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Nebraska Gun Laws

last updated: February 4, 2017

Gun laws are posted here as a courtesy only and are updated as often as possible. Please check with the actual state website for any additions / revisions to law that may have been made. Up to date information can be found at http://www.nebraskalegislature.gov/laws/browse-statutes.php.

Nebraska Constitution Article I, Section 1

All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed.

CHAPTER 17 - Cities Of The Second Class And Villages

§17-556 - Public safety; firearms; explosives; riots; regulation.

Cities of the second class and villages shall have power to prevent and restrain riots, routs, noises, disturbances, or disorderly assemblages; to regulate, prevent, restrain, or remove nuisances in residential parts of municipalities and to designate what shall be considered a nuisance; to regulate, punish, and prevent the discharge of firearms, rockets, powder, fireworks, or any other dangerous combustible material in the streets, lots, grounds, alleys, or about or in the vicinity of any buildings; to regulate, prevent, and punish the carrying of concealed weapons, except the carrying of a concealed handgun in compliance with the Concealed Handgun Permit Act; and to arrest, regulate, punish, fine, or set at work on the streets or elsewhere all vagrants and persons found without means of support or some legitimate business.

Source

Laws 1879, §69, XXV, p. 216;
Laws 1881, c. 23, §8, XXV, p. 184;
Laws 1885, c. 20, §1, XXV, p. 175;
Laws 1887, c. 12, §1, XXV, p. 303;
R.S.1913, §5130;
C.S.1922, §4305;
C.S.1929, §17-454;
R.S.1943, §17-556;
Laws 2009, LB430, § 4.

Cross References

Concealed Handgun Permit Act, see section 69-2427.

Annotations

Cited but not discussed. City of Syracuse v. Farmers Elevator, Inc., 182 Neb. 783, 157 N.W.2d 394 (1968).

Power to "designate" what may be a public nuisance does not give a municipality the right to prohibit house-to-house solicitation of sales of merchandise. Jewel Tea Company v. City of Geneva, 137 Neb. 768, 291 N.W. 664 (1940).

CHAPTER 18 - Cities And Villages; Laws Applicable To All

§18-1703 - Ownership, possession, and transportation of concealed handguns; power of cities and villages; existing ordinance, permit, or regulation; null and void.

Cities and villages shall not have the power to regulate the ownership, possession, or transportation of a concealed handgun, as such ownership, possession, or transportation is authorized under the Concealed Handgun Permit Act, except as expressly provided by state law, and shall not have the power to require registration of a concealed handgun owned, possessed, or transported by a permit holder under the act. Any existing city or village ordinance, permit, or regulation regulating the ownership, possession, or transportation of a concealed handgun, as such ownership, possession, or transportation is authorized under the act, except as expressly provided under state law, and any existing city or village ordinance, permit, or regulation requiring the registration of a concealed handgun owned, possessed, or transported by a permit holder under the act, is declared to be null and void as against any permit holder possessing a valid permit under the act.

Source

Laws 2009, LB430, §5;
Laws 2010, LB817, §2.

Cross References

Concealed Handgun Permit Act, see section 69-2427.

CHAPTER 28 - Crimes And Punishments

§28-1201 - Terms, defined.

For purposes of sections 28-1201 to 28-1212.04, unless the context otherwise requires:

  1. Firearm means any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or frame or receiver of any such weapon;
  2. Fugitive from justice means any person who has fled or is fleeing from any peace officer to avoid prosecution or incarceration for a felony;
  3. Handgun means any firearm with a barrel less than sixteen inches in length or any firearm designed to be held and fired by the use of a single hand;
  4. Juvenile means any person under the age of eighteen years;
  5. Knife means any dagger, dirk, knife, or stiletto with a blade over three and one-half inches in length or any other dangerous instrument capable of inflicting cutting, stabbing, or tearing wounds;
  6. Knuckles and brass or iron knuckles means any instrument that consists of finger rings or guards made of a hard substance and that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles;
  7. Machine gun means any firearm, whatever its size and usual designation, that shoots automatically more than one shot, without manual reloading, by a single function of the trigger;
  8. School means a public, private, denominational, or parochial elementary, vocational, or secondary school, a private postsecondary career school as defined in section 85-1603, a community college, a public or private college, a junior college, or a university;
  9. Short rifle means a rifle having a barrel less than sixteen inches long or an overall length of less than twenty-six inches; and
  10. Short shotgun means a shotgun having a barrel or barrels less than eighteen inches long or an overall length of less than twenty-six inches.

Source

Laws 1977, LB 38, §233;
Laws 1994, LB 988, §2;
Laws 2009, LB63, §9;
Laws 2009, LB430, §6.

Annotations

The Legislature intended the words "with a blade over three and one-half inches" to apply to daggers, dirks, knives, and stilettos, such that any of these items having blades over 3 1/2 inches are "knives" under subsection (4) of this section. Daggers, dirks, knives, or stilettos with blades over 3 1/2 inches are knives per se. When a case involves an instrument not specifically named in subsection (4) of this section, the State bears the burden of proving that the instrument is a dangerous instrument capable of inflicting cutting, stabbing, or tearing wounds, and thus is a "knife" for purposes of section 28-1205(1). State v. Bottolfson, 259 Neb. 470, 610 N.W.2d 378 (2000).

A firearm does not have to be operable in order for the defendant to be guilty of use of a deadly weapon to commit a felony. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).

The evidence was sufficient to support a conviction for use of a deadly weapon to commit a felony, even though a crime laboratory report indicated that the defendant's handgun was inoperable. The evidence indicated that the defendant used a weapon designed to expel a projectile, as the report stated that the handgun was a semiautomatic pistol with a matching magazine. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).

§28-1202 - Carrying concealed weapon; penalty; affirmative defense.
    1. Except as otherwise provided in this section, any person who carries a weapon or weapons concealed on or about his or her person, such as a handgun, a knife, brass or iron knuckles, or any other deadly weapon, commits the offense of carrying a concealed weapon.
    2. It is an affirmative defense that the defendant was engaged in any lawful business, calling, or employment at the time he or she was carrying any weapon or weapons and the circumstances in which such person was placed at the time were such as to justify a prudent person in carrying the weapon or weapons for the defense of his or her person, property, or family.
  1. This section does not apply to a person who is the holder of a valid permit issued under the Concealed Handgun Permit Act if the concealed weapon the defendant is carrying is a handgun.
  2. Carrying a concealed weapon is a Class I misdemeanor.
  3. In the case of a second or subsequent conviction under this section, carrying a concealed weapon is a Class IV felony.

Source

Laws 1977, LB 38, §234;
Laws 1984, LB 1095, §1;
Laws 2006, LB 454, §22;
Laws 2009, LB63, §10.

Cross References

Concealed Handgun Permit Act, see section 69-2427.

Annotations

In order to be a deadly weapon per se under subsection (1) of this section, the weapon must be one specifically enumerated in the statute. Whether an object or weapon not specifically named in the statute is a deadly weapon is a question of fact to be determined by the trier of fact, and the resolution of that fact question will depend on the evidence adduced as to the use or intended use of the object or weapon. State v. Williams, 218 Neb. 57, 352 N.W.2d 576 (1984).

Whether an object or weapon not specifically enumerated in subsection (1) of this section was a deadly weapon is a question of fact to be decided by the trier of fact. State v. Kanger, 215 Neb. 128, 337 N.W.2d 422 (1983).

Section 28-1202(1), R.S.Supp.,1978, combined with the definition of "deadly weapon" found in section 28-109, R.S.Supp.,1978, is sufficiently definite to meet the requirements of the first and fifth amendments to the U.S. Constitution and Art. I, section 3, of the Nebraska Constitution. State v. Valencia, 205 Neb. 719, 290 N.W.2d 181 (1980).

When a person is charged with violation of this section, the State need not prove that a revolver or gun is operable in order to establish that it is a "firearm". The test is whether evidence of possession of a revolver or gun of prohibited description, which is in apparently good condition and has the characteristics and appearance commonly understood to be those of the firearm it purports to be, is prima facie evidence sufficient to go to the trier of fact in a prosecution for carrying a concealed weapon. In re Interest of Cory P., 7 Neb. App. 397, 584 N.W.2d 820 (1998).

Any instrument that consists of finger rings or guards made of a hard substance and that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles is per se a deadly weapon under this section. State v. Lewis, 6 Neb. App. 867, 577 N.W.2d 774 (1998).

§28-1203 - Transportation or possession of machine guns, short rifles, or short shotguns; penalty; exception.
  1. Any person or persons who shall transport or possess any machine gun, short rifle, or short shotgun commits a Class IV felony.
  2. The provisions of this section shall not be held to prohibit any act by peace officers, members of the United States armed services, or members of the National Guard of this state, in the lawful discharge of their duties, or persons qualified under the provisions of federal law relating to the short rifle, short shotgun, or machine gun.

Source

Laws 1977, LB 38, §235;
Laws 1978, LB 748, §17.

Annotations

Under subsection (1) of this section, the possessory standard for controlled substances (i.e., a defendant possesses a controlled substance when the defendant knows of the nature or character of the substance and its presence and has dominion or control over the substance) is equally applicable to possession of a firearm. State v. Jasper, 237 Neb. 754, 467 N.W.2d 855 (1991).

Subsection (1) of this section is not vitiated by the "Right to Bear Arms" amendment of 1988, is a valid exercise of the State's police power in reasonable regulation of certain firearms, and does not contravene Neb. Const. art. I, sec. 1. State v. LaChapelle, 234 Neb. 458, 451 N.W.2d 689 (1990).

The requirement of "possession" for purposes of subsection (1) of this section may be satisfied by actual or constructive possession of any of the items named in subsection (1). State v. Frieze, 3 Neb. App. 263, 525 N.W.2d 646 (1994).

§28-1204 - Unlawful possession of a handgun; exceptions; penalty.
  1. Any person under the age of eighteen years who possesses a handgun commits the offense of unlawful possession of a handgun.
  2. This section does not apply to the issuance of handguns to members of the armed forces of the United States, active or reserve, National Guard of this state, or Reserve Officers Training Corps, when on duty or training, or to the temporary loan of handguns for instruction under the immediate supervision of a parent or guardian or adult instructor.
  3. Unlawful possession of a handgun is a Class I misdemeanor.

Source

Laws 1977, LB 38, §236;
Laws 1978, LB 748, §18;
Laws 2009, LB63, §11.

Annotations

When a person is charged with violation of this section, the State need not prove that a revolver or gun is operable in order to establish that it is a "firearm". The test is whether evidence of possession of a revolver or gun of prohibited description, which is in apparently good condition and has the characteristics and appearance commonly understood to be those of the firearm it purports to be, is prima facie evidence sufficient to go to the trier of fact in a prosecution for being a person under the age of 18 in possession of a pistol, revolver, or any other form of short-barreled hand firearm. In re Interest of Cory P., 7 Neb. App. 397, 584 N.W.2d 820 (1998).

§28-1204.01 - Unlawful transfer of a firearm to a juvenile; exceptions; penalty; county attorney; duty.
  1. Any person who knowingly and intentionally does or attempts to sell, provide, loan, deliver, or in any other way transfer the possession of a firearm to a juvenile commits the offense of unlawful transfer of a firearm to a juvenile. The county attorney shall have a copy of the petition served upon the owner of the firearm, if known, in person or by registered or certified mail at his or her last-known address.
  2. This section does not apply to the transfer of a firearm, other than a handgun, to a juvenile:
    1. From a person related to such juvenile within the second degree of consanguinity or affinity if the transfer of physical possession of such firearm does not occur until such time as express permission has been obtained from the juvenile's parent or guardian;
    2. For a legitimate and lawful sporting purpose; or
    3. Who is under direct adult supervision in an appropriate educational program.
  3. This section applies to the transfer of a handgun except as specifically provided in subsection (2) of section 28-1204.
  4. Unlawful transfer of a firearm to a juvenile is a Class III felony.

Source

Laws 1994, LB 988, §4;
Laws 2009, LB63, §12.

§28-1204.02 - Confiscation of firearm; disposition.

Any firearm in the possession of a person in violation of section 28-1204 or 28-1204.01 shall be confiscated by a peace officer or other authorized law enforcement officer. Such firearm shall be held by the agency employing such officer until it no longer is required as evidence.

Source

Laws 1994, LB 988, §3.

Cross References

Disposition of confiscated firearm, see section 28-1204.04.

§28-1204.03 - Firearms and violence; legislative findings.

The Legislature finds that:

  1. Increased violence at schools has become a national, state, and local problem;
  2. Increased violence and the threat of violence has a grave and detrimental impact on the educational process in Nebraska schools;
  3. Increased violence has caused fear and concern among not only the schools and students but the public at large;
  4. Firearms have contributed greatly to the increase of fear and concern among our citizens;
  5. Schools have a duty to protect their students and provide an environment which promotes and provides an education in a nonthreatening manner;
  6. An additional danger of firearms at schools is the risk of accidental discharge and harm to students and staff;
  7. Firearms are an immediate and inherently dangerous threat to the safety and well-being of an educational setting; and
  8. The ability to confiscate and remove firearms quickly from school grounds is a legitimate and necessary tool to protect students and the educational process.

Source

Laws 1994, LB 988, §5;
Laws 2009, LB430, §7.

