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Delaware’s public housing authorities have requested an Attorney General’s opinion regarding their firearms bans, which Second Amendment legal experts say is unconstitutional.

By Lee Williams

Attorney General Beau Biden is being asked to decide whether the individual right to keep and bear arms guaranteed in the Delaware and U.S. Constitutions applies to people living in public housing.

At a meeting of its board held Tuesday night, the Dover Housing Authority voted to request an Attorney General’s opinion regarding the constitutionality of its gun ban.

Dover Attorney R. Brandon Jones, who serves as counsel to the DHA board, said the DHA mistakenly believed most housing authorities banned their residents from owning firearms.

“This authority felt it had to include those provisions in the lease because we thought that all housing authorities across the country included them,” Jones said. “It came as quite the surprise that it was not the case. The bottom line: this authority wants to do what the law requires. Rather than for us to guess, we feel the appropriate thing to do is to forward this to the attorney general, and get an opinion from the AG.”

Jones said both the Wilmington Housing Authority and the Delaware State Housing Authority told him they too requested an opinion from Biden.

“I don’t know if it’s a fact, but they told me they were going to ask for one too,” Jones said.

At a meeting of the Wilmington Housing Authority board, held Monday evening, the Caesar Rodney Institute asked what, if anything, the WHA intended to do about its gun ban.

Bernadette Winston, who chairs the WHA board, said, “I’m going to tell you right now we don’t have an answer. The board, executive director and our attorney will be considering the issue. When we have an answer, you’ll be one of the first ones called.”

Delaware State Housing Authority spokesperson Christine Hardin would not confirm whether her agency had also asked Biden for a written opinion.

“We’re still reviewing and discussing policy,” Hardin said.

Biden did not return calls or e-mails seeking comment for this story.

The decision to seek an Attorney General’s opinion comes in response to an ongoing investigative series by the Caesar Rodney Institute, which revealed that every housing authority in Delaware banned their residents from owning firearms for self-defense.

After CRI’s series was published, the Newark Housing Authority withdrew its firearms ban. However, the three remaining housing authorities still prohibit their residents from owning firearms.

The National Rifle Association has announced it will sue the housing authorities if the bans are not withdrawn. Similar lawsuits by the NRA have forced housing authorities in California and Maine to drop gun bans.

Biden’s written opinion could ultimately prove costly to Delaware taxpayers, should he rule in favor of keeping the bans, because the NRA is not otherwise likely to drop plans for its suit. Two of the country’s foremost Second Amendment litigators have predicted the court costs; possible damages and attorneys fees associated with defending the gun bans could cost Delaware taxpayers millions of dollars.

Bans legally indefensible

At the DHA board meeting, Jones announced he has researched the legality and constitutionality of the gun bans and found several cases that showed the bans might not violate the rights of the public housing residents.

“There’s a mixed bag of what other jurisdictions have done,” he said.

Jones declined to cite the cases supporting the constitutionality of the bans, however another legal scholar has found quite the opposite.

Dover attorney John Sigler is a CRI board member and former president of the NRA.

“I am encouraged to hear that both the Wilmington Housing Authority and the Dover Housing Authority are seeking legal advice in this matter. That says to me that they recognize the seriousness of the situation and are at least attempting to deal with the situation in a rational and reasoned manner,” Sigler said. “I must caution, however, that every day that passes increases the risk that one of the law-abiding residents of public housing who have been unilaterally stripped of their constitutionally protected right to keep and bear arms for self protection will become the victim of a violent criminal act that might have been otherwise preventable had they been allowed the means to defend themselves, their homes and their families as promised by Article I Section 20 of our Delaware Constitution.”

Sigler is confident legal research conducted by the Attorney General will find the 1990 U.S. District Court case out of the Eastern District of Virginia known as Richmond Tenant’s Organization, Inc v. Richmond Redevelopment and Housing Authority.

“This case is no longer good law,” he said. “Those attorneys will find that the test applied by that court for the purposes of determining the constitutionality of such regulations was specifically rejected by the U.S. Supreme Court in District of Columbia v. Heller,” Sigler said. “Likewise, with the Heller Court’s specific rejection of the so-called “rational basis test” in Second Amendment analyses, all other cases arising in that context before Heller using the rational basis test must also be suspect as to their continued viability as reliable precedent.”

