County judge tosses 'guns on campus' cases

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BY LORI PILGER / Lincoln Journal Star

A Lancaster County judge dismissed charges Monday against two teenagers who took rifles onto a college campus in Lincoln last fall.

Judge Gale Pokorny said legislators didn’t specify if a law barring firearms from school grounds applied to universities.

“This judge is not unmindful of the horrific events, the carnage that mindless irresponsible people with guns have precipitated at the universities and the shopping malls of America,” he wrote.

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In this 2006 file photo, UNL students gather outside the Nebraska Union. (LJS File)

In this 2006 file photo, UNL students gather outside the Nebraska Union. (LJS File)

But, Pokorny said it is not the role of judges “to legislate, to insert additional words and phrases into criminal statutes that the legislature didn’t put there in the first instance.”

At the end of the order, he dismissed the charges against Colin Fury, 18, and Craig Clark, 19.

The facts of the case weren’t at issue.

Fury asked his friend Clark to go with him to a College Republicans meeting on campus Sept. 19, for a discussion on the National Rifle Association.

Fury later told UNL Police he suggested they carry their rifles across campus to “get people’s attention.”

They did.

Calls flooded in to campus police as they walked by the Student Union that afternoon about 5.

When police arrived, Fury and Clark were gone. But within hours police found them when Fury told friends he was one of the men on campus with a gun.

They called police, who ticketed Fury and Clark with disturbing the peace and confiscated their rifles, an AR15 rifle and a .22 carbine.

Prosecutors decided to charge them with unlawful possession of a firearm on school grounds.

Attorneys for the two men argued the state law didn’t apply to colleges and universities.

Attorney Clarence Mock said   lawmakers didn’t define the word school in the statute, and it begs the question.

“The terms are simply not synonymous,” he wrote in court documents asking Pokorny to throw out the charge facing Clark.

He said it wasn’t for the courts to supply missing words to make the statute clear.

But Deputy Lancaster County Attorney Steven Schmidt said the law clearly includes college and university campuses.

The word wasn’t statutorily defined, and, because it isn’t a technical word, it doesn’t need to be, he said. One need look only to the plain meaning, which would include any educational institution.

In his order Monday, Pokorny said the term “school” is not defined in the statute or in a review of floor debate and legislative history, and there seems to be no Nebraska case law interpreting the word.

In 2007, the legislature immediately amended the Concealed Handgun Permit Act to include colleges and universities after a late 2006 opinion came out by the Nebraska Attorney General that UNL was not a “school” under the act.

But the legislature chose not to do the same with a related statute: “unlawful possession of a firearm on school grounds.”

Pokorny considered the legislature’s action on one law and not the other noteworthy. He said he concluded it meant they intended “school” to be different from university.

Chief Deputy County Attorney Joe Kelly said it was too early to say if the state will appeal the judge’s order or if other charges may be a possibility.

“All I can say is we’re going to take a look at it,” he said.

UNL policy forbids guns on campus.

Reach Lori Pilger at 473-7237 or lpilger@journalstar.com.