§28-1204.04 - (2014) Unlawful possession of a firearm at a school; penalty; exceptions; confiscation of certain firearms; disposition.
  1. Any person who possesses a firearm in a school, on school grounds, in a school-owned vehicle, or at a school-sponsored activity or athletic event is guilty of the offense of unlawful possession of a firearm at a school. Unlawful possession of a firearm at a school is a Class IV felony. This subsection shall not apply to:
    1. the issuance of firearms to or possession by members of the armed forces of the United States, active or reserve, National Guard of this state, or Reserve Officers Training Corps or peace officers or other duly authorized law enforcement officers when on duty or training,
    2. the possession of firearms by peace officers or other duly authorized law enforcement officers when contracted by a school to provide school security or school event control services,
    3. firearms which may lawfully be possessed by the person receiving instruction, for instruction under the immediate supervision of an adult instructor,
    4. firearms which may lawfully be possessed by a member of a college or university rifle team, within the scope of such person's duties as a member of the team,
    5. firearms which may lawfully be possessed by a person employed by a college or university in this state as part of an agriculture or a natural resources program of such college or university, within the scope of such person's employment,
    6. firearms contained within a private vehicle operated by a nonstudent adult which are not loaded and
      1. are encased or
      2. are in a locked firearm rack that is on a motor vehicle, or
    7. firearms which may lawfully be possessed by a person for the purpose of using them, with the approval of the school, in a historical reenactment, in a hunter education program, or as part of an honor guard, or
    8. a handgun carried as a concealed handgun by a valid holder of a permit issued under the Concealed Handgun Permit Act in a vehicle or on his or her person while riding in or on a vehicle into or onto any parking area, which is open to the public and used by a school if, prior to exiting the vehicle, the handgun is locked inside the glove box, trunk, or other compartment of the vehicle, a storage box securely attached to the vehicle, or, if the vehicle is a motorcycle, a hardened compartment securely attached to the motorcycle while the vehicle is in or on such parking area, except as prohibited by federal law. For purposes of this subsection, encased means enclosed in a case that is expressly made for the purpose of containing a firearm and that is completely zipped, snapped, buckled, tied, or otherwise fastened with no part of the firearm exposed.
  2. Any firearm possessed in violation of subsection (1) of this section shall be confiscated without warrant by a peace officer or may be confiscated without warrant by school administrative or teaching personnel. Any firearm confiscated by school administrative or teaching personnel shall be delivered to a peace officer as soon as practicable.
  3. Any firearm confiscated by or given to a peace officer pursuant to subsection (2) of this section shall be declared a common nuisance and shall be held by the peace officer prior to his or her delivery of the firearm to the property division of the law enforcement agency which employs the peace officer. The property division of such law enforcement agency shall hold such firearm for as long as the firearm is needed as evidence. After the firearm is no longer needed as evidence, it shall be destroyed in such manner as the court may direct.
  4. Whenever a firearm is confiscated and held pursuant to this section or section 28-1204.02, the peace officer who received such firearm shall cause to be filed within ten days after the confiscation a petition for destruction of such firearm. The petition shall be filed in the district court of the county in which the confiscation is made. The petition shall describe the firearm held, state the name of the owner, if known, allege the essential elements of the violation which caused the confiscation, and conclude with a prayer for disposition and destruction in such manner as the court may direct. At any time after the confiscation of the firearm and prior to court disposition, the owner of the firearm seized may petition the district court of the county in which the confiscation was made for possession of the firearm. The court shall release the firearm to such owner only if the claim of ownership can reasonably be shown to be true and either (a) the owner of the firearm can show that the firearm was taken from his or her property or place of business unlawfully or without the knowledge and consent of the owner and that such property or place of business is different from that of the person from whom the firearm was confiscated or (b) the owner of the firearm is acquitted of the charge of unlawful possession of a handgun in violation of section 28-1204, unlawful transfer of a firearm to a juvenile, or unlawful possession of a firearm at a school. No firearm having significant antique value or historical significance as determined by the Nebraska State Historical Society shall be destroyed. If a firearm has significant antique value or historical significance, it shall be sold at auction and the proceeds shall be remitted to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.

Source

Laws 1994, LB 988, §6;
Laws 2002, LB 82, §8;
Laws 2009, LB63, §13;
Laws 2009, LB430, §8;
Laws 2011, LB512, §1.
Laws 2014, LB390, §1.

Cross References

Concealed Handgun Permit Act, see section 69-2427.

§28-1205 - Use of a deadly weapon to commit a felony; possession of a deadly weapon during the commission of a felony; penalty; separate and distinct offense; proof of possession.
    1. Any person who uses a firearm, a knife, brass or iron knuckles, or any other deadly weapon to commit any felony which may be prosecuted in a court of this state commits the offense of use of a deadly weapon to commit a felony.
    2. Use of a deadly weapon, other than a firearm, to commit a felony is a Class II felony.
    3. Use of a deadly weapon, which is a firearm, to commit a felony is a Class IC felony.
    1. Any person who possesses a firearm, a knife, brass or iron knuckles, or a destructive device during the commission of any felony which may be prosecuted in a court of this state commits the offense of possession of a deadly weapon during the commission of a felony.
    2. Possession of a deadly weapon, other than a firearm, during the commission of a felony is a Class III felony.
    3. Possession of a deadly weapon, which is a firearm, during the commission of a felony is a Class II felony.
  1. The crimes defined in this section shall be treated as separate and distinct offenses from the felony being committed, and sentences imposed under this section shall be consecutive to any other sentence imposed.
  2. Possession of a deadly weapon may be proved through evidence demonstrating either actual or constructive possession of a firearm, a knife, brass or iron knuckles, or a destructive device during, immediately prior to, or immediately after the commission of a felony.
  3. For purposes of this section:
    1. Destructive device has the same meaning as in section 28-1213; and
    2. Use of a deadly weapon includes the discharge, employment, or visible display of any part of a firearm, a knife, brass or iron knuckles, any other deadly weapon, or a destructive device during, immediately prior to, or immediately after the commission of a felony or communication to another indicating the presence of a firearm, a knife, brass or iron knuckles, any other deadly weapon, or a destructive device during, immediately prior to, or immediately after the commission of a felony, regardless of whether such firearm, knife, brass or iron knuckles, deadly weapon, or destructive device was discharged, actively employed, or displayed.

Source

Laws 1977, LB 38, §237;
Laws 1995, LB 371, §8;
Laws 2009, LB63, §14.

Annotations

  1. Constitutionality
  2. Deadly weapon
  3. Evidence
  4. Generally
  5. Lesser-included offense
  6. Sentencing
  7. To commit any felony
    1. Constitutionality
      1. The consecutive sentence requirement of this statute is constitutional. State v. Stratton, 220 Neb. 854, 374 N.W.2d 31 (1985).
    2. Deadly weapon
      1. A defendant must commit an underlying or predicate felony before he or she can be convicted of use of a deadly weapon to commit a felony. State v. Sepulveda, 278 Neb. 972, 775 N.W.2d 40 (2009).
      2. This statutory language expressly provides that the Legislature intended the crime of using a deadly weapon to commit a felony to remain an independent offense from the underlying felony. There can be no question that the Legislature intended that one using a deadly weapon be subjected to cumulative punishments for committing the underlying felony and for the use of the weapon to commit it. State v. Mata, 273 Neb. 474, 730 N.W.2d 396 (2007).
      3. Pursuant to subsection (1) of this section, a defendant can be convicted of a use of a deadly weapon to commit a felony charge under an aiding and abetting theory. State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002).
      4. To sustain a conviction under the use prong of this section, the State must show that the defendant actively employed a deadly weapon for the purpose of committing a felony. Mere storage of a weapon at a residence where drugs are dealt is insufficient to support a conviction for the use of a deadly weapon under this section. The term possession, as used in this section, includes only actual possession; actual possession is defined as including only those weapons on one's person or within one's immediate control, which is the area within which one might immediately gain possession of a weapon. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999).
      5. A defendant who aids and abets the use of a deadly weapon in the commission of a first degree murder by having a conversation with another individual regarding who is going to kill the particular victim, supplying the other individual with the murder weapon, unlawfully breaking and entering the victim's residence for the purpose of killing the victim, and hitting someone in the victim's residence with a piece of wood can be prosecuted and punished as if he or she was the principal offender. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
      6. Pursuant to subsection (1) of this section, a "deadly weapon" is any instrument which, in the manner it is used or intended to be used, is capable of producing a bodily injury involving a substantial risk of (1) death, (2) serious permanent disfigurement, or (3) protracted loss or impairment of the function of any organ or body part. The weapon need not actually produce such injuries, but need only be used in a manner which makes it capable of producing them. Under the facts of this case, a 14- by 3- by 3/4-inch wooden "spanking board" could be found to be a deadly weapon. State v. Ayres, 236 Neb. 824, 464 N.W.2d 316 (1991).
      7. Because a reckless terroristic threat is an intentional crime, it cannot be the underlying felony for the use of a weapon charge. State v. Rye, 14 Neb. App. 133, 705 N.W.2d 236 (2005).
      8. A firearm does not have to be operable in order for the defendant to be guilty of use of a deadly weapon to commit a felony. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).
    3. Evidence
      1. Evidence of a defendant's fingerprints has probative value; and it is for the jury to determine, in light of all other evidence, whether such evidence permits an inference to be drawn that beyond a reasonable doubt defendant was the person who committed the offense in question. State v. Pena, 208 Neb. 250, 302 N.W.2d 735 (1981).
      2. The evidence was sufficient to support a conviction for use of a deadly weapon to commit a felony, even though a crime laboratory report indicated that the defendant's handgun was inoperable. The evidence indicated that the defendant used a weapon designed to expel a projectile, as the report stated that the handgun was a semiautomatic pistol with a matching magazine. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).
    4. Generally
      1. When the felony which serves as a basis of the use of a weapon charge is an unintentional crime, the accused cannot be convicted of use of a weapon to commit a felony. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).
      2. Where the record reflects the use of multiple weapons in the commission of a single felony, the use of each weapon may constitute a separate violation of this section. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
      3. Prosecution for both unlawful discharge of a firearm under section 28-1212.02 and use of a deadly weapon to commit a felony under this section in a single proceeding does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).
      4. It is an open question as to whether a defendant has a right to be told of the mandatory consecutive nature of a sentence imposed for using a firearm to commit a felony. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986).
      5. This section defines a separate and distinct crime, and conviction of violation of this section is not enhancement with respect to conviction of felony in which firearm was used. State v. Dandridge, 209 Neb. 885, 312 N.W.2d 286 (1981).
      6. Pursuant to a plea agreement which was explained and was entered into knowingly, voluntarily, and intelligently, a defendant can be convicted of and sentenced to imprisonment for both an underlying charge of manslaughter, an unintentional crime, and a charge of use of a weapon to commit a felony, an intentional crime. State v. Drinkwalter, 14 Neb. App. 944, 720 N.W.2d 415 (2006).
      7. When instructing the jury on multiple counts under this section, the trial court need not repeat the "use" instruction for each separate count charged. State v. Charles, 4 Neb. App. 211, 541 N.W.2d 69 (1995).
      8. A defendant acquitted on the underlying felony charge cannot be convicted of an offense under this section involving that felony; but a defendant convicted of the underlying felony might still be acquitted on a charge under this section. State v. Smith, 3 Neb. App. 564, 529 N.W.2d 116 (1995).
      9. A defendant cannot be convicted under this section when defendant has been acquitted of the underlying felony. State v. George, 3 Neb. App. 354, 527 N.W.2d 638 (1995).
    5. Lesser-included offense
      1. Use of a firearm or other deadly weapon in the commission of a felony is not a lesser-included offense of assault in the second degree. State v. Jackson, 217 Neb. 332, 348 N.W.2d 866 (1984).
    6. Sentencing
      1. Pursuant to subsection (3) of this section, two separate sentences of 15 to 20 years' imprisonment for the use of a deadly weapon in the commission of two separate first degree murders can be served consecutively to the respective murder convictions, even when one of the murder convictions is based on accomplice liability. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
      2. Pursuant to subsection (3) of this section, the trial court's failure to impose defendant's sentence for use of a firearm consecutively to his life imprisonment sentence is plain error. State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995).
      3. Although it is within the trial court's discretion to direct that sentences imposed for separate crimes be served consecutively, this section does not permit such discretion in sentencing. State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995).
      4. Where defendant was convicted of two separate and distinct felonies, the sentences were within statutory limits and appropriately imposed consecutively. State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993).
      5. The language of subsection (3) of this section, to the effect that sentences under its provisions must be imposed consecutively to any sentence imposed for the predicate felony, is mandatory and not within the discretion of the sentencing court. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988).
      6. Although subsection (3) of this section mandates that a sentence imposed hereunder must be served consecutive to any other sentence, whether or not a defendant needs to be specifically apprised of such matter is factually dependent. State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988).
      7. Failure to advise the defendant that sentence for use of a weapon to commit a felony was required to run consecutively with any other sentence imposed was not prejudicial when defendant was advised of the combined minimum sentence which he could serve. State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988).
      8. Where a defendant is not informed that consecutive sentences are mandated by subsection (3) of this statute, he has been misinformed by the court, and his plea is not voluntary. State v. Golden, 226 Neb. 863, 415 N.W.2d 469 (1987).
      9. It is an open question as to whether a defendant has a right to be told of the mandatory consecutive nature of a sentence imposed for using a firearm to commit a felony. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986).
      10. When a person found guilty of a substantive crime as well as being a habitual criminal is improperly sentenced, both sentences must be set aside and the case remanded for proper sentencing. State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981).
    7. To commit any felony
      1. The language "to commit any felony," as it is used in this section, is synonymous with "for the purpose of committing any felony." State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989).
§28-1206 - Possession of a deadly weapon by a prohibited person; penalty.
    1. Any person who possesses a firearm, a knife, or brass or iron knuckles and who has previously been convicted of a felony, who is a fugitive from justice, or who is the subject of a current and validly issued domestic violence protection order and is knowingly violating such order, or
    2. any person who possesses a firearm or brass or iron knuckles and who has been convicted within the past seven years of a misdemeanor crime of domestic violence, commits the offense of possession of a deadly weapon by a prohibited person.
  1. The felony conviction may have been had in any court in the United States, the several states, territories, or possessions, or the District of Columbia.
    1. Possession of a deadly weapon which is not a firearm by a prohibited person is a Class III felony.
    2. Possession of a deadly weapon which is a firearm by a prohibited person is a Class ID felony for a first offense and a Class IB felony for a second or subsequent offense.
      1. For purposes of this section, misdemeanor crime of domestic violence means:
          1. A crime that is classified as a misdemeanor under the laws of the United States or the District of Columbia or the laws of any state, territory, possession, or tribe;
          2. A crime that has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon; and
          3. A crime that is committed by another against his or her spouse, his or her former spouse, a person with whom he or she has a child in common whether or not they have been married or lived together at any time, or a person with whom he or she is or was involved in a dating relationship as defined in section 28-323; or
          1. Assault in the third degree under section 28-310, stalking under subsection (1) of section 28-311.04, false imprisonment in the second degree under section 28-315, or first offense domestic assault in the third degree under subsection (1) of section 28-323 or any attempt or conspiracy to commit one of these offenses; and
          2. The crime is committed by another against his or her spouse, his or her former spouse, a person with whom he or she has a child in common whether or not they have been married or lived together at any time, or a person with whom he or she is or was involved in a dating relationship as defined in section 28-323.
      2. A person shall not be considered to have been convicted of a misdemeanor crime of domestic violence unless:
        1. The person was represented by counsel in the case or knowingly and intelligently waived the right to counsel in the case; and
        2. In the case of a prosecution for a misdemeanor crime of domestic violence for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either:
          1. The case was tried to a jury; or
          2. The person knowingly and intelligently waived the right to have the case tried to a jury.
    1. For purposes of this section, subject of a current and validly issued domestic violence protection order pertains to a current court order that was validly issued pursuant to section 28-311.09 or 42-924 or that meets or exceeds the criteria set forth in section 28-311.10 regarding protection orders issued by a court in any other state or a territory, possession, or tribe.