“I am also confident that the attorney general will find the Heller language concerning the God-given right of self defense being a part of the right to keep and bear arms to be instructive, and the recent decision of the Supreme Court of the State of Washington in the case of State v. Sieyes, wherein that Court ruled that the Second Amendment applied to the states to be a harbinger of things to come in the currently pending U.S. Supreme Court case of McDonald v. Chicago. Equally instructive will be the ‘friend of the court’ briefs filed in that case by 38 state Attorneys General, 251 members of the US House of Representatives, 58 members of the United States Senate and 891 state legislators and elected officials including two governors and 3 lieutenant governors – 21 of whom were from Delaware – in which they all agreed with the ultimate conclusion in Sieyes that the Second Amendment applies to the states.”

“Obviously,” Sigler said, the Attorney General need not even reach the conclusion of the Sieyes court or wait until the U.S. Supreme Court decides the McDonald case.

“On the contrary, all they have to do is pull their Delaware Codes off the shelf and read for themselves Article I Section 20 of the Delaware Constitution which states in clear and unequivocal terms; ‘A person has the right to keep and bear arms for protection of self, family, home and State, and for hunting and recreational use.’”

Sigler said the Attorney General will also discover the U.S. 3rd Circuit Court of Appeals case from 1981 called Heatherton v. Sears, Robuck & Company, in which the court held that granting and withholding rights based upon economic status violated the equal protection clause.

“Likewise, they are sure to find in their research three U.S Supreme Court cases, Lefkowitz v. Turley, Keyishian v. Board of Regents, and Sherbert v. Verner, all of which found that the government may not condition entitlement to a public benefit – such as public housing – upon the waiver of a constitutional right.”

“With the Heller Court holding that the D.C ban on the private ownership of handguns in the home for self protection would fail constitutional muster ‘under any of the standards of scrutiny that we have applied to enumerated constitutional rights;’ and Delaware’s Justice Holland writing in his treatise The Delaware State Constitution: A Reference Guide, that ‘The textual differences between this section (Article I Section 20) appear to afford greater protections under the Delaware Constitution than the protections of the Second Amendment to the United States Constitution,’ it would seem that the Attorney General will be left with little choice but to render an opinion that these bans on the private ownership of firearms by law-abiding citizens in public housing are, in fact, unconstitutional and must be rescinded.”

Said Sigler: “I sincerely hope that our Attorney General or other attorneys researching this issue will advise these authorities to do the right thing; avoid the waste of taxpayer dollars in defense of an indefensible position; and to rescind their bans on the otherwise lawful ownership of firearms by law-abiding citizens. It is also my hope that they will do so sooner rather than later because, quite frankly, it is only a matter of time before some innocent victim will be harmed as the direct and proximate result of the intransigence of these three entities in not rescinding this ban sooner.”

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

READ THE SPECIAL REPORT: “Disarmed by Decree”

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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 Feb.24, 2010 by the Caesar Rodney Institute

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The Caesar Rodney Institute has learned Attorney General Beau Biden will not run for his father’s Senate seat.

Biden e-mailed his supporters this morning, thanking them for their support:

As many of you know, since returning home from Iraq, I have been giving serious consideration to running for the United States Senate. I have received strong encouragement both here in Delaware and all across the country to undertake this effort  and this outpouring of support has truly been humbling.

I understand why people care so deeply about this election. The challenges we’re facing as a country are extraordinarily difficult. The economy. Jobs. Health care. Energy.  Education. Climate change. Financial regulation. Foreign policy. These are not only the issues of the moment – they’re the issues that will determine our children’s future.  And as someone who has had the privilege of serving with the bravest men and women on this planet, I care deeply about how we treat our returning veterans and how we resolve our involvement in Iraq and Afghanistan.

I feel strongly about these issues. However, my first responsibilities are here in Delaware. I have a duty to fulfill as Attorney General – and the immediate need to focus on a case of great consequence. And that is what I must do. Therefore I cannot and will not run for the United States Senate in 2010. I will run for reelection as Attorney General.

