Donald L Jacobs

don.jacobs@knoxnews.com

A lawsuit contesting the city of Knoxville's ban on guns at Chilhowee Park has withstood a challenge for dismissal and will live to face another hearing.

Knox County Chancellor John Weaver on Oct. 3 found merit in the city's argument that one of the two people who challenged the gun ban did not have standing to file the lawsuit. But Weaver ruled the second person involved in the action had standing.

Weaver dismissed plaintiff Liston Matthews from the lawsuit but found 57-year-old grandmother Kimberly Bergeron had standing under the law. Both are handgun carry permit holders and members of the Tennessee Firearms Association, which has fought to expand the rights of handgun carry permit holders.

The pair filed the lawsuit Feb. 11 against the city, Knoxville Mayor Madeline Rogero, Police Chief David Rausch and the Tennessee Valley Fair. The lawsuit was based on the city's policy prohibiting guns at the fair, even though the event is held at Chilhowee Park.

State legislators in 2015 passed a law overriding city ordinances prohibiting guns in parks.

Matthews said he did not attend the fair last year because of Rogero's ban. Bergeron attended the fair, but didn't take a gun.

For Weaver, that distinction guided his order.

Weaver rejected the city's argument that neither Matthews nor Bergeron had standing to file the lawsuit because they "did not actually attempt to enter the fairgrounds with their handguns," the chancellor wrote.

That position, Weaver wrote, would require Matthews and Bergeron "to subject themselves to the risk of arrest and arrest record" before they could seek relief in court. That contention is too extreme and negates the purpose of the state's Declaratory Judgment Act, which allows a court to provide relief for "palpable, as opposed to conjectural or hypothetical" injuries, Weaver wrote.

The chancellor wrote that Matthews' claim "involves a hypothetical state of facts that if he had gone to the fair, he would not have taken his gun into the fair because of the ban." But the reality is Matthews "did not go to the fair in 2015."

Bergeron's claim is not hypothetical because she attended the fair in 2015 and did not take her gun because of the city's ban. The lawsuit will proceed based on Bergeron's standing.

Weaver now is faced with deciding another motion filed on behalf of the city that asks the chancellor to deny the lawsuit's request for an order demanding city officials lift the gun ban.

Michael Kelley, an attorney in private practice who represents the city, argued in a dismissal motion "the right to carry a handgun into Chilhowee Park has not been clearly established."

Weaver has not set a date to decide the issue of whether to order the city to allow guns in Chilhowee Park.

In his Oct. 3 order, Weaver wrote ultimately his job will be to determine "whether Chilhowee Park is a park" based on the 2015 law.