Monroe County v IFC (Goliath v David)

by Michael Ware | Aug 1, 2022

The History

I’d like to share with you a modern-day story of David and Goliath.  If I were to mention 1 Samuel 17, the biblically literate among you would know the tale.  I highly recommend reading it, as it will make this story richer with context and provenance.  Of course, the story of David and Goliath is known far beyond the Judeo-Christian among us.  Do you recall it?  Goliath represents the mighty and powerful aggressors, while David represents the pure in spirit – someone who believed.

In 1990, the Iowa legislature preempted the regulation of firearms to the state with the enactment of Iowa Code 724.28. Preemption doctrine refers to the principle that in a given area of law, regulations set by a higher authority will supersede those of a lower authority if the two come into conflict.  In this case, political subdivisions of the state (cities, counties, or townships) were prohibited from enacting any regulation of firearms that is more restrictive than state law. For those of you fortunate to have such a preemption law in your state, guard it with your very lives. Otherwise, your state will end up with an unnavigable patchwork of regulatory zones in which local tyrants strip you of your ability to exercise your fundamental rights.

As you might imagine, much like the ranting of our President and the immediate reactions of some state governments in response to the recent decision of the Supreme Court in NYSRPA v. Bruen, many counties and cities in Iowa disobeyed this law.  The problem of illegal local gun laws worsened significantly after Iowa switched from a “may issue” to the “shall issue” system of issuing permits to carry weapons and the number of permit holders skyrocketed. The Iowa Legislature, in an effort to enforce the statute, clarified and strengthened 724.28 in 2017.  Yet – you guessed it – the habitual violators of freedom and liberty continued to break the law.  Again in 2020, Iowa’s preemption statute was reinforced, by broadening it to include all weapons and by providing standing to sue for those damaged by an illegal local policy.  Iowa specifically spelled out the word “carrying” (weapons) in 2021 for the judges and local authorities who were having trouble reading the code. An exception to the law was added in 2020 to allow local restrictions on the carrying and possession of weapons, but only in buildings in which actual and adequate screening for weapons was in place and within which armed security personnel was present.

Freedom-loving legislators and Governors had thus adopted good policy for Iowans and visitors to our state.  In practice, there are some quirks in the operation of weapons preemption, as the statute does not apply to the judicial branch of state government.  Most judges choose to make their courtrooms, jury rooms, judge’s chambers, and clerks of court weapon-free.  There are 99 counties in Iowa and most are rural, in which county courthouses serve many functions beyond the courts.  If you’re going to pay your taxes or research a deed, a judge’s “Gun Free Zone” won’t pertain to you.  Only if the county chooses to properly secure the building, may they enforce a weapons-free policy throughout a shared courthouse.  But without actual security, no “Gun Free Zone” sticker is adequate – or allowed.

The Problem

Monroe County, Iowa, with the county seat of Albia, is one of the nicest places you’ll visit.  If you can find a more picturesque town square in the Midwest, color me shocked.  I’ve visited there many times with family and friends.  The impressive Monroe County Courthouse – a space shared by both the District Court and such county offices as Recorder, Assessor, and Treasurer – seems an unlikely site for what became a very unusual, but extremely consequential legal battle. The problem wasn’t ever Monroe County, the City of Albia, or the people.  The problem was a “Gun Free Zone” sticker on the courthouse door that was completely illegal – and dangerous.

Knowing the preemption statute had long been in effect and aware that there was no actual security protocol in place, a county resident and member of the Iowa Firearms Coalition (IFC) went before the Monroe County Board of Supervisors and asked them to remove the sticker and adhere to the law.  He was quickly dismissed.  Repeated attempts at offering the text of the statute to the County Attorney and Board of Supervisors were rebuked.  A sticker on the door does not a safe place make.  If Monroe County wished to place their entire multi-floor courthouse into a weapons-free status, state law required that they must provide specific and adequate protection for people.  But they refused.  IFC was asked to help, so a short series of emails were exchanged between the Monroe County Attorney and IFC Board Member, Richard Rogers.  I was copied on all the emails, which offered IFC’s informed understanding of the legislative history and intent of the preemption statute.  The conversation was entirely appropriate and helpful, but the Monroe County Attorney appeared to simply dislike what he was reading.  Although, of this, we can’t be sure.

