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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

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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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Read the entire series in CRI’s Special Reports section.

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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 bipartisan legislation would limit the authority of public bodies to regulate firearms, absent specific authorization from the General Assembly.

By Lee Williams

A bill that would stop the state’s public housing authorities from banning guns was introduced today, co-sponsored by a bipartisan group of more than two-dozen state lawmakers.

Millsboro Democrat Rep. John C. Atkins and Georgetown Republican Sen. Joseph Booth are the prime sponsors of HB 357.

Both have said their legislation 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 Delaware State Housing Authority, along with the Wilmington and Dover 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 their gun bans.

“I decided to file this bill after the issue was brought to my attention by the Caesar Rodney Institute and the NRA,” Atkins said. “In my opinion, and that of several courts, what these housing authorities are doing is a clear violation of the Constitution.”

Booth said the bill is needed because other than Newark, the three remaining housing authorities have not withdrawn their firearms prohibitions.

“If we put legislation out there, generally the controlling authority will yield or bend,” he said. “This is a legislative maneuver that has worked before.”

“We have to allow their boards, who often meet monthly, time to change,” Booth said. “But we haven’t heard anything from the Delaware State Housing Authority. That concerns me.”

Booth said the bill is garnering support from lawmakers on both sides of the aisle.

“I will be interested in seeing how the administration will respond,” Booth said.

Dover attorney John Sigler, a CRI board member and former NRA President, said the bill will prevent housing authorities or other government agencies from unilaterally deciding to establish their own weapons bans in the future.

“The importance of this bill cannot be over-emphasized. Even if the remaining three Housing Authorities were to rescind their bans today, this is a much needed and very important measure that will ensure that such constitutional violations do not occur in the future,” Sigler said. “As Senator Booth said in an earlier interview: ‘This is a stand up and be counted thing.’”

Sigler hopes the bipartisan support continues.

“I congratulate each and every one of the current sponsors of HB 357, especially the prime sponsors, Rep. Atkins and Sen. Booth, for stepping to the plate to be counted on this measure,” he said. “Additionally, I encourage every member of both parties in both Houses of our General Assembly to step to the plate and do the right thing by becoming co-sponsors on HB 357, and by voting for its quick passage upon their return to Legislative Hall in March.”

John J. Thompson, president of the Delaware State Sportsmen’s Association, the state NRA affiliate, like Sigler, said the bill should prevent future gun bans from being established.

“It will also eliminate the concept of second-class citizenship for people who live in public housing,” Thompson said. “As a matter of policy and principal, that’s critically important.”

Senate Minority Leader Sen. F. Gary Simpson, R-Milford, said he decided to co-sponsor the legislation because “to deny those who are elderly, disabled or low-income their guaranteed gun rights is unfair and unconstitutional.”

Simpson said the bill is garnering good bipartisan support, and will likely pass both Houses.

“I don’t see how anyone could be against it,” he said. “We are all guaranteed Second Amendment rights. An arm of the state should not be denying those rights. Hopefully this won’t happen again.”

Laurel Democrat Sen. Robert L. Venables, Sr., said none of the housing authorities ever held public hearings before they enacted the gun bans.

“The bureaucrats made those decisions,” Venables said. “I’m not sure they should do that.”

“I am allowed to have a gun in my home to defend myself and my family,” he said. “It seems unfair that good, decent people in a poor economic situation can’t defend their property. I think our constitution should not only apply to people who own their own homes, but to people who live in public housing as well.”

HB 357 defined

According to its synopsis, HB 357 is intended to “address the banning of possession of firearms by certain governmental agencies and entities of the State. Currently, several housing agencies in this state have adopted policies of evicting or threatening to evict law-abiding tenants from their homes merely for the otherwise lawful possession of firearms for self-defense. This practice constitutes discrimination based on economic circumstances leaving these residents at the mercy of criminals.”

The legislation will amend Title 29 of the Delaware Code, which addresses the function of state government, by adding a new chapter that limits the authority of public bodies to regulate arms.

“No public body in this state shall have or exercise the authority to regulate, prohibit, restrict or license the ownership, transfer, possession or transportation of arms, firearms, components of firearms, ammunition or components of ammunition except as expressly and specifically authorized by act of the General Assembly,” the bill states. “Nothing contained herein shall be construed as negating or precluding standard security measures controlling physical access to governmental buildings, offices or institutions.”

It defines public bodies as “any regulatory, administrative, advisory, executive, appointive, or legislative agency or body of this State, or any political subdivision thereof, including, but not limited to, any, board, bureau, commission, department, authority, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, association, group, panel, council or governmental entity,” created by the General Assembly, or appointed by a public official, which receives government funds.

