Nebraska adopts the “credible threat” standard for pre‑enforcement standing; organizations must plead representative authority to sue for members

Case: Nebraska Firearms Owners Assn. v. City of Lincoln, 319 Neb. 723 (Neb. Aug. 29, 2025)

Court: Supreme Court of Nebraska

Author: Funke, C.J. (Miller‑Lerman, J., concurring; Papik, J., concurring, joined by Stacy, J.)

Introduction

This decision addresses whether plaintiffs in Nebraska may seek judicial review of a law before it is enforced against them and clarifies what an organization must plead to sue on behalf of its members. The Nebraska Firearms Owners Association (NFOA) and four individual permit holders challenged (1) a mayoral executive order prohibiting possession of weapons on City property and (2) several City of Lincoln ordinances regulating firearms and other weapons. Plaintiffs argued that 2023 Neb. Laws, L.B. 77—which allows concealed carry without a permit and curtails local regulation—preempts the City’s measures and that the executive order also raises separation of powers concerns.

The district court dismissed the suit for lack of standing, finding no credible threat of enforcement and concluding that NFOA could not sue for its members. The Nebraska Supreme Court affirmed in part and reversed in part, holding that:

• NFOA lacked associational standing because it did not plead authority or representative capacity to sue on behalf of members.
• The individual plaintiffs do have standing to bring a pre‑enforcement challenge to the executive order and most of the ordinances because they alleged a credible threat of prosecution and a specific intent to engage in arguably proscribed conduct.
• The individuals lacked standing to challenge the City’s vehicle‑storage ordinance because they alleged only confusion, not a concrete injury or intended noncompliance.

Summary of the Judgment

• Associational standing (organization): NFOA’s complaint did not allege that the association had the authority to sue in a representative capacity or provide basic details regarding its membership in the manner Nebraska precedents require. Result: No associational standing (affirmed as to NFOA).
• Pre‑enforcement standing (individuals): Nebraska adopts the federal “credible threat of prosecution” standard. Individual plaintiffs alleged past and intended future conduct (carrying in parks/trails, purchasing firearms, owning switch-blades or multiburst trigger activators) that is arguably prohibited; the City attached criminal or civil sanctions and refused to disavow enforcement. Result: Injury‑in‑fact established for the executive order and for Lincoln Mun. Code §§ 12.08.200 (parks), 9.36.030 (firearms sales reporting), 9.36.035 (multiburst trigger activators—as to one plaintiff), and 9.36.040 (switch‑blade knives—as to three plaintiffs).
• No standing for vehicle storage ordinance: Plaintiffs did not allege any intent to violate § 9.36.110(1) or any change in behavior due to that ordinance; “confusion” about the interplay between state and local law is not a cognizable injury. Result: No standing to challenge § 9.36.110(1).
• Disposition: Affirmed in part (as to NFOA and § 9.36.110(1)); reversed in part (as to the executive order and the other four ordinances); remanded for further proceedings on the merits.

Analysis

Precedents cited and their role

Nebraska standing principles:

• Chatterjee v. Chatterjee, 313 Neb. 710; Preserve the Sandhills v. Cherry County, 313 Neb. 590; Susman v. Kearney Towing & Repair Ctr., 310 Neb. 910; and related cases: Standing is a jurisdictional prerequisite; a plaintiff must show a personal stake—some legal or equitable interest in the controversy—and a concrete, imminent injury distinct from the general public. The focus is on whether the plaintiff is the proper party, not the merits.
• Millard Gutter Co. v. Shelter Mut. Ins. Co., 312 Neb. 606; AVG Partners I v. Genesis Health Clubs, 307 Neb. 47: For a facial challenge to standing, courts look to the pleadings; the plaintiff bears the burden to allege facts establishing standing.
• Best & Co., Inc. v. City of Omaha, 149 Neb. 868 (1948): Nebraska has long allowed pre‑enforcement challenges—plaintiffs need not “take the risk of prosecution” to test legality. The Court relied on state and federal caselaw to grant injunctive relief before any enforcement action.
• State ex rel. Nelson v. Butler, 145 Neb. 638 (1945) and Skag‑Way Department Stores, Inc. v. City of Omaha, 179 Neb. 707 (1966): Recognize challenges when a measure is being or is about to be applied, implicitly supporting pre‑enforcement review.
• In re Application A‑18503, 286 Neb. 611 (2013): Distinguished; it involved speculative future harm in a water appropriation context and does not bar pre‑enforcement suits where credible threat is sufficiently imminent.
• Smithberger v. Banning, 130 Neb. 354 (1936) and Nebraska Seedsmen Assn. v. Dept. of Agriculture & Inspection, 162 Neb. 781 (1956): When an organization sues on behalf of members, it must plead facts about its representative capacity and authority; such allegations cannot be presumed.