Source

Laws 1977, LB 38, §238;
Laws 1978, LB 748, §19;
Laws 1995, LB 371, §9;
Laws 2009, LB63, §15;
Laws 2010, LB771, §10.

Annotations

  1. Felon in possession
  2. Miscellaneous
    1. Felon in possession
      1. Use of a prior conviction to establish status as a felon and then enhance a sentence does not constitute impermissible double enhancement. State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).
      2. Possession of a knife by a convicted felon is not unlawful under the plain language of this section. State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).
      3. Nebraska law explicitly and unequivocally prohibits a felon from being in possession of a firearm. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).
      4. This section punishes the specific conduct of possession of a firearm by a person previously convicted of a felony, not the underlying felony. State v. Peters, 261 Neb. 416, 622 N.W.2d 918 (2001).
      5. In order to use a prior conviction as proof that a defendant has been convicted of a felony for purposes of the felon in possession statute, the State must establish that at the time of the prior conviction, the defendant had or waived counsel. State v. Portsche, 258 Neb. 926, 606 N.W.2d 794 (2000).
      6. The release of a convicted felon from probation and the restoration of his or her civil rights does not nullify the conviction under the terms of subsection (1) of this section. State v. Illig, 237 Neb. 598, 467 N.W.2d 375 (1991).
      7. Pursuant to subsection (1) of this section, a convicted felon may not possess a firearm for purposes of self-defense. State v. Harrington, 236 Neb. 500, 461 N.W.2d 752 (1990).
      8. Possession of a firearm by a felon on two separate days, absent any evidence of an interruption in that possession, is a single continuing offense where the statute does not specify any means for dividing an uninterrupted possession into separate offenses, and the former instance of possession is included in the offense for the latter. State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982).
      9. To have "previously been convicted of a felony", as the phrase is used in subsection (1) of this section, a defendant need not have commenced serving his or her sentence for the previous conviction. State v. Moore, 3 Neb. App. 417, 527 N.W.2d 223 (1995).
    2. Miscellaneous
      1. Prosecution for both unlawful discharge of a firearm under section 28-1212.02 and possession of a deadly weapon by a felon under this section does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).
      2. A pistol is a firearm. State v. Melton, 239 Neb. 790, 478 N.W.2d 341 (1992).
      3. This section is held not to be invalid as in conflict with Neb. Const. art. I, section 1. State v. Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989).
      4. Evidence which was seized during a search based solely on an illegal wiretap must be suppressed and a conviction based on that evidence reversed, where it was agreed that the defendant had waived his rights under the fourth amendment to the U.S. Constitution, but had not waived his rights under section 86-701 et seq. (recodified in 2002 as section 86-271 et seq.). State v. Aulrich, 209 Neb. 546, 308 N.W.2d 739 (1981).
      5. Pursuant to subsection (1) of this section, the doctrine of constructive possession applies to the possession of a firearm by a felon or a fugitive from justice, and the fact of possession may be proved by circumstantial evidence. State v. Long, 8 Neb. App. 353, 594 N.W.2d 310 (1999).
§28-1207 - Possession of a defaced firearm; penalty.
  1. Any person who knowingly possesses, receives, sells, or leases, other than by delivery to law enforcement officials, any firearm from which the manufacturer's identification mark or serial number has been removed, defaced, altered, or destroyed, commits the offense of possession of a defaced firearm.
  2. Possession of a defaced firearm is a Class III felony.

Source

Laws 1977, LB 38, §239;
Laws 2009, LB63, §16.

Annotations

This section is held not to be invalid as in conflict with Neb. Const. art. I, section 1. State v. Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989).

§28-1208 - Defacing a firearm; penalty.
  1. Any person who intentionally removes, defaces, covers, alters, or destroys the manufacturer's identification mark or serial number or other distinguishing numbers on any firearm commits the offense of defacing a firearm.
  2. Defacing a firearm is a Class III felony.

Source

Laws 1977, LB 38, §240;
Laws 2009, LB63, §17.

§28-1211 - Repealed. Laws 2014, LB 699, § 8.

§28-1212 - Presence of firearm in motor vehicle; prima facie evidence.

The presence in a motor vehicle other than a public vehicle of any firearm or instrument referred to in section 28-1203, 28-1206, 28-1207, or 28-1212.03 shall be prima facie evidence that it is in the possession of and is carried by all persons occupying such motor vehicle at the time such firearm or instrument is found, except that this section shall not be applicable if such firearm or instrument is found upon the person of one of the occupants therein.

Source

Laws 1977, LB 38, §244;
Laws 1991, LB 477, §3.

Annotations

Although "prima facie evidence" is found in this section, the content of a statute within the criminal code is not necessarily and always proper information for a jury. State v. Jasper, 237 Neb. 754, 467 N.W.2d 855 (1991).

§28-1212.01 - Unlawful discharge of firearm; terms, defined.

For purposes of sections 28-1212.02 and 28-1212.04:

  1. Aircraft means any contrivance intended for and capable of transporting persons through the airspace;
  2. Inhabited means currently being used for dwelling purposes; and
  3. Occupied means that a person is physically present in a building, motor vehicle, or aircraft.

Source

Laws 1990, LB 1018, §3;
Laws 1995, LB 371, §10;
Laws 2010, LB771, §11.

§28-1212.02 - Unlawful discharge of firearm; penalty.

Any person who unlawfully and intentionally discharges a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited motor home as defined in section 71-4603, or inhabited camper unit as defined in section 60-1801 shall be guilty of a Class ID felony.

Source

Laws 1990, LB 1018, §2;
Laws 1995, LB 371, §11;
Laws 2009, LB63, §18.

Annotations

Attempted first degree assault is not a lesser-included offense of unlawful discharge of a firearm, and unlawful discharge of a firearm is not a lesser-included offense of attempted first degree assault. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).

Prosecution for both unlawful discharge of a firearm under this section and possession of a deadly weapon by a felon under section 28-1206 does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).

Prosecution for both unlawful discharge of a firearm under this section and use of a deadly weapon to commit a felony under section 28-1205 in a single proceeding does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).

§28-1212.03 - Stolen firearm; prohibited acts; violation; penalty.

Any person who possesses, receives, retains, or disposes of a stolen firearm knowing that it has been or believing that it has been stolen shall be guilty of a Class III felony unless the firearm is possessed, received, retained, or disposed of with intent to restore it to the owner.

Source

Laws 1991, LB 477, §1;
Laws 2009, LB63, §19.

§28-1212.04 - Discharge of firearm in certain cities and counties; prohibited acts; penalty.

Any person, within the territorial boundaries of any city of the first class or county containing a city of the metropolitan class or primary class, who unlawfully, knowingly, and intentionally or recklessly discharges a firearm, while in any motor vehicle or in the proximity of any motor vehicle that such person has just exited, at or in the general direction of any person, dwelling, building, structure, occupied motor vehicle, occupied aircraft, inhabited motor home as defined in section 71-4603, or inhabited camper unit as defined in section 60-1801, is guilty of a Class IC felony.

Source

Laws 2009, LB63, §20;
Laws 2010, LB771, §12;
Laws 2010, LB817, §3.

§28-1335 - Discharging any firearm or weapon from any public highway, road, or bridge; penalty; exception.

A person commits a Class III misdemeanor if such person discharges any firearm or weapon using any form of compressed gas as a propellant from any public highway, road, or bridge in this state, unless otherwise allowed by statute. Upon conviction, the mandatory minimum fine shall be one hundred dollars.

Source
Laws 1977, LB 38, § 319;
Laws 2009, LB105, § 1.

USE OF FORCE

§28-1406 - Terms, defined.

As used in sections 28-1406 to 28-1416, unless the context otherwise requires:

  1. Unlawful force shall mean force, including confinement, which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense such as the absence of intent, negligence, or mental capacity; duress; youth; or diplomatic status; not amounting to a privilege to use the force;
  2. Assent shall mean consent, whether or not it otherwise is legally effective, except assent to the infliction of death or serious bodily harm;
  3. Deadly force shall mean force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm. Purposely firing a firearm in the direction of another person or at a vehicle in which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, shall not constitute deadly force;
  4. Actor shall mean any person who uses force in such a manner as to attempt to invoke the privileges and immunities afforded him by sections 28-1406 to 28-1416, except any duly authorized law enforcement officer of the State of Nebraska or its political subdivisions;
  5. Dwelling shall mean any building or structure, though movable or temporary, or a portion thereof, which is for the time being the actor's home or place of lodging; and
  6. Public officer shall mean any elected or appointed officer or employee of the State of Nebraska or its political subdivisions, except any duly authorized law enforcement officer of the State of Nebraska or its political subdivisions.

Source

Laws 1972, LB 895, §1;
Laws 1972, LB 1278, §2;
R.R.S.1943, §28-833, (1975).

Annotations

Justification, otherwise known as the choice of evils, is an affirmative defense. State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999).

§28-1407 - Justification; choice of evils.
  1. Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if:
    1. The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;
    2. Neither sections 28-1406 to 28-1416 nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
    3. A legislative purpose to exclude the justification claimed does not otherwise plainly appear.
  2. When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

Source

Laws 1972, LB 895, §2;
R.R.S.1943, §28-834, (1975).

Annotations

Generalized and nonimmediate fears are inadequate grounds upon which to justify a violation of law. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).

The choice of evils defense requires that a defendant (1) acts to avoid a greater harm, (2) reasonably believes that the particular action is necessary to avoid a specific and immediate harm, and (3) reasonably believes that the selected action is the least harmful alternative to avoid the harm, either actual or reasonably believed by the defendant to be certain to occur. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).

This section reflects the Nebraska Legislature's policy that certain circumstances legally excuse conduct that would otherwise be criminal. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).

The justification or "choice of evils" defense is unavailable in a prosecution for an offense, based on conduct as an expression of a defendant's moral belief or judgment, committed to prevent another's exercising a constitutional right or committed to deny another's constitutionally protected right. State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184 (1992).

The justification or "choice of evils" defense operates to excuse conduct that would otherwise subject a person to criminal sanctions, but its availability and applicability require that a defendant's conduct be responsive to a legally recognized harm. State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184 (1992).

§28-1408 - Public duty; execution.
  1. Except as provided in subsection (2) of this section, conduct is justifiable when it is required or authorized by:
    1. The law defining the duties or functions of a public officer or the assistance to be rendered to such officer in the performance of his duties;
    2. The law governing the execution of legal process;
    3. The judgment or order of a competent court or tribunal;
    4. The law governing the armed services or the lawful conduct of war; or
    5. Any other provision of law imposing a public duty.
  2. Sections 28-1409 to 28-1416 shall apply to:
    1. The use of force upon or toward the person of another for any of the purposes dealt with in such sections; and
    2. The use of deadly force for any purpose, unless the use of such force is otherwise expressly authorized by law or occurs in the lawful conduct of war.
  3. The justification afforded by subsection (1) of this section shall apply:
    1. When the actor believes his conduct to be required or authorized by the judgment or direction of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; and
    2. When the actor believes his conduct to be required or authorized to assist a public officer in the performance of his duties, notwithstanding that the officer exceeded his legal authority.