One of the primary reasons I ran for Attorney General was to protect the most vulnerable among us: children. As the father of two young children, I can think of no worse crime than those committed by child predators. It is why one of my first actions and top priorities as Attorney General was the creation of the Child Predator Task Force.

The idea that any child can be a victim of abuse is horrific. The fact that it has engulfed an entire community is unspeakable. The pain and trauma suffered by the children, their parents, and the families, can’t be measured. But justice can be done. And I am determined to see that it is.

I have a job to finish. And that’s what I must do.

Thank you for all your support,

Beau Biden

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Heated argument over ‘Bail Bill’ included multiple ‘F-Bombs.’

By Lee Williams

A meeting between the state’s top cop and its chief public defender became so heated, so loud and so profane Thursday, that a worried Senate staffer called the Capitol Police to intervene, the Caesar Rodney Institute has learned.

Attorney General Beau Biden and Delaware Public Defender Brendan O’Neill had been discussing Senate Bill 60, an act that would be the first leg of a constitutional amendment that would allow the General Assembly to define certain criminal offenses for which bail or pre-trial release would not be allowed.

The Caesar Rodney Institute was told the two attorneys began yelling at each other, frequently using the “F-Word.”

A Senate staffer – worried that the screaming and profanity could be indicative of a security risk – called the Capitol Police Department, the agency charged to maintain order inside Legislative Hall.

Two Capitol Police officers were dispatched to investigate the source of the screaming and profanity.

Biden and O’Neill, however, had left the area before the officers arrived. Since the source of the yelling was not found, the officers did not take any action or complete any official reports.

O’Neill confirmed he never saw a Capitol Police officer.

“Beau and I had a disagreement over a business issue – SB 60,” O’Neill told the Caesar Rodney Institute. “He’s supporting it. I oppose it. We had a lively debate.”

As to any profane yelling inside Legislative Hall, O’Neill said, “I don’t recall.”

The Caesar Rodney Institute asked Biden in an e-mail whether his office would prosecute a Delaware taxpayer for screaming profanity inside of the People’s House. However, Biden was not willing to be interviewed for this story.

The cause of the cussing: SB 60

Battle lines are already being drawn over the legislation sponsored by Senate President Pro Tempore Anthony J. DeLuca, D-Varlano.

Sen. Deluca’s bill is designed to address an anomaly within the state’s criminal justice system.

Currently, bail may only be denied to a defendant in capital cases. However, this constitutional provision was written in 1792, at a time when crimes other than first-degree murder were punishable by death, such as rape, robbery and burglary.

Rape and aggravated arson were removed from the list of capital crimes by Supreme Court application of the Eighth Amendment to the U.S. Constitution, partially in recognition that application of the death penalty was sometimes racially motivated.

DeLuca’s legislation would allow bail to be withheld from crimes “as the General Assembly may from time to time prescribe by law, when the proof is positive or the presumption great.”

By changing Article I, Section 12 of the state constitution, the General Assembly would be able to define the offenses that may subject a defendant to denial of bail, which preserves the state’s due process protections through hearings related to the offenses.

Nowadays, under current state law, even defendants such as Lewes pediatrician Dr. Earl Bradley – who investigators suspect of molesting more than 100 children – must be granted an opportunity to make bail.

Bradley, while arguably the most notorious, is not the first defendant accused of a heinous crime to be afforded the opportunity to post bail and walk away from a Delaware courtroom.

In the 1970s, Delaware captured an international drug lord, along with tons of marijuana and pounds of cocaine.

He posted the required $1 million in bail, and was never seen again.

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 Jan.25, 2010 by the Caesar Rodney Institute

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The Attorney General’s Office lost another one. Malik S. Brown was acquitted of murder yesterday by a Wilmington jury. He had been charged with the 2008 killing of Adrian Malone.

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From the Governor’s office:

Markell Names Widener University Law School Dean Linda L. Ammons to Lead Independent Review of Delaware’s Statutory and Administrative Procedures Governing Child Abuse and Exploitation

Dover, DE – Governor Jack Markell announced today that he has named Widener University School of Law Associate Provost and Dean Linda L. Ammons, Esquire to lead an independent review into the State’s statutory and administrative procedures governing child abuse and exploitation, in the wake of the Lewes pediatrician being accused of sexually assaulting children in his care.