Federal authorities embraced for pre‑enforcement standing:

• Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014): Injury‑in‑fact exists if plaintiffs intend to engage in arguably proscribed conduct and face a credible threat of enforcement; past complaints and the statutory enforcement scheme supported standing.
• Babbitt v. Farm Workers, 442 U.S. 289 (1979): Even absent prior enforcement, a credible threat exists where the statute on its face reaches planned conduct and the state has not disavowed enforcement; criminal penalties matter.
• Holder v. Humanitarian Law Project, 561 U.S. 1 (2010): Credible threat exists where the government will not disavow enforcement as to plaintiffs’ planned conduct.
• Steffel v. Thompson, 415 U.S. 452 (1974): No need to accept arrest or prosecution before suing.
• TransUnion LLC v. Ramirez, 594 U.S. 413 (2021): Injury must be concrete and imminent.
• St. Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481 (8th Cir. 2006) and Majors v. Abell, 317 F.3d 719 (7th Cir. 2003): “The threat is latent in the existence of the law”; enforcement history is not the sole factor.
• Ojogwu v. Rodenburg Law Firm, 26 F.4th 457 (8th Cir. 2022): Confusion about the law is not itself a concrete injury.

Legal reasoning

1) Nebraska embraces the credible threat standard for pre‑enforcement challenges.

The Court expressly aligned Nebraska’s standing doctrine in the pre‑enforcement context with the U.S. Supreme Court’s approach: a plaintiff establishes injury‑in‑fact by pleading a concrete intention to engage in arguably proscribed conduct plus a credible threat of enforcement that is sufficiently imminent and substantial. The Court drew on its own precedents—especially Best & Co.—to reaffirm that Nebraskans need not invite prosecution to test a law.

2) Application to the executive order and park weapons ordinance (§ 12.08.200).

• The individuals alleged specific past conduct (carrying while using parks/trails) and present intent to continue for self‑defense.
• The executive order and § 12.08.200 facially prohibit that conduct and carry civil/criminal consequences (trespass, misdemeanor with fines/jail).
• The City refused to disavow enforcement at oral argument.
• Result: A “certainly impending” credible threat existed; plaintiffs need not point to past prosecutions to establish imminence.

3) Application to the sale‑reporting, multiburst trigger, and switch‑blade ordinances (§§ 9.36.030, 9.36.035, 9.36.040).

• Plaintiffs alleged they would purchase firearms in Lincoln but for the reporting ordinance; one would own a multiburst trigger activator; three would own a switch‑blade knife.
• As to those plaintiffs and those ordinances, the intent‑plus‑credible‑threat test was met; the City again did not disavow enforcement.
• Standing is plaintiff‑specific: only Kendle may challenge § 9.36.035, and Fitzgerald, Kendle, and Davis may challenge § 9.36.040.

4) No standing for the vehicle storage ordinance (§ 9.36.110(1)).

• Plaintiffs alleged general “confusion” and that they store firearms in vehicles when visiting non‑carry locations.
• They did not allege they intended to violate § 9.36.110(1) or had to change behavior to comply with it.
• Confusion is not a concrete injury; no imminent enforcement risk was pleaded.

5) Associational standing: pleading requirements reaffirmed and tightened.

• Following Smithberger and Nebraska Seedsmen, an association must plead its representative capacity and authority to act for members (and basic membership facts); such authority cannot be presumed.
• NFOA’s complaint alleged member impacts but not the association’s authority to litigate for them; counsel conceded NFOA had no independent injury as an entity.
• Result: No associational standing for NFOA in this case. The Court did not decide whether to adopt the federal Hunt test more broadly.

Concurring opinions and signals for the future

• Miller‑Lerman, J., concurring: Notes that associational and organizational standing were not squarely raised for decision; no broader pronouncements are necessary.
• Papik, J., concurring, joined by Stacy, J.: Agrees with the outcome but underscores Nebraska’s undeveloped associational standing doctrine. Cautions against reflexively adopting the federal Hunt test; highlights Justice Thomas’s critique in FDA v. Alliance for Hippocratic Medicine (2024) that associational standing lets entities litigate without their own injury and presents remedial incongruities. Notes Nebraska’s common‑law baseline and the absence of legislative authorization for associational standing under the Uniform Declaratory Judgments Act, which speaks in terms of a person “whose rights, status or other legal relations” are at issue.