Source

Laws 1972, LB 895, §3;
R.R.S.1943, §28-835, (1975).

§28-1409 - Use of force in self-protection.
  1. Subject to the provisions of this section and of section 28-1414, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
  2. The use of such force is not justifiable under this section to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful.
  3. The use of such force is not justifiable under this section to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
    1. The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;
    2. The actor has been unlawfully dispossessed of the property and is making a reentry or recapture justified by section 28-1411; or
    3. The actor believes that such force is necessary to protect himself against death or serious bodily harm.
  4. The use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat, nor is it justifiable if:
    1. The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or
    2. The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
      1. The actor shall not be obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and
      2. A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape shall not be obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.
  5. Except as required by subsections (3) and (4) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.
  6. The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can do so, unless the person confined has been arrested on a charge of crime.

Source

Laws 1972, LB 895, §4;
R.R.S.1943, §28-836, (1975).

Annotations

  1. Elements
  2. Evidence
  3. Jury instructions
  4. Lawful force
  5. Unlawful force
  6. Miscellaneous
    1. Elements
      1. To successfully assert the claim of self-defense, a defendant must have a reasonable and good faith belief in the necessity of using force and the force used in defense must be immediately necessary and justified under the circumstances. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).
      2. A defendant asserting self-defense as justification for the use of force must have a reasonable and good faith belief in the necessity of such force. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).
      3. In order for the self-defense justification to be applicable, (1) the belief that force is necessary must be reasonable and in good faith, (2) the force must be immediately necessary, and (3) the force used must be justified under the circumstances. State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990).
      4. The use of deadly force shall not be justifiable unless the actor believes such force is necessary to protect himself against death or serious bodily harm, nor is it justifiable if the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter or the actor knows that he can not avoid the necessity of using such force with complete safety by retreating. State v. Menser, 222 Neb. 36, 382 N.W.2d 18 (1986).
      5. Pursuant to subsection (4)(a) of this section, to deprive a defendant of the defense of self-defense, the defendant's provocation must be with the intent that the defendant will then cause death or serious bodily injury to the one that the defendant provoked, and it must all occur in the same encounter. State v. Butler, 10 Neb. App. 537, 634 N.W.2d 46 (2001).
    2. Evidence
      1. Under subsection (5) of this section, evidence of victims' violent or aggressive behavior which occurred 4 months after defendant shot them was not relevant to the circumstances as defendant believed them to be the night he shot them. State v. Allison, 238 Neb. 142, 469 N.W.2d 360 (1991).
    3. Jury instructions
      1. A trial court is required to give a self-defense instruction where there is any evidence in support of a legally cognizable theory of self-defense. State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998).
      2. Jury instruction requiring, as an element of self-defense, that "before using deadly force the defendant either tried to get away or did not try because he reasonably did not believe he could do so in complete safety," was not erroneous under this section. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).
      3. A defendant is entitled to an instruction on self-defense if there is any evidence to support it; this is true even if the defendant does not testify. State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990).
      4. A defendant is not entitled to a self-defense jury instruction when he could have safely retreated. State v. Kuntzelman, 215 Neb. 115, 337 N.W.2d 414 (1983).
      5. Defendant is entitled to have jury instructed on his theory of self-defense if there is any evidence to support it. State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981).
    4. Lawful force
      1. This section provides no defense when a defendant uses force against another's lawful force. State v. Brown, 235 Neb. 374, 455 N.W.2d 547 (1990).
      2. Use of force was prohibited where person being arrested knew that arrest was being made by a peace officer. State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987).
      3. The use of deadly force is justifiable when the actor believes that such force is necessary to protect himself or herself against death or serious bodily harm unless the actor knows that he or she can avoid the necessity of using such force with complete safety by retreating. Newton v. Huffman, 10 Neb. App. 390, 632 N.W.2d 344 (2001).
      4. Pursuant to this section, if a defendant is justified in using force toward an individual, the defendant is justified in the force employed which mistakenly strikes the actual victim. State v. Owens, 8 Neb. App. 109, 589 N.W.2d 867 (1999).
    5. Unlawful force
      1. Record did not establish that victim used "unlawful force" against the defendant. State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989).
    6. Miscellaneous
      1. The excuse of self-defense is applied to the threatening behavior of "another person", not to a generalized group of actors. State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999).
§28-1410 - Use of force for protection of other persons.
  1. Subject to the provisions of this section and of section 28-1414, the use of force upon or toward the person of another is justifiable to protect a third person when:
    1. The actor would be justified under section 28-1409 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect;
    2. Under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
    3. The actor believes that his intervention is necessary for the protection of such other person.
  2. Notwithstanding subsection (1) of this section:
    1. When the actor would be obliged under section 28-1409 to retreat, to surrender the possession of a thing or to comply with a demand before using force in self-protection, he shall not be obliged to do so before using force for the protection of another person, unless he knows that he can thereby secure the complete safety of such other person;
    2. When the person whom the actor seeks to protect would be obliged under section 28-1409 to retreat, to surrender the possession of a thing or to comply with a demand if he knew that he could obtain complete safety by so doing, the actor is obliged to try to cause him to do so before using force in his protection if the actor knows that he can obtain complete safety in that way; and
    3. Neither the actor nor the person whom he seeks to protect is obliged to retreat when in the other's dwelling or place of work to any greater extent than in his own.

Source

Laws 1972, LB 895, §5;
R.R.S.1943, §28-837, (1975).

§28-1411 - Use of force for protection of property.
  1. Subject to the provisions of this section and of section 28-1414, the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary:
    1. To prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property; Provided, that such land or movable property is, or is believed by the actor to be, in his possession or in the possession of another person for whose protection he acts; or
    2. To effect an entry or reentry upon land or to retake tangible movable property; Provided, that the actor believes that he or the person by whose authority he acts or a person from whom he or such other person derives title was unlawfully dispossessed of such land or movable property and is entitled to possession; and provided further, that:
      1. The force is used immediately or on fresh pursuit after such dispossession; or
      2. The actor believes that the person against whom he uses force has no claim of right to the possession of the property and, in the case of land, the circumstances, as the actor believes them to be, are of such urgency that it would be an exceptional hardship to postpone the entry or reentry until a court order is obtained.
  2. For the purposes of subsection (1) of this section:
    1. A person who has parted with the custody of property to another who refuses to restore it to him is no longer in possession, unless such property is movable and was and still is located on land in his possession;
    2. A person who has been dispossessed of land does not regain possession thereof merely by setting foot thereon; and
    3. A person who has a license to use or occupy real property is deemed to be in possession thereof except against the licenser acting under claim of right.
  3. The use of force is justifiable under this section only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor believes that:
    1. Such request would be useless;
    2. It would be dangerous to himself or another person to make the request; or
    3. Substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.
  4. The use of force to prevent or terminate a trespass is not justifiable under this section if the actor knows that the exclusion of the trespasser will expose him to substantial danger of serious bodily harm.
  5. The use of force to prevent an entry or reentry upon land or the recapture of movable property is not justifiable under this section, although the actor believes that such reentry or recapture is unlawful, if:
    1. The reentry or recapture is made by or on behalf of a person who was actually dispossessed of the property; and
    2. It is otherwise justifiable under subdivision (1)(b) of this section.
  6. The use of deadly force is not justifiable under this section unless the actor believes that:
    1. The person against whom the force is used is attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession; or
    2. The person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other felonious theft or property destruction and either:
      1. Has employed or threatened deadly force against or in the presence of the actor; or
      2. The use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of serious bodily harm.
  7. The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he can do so with safety to the property, unless the person confined has been arrested on a charge of crime.
  8. The justification afforded by this section extends to the use of a device for the purpose of protecting property only if:
    1. Such device is not designed to cause or known to create a substantial risk of causing death or serious bodily harm;
    2. Such use of the particular device to protect such property from entry or trespass is reasonable under the circumstances, as the actor believes them to be; and
    3. Such device is one customarily used for such a purpose or reasonable care is taken to make known to probable intruders the fact that it is used.
  9. The use of force to pass a person whom the actor believes to be purposely or knowingly and unjustifiably obstructing the actor from going to a place to which he may lawfully go is justifiable if:
    1. The actor believes that the person against whom he uses force has no claim of right to obstruct the actor;
    2. The actor is not being obstructed from entry or movement on land which he knows to be in the possession or custody of the person obstructing him, or in the possession or custody of another person by whose authority the obstructor acts, unless the circumstances, as the actor believes them to be, are of such urgency that it would not be reasonable to postpone the entry or movement on such land until a court order is obtained; and
    3. The force used is not greater than would be justifiable if the person obstructing the actor were using force against him to prevent his passage.

Source

Laws 1972, LB 895, §6;
R.R.S.1943, §28-838, (1975).

§28-1412 - Use of force in law enforcement.
  1. Subject to the provisions of this section and of section 28-1414, the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.
  2. The use of force is not justifiable under this section unless:
    1. The actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and
    2. When the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid.
  3. The use of deadly force is not justifiable under this section unless:
    1. The arrest is for a felony;
    2. Such person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a peace officer;
    3. The actor believes that the force employed creates no substantial risk of injury to innocent persons; and
    4. The actor believes that:
      1. The crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or
      2. There is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.
  4. The use of force to prevent the escape of an arrested person from custody is justifiable when the force could justifiably have been employed to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a peace officer is justified in using any force, including deadly force, which he believes to be immediately necessary to prevent the escape of a person from a jail, prison, or other institution for the detention of persons charged with or convicted of a crime.
  5. A private person who is summoned by a peace officer to assist in effecting an unlawful arrest is justified in using any force which he would be justified in using if the arrest were lawful; Provided, that he does not believe the arrest is unlawful.
  6. A private person who assists another private person in effecting an unlawful arrest, or who, not being summoned, assists a peace officer in effecting an unlawful arrest, is justified in using any force which he would be justified in using if the arrest were lawful, if:
    1. He believes the arrest is lawful; and
    2. The arrest would be lawful if the facts were as he believes them to be.
  7. The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary to prevent such other person from committing suicide, inflicting serious bodily harm upon himself, committing or consummating the commission of a crime involving or threatening bodily harm, damage to or loss of property or a breach of the peace, except that:
    1. Any limitations imposed by the other provisions of sections 28-1406 to 28-1416 on the justifiable use of force in self-protection, for the protection of others, the protection of property, the effectuation of an arrest or the prevention of an escape from custody shall apply notwithstanding the criminality of the conduct against which such force is used; and
    2. The use of deadly force is not in any event justifiable under this subsection unless:
      1. The actor believes that there is a substantial risk that the person whom he seeks to prevent from committing a crime will cause death or serious bodily harm to another unless the commission or the consummation of the crime is prevented and that the use of such force presents no substantial risk of injury to innocent persons; or
      2. The actor believes that the use of such force is necessary to suppress a riot or mutiny after the rioters or mutineers have been ordered to disperse and warned, in any particular manner that the law may require, that such force will be used if they do not obey.
  8. The justification afforded by subsection (7) of this section extends to the use of confinement as preventive force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can do so, unless the person confined has been arrested on a charge of crime.

Source

Laws 1972, LB 895, §7;
R.R.S.1943, §28-839, (1975).

Annotations

Police officer in making an arrest must use only reasonable force, which is that amount of force which an ordinary, prudent, and intelligent person with the knowledge and in the situation of the arresting police officer would have deemed necessary under the circumstances. State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993).

Pursuant to subsection (1) of this section, a police officer in making an arrest must use only reasonable force, which is that amount of force which an ordinary, prudent, and intelligent person with the knowledge and in the situation of the arresting officer would have deemed necessary under the circumstances. Wagner v. City of Omaha, 236 Neb. 843, 464 N.W.2d 175 (1991).

Officer's use of force during arrest was justified and authorized. State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987).

The legislative policy in Nebraska is that force is not to be used in making an arrest unless the arrester believes such force is immediately necessary to effect a lawful arrest. State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981).

This section, which was section 28-839 under the old criminal code, does apply to police officers, notwithstanding the fact that this section refers only to "actors" and that the statutory definition of "actor" excludes law enforcement officers. Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978).

Where a police officer who pursued and fatally shot a burglary suspect whom he did not believe was involved in a crime involving the use or threatened use of deadly force and who did not present a substantial risk that he would cause death or serious bodily harm if his apprehension were delayed, the police officer used unreasonable force as a matter of law in firing at the suspect as he fled. Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978).

§28-1413 - Use of force by person with special responsibility for care, discipline, or safety of others.

