If someone comes to the festival bearing arms and is arrested, Wheeler said he or his deputies would be responsible for taking the person into custody — and he would refuse.
“Based on my interpretation of the law, I would say that’s an unlawful arrest. But the city is saying because it’s a leased property, it is a lawful arrest, and I’m saying it’s unlawful,” Wheeler said. “The procedure during the arrest — the handcuffing, the booking — would still happen in my jail. And if a lawsuit were to rise based on the actions of the city police officers, the county and specifically me as the elected sheriff would be named in the lawsuit.”
Avoiding A Riot
Sandpoint Mayor Shelby Rognstad and council president Shannon Williamson wouldn’t comment for this story, instead referring questions to their lawyer, Peter Erbland.
He dismissed Wheeler’s arguments. He says it’s not a constitutional issue because the city isn’t behind the ban. Instead, he pointed to property rights.
“The city does not regulate the possession of firearms,” Erbland said. “It is a property rights issue from our standpoint because when property is leased to another party, that party has the right to possess and control that property and can exclude persons from it. The city doesn’t take a position on whether or not firearms should be excluded from Memorial Field. That’s entirely up to the festival.”
Erbland said the sheriff’s concerns over an arrest are misguided. There would be no arrest, he said, because the crime would be trespassing, which only carries a monetary fine.
Still, he said the situation could lead to Wheeler getting involved.
“At some point, it could escalate into an actual violation of a misdemeanor law like disturbing the peace,” he said. “Or, if they were a number of people who were insisting upon that, you could have a group arrested for disturbing the peace. But that’s not a trespass. That’s violating a clear law that both the sheriff and the city police would have duty to enforce.”
Wheeler, too, warned of such an incident.
“If the Second Amendment Alliance, Three Percenters, the veterans groups in Idaho, if they raise up and they have a thousand people protesting the prohibition of firearms, I would have a riot on my hands that could turn into something really nasty and terrible,” he said.
Herndon, who filmed his encounter, is confident no riot would happen.
“I don’t see any profit to an armed standoff at the Festival this summer. That’s not an interest of mine,” Herndon said. “There’s not going to be a riot. It’s not to say there aren’t enthusiastic gun owners who really care about this issue. There are. That does not include me. We already have our legal standing to challenge this and adjudicate this in court. And that’s the path I plan to proceed.”
Herndon will go down that legal path if the county and sheriff give in.
“For me, there will be no compromise,” he said. “And if the county compromises and it’s unacceptable to me, then we will file our lawsuit, whether it’s in state court or federal court, and we will work toward a resolution that meets our demands, which is that as long as they’re going to have a festival at a public park, then they will have to admit people that are keeping and bearing firearms.”
The Festival, so far, has been pretty quiet on the issue. It hasn’t joined the city in its defense, but the Festival’s office manager, Amy Bistline, said it will continue to bar firearms. She said some artists write into their contracts that guns aren’t allowed at their concerts. That and many people are consuming alcohol.
At the Feb. 19 city council meeting when the city council approved the War Memorial Field lease for 2020, Bistline was more concerned with the city’s plans to install artificial turf on the field than any discussion of security. In fact, the gun ban went unmentioned. The only person to dwell on issue of security and safety was Councilman Joel Aispuro, who helps run his family’s popular Mexican food restaurant in town.
But it wasn’t the gun ban he spoke about. He worried about what the event’s private security could do in the event of an active shooter.
“You’re gonna have up to possibly 4,000 people caged in,” he said. “This is the reality of the world we live in, unfortunately. I think of Las Vegas.”
He was referring to the 2017 shooting spree at the Route 91 Harvest music festival, where a man shot and killed 58 people and injured hundreds more from the 32nd floor of a nearby hotel.
“You could have up to 4,000 people caged in to a small venue where, if someone wanted to do some damage they really could,” he said. “Everybody’s literally caged in.”
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