Takeaway: While the Court applied existing Nebraska precedents to reject NFOA’s associational standing on pleading grounds, several Justices signaled skepticism about importing the full federal associational standing doctrine into Nebraska without careful consideration or legislative authorization.

Impact

For litigants contemplating pre‑enforcement challenges in Nebraska:

• Pre‑enforcement suits are viable. Plaintiffs can establish standing by:
  • Alleging a concrete intent to engage in conduct arguably covered by the challenged law; and
  • Pleading facts showing a credible, imminent threat of enforcement—e.g., criminal/civil penalties on the face of the law, lack of governmental disavowal, recent enactment or reaffirmation, or other objective indicators of enforcement posture.
• Past enforcement is helpful but not essential; the “latent” threat inherent in the law’s existence can suffice, especially where the government declines to disavow enforcement.
• “Confusion” or compliance costs without more do not constitute injury; plaintiffs should allege changed behavior or intended noncompliance chilled by the law.

For government defendants:

• Refusal to disavow enforcement weighs strongly toward finding a credible threat; formal disavowals may reduce standing exposure, though they carry policy trade‑offs.
• Posting penalties or aggressive enforcement language (e.g., “shall be considered trespassing”) in executive orders or policies can create the requisite imminence.

For associations and advocacy groups:

• Pleading matters. An association intending to sue on behalf of members should:
  • Allege its representative capacity and authority to litigate for members (e.g., bylaws authorizing litigation, board resolutions, typicality of member injuries),
  • Identify the affected membership class and their specific injuries and intended conduct, and
  • Consider adding individual members as co‑plaintiffs to avoid threshold disputes.
• Watch this space: Multiple Justices flagged concerns about adopting federal associational standing wholesale. Nebraska may cabin associational standing to traditional common‑law limits absent legislative authorization.

Substantive firearms law and preemption:

• This opinion is about standing. The Court did not reach the merits of whether L.B. 77 preempts Lincoln’s ordinances or the mayor’s executive order or whether separation of powers was violated.
• On remand, trial courts will now adjudicate those merits, which could have significant statewide implications for municipal firearms policies post‑L.B. 77.

Complex concepts simplified

• Standing: A gateway requirement. You must be the right party with a personal, concrete stake to ask a court to decide a dispute. Without it, the court cannot hear your case.
• Pre‑enforcement challenge: Suing to challenge a law before you’re cited, prosecuted, or penalized under it.
• Credible threat of prosecution: A realistic, imminent risk the government will enforce a law against you. It’s shown by your concrete plan to engage in arguably prohibited conduct plus objective indicators (penalties on the face of the law, no disavowal by the government).
• Injury‑in‑fact: The harm you must allege to have standing. It must be concrete and imminent—not speculative. Chilled behavior to avoid prosecution can be an injury; mere “confusion” about the law is not.
• Associational standing: An association’s attempt to sue on behalf of its members. In Nebraska, the association must at least plead its authority to represent members and basic membership facts; broader contours remain unsettled.
• Disavowal: A government’s formal representation that it will not enforce a law against the plaintiff. Lack of disavowal strengthens a plaintiff’s standing.
• Facial challenge to standing (procedural posture): At the motion‑to‑dismiss stage, courts look to the complaint’s allegations alone to assess standing.

Conclusion

Nebraska’s high court has now squarely aligned the state’s pre‑enforcement standing doctrine with the federal “credible threat of prosecution” framework. Individuals need not court arrest to secure judicial review; a concrete intent to engage in arguably proscribed conduct plus a credible, imminent threat of enforcement suffices. Applying that standard, the Court revived challenges to Lincoln’s executive order and several weapons‑related ordinances while rejecting a challenge to the vehicle‑storage ordinance for lack of injury.

The Court simultaneously tightened the pleading bar for associational standing: organizations cannot presume authority to litigate for members; representative capacity and authority must be pleaded. Two concurrences caution against broadly importing federal associational standing into Nebraska without deeper analysis or legislative authorization, signaling that future cases may further refine or limit the doctrine.

On remand, the case will proceed to the merits of preemption and the validity of Lincoln’s measures under L.B. 77. Beyond firearms regulation, this decision will guide pre‑enforcement litigation across subject areas in Nebraska, shaping how plaintiffs, associations, and governments frame and defend challenges before any enforcement occurs.