The use of force upon or toward the person of another is justifiable if:

  1. The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian, or other responsible person and:
    1. Such force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his or her misconduct; and
    2. Such force used is not designed to cause or known to create a substantial risk of causing death, serious bodily harm, disfigurement, extreme pain or mental distress, or gross degradation;
  2. The actor is the guardian or other person similarly responsible for the general care and supervision of an incompetent person and:
    1. Such force is used for the purpose of safeguarding or promoting the welfare of the incompetent person, including the prevention of his or her misconduct, or, when such incompetent person is in a hospital or other institution for his or her care and custody, for the maintenance of reasonable discipline in such institution; and
    2. Such force used is not designed to cause or known to create a substantial risk of causing death, serious bodily harm, disfigurement, extreme or unnecessary pain, mental distress, or humiliation;
  3. The actor is a doctor or other therapist or a person assisting him or her at his or her direction and:
    1. Such force is used for the purpose of administering a recognized form of treatment which the actor believes to be adapted to promoting the physical or mental health of the patient; and
    2. Such treatment is administered with the consent of the patient or, if the patient is a minor or an incompetent person, with the consent of his or her parent or guardian or other person legally competent to consent in his or her behalf or the treatment is administered in an emergency when the actor believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent;
  4. The actor is a warden or other authorized official of a correctional institution and:
    1. He or she believes that the force used is necessary for the purpose of enforcing the lawful rules or procedures of the institution, unless his or her belief in the lawfulness of the rule or procedure sought to be enforced is erroneous and his or her error is the result of ignorance or mistake as to the provisions of sections 28-1406 to 28-1416, any other provision of the criminal law, or the law governing the administration of the institution;
    2. The nature or degree of force used is not forbidden by section 28-1408 or 28-1409; and
    3. If deadly force is used, its use is otherwise justifiable under sections 28-1406 to 28-1416;
  5. The actor is a person responsible for the safety of a vessel or an aircraft or a person acting at his or her direction and:
    1. He or she believes that the force used is necessary to prevent interference with the operation of the vessel or aircraft or obstruction of the execution of a lawful order unless such belief in the lawfulness of the order is erroneous and such error is the result of ignorance or mistake as to the law defining such authority; and
    2. If deadly force is used, its use is otherwise justifiable under sections 28-1406 to 28-1416; and
  6. The actor is a person who is authorized or required by law to maintain order or decorum in a vehicle, train, or other carrier or in a place where others are assembled, and:
    1. He or she believes that the force used is necessary for such purpose; and
    2. Such force used is not designed to cause or known to create a substantial risk of causing death, bodily harm, or extreme mental distress.

Source

Laws 1972, LB 895, §8;
R.R.S.1943, §28-840, (1975);
Laws 1988, LB 316, §2.

Annotations

Whether an act that could constitute third degree assault is justifiable under this section is a question of fact. State v. Beins, 235 Neb. 648, 456 N.W.2d 759 (1990).

Whether physical act committed by person responsible for care and supervision of minor is justifiable act or unlawful assault is fact question. State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984).

This section does not create or confer an affirmative right to use physical or corporal punishment, but, rather, this section only provides a defense against criminal liability. State v. Nguth, 13 Neb. App. 783, 701 N.W.2d 852 (2005).

§28-1414 - Mistake of law; reckless or negligent use of force.
  1. The justification afforded by sections 28-1409 to 28-1412 is unavailable when:
    1. The actor's belief in the unlawfulness of the force or conduct against which he employs protective force or his belief in the lawfulness of an arrest which he endeavors to effect by force is erroneous; and
    2. His error is the result of ignorance or mistake as to the provisions of sections 28-1406 to 28-1416, any other provision of the criminal law, or the law governing the legality of an arrest or search.
  2. When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under sections 28-1408 to 28-1413 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
  3. When the actor is justified under sections 28-1408 to 28-1413 in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons.

Source

Laws 1972, LB 895, §9;
R.R.S.1943, §28-841, (1975).

§28-1415 - Justification in property crimes.

Conduct involving the appropriation, seizure or destruction of, damage to, intrusion on or interference with property is justifiable under circumstances which would establish a defense of privilege in a civil action based thereon, unless:

  1. Sections 28-1406 to 28-1416 or the law defining the offense deals with the specific situation involved; or
  2. A legislative purpose to exclude the justification claimed otherwise plainly appears.

Source

Laws 1972, LB 895, §10;
R.R.S.1943, §28-842, (1975).

§28-1416 - Justification an affirmative defense; available in certain civil actions.
  1. In any prosecution based on conduct which is justifiable under sections 28-1406 to 28-1416, justification is an affirmative defense.
  2. The justification defenses provided for under sections 28-1406 to 28-1416 shall be available in any civil action for assault and battery or intentional wrongful death and, where applicable, shall be a bar to recovery.

Source

Laws 1972, LB 895, §11;
R.R.S.1943, §28-843, (1975);
Laws 2012, LB804, §1.

CHAPTER 37 - Game And Parks

§37-522 - Shotgun on highway; restrictions; violation; penalty.

It shall be unlawful to have or carry, except as permitted by law, any shotgun having shells in either the chamber, receiver, or magazine in or on any vehicle on any highway. Any person violating this section shall be guilty of a Class III misdemeanor and shall be fined at least fifty dollars.

Source

Laws 1998, LB 922, §242.

§37-712 - State Wild Game Preserve; firearms, hunting, and fishing prohibited.

Except as provided in section 37-713, it shall be unlawful for any person to carry firearms, hunt, or fish within the limits of the State Wild Game Preserve.

Source

Laws 1927, c. 30, §3, p. 147;
C.S.1929, §37-417;
R.S.1943, §37-417;
Laws 1961, c. 169, §4, p. 503;
R.S.1943, (1993), §37-417;
Laws 1998, LB 922, §326.

§37-713 - State Wild Game Preserve; special permits for taking surplus wild game animals; issuance.

Whenever the number of wild game animals on the State Wild Game Preserve increases beyond the practical carrying capacity of the land involved, and no disposal of such animals to the public parks of the State of Nebraska is practical, the commission is hereby authorized to issue special permits for the taking of such surplus animals and to provide by regulation fees for such special permits and regulate methods and conditions of taking. Such special permits shall be distributed by an impartial manner, by lot.

Source

Laws 1959, c. 150, §10, p. 575;
R.S.1943, (1993), §37-401.01;
Laws 1998, LB 922, §327.

CHAPTER 69 - Personal Property

§69-2401 - Legislative findings and declarations.

The Legislature hereby finds and declares that the state has a valid interest in the regulation of the purchase, lease, rental, and transfer of handguns and that requiring a certificate prior to the purchase, lease, rental, or transfer of a handgun serves a valid public purpose.

Source

Laws 1991, LB 355, §1.

§69-2402 - Terms, defined.

For purposes of sections 69-2401 to 69-2425:

  1. Antique handgun or pistol means any handgun or pistol, including those with a matchlock, flintlock, percussion cap, or similar type of ignition system, manufactured in or before 1898 and any replica of such a handgun or pistol if such replica (a) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition or (b) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade;
  2. Criminal history record check includes a check of the criminal history records of the Nebraska State Patrol and a check of the Federal Bureau of Investigation's National Instant Criminal Background Check System;
  3. Firearm-related disability means a person is not permitted to (a) purchase, possess, ship, transport, or receive a firearm under either state or federal law, (b) obtain a certificate to purchase, lease, rent, or receive transfer of a handgun under section 69-2404, or (c) obtain a permit to carry a concealed handgun under the Concealed Handgun Permit Act; and
  4. Handgun means any firearm with a barrel less than sixteen inches in length or any firearm designed to be held and fired by the use of a single hand.

Source

Laws 1991, LB 355, §25;
Laws 1996, LB 1055, §2;
Laws 2006, LB 1227, §1;
Laws 2011, LB512, §2.

§69-2403 - Sale, lease, rental, and transfer; certificate required; exceptions.
  1. Except as provided in this section and section 69-2409, a person shall not purchase, lease, rent, or receive transfer of a handgun until he or she has obtained a certificate in accordance with section 69-2404. Except as provided in this section and section 69-2409, a person shall not sell, lease, rent, or transfer a handgun to a person who has not obtained a certificate.
  2. The certificate shall not be required if:
    1. The person acquiring the handgun is a licensed firearms dealer under federal law;
    2. The handgun is an antique handgun;
    3. The person acquiring the handgun is authorized to do so on behalf of a law enforcement agency;
    4. The transfer is a temporary transfer of a handgun and the transferee remains
      1. in the line of sight of the transferor or
      2. within the premises of an established shooting facility;
    5. The transfer is between a person and his or her spouse, sibling, parent, child, aunt, uncle, niece, nephew, or grandparent;
    6. The person acquiring the handgun is a holder of a valid permit under the Concealed Handgun Permit Act; or
    7. The person acquiring the handgun is a peace officer as defined in section 69-2429.

Source

Laws 1991, LB 355, §2;
Laws 2010, LB817, §4.

Cross References

Concealed Handgun Permit Act, see section 69-2427.

§69-2404 - Certificate; application; fee.

Any person desiring to purchase, lease, rent, or receive transfer of a handgun shall apply with the chief of police or sheriff of the applicant's place of residence for a certificate. The application may be made in person or by mail. The application form and certificate shall be made on forms approved by the Superintendent of Law Enforcement and Public Safety. The application shall include the applicant's full name, address, date of birth, and country of citizenship. If the applicant is not a United States citizen, the application shall include the applicant's place of birth and his or her alien or admission number. If the application is made in person, the applicant shall also present a current Nebraska motor vehicle operator's license, state identification card, or military identification card, or if the application is made by mail, the application form shall describe the license or card used for identification and be notarized by a notary public who has verified the identification of the applicant through such a license or card. An applicant shall receive a certificate if he or she is twenty-one years of age or older and is not prohibited from purchasing or possessing a handgun by 18 U.S.C. 922. A fee of five dollars shall be charged for each application for a certificate to cover the cost of a criminal history record check.

Source

Laws 1991, LB 355, §3;
Laws 2006, LB 1227, §2;
Laws 2009, LB63, §33.

Effective Date: May 28, 2009

§69-2405 - Application; chief of police or sheriff; duties; immunity.

Upon the receipt of an application for a certificate, the chief of police or sheriff shall issue a certificate or deny a certificate and furnish the applicant the specific reasons for the denial in writing. The chief of police or sheriff shall be permitted up to three days in which to conduct an investigation to determine whether the applicant is prohibited by law from purchasing or possessing a handgun. If the certificate or denial is mailed to the applicant, it shall be mailed to the applicant's address by first-class mail within the three-day period. If it is determined that the purchase or possession of a handgun by the applicant would be in violation of applicable federal, state, or local law, the chief of police or sheriff shall deny the certificate. In computing the three-day period, the day of receipt of the application shall not be included and the last day of the three-day period shall be included. The three-day period shall expire at 11:59 p.m. of the third day unless it is a Saturday, Sunday, or legal holiday in which event the period shall run until 11:59 p.m. of the next day which is not a Saturday, Sunday, or legal holiday. No later than the end of the three-day period the chief of police or sheriff shall issue or deny such certificate and, if the certificate is denied, furnish the applicant the specific reasons for denial in writing. No civil liability shall arise to any law enforcement agency if such law enforcement agency complies with sections 69-2401, 69-2403 to 69-2408, and 69-2409.01.

Source

Laws 1991, LB 355, §4;
Laws 1996, LB 1055, §3;
Laws 2006, LB 1227, §3.

§69-2406 - Certificate; denial or revocation; appeal; filing fee.

Any person who is denied a certificate, whose certificate is revoked, or who has not been issued a certificate upon expiration of the three-day period may appeal within ten days of receipt of the denial or revocation to the county court of the county of the applicant's place of residence. The applicant shall file with the court the specific reasons for the denial or revocation by the chief of police or sheriff and a filing fee of ten dollars in lieu of any other filing fee required by law. The court shall issue its decision within thirty days of the filing of the appeal.

Source

Laws 1991, LB 355, §5;
Laws 2006, LB 1227, §4.

§69-2407 - Certificate; contents; term; revocation.

A certificate issued in accordance with section 69-2404 shall contain the holder's name, address, and date of birth and the effective date of the certificate. A certificate shall authorize the holder to acquire any number of handguns during the period that the certificate is valid. The certificate shall be valid throughout the state and shall become invalid three years after its effective date. If the chief of police or sheriff who issued the certificate determines that the applicant has become disqualified for the certificate under section 69-2404, he or she may immediately revoke the certificate and require the holder to surrender the certificate immediately. Revocation may be appealed pursuant to section 69-2406.

Source

Laws 1991, LB 355, §6;
Laws 2009, LB63, §34.

Effective Date: May 28, 2009

§69-2408 - False information on application; other violations; penalties; confiscation of handgun.

Any person who willfully provides false information on an application form for a certificate under section 69-2404 shall, upon conviction, be guilty of a Class IV felony, and any person who intentionally violates any other provision of sections 69-2401, 69-2403 to 69-2407, and 69-2409.01 shall, upon conviction, be guilty of a Class I misdemeanor. As a part of the judgment of conviction, the court may order the confiscation of the handgun.

Source

Laws 1991, LB 355, §7;
Laws 1996, LB 1055, §4.

§69-2409 - Automated criminal history files; legislative intent; system implementation; Nebraska State Patrol; superintendent; duties; purchase, lease, rental, or transfer; election.
  1. It is the intent of the Legislature that the Nebraska State Patrol implement an expedited program of upgrading Nebraska's automated criminal history files to be utilized for, among other law enforcement purposes, an instant criminal history record check on handgun purchasers when buying a handgun from a licensed importer, manufacturer, or dealer so that such instant criminal history record check may be implemented as soon as possible on or after January 1, 1995.
  2. The patrol's automated arrest and conviction records shall be reviewed annually by the Superintendent of Law Enforcement and Public Safety who shall report the status of such records within thirty days of such review to the Governor and the Clerk of the Legislature. The report submitted to the Clerk of the Legislature shall be submitted electronically. The instant criminal history record check system shall be implemented by the patrol on or after January 1, 1995, when, as determined by the Superintendent of Law Enforcement and Public Safety, eighty-five percent of the Nebraska arrest and conviction records since January 1, 1965, available to the patrol are included in the patrol's automated system. Not less than thirty days prior to implementation and enforcement of the instant check system, the patrol shall send written notice to all licensed importers, manufacturers, and dealers outlining the procedures and toll-free number described in sections 69-2410 to 69-2423.
  3. Upon implementation of the instant criminal history record check system, a person who desires to purchase, lease, rent, or receive transfer of a handgun from a licensed importer, manufacturer, or dealer may elect to obtain such handgun either under sections 69-2401, 69-2403 to 69-2408, and 69-2409.01 or under sections 69-2409.01 and 69-2410 to 69-2423.