Markell was joined by Senator Brian Bushweller, Chair of the Senate Public Safety Committee and Representative Larry Mitchell, Chair of the House Public Safety and Homeland Security Committee to call for the review to examine where critical improvements are necessary.

“The bottom line is that the system failed these children.  I am asking Dean Ammons to take an independent look at why this systemic failure occurred. I am asking that she make recommendations that will foster a child protection community of collaboration and accountability, so that we can make the necessary improvements to protect our children from predators,” Markell said. “This situation demands tough questions and real answers. Together, we intend to get them.”

Dean Ammons is expected to consult with the Attorney General, recognized experts in criminal justice, sexual assault and child protection to assist her in her review, as well as look at best practices in formulating her recommendations.

Dean Ammons is the seventh dean of Widener Law and the first woman and first African-American person to lead the state’s only law school. An accomplished lawyer, professor and administrator, she came to Widener in July 2006 from Cleveland-Marshall College of Law in Cleveland, Ohio, where she was associate dean and professor of law. Her primary area of expertise is administrative law, which involves the operation of government and regulatory agencies.

Dean Ammons has a wealth of administrative and state-agency experience. She served as executive assistant to former Ohio Gov. Richard F. Celeste from 1988 to 1991, a job in which she oversaw criminal justice policy for the governor and served as his point person on state-prison issues. She served on the Ohio Supreme Court Futures Commission, which worked to improve the court system, and co-chaired for two years the American Bar Association National Institute on Defending Battered Women in Criminal Cases.

“I have agreed to undertake this review at Gov. Markell’s request because it presents an opportunity to help improve a system that cannot leave its children – its most vulnerable citizens – without adequate protections,” Dean Ammons said. “This call to public service is in keeping with our core values at Widener, where students are encouraged to use their educations and talents in ways that contribute to the communities we serve, in order to make them better places. I appreciate the confidence Gov. Markell has shown by asking me to lead this review and I welcome the chance to help make the First State safer, particularly for children.”

Dean Ammons will undertake a comprehensive review of the State’s policies and procedures and make recommendations to improve the administrative handling of child abuse and sexual exploitation cases focused on reducing child trauma, enhancing the effectiveness of administrative action, and reforming state laws and regulations to meet these objectives.

Markell made clear that Dean Ammons’ review must not and will not jeopardize the current prosecution in the Lewes pediatrician case or the Attorney General’s ongoing investigation of whether anyone violated the current reporting requirements under the existing statutory scheme.

“Not only must we ensure a successful prosecution in this case, we must have, and Dean Ammons will help provide, real answers to how and why the system failed and a roadmap to protect our children going forward,” Markell said. “While the Attorney General will prosecute the laws that were broken, this independent review will help decide whether we have the right laws, processes and procedures in place for the handling of future child abuse and sexual exploitation cases.”

Delaware Attorney General Beau Biden supports the State’s independent review.

“I support the Governor’s independent review.  In the meantime, my office will continue to pursue Dr. Bradley to the fullest extent of the law and get to the bottom of who may have violated Delaware’s current reporting requirements and take whatever action is necessary.  There must be accountability.”  Biden said.

Issues to be addressed in the independent review include but are not limited to:

  1. Professional reporting requirements for suspected incidents of misconduct and the enforcement thereof;
  2. Professional licensing requirements, procedures and enforcement, including comprehensive background checks and procedures for on-going review;
  3. Medical standards and protocols around proper pediatric care and the publication thereof to ensure that doctors, medical staff and parents have clear guidance;
  4. The sufficiency of outreach efforts regarding reporting requirements, so that those with legal obligations to report questionable behavior do so;
  5. Proper communication and coordination between law enforcement agencies, professional regulators and the medical community; and
  6. Ensuring that adequate services are provided for the protection and treatment of children suspected of being sexually abused in order to protect them from further harm.