There is something everyone can be sure of, though.  If you’ve ever had the clenched fist of government reach out to smash you like a bug, you’ll remember it.  If you’ve ever been sued, you’ll easily recall how you felt when you were served.  I know exactly where I was on February 26^th, 2021, and what I was doing when IFC’s law firm, Hagenow Gustoff & Karas, reached out to tell me we were being sued by Monroe County.  I was sick to my stomach.  I was the Chairman of an all-volunteer Second Amendment advocacy group, not the Chairman of an outfit like Coca-Cola or General Motors.   We’re watching NRA get bled dry by the state of New York – which is no accident mind you – and it has been going on now for years.  Will this be IFC’s fate, I wondered?  And more importantly, what the heck did we do wrong?

It turns out we were being sued over having had the audacity to remind the Monroe County Attorney and the Board Supervisors that they were in violation of the Iowa Code.  IFC embraced the First Amendment to protect the Second.  Not only did they sue IFC, but they also named the local IFC member who had addressed them in a diplomatic and respectful fashion.  Getting a call that your organization’s registered agent has received a notice you’re being sued is one thing.  Being a local man working hard every day to keep the proverbial ball bouncing and being served is another altogether.  Imagine what that would be like for you.  The horror and shame associated with having an envelope handed to you by someone you knew, while among people you know, all as cancel-culture spools up to vilify you…  How would you handle that?  This is a small community we’re talking about, with fewer than 8,000 people in the entire county.  …And all for respectfully addressing your elected officials through the civic process, as you point out their denial of the law they swore to adhere to and uphold.

The Battle

We met with our member and agreed we were better together than we were apart.  We also agreed on counsel.  We intended to use Hagenow Gustoff & Karas, as they’d been our attorneys for over a decade.  “Every Iowan has the right to ask questions of public officials, and especially to question an illegal policy, without the fear of being sued for doing so or having to hire an attorney for petitioning government,” said Bill Gustoff.  HG&K wanted to bring in an experienced trial lawyer, Alan Ostergren, as co-counsel.  “Monroe County’s decision to sue someone because he simply asked his local government to follow the law is truly outrageous,” said attorney Ostergren. “The Monroe County board of supervisors voted to sue an individual because he wrote them a letter and sent a letter to the editor of the local paper. We will ask the court to hold them accountable for their unconstitutional actions” Ostergren added.

Goliath said to David, “Am I dog that you come to me with sticks?” This was precisely what Monroe County’s Board of Supervisors and County Attorney wanted to portray to us.  Their message of, “We’re mighty and you won’t raise a welt on our fanny,” echoed around in my head, but we agreed we were going to fight.  We were right and the law should prevail, right?  I truly don’t think they ever believed we’d win.  And even if we did, I don’t believe they cared.  They are government and it doesn’t cost them a nickel.  They just take it from taxpayers, so money isn’t an objection.  If they win, great.  If they lose, it won’t stick to them, so why not sue the little guy into oblivion?  I don’t think they counted on what actually happened.

We had our legal team.  IFC’s board agreed we needed to set parameters on the front end.  After all, we’ve been shaping policy in a highly impactful manner since day one, but the court’s decision in this matter would become case law and would impact the interpretation and enforcement of Iowa’s weapons preemption statute.  We also needed to do well by the membership.  And, this all came on during the culmination of a decade of work to amend the Iowa Constitution with a “Freedom Amendment” for the Right to Keep and Bear Arms.  Iowa is one of only six states in the nation without expressed constitutional protections of Second Amendment rights.  It has taken multiple passes through the Iowa General Assembly to place the “Freedom Amendment” on the ballot for ratification by the vote of Iowans this November.  Being sued by a behemoth government wasn’t welcome and we wanted to fight, but our board had to assess the chess board and carefully script our moves.  I was always confident, just like David, that we were on the right side of this.  But going to court is full of uncertainty and the Goliath in this case had, and always has, nearly unlimited resources and power. Beyond the question of winning or losing in court, there was concern about what effect the demands and distractions of the battle itself and any attendant publicity might have upon the achievement of our primary goal, the adoption of the Freedom Amendment. To say my uptake in Tums became elevated is an understatement.