Source

Laws 1991, LB 355, §8;
Laws 1996, LB 1055, §5;
Laws 2012, LB782, §99.

Operative Date: July 19, 2012

§69-2409.01 - (2014) Data base; created; disclosure; limitation; liability; prohibited act; violation; penalty.
  1. For purposes of sections 69-2401 to 69-2425, the Nebraska State Patrol shall be furnished with only such information as may be necessary for the sole purpose of determining whether an individual is disqualified from purchasing or possessing a handgun pursuant to state law or is subject to the disability provisions of 18 U.S.C. 922(d)(4) and (g)(4). Such information shall be furnished by the Department of Health and Human Services. The clerks of the various courts shall furnish to the Department of Health and Human Services and Nebraska State Patrol, as soon as practicable but within thirty days after an order of commitment or discharge is issued or after removal of firearm-related disabilities pursuant to section 71-963, all information necessary to set up and maintain the data base required by this section. This information shall include
    1. Information regarding those persons who are currently receiving mental health treatment pursuant to a commitment order of a mental health board or who have been discharged,
    2. Information regarding those persons who have been committed to treatment pursuant to section 29-3702, and
    3. Information regarding those persons who have had firearm-related disabilities removed pursuant to section 71-963. The mental health board shall notify the Department of Health and Human Services and the Nebraska State Patrol when such disabilities have been removed. The Department of Health and Human Services shall also maintain in the data base a listing of persons committed to treatment pursuant to section 29-3702. To ensure the accuracy of the data base, any information maintained or disclosed under this subsection shall be updated, corrected, modified, or removed, as appropriate, and as soon as practicable, from any data base that the state or federal government maintains and makes available to the National Instant Criminal Background Check System. The procedures for furnishing the information shall guarantee that no information is released beyond what is necessary for purposes of this section.
  2. In order to comply with sections 69-2401 and 69-2403 to 69-2408 and this section, the Nebraska State Patrol shall provide to the chief of police or sheriff of an applicant's place of residence or a licensee in the process of a criminal history record check pursuant to section 69-2411 only the information regarding whether or not the applicant is disqualified from purchasing or possessing a handgun.
  3. Any person, agency, or mental health board participating in good faith in the reporting or disclosure of records and communications under this section is immune from any liability, civil, criminal, or otherwise, that might result by reason of the action.
  4. Any person who intentionally causes the Nebraska State Patrol to request information pursuant to this section without reasonable belief that the named individual has submitted a written application under section 69-2404 or has completed a consent form under section 69-2410 shall be guilty of a Class II misdemeanor in addition to other civil or criminal liability under state or federal law.
  5. The Nebraska State Patrol and the Department of Health and Human Services shall report electronically to the Clerk of the Legislature on a biannual basis the following information about the database:
    1. The number of total records of persons unable to purchase or possess firearms because of disqualification or disability shared with the National Instant Criminal Background Check System;
    2. The number of shared records by category of such persons;
    3. The change in number of total shared records and change in number of records by category from the previous six months;
    4. The number of records existing but not able to be shared with the National Instant Criminal Background Check System because the record was incomplete and unable to be accepted by the National Instant Criminal Background Check System; and
    5. The number of hours or days, if any, during which the database was unable to share records with the National Instant Criminal Background Check System and the reason for such inability. The report shall also be published on the websites o the Nebraska State Patrol and the Department of Health and Human Services.

Source

Laws 1996, LB 1055, §1;
Laws 1997, LB 307, §112;
Laws 2011, LB512, §3.
Laws 2014, LB699, §6.

§69-2410 - Importer, manufacturer, or dealer; sale or delivery; duties.

No importer, manufacturer, or dealer licensed pursuant to 18 U.S.C. 923 shall sell or deliver any handgun to another person other than a licensed importer, manufacturer, dealer, or collector until he or she has:

    1. Inspected a valid certificate issued to such person pursuant to sections 69-2401, 69-2403 to 69-2408, and 69-2409.01; and
    2. Inspected a valid identification containing a photograph of such person which appropriately and completely identifies such person; or
    1. Obtained a completed consent form from the potential buyer or transferee, which form shall be established by the Nebraska State Patrol and provided by the licensed importer, manufacturer, or dealer. The form shall include the name, address, date of birth, gender, race, and country of citizenship of such potential buyer or transferee. If the potential buyer or transferee is not a United States citizen, the completed consent form shall contain the potential buyer's or transferee's place of birth and his or her alien or admission number;
    2. Inspected a valid identification containing a photograph of the potential buyer or transferee which appropriately and completely identifies such person;
    3. Requested by toll-free telephone call or other electromagnetic communication that the Nebraska State Patrol conduct a criminal history record check; and
    4. Received a unique approval number for such inquiry from the Nebraska State Patrol indicating the date and number on the consent form.

Source

Laws 1991, LB 355, §9;
Laws 1996, LB 1055, §6;
Laws 2006, LB 1227, §5;
Laws 2009, LB63, §35.

Effective Date: May 28, 2009

§69-2411 - Request for criminal history record check; Nebraska State Patrol; duties; fee.
  1. Upon receipt of a request for a criminal history record check, the Nebraska State Patrol shall as soon as possible during the licensee's telephone call or by return telephone call:
    1. Check its criminal history records and check the Federal Bureau of Investigation's National Instant Criminal Background Check System to determine if the potential buyer or transferee is prohibited from receipt or possession of a handgun pursuant to state or federal law; and
    2. Either
      1. inform the licensee that its records demonstrate that the potential buyer or transferee is prohibited from receipt or possession of a handgun or
      2. provide the licensee with a unique approval number.
  2. In the event of electronic failure or similar emergency beyond the control of the Nebraska State Patrol, the patrol shall immediately notify a requesting licensee of the reason for and estimated length of such delay. In any event, no later than the end of the next business day the Nebraska State Patrol shall either
    1. inform the licensee that its records demonstrate that the potential buyer or transferee is prohibited from receipt or possession of a handgun or
    2. provide the licensee with a unique approval number. If the licensee is not informed by the end of the next business day that the potential buyer is prohibited from receipt or possession of a handgun, and regardless of whether the unique approval number has been received, the licensee may complete the sale or delivery and shall not be deemed to be in violation of sections 69-2410 to 69-2423 with respect to such sale or delivery.
  3. A fee of three dollars shall be charged for each request of a criminal history record check required pursuant to section 69-2410, which amount shall be transmitted monthly to the Nebraska State Patrol. Such amount shall be for the purpose of covering the costs of the criminal history record check.

Source

Laws 1991, LB 355, §10;
Laws 2006, LB 1227, §6.

§69-2412 - Records; confidentiality; destruction.
  1. Any records which are created by the Nebraska State Patrol to conduct the criminal history record check containing any of the information set forth in subdivision (2)(a) of section 69-2410 pertaining to a potential buyer or transferee who is not prohibited from receipt or transfer of a handgun by reason of state or federal law shall be confidential and may not be disclosed by the patrol or any officer or employee thereof to any person. The Nebraska State Patrol shall destroy any such records as soon as possible after communicating the unique approval number, and in any event, such records shall be destroyed within forty-eight hours after the date of receipt of the licensee's request.
  2. Notwithstanding the provisions of this section, the Nebraska State Patrol shall only maintain a log of dates of requests for criminal history record checks and unique approval numbers corresponding to such dates for not to exceed one year.
  3. Nothing in this section shall be construed to allow the state to maintain records containing the names of licensees who receive unique approval numbers or to maintain records of handgun transactions, including the names or other identification of licensees and potential buyers or transferees including persons not otherwise prohibited by law from the receipt or possession of handguns.

Source

Laws 1991, LB 355, §11.

§69-2413 - Nebraska State Patrol; toll-free telephone number; personnel.

The Nebraska State Patrol shall establish a toll-free telephone number which shall be operational seven days a week between 8 a.m. and 10 p.m. for purposes of responding to requests under section 69-2410. The Nebraska State Patrol shall employ and train such personnel as is necessary to expeditiously administer the provisions of sections 69-2410 to 69-2423.

Source

Laws 1991, LB 355, §12.

§69-2414 - Records; amendment; procedure.

Any person who is denied the right to purchase or receive a handgun as a result of procedures established by sections 69-2410 to 69-2423 may request amendment of the record pertaining to him or her by petitioning the Nebraska State Patrol. If the Nebraska State Patrol fails to amend the record within seven days, the person requesting the amendment may petition the county court of the county in which he or she resides for an order directing the patrol to amend the record. If the person proves by a preponderance of the evidence that the record should be amended, the court shall order the record be amended. If the record demonstrates that such person is not prohibited from receipt or possession of a handgun by state or federal law, the Nebraska State Patrol shall destroy any records it maintains which contain any information derived from the criminal history record check.

Source

Laws 1991, LB 355, §13.

§69-2415 - Records; rules and regulations.

The Nebraska State Patrol shall adopt and promulgate rules and regulations to ensure the identity, confidentiality, and security of all records and data provided pursuant to sections 69-2410 to 69-2423.

Source

Laws 1991, LB 355, §14.

§69-2416 - Licensed importer, manufacturer, or dealer; compliance not required; when.

A licensed importer, manufacturer, or dealer shall not be required to comply with the provisions of subdivision (2) of section 69-2410 and sections 69-2411 to 69-2423 in the event of:

  1. Unavailability of telephone service at the licensed premises due to (a) the failure of the entity which provides telephone service in the state, region, or other geographical area in which the licensee is located to provide telephone service to the premises due to the location of such premises or (b) the interruption of telephone service by reason of hurricane, flood, natural disaster, other act of God, war, riot, or other bona fide emergency or reason beyond the control of the licensee; or
  2. Failure of the Nebraska State Patrol to comply reasonably with the requirements of sections 69-2410 to 69-2423.

Source

Laws 1991, LB 355, §15.

§69-2417 - Nebraska State Patrol; licensee; liability defense; when.

Compliance with sections 69-2410 to 69-2423 shall be a defense by the Nebraska State Patrol and the licensee transferring a handgun in any cause of action under the laws of this state for liability for damages arising from the importation or manufacture, or the subsequent sale or transfer, of any handgun which has been shipped or transported in interstate or foreign commerce to any person who has been convicted in any court of any crime punishable by a term of more than one year.

Source

Laws 1991, LB 355, §16.

§69-2418 - Instant criminal history record check; requirements; exemptions.

Sections 69-2410 to 69-2423 shall not apply to:

  1. Any antique handgun or pistol; or
  2. Any firearm which is a curio or relic as defined in 27 C.F.R. 478.11.

Source

Laws 1991, LB 355, §17;
Laws 2006, LB 1227, §7.

§69-2419 - Criminal history records; prohibited acts; violation; penalty.

Any licensed importer, manufacturer, or dealer who knowingly and intentionally requests a criminal history record check from the Nebraska State Patrol for any purpose other than compliance with sections 69-2410 to 69-2423 or knowingly and intentionally disseminates any criminal history record check information to any person other than the subject of such information shall be guilty of a Class I misdemeanor.

Source

Laws 1991, LB 355, §18;
Laws 2006, LB 1227, §8.

§69-2420 - False statement; false identification; prohibited acts; violation; penalty.

Any person who, in connection with the purchase, transfer, or attempted purchase of a handgun pursuant to sections 69-2410 to 69-2423, knowingly and intentionally makes any materially false oral or written statement or knowingly and intentionally furnishes any false identification intended or likely to deceive the licensee shall be guilty of a Class IV felony.

Source

Laws 1991, LB 355, §19.

§69-2421 - Sale or delivery; violation; penalty.

Any licensed importer, manufacturer, or dealer who knowingly and intentionally sells or delivers a handgun in violation of sections 69-2401 to 69-2425 shall be guilty of a Class IV felony.

Source

Laws 1991, LB 355, §20;
Laws 1996, LB 1055, §7.

§69-2422 - Obtaining handgun for prohibited transfer; violation; penalty.

For purposes of sections 69-2401 to 69-2425, any person who knowingly and intentionally obtains a handgun for the purposes of transferring it to a person who is prohibited from receipt or possession of a handgun by state or federal law shall be guilty of a Class IV felony.

Source

Laws 1991, LB 355, §21;
Laws 1996, LB 1055, §8.

§69-2423 - Nebraska State Patrol; annual report; contents.

The Nebraska State Patrol shall provide electronically an annual report to the Judiciary Committee of the Legislature which includes the number of inquiries made pursuant to sections 69-2410 to 69-2423 for the prior calendar year, the number of such inquiries resulting in a determination that the potential buyer or transferee was prohibited from receipt or possession of a handgun pursuant to state or federal law, the estimated costs of administering such sections, the number of instances in which a person requested amendment of the record pertaining to such person pursuant to section 69-2414, and the number of instances in which a county court issued an order directing the patrol to amend a record.

Source

Laws 1991, LB 355, §22;
Laws 2012, LB782, §100.

Operative Date: July 19, 2012

§69-2424 - Rules and regulations.

The Nebraska State Patrol shall adopt and promulgate rules and regulations to carry out sections 69-2401 to 69-2425.