At the conclusion of the independent review, Dean Ammons will issue a final report to the Governor’s Office, the Senate Public Safety Committee and the House Public Safety and Homeland Security Committee.

According to Senator Bushweller, “Protecting children, and indeed all patients, needs to be our first priority and I support the Governor’s decision to review this matter.  We need a broad-based review of all facets of this horrendous situation. I look forward to considering the results and recommendations of Dean Ammons’ independent review.”

Representative Mitchell stated, “It is imperative that we take a top-down and independent look at where the system failed these children, and make the necessary improvements to ensure that something like this never happens again.  Dean Ammons is an accomplished individual who is well-suited to undertake such an important review.”

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The bunker mentality has taken hold at the Attorney General’s office, brought on by the public outrage and media scrutiny surrounding Dr. Earl Bradley, the accused Lewes pedophile pediatrician.

Rather than stepping up and addressing the hundreds of legitimate questions surrounding Bradley’s years of alleged abuse and the subsequent half-dozen failed probes, Biden has stopped talking, retreated behind closed doors, and given over to the urge to communicate only through written statements, such as this gem issued at 7 p.m. Thursday evening:

“Today, I have asked my State Solicitor to conduct a thorough examination of whether any individuals or entities in 2005 failed to fulfill their legal obligation to report allegations of wrongdoing against Dr. Bradley to the Division of Professional Regulation or the Board of Medical Practice,” Biden is quoted as saying in the press release. “For example, the recent assertion that various elements of the medical community had information that may have triggered such reporting requirements is a serious concern.  We need to get to the bottom of this.  As a result, I have instructed the State Solicitor to report his findings to me as soon as possible.”

Though it may be comforting to keep pesky reporters — and in this case scores of horrified and worried parents — at arm’s length, the bunker never works. Biden need only look to how Ruth Ann Minner, Vince Meconi and Stan Taylor benefited from their stints behind the thick concrete walls.

The public — and especially parents in Lewes — have a right to know the status of the current case and why so many prior investigations failed. According to their rules of professional conduct, an attorney can speak out about issues of great public concern. Given the nature of the allegations Bradley is facing, what could possibly be of more concern to the public?

Biden has consistently proven himself to be the state’s least-communicative elected official, hiding behind self-imposed “policies” he assigns to topics he doesn’t like to discuss, while his public relations team churns out press releases that contain little more than fluff and puffery. That’s okay to prep for his Senate bid. It’s almost expected. However, the events unfolding nearly hourly in Lewes demand more. Children were raped. The public has a right to know about the current probe, who’s responsible for past investigative failures and what’s going to be done to insure the communications breakdown won’t ever happen again. Biden must hold a press conference and not step away from the podium until all questions are asked and answered.

If Beau can’t understand that, he should stay in the bunker, along with Vince, Stan and Ruth Ann. Maybe they can get a card game going.

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Earlier this week, Lee Williams posted on this blog a story about Attorney General Beau Biden’s selection of a politically-connected law firm to defend the DPC and DPC officials in a whistel-blower lawsuit.

One of the key issues raised in the post is the efficacy of hiring a private firm to do what existing state employees can already do without the added expense of bringing in more expensive lawyers.

The question is not new. In 2008, House Bill 488 was introduced and passed by the Delaware House of Representatives (albeit on a straight party-line vote). The bill would have, “prohibited the employment of private attorneys by State offices, departments, agencies, commissions or instrumentalities without the unanimous consent of the Attorney General, Governor, Chair and Vice Chair of the Joint Finance Committee.”

The bill never came up for a vote in the Senate.

With the legislature returning to session next week, it may be a good time for lawmakers to reconsider this legislation.

This is not to say that private attorneys should never be considered – HB 488 itself wouldn’t have banned the practice. However, the measure would have introduced a degree of accountability into the process when such attorneys are contracted by the state. If bringing in outside counsel has merit, only four people would need approve:  the AG, the Governor, and the Chair and Vice Chair of the JFC. Sounds simple enough.

With budget cuts, furloughs, pay decreases, etc…a simple additional step to increase accountability is almost a no brainer, especially when the legislation doesn’t bar the practice in question…it simply adds a level of discretion and discipline in the decision making process.

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