BREAKING NEWS: NRA sues Wilmington Housing Authority for violating residents’ Second Amendment rights

The National Rifle Association’s lawsuit could be the first of several legal actions taken against Delaware housing authorities with active gun bans.

By Lee Williams

WILMINGTON, Del. – The National Rifle Association filed a civil rights lawsuit today against the Wilmington Housing Authority (WHA) and its executive director Frederick S. Purnell, Sr., seeking to force the WHA to allow its residents to possess firearms within their homes.

The civil rights lawsuit was filed in the Delaware Court of Chancery by Wilmington Attorney Francis Pileggi, the founding partner of Fox Rothschild LLP’s Wilmington office.

Francis Pileggi

The question before the court, Pileggi said, is “whether or not residents of a public housing authority can be deprived of their Constitutional right to bear arms for self defense.”

“I think it’s important to remember that the Second Amendment rights being championed here are the first example of civil rights dating from the time of the Civil War,” Pileggi told the Caesar Rodney Institute. “The Second Amendment is just as important as any other amendment in the Bill of Rights.”

Pileggi first learned the WHA banned its residents from owing firearms after reading a special report by the Caesar Rodney Institute titled “Delaware Public Housing: Disarmed by Decree.”

CRI’s report revealed that many public housing residents feel trapped in their homes because of crime in their communities, yet they are prohibited from owning firearms for self-defense.

Pileggi filed the suit on behalf of a WHA resident identified only as “Jane Doe.” He said this was done to protect the individual from possible retaliation by WHA officials.

“We are going to be very vigilant,” Pileggi said. “If [retaliation] occurs, we will react properly.”

Doe told the Caesar Rodney Institute she became involved in the lawsuit “to benefit this generation and the generations to come.”

“My generation is about gone,” she said. “The current generation needs the help.”

This is not the first time the NRA – the nation’s oldest civil rights organization – has sued a public housing authority for a gun ban it believed violated the residents’ Second Amendment rights.

The NRA recently settled a lawsuit against the San Francisco Housing Authority, forcing them to remove a firearms ban that was very similar to the bans on the books in Delaware. Several years ago, another NRA suit forced a public housing authority in Portland, Maine to remove their firearms prohibitions.

Dover attorney John Sigler is a CRI board member, immediate past president of the NRA, and a current NRA board member.

“I am deeply saddened to learn that Delaware’s public housing authorities have continued to so steadfastly refuse to restore their law-abiding public housing residents to full citizenship under either the Second Amendment of the United States Constitution or Delaware’s own Constitution, thus making such litigation necessary,” Sigler said. “It is, indeed, a sad day when law-abiding citizens are forced to turn to the courts for vindication of constitutionally-protected rights, and to seek the protection of the courts from the wrongful conduct of governmental authorities who should know better, and who have been repeatedly warned to reform their conduct and their misguided and clearly illegal policies.”

WHA executive director Purnell was not willing to be interviewed for this story.

The Argument

According to documents filed with the court, Doe is described as a WHA resident and as a “responsible law abiding adult who is qualified to own firearms in her home for lawful self defense and other lawful purposes. But for the lease provision, she would forthwith lawfully possess a firearm in her home without the threat of eviction.”

“We’ve conducted a background check and other due diligence to satisfy ourselves she would qualify to purchase a firearm,” Pileggi said.

In the complaint, Doe is asking the court for a declaratory judgment forbidding the housing authority from banning firearms because the action violates the Second and Fourteenth Amendments to the U.S. Constitution, as well as Article 1 Section 20 of the Delaware State Constitution. In addition, the complaint states the gun ban is preempted by existing Delaware law, and exceeds the statutory authority granted to a public housing authority.

That the WHA’s gun ban violates the state constitution, Sigler said, is obvious.

“Article I Section 20 of the Delaware Constitution states: ‘A person has the right to keep and bear arms for defense of self, family, home and State, and for hunting and recreational use.’ It says nothing about the right of governmental agencies and self-important bureaucrats having the right to deprive the poor, the elderly, the disabled, or the socially disadvantaged of their rights simply because of their social and economic status,” Sigler said. “On the contrary, the courts have, time and again, held such social and economic discrimination to be illegal and unconstitutional.”

History of the Delaware gun bans

The Caesar Rodney Institute first revealed that every housing authority in the state prohibited its residents from owning firearms in its special report published Feb. 1.

The report included interviews with public housing residents, a mere handful of the thousands of Delaware’s most vulnerable residents who are forced by their socio-economic status to live in some of the state’s most dangerous neighborhoods, several of which are open-air drug markets.

Violating the gun ban, the residents told CRI, could result in immediate eviction. For many families, an eviction from public housing would leave them with nowhere to go but the streets.

There are already plenty of guns in public housing, these residents said, but they’re in the hands of criminals who pay no heed to state law, much less housing authority rules or regulations.

CRI’s report included copies of leases that clearly banned firearms at all four of the public housing properties.

After CRI’s initial report was published, NRA General Counsel Robert Dowlut sent letters to the executive directors of the housing authorities, warning them litigation was likely if they did not rescind their bans.

“It has been brought to our attention by members of the National Rifle Association and by the Caesar

Rodney Institute that the Dover Housing Authority, Newark Housing Authority, and Wilmington Housing Authority contain lease provisions that prohibit a resident from possessing a firearm. Such a restriction is unconstitutional,” Dowlut wrote.

After receiving Dowlut’s letter, the Newark Housing Authority announced they were rescinding their gun ban. However, the Dover Housing Authority, Delaware State Housing Authority and the Wilmington Housing Authority did not respond to Dowlut’s warning. Instead, they implied they were merely following a federal directive from the U.S. Department of Housing and Urban Development (HUD).

On Feb. 9, however, CRI published a story quoting senior HUD officials, in which they said gun bans were a local decision. HUD, the officials said, never ordered or even implied that local housing authorities should prohibit guns.

The housing authorities then turned to their lawyers for advice. Their lawyers passed, and asked Delaware Attorney General Beau Biden for an AG’s opinion on the constitutionality of the gun bans. In other words, the housing authorities wanted to know whether the individual right to keep and bear arms guaranteed in the Delaware and U.S. Constitutions applied to people living in public housing.

Meanwhile, a bipartisan group of state lawmakers introduced legislation that would limit the authority of public bodies to regulate firearms, absent specific authorization from the General Assembly.

Delaware Gov. Jack Markell strongly opposed the bill, and lobbied against its passage.

The aptly named House Bill 357, however, is languishing in the Delaware House Majority Leader’s desk.

Neither passage of HB 357 nor a decision by Biden will likely have much impact on the outcome of the NRA lawsuit.

“I see this litigation and the legislation currently pending before the Delaware General Assembly as mutually exclusive matters,” Sigler said. “This newly filed litigation is about the vindication of constitutional rights which have been denied to the residents of the Wilmington Housing authority, generally, and denied to this particular plaintiff, specifically; whereas, I see the currently pending legislation being about clarifying and/or expanding Delaware’s firearms preemption laws to apply to all of Delaware’s Housing Authorities and placing the power to enact firearms regulations where it belongs with the General Assembly. In other words, while to the uninformed there might appear to be a confluence of issues, the issues presented in the litigation and the legislation are, indeed, separate and distinct.”

Said Pileggi: “I would respect any opinion the Attorney General would provide, but having said that, the opinion would not be binding on the court.”

Contact investigative reporter Lee Williams at (302) 242-9272 or lee@caesarrodney.org

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

© Copyright May 26, 2010, by the Caesar Rodney Institute