Source

Laws 1991, LB 355, §23;
Laws 1996, LB 1055, §9.

§69-2425 - City or village ordinance; not preempted.

Any city or village ordinance existing on September 6, 1991, shall not be preempted by sections 69-2401 to 69-2425.

Source

Laws 1991, LB 355, §24;
Laws 1996, LB 1055, §10.

§69-2426 - Dealers of firearms; distribution of information; Firearm Information Fund; created.
  1. Dealers of firearms shall distribute to all purchasers information developed by the Department of Health and Human Services regarding the dangers of leaving loaded firearms unattended around children.
  2. There is hereby created the Firearm Information Fund. Private contributions shall be credited by the State Treasurer to such fund for the implementation of the provisions of this section.

Source

Laws 1993, LB 117, §1;
Laws 1996, LB 1044, §367.

§69-2427 - Act, how cited.

Sections 69-2427 to 69-2449 shall be known and may be cited as the Concealed Handgun Permit Act.

Source

Laws 2006, LB 454, §1;
Laws 2009, LB430, § 9;
Laws 2010, LB817, §5.

§69-2428 - Permit to carry concealed handgun; authorized.

An individual may obtain a permit to carry a concealed handgun in accordance with the Concealed Handgun Permit Act.

Source

Laws 2006, LB 454, §2.

§69-2429 - Terms, defined.

For purposes of the Concealed Handgun Permit Act:

  1. Concealed handgun means the handgun is totally hidden from view. If any part of the handgun is capable of being seen, it is not a concealed handgun;
  2. Emergency services personnel means a volunteer or paid firefighter or rescue squad member or a person licensed to provide emergency medical services pursuant to the Emergency Medical Services Practice Act;
  3. Handgun means any firearm with a barrel less than sixteen inches in length or any firearm designed to be held and fired by the use of a single hand;
  4. Peace officer means any town marshal, chief of police or local police officer, sheriff or deputy sheriff, the Superintendent of Law Enforcement and Public Safety, any officer of the Nebraska State Patrol, any member of the National Guard on active service by direction of the Governor during periods of emergency or civil disorder, any Game and Parks Commission conservation officer, and all other persons with similar authority to make arrests;
  5. Permit holder means an individual holding a current and valid permit to carry a concealed handgun issued pursuant to the Concealed Handgun Permit Act; and
  6. Proof of training means an original document or certified copy of a document, supplied by an applicant, that certifies that he or she either:
    1. Within the previous three years, has successfully completed a handgun training and safety course approved by the Nebraska State Patrol pursuant to section 69-2432; or
    2. Is a member of the active or reserve armed forces of the United States or a member of the National Guard and has had handgun training within the previous three years which meets the minimum safety and training requirements of section 69-2432.

Source

Laws 2006, LB 454, §3;
Laws 2007, LB463, §1177.

§69-2430 - Application; form; contents; prohibited acts; penalty; permit issuance; denial; appeal.
  1. Application for a permit to carry a concealed handgun shall be made in person at any Nebraska State Patrol Troop Headquarters or office provided by the patrol for purposes of accepting such an application. The applicant shall present a current Nebraska motor vehicle operator's license, Nebraska-issued state identification card, or military identification card and shall submit two legible sets of fingerprints for a criminal history record information check pursuant to section 69-2431. The application shall be made on a form prescribed by the Superintendent of Law Enforcement and Public Safety. The application shall state the applicant's full name, motor vehicle operator's license number or state identification card number, address, and date of birth and contain the applicant's signature and shall include space for the applicant to affirm that he or she meets each and every one of the requirements set forth in section 69-2433. The applicant shall attach to the application proof of training and proof of vision as required in subdivision (3) of section 69-2433.
  2. A person applying for a permit to carry a concealed handgun who gives false information or offers false evidence of his or her identity is guilty of a Class IV felony.
    1. Until January 1, 2010, the permit to carry a concealed handgun shall be issued by the Nebraska State Patrol within five business days after completion of the applicant's criminal history record information check, if the applicant has complied with this section and has met all the requirements of section 69-2433.
    2. Beginning January 1, 2010, the permit to carry a concealed handgun shall be issued by the Nebraska State Patrol within forty-five days after the date an application for the permit has been made by the applicant if the applicant has complied with this section and has met all the requirements of section 69-2433.
  3. An applicant denied a permit to carry a concealed handgun may appeal to the district court of the judicial district of the county in which he or she resides or the county in which he or she applied for the permit pursuant to the Administrative Procedure Act.

Source

Laws 2006, LB 454, §4;
Laws 2009, LB63, §36;
Laws 2009, LB430, §10.

Note: The Revisor of Statutes has pursuant to section 49-769 correlated LB63, section 36, with LB430, section 10, to reflect all amendments.

Note: Changes made by LB63 became effective May 28, 2009. Changes made by LB430 became effective August 30, 2009.

Cross References

Administrative Procedure Act, see section 84-920.

§69-2431 - Fingerprinting; criminal history record information check.

In order to insure an applicant's initial compliance with sections 69-2430 and 69-2433, the applicant for a permit to carry a concealed handgun shall be fingerprinted by the Nebraska State Patrol and a check made of his or her criminal history record information maintained by the Federal Bureau of Investigation through the Nebraska State Patrol. In order to insure continuing compliance with sections 69-2430 and 69-2433 and compliance for renewal pursuant to section 69-2436, a check shall be made of a permit holder's criminal history record information through the National Instant Criminal Background Check System.

Source

Laws 2006, LB 454, §5;
Laws 2010, LB817, §7.

§69-2432 - Nebraska State Patrol; handgun training and safety courses and instructors; duties; certificate of completion of course; fee.
  1. The Nebraska State Patrol shall prepare and publish minimum training and safety requirements for and adopt and promulgate rules and regulations governing handgun training and safety courses and handgun training and safety course instructors. Minimum safety and training requirements for a handgun training and safety course shall include, but not be limited to:
    1. Knowledge and safe handling of a handgun;
    2. Knowledge and safe handling of handgun ammunition;
    3. Safe handgun shooting fundamentals;
    4. A demonstration of competency with a handgun with respect to the minimum safety and training requirements;
    5. Knowledge of federal, state, and local laws pertaining to the purchase, ownership, transportation, and possession of handguns;
    6. Knowledge of federal, state, and local laws pertaining to the use of a handgun, including, but not limited to, use of a handgun for self-defense and laws relating to justifiable homicide and the various degrees of assault;
    7. Knowledge of ways to avoid a criminal attack and to defuse or control a violent confrontation; and
    8. Knowledge of proper storage practices for handguns and ammunition, including storage practices which would reduce the possibility of accidental injury to a child.
  2. A person or entity conducting a handgun training and safety course and the course instructors shall be approved by the patrol before operation. The patrol shall issue a certificate evidencing its approval.
  3. A certificate of completion of a handgun training and safety course shall be issued by the person or entity conducting a handgun training and safety course to persons successfully completing the course. The certificate of completion shall also include certification from the instructor that the person completing the course does not suffer from a readily discernible physical infirmity that prevents the person from safely handling a handgun.
  4. Any fee for participation in a handgun training and safety course is the responsibility of the applicant.

Source

Laws 2006, LB 454, §6.

§69-2433 - (2016) Applicant; requirements.

An applicant shall:

  1. Be at least twenty-one years of age;
  2. Not be prohibited from purchasing or possessing a handgun by 18 U.S.C. 922, as such section existed on January 1, 2005;
  3. Possess the same powers of eyesight as required under section 60-4,118 for a Class O operator's license. If an applicant does not possess a current Nebraska motor vehicle operator's license, the applicant may present a current optometrist's or ophthalmologist's statement certifying the vision reading obtained when testing the applicant. If such certified vision reading meets the vision requirements prescribed by section 60-4,118 for a Class O operator's license, the vision requirements of this subdivision shall have been met;
  4. Not have been convicted of a felony under the laws of this state or under the laws of any other jurisdiction;
  5. Not have been convicted of a misdemeanor crime of violence under the laws of this state or under the laws of any other jurisdiction within the ten years immediately preceding the date of application;
  6. Not have been found in the previous ten years to be a mentally ill and dangerous person under the Nebraska Mental Health Commitment Act or a similar law of another jurisdiction or not be currently adjudged mentally incompetent;
    1. Have been a resident of this state for at least one hundred eighty days. For purposes of this section, resident does not include an applicant who maintains a residence in another state and claims that residence for voting or tax purposes except as provided in subdivision (b) or (c) of this subdivision;
    2. If an applicant is a member of the United States Armed Forces, such applicant shall be considered a resident of this state for purposes of this section after he or she has been stationed at a military installation in this state pursuant to permanent duty station orders even though he or she maintains a residence in another state and claims that residence for voting or tax purposes; The spouse of such applicant shall also be considered a resident of this state for purposes of this section, as shall a person receiving the benefits of a spouse of a member of the United States Armed Forces under the law of the United States; or
    3. If an applicant is a new Nebraska resident and possesses a valid permit to carry a concealed handgun issued by his or her previous state of residence that is recognized by this state pursuant to section 69-2448, such applicant shall be considered a resident of this state for purposes of this section;
  7. Not have had a conviction of any law of this state relating to firearms, unlawful use of a weapon, or controlled substances or of any similar laws of another jurisdiction within the ten years preceding the date of application. This subdivision does not apply to any conviction under Chapter 37 or under any similar law of another jurisdiction, except for a conviction under section 37-509, 37-513, or 37-522 or under any similar law of another jurisdiction;
  8. Not be on parole, probation, house arrest, or work release; and
  9. Provide proof of training.

Source

Laws 2006, LB 454, §7; Laws 2009, LB430, §11; Laws 2010, LB817, §8; Laws 2011, LB512, §4; Laws 2012, LB807, §2.

Effective Date: April 19, 2012

Cross References

Nebraska Mental Health Commitment Act, see section 71-901.

§69-2434 - Permit; design and form.

The design and form of the permit to carry a concealed handgun shall be prescribed by the Nebraska State Patrol. The permit shall list the permit holder's name, the permit holder's address, and the expiration date of the permit and contain a photograph of the permit holder.

Source

Laws 2006, LB 454, §8.

§69-2435 - Permit holder; continuing requirements; return of permit; when.

A permit holder shall continue to meet the requirements of section 69-2433 during the time he or she holds the permit, except as provided in subsection (4) of section 69-2443. If, during such time, a permit holder does not continue to meet one or more of the requirements, the permit holder shall return his or her permit to the Nebraska State Patrol for revocation. If a permit holder does not return his or her permit, the permit holder is subject to having his or her permit revoked under section 69-2439.

Source

Laws 2006, LB 454, §9;
Laws 2012, LB807, §3.

Effective Date: April 19, 2012

§69-2436 - Permit; period valid; fee; renewal; fee.
  1. A permit to carry a concealed handgun is valid throughout the state for a period of five years after the date of issuance. The fee for issuing a permit is one hundred dollars.
  2. The Nebraska State Patrol shall renew a person's permit to carry a concealed handgun for a renewal period of five years, subject to continuing compliance with the requirements of section 69-2433, except as provided in subsection (4) of section 69-2443. The renewal fee is fifty dollars, and renewal may be applied for up to four months before expiration of a permit to carry a concealed handgun.
  3. The applicant shall submit the fee with the application to the Nebraska State Patrol. The fee shall be remitted to the State Treasurer for credit to the Nebraska State Patrol Cash Fund.
  4. On or before June 30, 2007, the Nebraska State Patrol shall journal entry, as necessary, all current fiscal year expenses and revenue, including investment income, from the Public Safety Cash Fund under the Concealed Handgun Permit Act and recode them against the Nebraska State Patrol Cash Fund and its program appropriation.

Source

Laws 2006, LB 454, §10;
Laws 2007, LB322, §17;
Laws 2012, LB807, §4.

Effective Date: April 19, 2012

§69-2437 - Permit; nontransferable.

A permit to carry a concealed handgun shall be issued to a specific individual only and shall not be transferred from one person to another.

Source

Laws 2006, LB 454, §11.

§69-2438 - Limitation on liability.

The Nebraska State Patrol or any agent, employee, or member thereof is not civilly liable to any injured person or his or her estate for any injury suffered, including any action for wrongful death or property damage suffered, relating to the issuance or revocation of a permit to carry a concealed handgun issued pursuant to the Concealed Handgun Permit Act.

Source

Laws 2006, LB 454, §12.

§69-2439 - Permit; application for revocation; prosecution; fine; costs.
  1. Any peace officer having probable cause to believe that a permit holder is no longer in compliance with one or more requirements of section 69-2433, except as provided in subsection (4) of section 69-2443, shall bring an application for revocation of the permit to be prosecuted as provided in subsection (2) of this section.
  2. It is the duty of the county attorney or his or her deputy of the county in which such permit holder resides to prosecute a case for the revocation of a permit to carry a concealed handgun brought pursuant to subsection (1) of this section. In case the county attorney refuses or is unable to prosecute the case, the duty to prosecute shall be upon the Attorney General or his or her assistant.
  3. The case shall be prosecuted as a civil case, and the permit shall be revoked upon a showing by a preponderance of the evidence that the permit holder does not meet one or more of the requirements of section 69-2433, except as provided in subsection (4) of section 69-2443.
  4. A person who has his or her permit revoked under this section may be fined up to one thousand dollars and shall be charged with the costs of the prosecution. The money collected under this subsection as an administrative fine shall be remitted to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.

Source

Laws 2006, LB 454, §13;
Laws 2012, LB807, §5.