Each court skirmish includes motions, counters, and legal mumbo jumbo.  There was some relief when our legal team reported back the dismay and bewilderment on the part of Judge Yates as he attempted to understand what justified the Monroe County Attorney to sue IFC and our member.  We picked up some smooth stones from the brook in the form of counterclaims.  On the merits of what I like to refer to as the “2A Case,” we won handily in Case No. CVEQ009563 on June 30^th, 2021.  This victory shored up the preemption of weapons law to the state in Iowa, smacked down the illegal actions of Monroe County’s leadership, and reimbursed IFC for reasonable fees of our attorneys.  However, this left our counterclaim, on the merits of the “1A Case,” still to be settled.

Over the course of the next year, the lawyers hammered away at one another.  The county’s insurance company sent a team of lawyers from a big firm to work through all this.  The Monroe County Board Supervisors and County Attorney were all finished and went about their merry way.  The new Goliath was the insurance company.  …And if you don’t think they have plenty of resources, you’re crazy.  But, much like David, we came bearing the truth and knew we didn’t do anything wrong.

The case was settled prior to trial with a payout of $100K in late June 2022.  After all the bills were paid, lawyers compensated, and the member who took it on the chin made whole, a very small portion found its way to IFC.  But that isn’t the point.  The IFC Board agreed early on, to donate the money, if any, we were awarded to our sister 501c3 organization, the Iowa Outdoor Alliance (IOA), for charitable purposes.  David’s small smooth stone hit the mark, not once, but twice!

We agreed before we even moved forward that if there was any financial windfall, we’d keep the money in our Legacy Fund to donate to the IOA.  We did this for one simple reason – no allegation of greed could be associated with our actions if we made the decision to give the money away.  Thus, we’d operate free from distraction and focus solely on winning the cases on the pure merit of our mission statement.  I’m proud of the IFC Board of Directors for voting unanimously to handle things that way.  It shows the character of the organization and its volunteers as well as members.

The Conclusion

Iowa law, just like all others, is both good and terrible.  It has fine aspects, but many that are flawed.  IFC has never sought not to break any law, but has worked to change our law to the benefit of the people.  When this legal jeopardy was thrust upon IFC, we truly believed we could win if the law was interpreted in the spirit with which it was enacted.  But all too often, the power of government tends to corrupt otherwise fine people. This illustrates for me, now more than ever before, just how important voting the “Freedom Amendment” into existence will be for Iowans.  We can’t count on commonsense to rule the day in a world in which it is increasingly absent.  We need not only a yardstick with which to measure but a backstop for curbing injustices.  IFC and our member experienced what happens when the government runs amok.  Every effort was made to hurt us, and we were.  But like David, we stood up to Goliath, with full faith, and were ready to accept the outcome, whatever that may have been.  We’re pleased to have won on the 2A Case, and the 1A Case, and set the first penalty marker for trampling a man’s rights at $100,000.00.

I stood in line for nearly four hours in the streets and sidewalks wrapping around the Accademia Gallery in Florence, Italy over two decades ago.  I waited all that time to enter and see the statue of David (David of Michelangelo).  I remember standing there looking at the empty sling pouch tossed over David’s back, thinking about him having faced Goliath.  I can still recall what it smelled like in the Gallery.  I didn’t know then I’d come to have some very small, in comparison, but personal empathy over David’s plight.

IFC has sought truth and, despite our flaws, has worked hard with others for our members and beyond.  There should be fewer David and Goliath battles in America, but that doesn’t appear to be what those who wish to take rights from their fellow man intend.  As long as they can abuse you, they appear willing and able to do so.  We won this battle, but the war is far from over.  And make no mistake my brothers and sisters, when someone seeks to take things as sacred as your God-given and Constitutionally protected rights, it most certainly is a war.

To quote L. Neil Smith regarding politicians: “What his attitude — toward your ownership and use of weapons — conveys is his real attitude about you. And if he doesn’t trust you, then why in the name of John Moses Browning should you trust him?  If he doesn’t want you to have the means of defending your life, do you want him in a position to control it?”

What we need from you is to engage with all of our social media as frequently as possible, spread the word about the Freedom Amendment, and be sure your friends and family know it is on the BACK of the ballot. Contact your legislators and advocate in support of it. As always you can join IFC by clicking HERE.

(Edited to add:  Since the original published date of this blog, the Freedom Amendment was voted into existence by a 65% popular vote of the people.  That is a tremendous showing and the largest victory for a ballot item in Iowa’s history.)

In Libertatem,

Michael Ware

(David and Goliath, a color lithograph by Osmar Schindler (c. 1888) – featured image