Effective Date: April 19, 2012

§69-2440 - Permit holder; duties; contact with peace officer or emergency services personnel; procedures for securing handgun.
  1. A permit holder shall carry his or her permit to carry a concealed handgun and his or her Nebraska driver's license, Nebraska-issued state identification card, or military identification card any time he or she carries a concealed handgun. The permit holder shall display both the permit to carry a concealed handgun and his or her Nebraska motor vehicle operator's license, Nebraska-issued state identification card, or military identification card when asked to do so by a peace officer or by emergency services personnel.
  2. Whenever a permit holder who is carrying a concealed handgun is contacted by a peace officer or by emergency services personnel, the permit holder shall immediately inform the peace officer or emergency services personnel that the permit holder is carrying a concealed handgun.
    1. During contact with a permit holder, a peace officer or emergency services personnel may secure the handgun or direct that it be secured during the duration of the contact if the peace officer or emergency services personnel determines that it is necessary for the safety of any person present, including the peace officer or emergency services personnel. The permit holder shall submit to the order to secure the handgun.
      1. When the peace officer has determined that the permit holder is not a threat to the safety of any person present, including the peace officer, and the permit holder has not committed any other violation that would result in his or her arrest or the suspension or revocation of his or her permit, the peace officer shall return the handgun to the permit holder before releasing the permit holder from the scene and breaking contact.
      2. When emergency services personnel have determined that the permit holder is not a threat to the safety of any person present, including emergency services personnel, and if the permit holder is physically and mentally capable of possessing the handgun, the emergency services personnel shall return the handgun to the permit holder before releasing the permit holder from the scene and breaking contact. If the permit holder is transported for treatment to another location, the handgun shall be turned over to any peace officer. The peace officer shall provide a receipt which includes the make, model, caliber, and serial number of the handgun.
  3. For purposes of this section, contact with a peace officer means any time a peace officer personally stops, detains, questions, or addresses a permit holder for an official purpose or in the course of his or her official duties, and contact with emergency services personnel means any time emergency services personnel provide treatment to a permit holder in the course of their official duties.

Source

Laws 2006, LB 454, §14.

§69-2441 - Permit holder; locations; restrictions; posting of prohibition; consumption of alcohol; prohibited.
    1. A permit holder may carry a concealed handgun anywhere in Nebraska, except any: Police, sheriff, or Nebraska State Patrol station or office; detention facility, prison, or jail; courtroom or building which contains a courtroom; polling place during a bona fide election; meeting of the governing body of a county, public school district, municipality, or other political subdivision; meeting of the Legislature or a committee of the Legislature; financial institution; professional or semiprofessional athletic event; building, grounds, vehicle, or sponsored activity or athletic event of any public, private, denominational, or parochial elementary, vocational, or secondary school, a private postsecondary career school as defined in section 85-1603, a community college, or a public or private college, junior college, or university; place of worship; hospital, emergency room, or trauma center; political rally or fundraiser; establishment having a license issued under the Nebraska Liquor Control Act that derives over one-half of its total income from the sale of alcoholic liquor; place where the possession or carrying of a firearm is prohibited by state or federal law; a place or premises where the person, persons, entity, or entities in control of the property or employer in control of the property has prohibited permit holders from carrying concealed handguns into or onto the place or premises; or into or onto any other place or premises where handguns are prohibited by state law.
    2. A financial institution may authorize its security personnel to carry concealed handguns in the financial institution while on duty so long as each member of the security personnel, as authorized, is in compliance with the Concealed Handgun Permit Act and possesses a permit to carry a concealed handgun issued pursuant to the act.
    3. A place of worship may authorize its security personnel to carry concealed handguns on its property so long as each member of the security personnel, as authorized, is in compliance with the Concealed Handgun Permit Act and possesses a permit to carry a concealed handgun issued pursuant to the act and written notice is given to the congregation and, if the property is leased, the carrying of concealed handguns on the property does not violate the terms of any real property lease agreement between the place of worship and the lessor.
  1. If a person, persons, entity, or entities in control of the property or an employer in control of the property prohibits a permit holder from carrying a concealed handgun into or onto the place or premises and such place or premises are open to the public, a permit holder does not violate this section unless the person, persons, entity, or entities in control of the property or employer in control of the property has posted conspicuous notice that carrying a concealed handgun is prohibited in or on the place or premises or has made a request, directly or through an authorized representative or management personnel, that the permit holder remove the concealed handgun from the place or premises.
  2. A permit holder carrying a concealed handgun in a vehicle or on his or her person while riding in or on a vehicle into or onto any parking area, which is open to the public, used by any location listed in subdivision (1)(a) of this section, does not violate this section if, prior to exiting the vehicle, the handgun is locked inside the glove box, trunk, or other compartment of the vehicle, a storage box securely attached to the vehicle, or, if the vehicle is a motorcycle, a hardened compartment securely attached to the motorcycle. This subsection does not apply to any parking area used by such location when the carrying of a concealed handgun into or onto such parking area is prohibited by federal law.
  3. An employer may prohibit employees or other persons who are permit holders from carrying concealed handguns in vehicles owned by the employer.
  4. A permit holder shall not carry a concealed handgun while he or she is consuming alcohol or while the permit holder has remaining in his or her blood, urine, or breath any previously consumed alcohol or any controlled substance as defined in section 28-401. A permit holder does not violate this subsection if the controlled substance in his or her blood, urine, or breath was lawfully obtained and was taken in therapeutically prescribed amounts.

Source

Laws 2006, LB 454, §15;
Laws 2007, LB97, §1;
Laws 2009, LB430, § 12.

Effective Date: August 30, 2009

§69-2442 - Injury to person or damage to property; permit holder; report required.

Any time the discharge of a handgun carried by a permit holder pursuant to the Concealed Handgun Permit Act results in injury to a person or damage to property, the permit holder shall make a report of such incident to the Nebraska State Patrol on a form designed and distributed by the Nebraska State Patrol. The information from the report shall be maintained as provided in section 69-2444.

Source

Laws 2006, LB 454, §16.

§69-2443 - Violations; penalties; revocation of permit.
  1. A permit holder who violates subsection (1) or (2) of section 69-2440 or section 69-2441 or 69-2442 is guilty of a Class III misdemeanor for the first violation and a Class I misdemeanor for any second or subsequent violation.
  2. A permit holder who violates subsection (3) of section 69-2440 is guilty of a Class I misdemeanor.
  3. A permit holder convicted of a violation of section 69-2440 or 69-2442 may also have his or her permit revoked.
  4. A permit holder convicted of a violation of section 69-2441 that occurred on property owned by the state or any political subdivision of the state may also have his or her permit revoked. A permit holder convicted of a violation of section 69-2441 that did not occur on property owned by the state or any political subdivision of the state shall not have his or her permit revoked for a first offense but may have his or her permit revoked for any second or subsequent offense.

Source

Laws 2006, LB 454, §17;
Laws 2007, LB97, §2;
Laws 2012, LB807, §6.

Effective Date: April 19, 2012

§69-2444 - Listing of applicants and permit holders; availability; confidential information.

The Nebraska State Patrol shall maintain a listing of all applicants and permit holders and any pertinent information regarding such applicants and permit holders. The information shall be available upon request to all federal, state, and local law enforcement agencies. Information relating to an applicant or to a permit holder received or maintained pursuant to the Concealed Handgun Permit Act by the Nebraska State Patrol or any other law enforcement agency is confidential and shall not be considered a public record within the meaning of sections 84-712 to 84-712.09.

Source

Laws 2006, LB 454, §18.

§69-2445 - Carrying concealed weapon under other law; act; how construed.

Nothing in the Concealed Handgun Permit Act prevents a person from carrying a concealed weapon as permitted under section 28-1202.

Source

Laws 2006, LB 454, §19.

§69-2446 - Rules and regulations.

The Nebraska State Patrol may adopt and promulgate rules and regulations to carry out the Concealed Handgun Permit Act.

Source

Laws 2006, LB 454, §20.

§69-2447 - Department of Motor Vehicles records; use and update of information.
  1. The Department of Motor Vehicles shall modify the existing system of the department to allow the status of a permit to carry a concealed handgun and the dates of issuance and expiration of such permit to be recorded on the permit holder's record provided for in section 60-483. The Nebraska State Patrol shall use the system to record the issuance or renewal of a permit to carry a concealed handgun. The transmission of notice of the issuance or renewal of such permit shall include the applicant's name, the applicant's motor vehicle operator's license number or state identification card number, and the dates of issuance and expiration of the permit to carry a concealed handgun.
  2. An abstract of a court record of every case in which a person's permit to carry a concealed handgun is revoked shall be transmitted to the Department of Motor Vehicles using the abstracting system provided for in section 60-497.01. Such abstract shall contain the name of the revoked permit holder, his or her motor vehicle operator's license number or state identification card number, and the date of revocation of the permit to carry a concealed handgun.

Source

Laws 2006, LB 454, §21.

§69-2448 - License or permit issued by other state or District of Columbia; how treated.

A valid license or permit to carry a concealed handgun issued by any other state or the District of Columbia shall be recognized as valid in this state under the Concealed Handgun Permit Act if (1) the holder of the license or permit is not a resident of Nebraska and (2) the Attorney General has determined that the standards for issuance of such license or permit by such state or the District of Columbia are equal to or greater than the standards imposed by the act. The Attorney General shall maintain and publish a list of such states and the District of Columbia which he or she has determined have standards equal to or greater than the standards imposed by the act.

Source

Laws 2009, LB430, § 13.

Effective Date: August 30, 2009

§69-2449 - Information to permit holder regarding lost or stolen handgun or firearm.

The Nebraska State Patrol shall inform each permit holder, upon the issuance or renewal of a permit to carry a concealed handgun, that if a handgun, or other firearm, owned by such permit holder is lost or stolen, the permit holder should notify his or her county sheriff or local police department of that fact.

Source

Laws 2010, LB817, §6.

CHAPTER 81 - State Administrative Departments

§81-829.40 - (2014) Governor; powers and duties.
  1. The Governor shall be responsible for meeting the dangers to the state and people presented by disasters, emergencies, and civil defense emergencies, and in the event of disaster, emergency, or civil defense emergency beyond local control, he or she may assume direct operational control over all or any part of the emergency management functions within this state. He or she shall have general direction and control of emergency management and the Nebraska Emergency Management Agency and shall be responsible for carrying out the provisions of the Emergency Management Act.
  2. In order to effect the policy and purposes of the act, the Governor may issue proclamations and make, amend, and rescind the necessary orders, rules, and regulations to carry out the act.
  3. A state of emergency proclamation shall be issued by the Governor if he or she finds that a disaster, emergency, or civil defense emergency has occurred or that the occurrence or threat thereof is imminent. All proclamations issued under this subsection shall indicate the nature of the disaster, emergency, or civil defense emergency, the area or areas threatened, and the conditions which have brought about the state of emergency. All proclamations shall be disseminated promptly by means calculated to bring the contents to the attention of the general public and shall be promptly filed with the Nebraska Emergency Management Agency, the Secretary of State, and the clerks of the local governments in the area to which it applies. The proclamation shall continue in effect until the Governor finds that the threat or danger has passed or the disaster, emergency, or civil defense emergency has been dealt with to the extent that those conditions no longer exist and terminates the proclamation by letter of notice to such agency, the Secretary of State, and the clerks of the local governments in the area to which it applies. The Legislature by resolution may terminate a state of emergency proclamation at any time, whereupon the Governor shall terminate the proclamation by letter of notice to such agency, the Secretary of State, and the clerks of the local governments in the area to which it applies.
  4. A state of emergency proclamation shall activate state, city, village, county, and interjurisdictional emergency management organizations and emergency operations plans applicable to the local government or area in question and shall be the authority for the deployment and use of any forces to which the plan or plans apply and for use or distribution of any supplies, equipment, materials, and facilities assembled, stockpiled, or arranged to be made available pursuant to the act or any other provision of law relating to disasters, emergencies, or civil defense emergencies.
  5. During the continuance of any state of emergency the Governor shall be commander in chief of the organized and unorganized militia and of all other forces available for emergency management duty. To the greatest extent practicable, the Governor shall delegate or assign command authority by prior arrangement embodied in appropriate proclamations, orders, rules, and regulations, but nothing shall restrict his or her authority to do so by orders issued at the time of the disaster, emergency, or civil defense emergency.
  6. In addition to any other powers conferred upon the Governor by law, he or she may:
    1. Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules, or regulations of any state agency if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the disaster, emergency, or civil defense emergency;
    2. Utilize all available resources of the state government and of each political subdivision of the state as are reasonably necessary to cope with the disaster, emergency, or civil defense emergency;
    3. Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency management;
    4. Subject to any applicable requirements for compensation under section 81-829.57, commandeer or utilize any private property if he or she finds this necessary to cope with the disaster, emergency, or civil defense emergency;
    5. Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if he or she deems this action necessary for the preservation of life or other emergency management;
    6. Prescribe routes, modes of transportation, and destinations in connection with evacuation;
    7. Control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises in the area;
    8. Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles; and
    9. Make provisions for the availability and use of temporary emergency housing.
  7. In the event of a civil defense emergency the Governor shall assume direct operational control over all or any part of the emergency management functions within this state.

Source

Laws 1951, c. 315, §4(1), p. 1076;
R.R.S.1943, §81-829.09;
Laws 1973, LB 494, §5;
Laws 1996, LB 43, §21;
Laws 2014, LB390, §2.