It specifically excludes the General Assembly from coverage, allowing lawmakers to retain the authority to regulate firearms.

READ THE SPECIAL REPORT: “Disarmed by Decree”

PDF Version: for printing, slower to download

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CRI Blog Version: story, photos and access to reader comments

Read the entire series in CRI’s Special Reports section.

Subscribe: to CRI to receive email updates about this story and other issues

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 Feb.18, 2010 by the Caesar Rodney Institute

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One Dover Housing Authority commissioner is seeking legal advice, saying if the gun bans are illegal, they should be withdrawn.

By Lee Williams

C.D. “Chuck” Michel is a hero to many within the firearms community, and one of the country’s top Second Amendment litigators.

He’s worked tirelessly to defend the right to keep and bear arms in a state where it is constantly under attack. A former prosecutor in the Los Angeles County District Attorney’s Office, Michel served as lead counsel on more than 50 jury trials.

It is his Second Amendment work, however, that leaves the Long Beach-based attorney with few peers.

C.D. Michel

Michel and other Second Amendment experts and scholars have been watching events unfolding in Delaware, after the Caesar Rodney Institute revealed the state’s public housing authorities ban their tenants from owning firearms.

Michel had strong advice for the executive directors running the three remaining agencies with active gun bans.

“Don’t waste scarce resources fighting a losing battle,” he said. “You’re not saving lives. You won’t encourage any additional crime by allowing people to have the most effective means of self defense.”

Michel’s track record of successful Second Amendment litigation buttresses his recommendation.

He represented plaintiffs in Fiscal v. City and County of San Francisco, in which the court struck down the city’s referendum prohibiting the possession of handguns and the sale of guns and ammunition.

Michel co-authored an Amicus brief for the country’s most significant gun-rights case to date, District of Columbia v. Heller, which determined that the Second Amendment provides a fundamental and individual right to bear arms.

He co-authored an Amicus brief on behalf of 34 California District Attorneys, eight Nevada District Attorneys, plus scores of law enforcement officers and gun rights groups for McDonald v. City of Chicago, which will be argued before the U.S. Supreme Court next month. In McDonald, which could surpass Heller in significance, the petitioners are seeking “incorporation” of the Second Amendment’s protections to not only federal government actions, but also to local and state gun control laws.

Just hours after the Heller decision, Michel filed suit against the San Francisco Housing Authority (SFHA), which like the housing authorities in Wilmington, Dover as well as the Delaware State Housing Authority, had bans prohibiting individual firearm ownership incorporated into its leases.

His reasons for filing the suit were twofold. He sought to legally force the incorporation issue, which will be decided in McDonald.

“I also wanted to restore the rights of the people living in public housing,” he said.

Michel filed a 1983 Civil Rights action against the SFHA, the City of San Francisco and a property management firm, claiming the residents’ Second Amendment rights were violated – the same legal tactic experts say could be employed against the housing authorities in Delaware, if their bans are not withdrawn. This type of federal civil rights action allows successful plaintiffs to recover both damages and attorney’s fees.

Eventually, the city was dropped from the suit.

“We then kept going against the housing authority and the property management firm,” Michel said. “Eventually, both agreed to amend their leases. In exchange, we agreed not to pursue attorney’s fees or damages.”

Had the SFHA not settled, Michel would have litigated the constitutionality of the ban, based in part on the Heller decision.

“At the end of the day, they’d have had to pay damages, and $300,000 or $400,000 in attorney’s fees,” Michel said. “When I sued the City of San Francisco over their firearms ban, they wrote me a check for $300,000.”

Legally, the issues raised in the San Francisco suit are very similar to the issues raised by the gun bans in Delaware, Michel said.

“I don’t know why the people in Delaware are trying to drag their feet,” he said. “Why are they bothering? All it will do is cost them damages and attorney fees. Do they feel lucky? I don’t understand the logic. It’s probably more of a bureaucratic deer-in-the-headlights, rather than organized resistance. That’s what happened in San Francisco. It took them a while.”

The Dean

Washington D.C.-based attorney Stephen P. Halbrook, Ph.D., has been described as the “Dean of Second Amendment Litigators.”

A prolific author, Halbrook literally wrote the book on defending the Second Amendment. In fact, he’s written several books on the topic, including; “That Every Man Be Armed: The Evolution of a Constitutional Right,” published by The Independent Institute, 1984, 1994, 2000; “Freedman, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876,” published by Greenwood Publishing Group, 1998; “A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees,” published by Greenwood Press Inc. 1998; and “Firearms Law Deskbook: Federal and State Criminal Practice,” published by Thomson/West Group, 2009. Previous editions with annual supplements were published by Clark Boardman Callaghan/West Group, 1995-2007.

Stephen P. Halbrook, Ph.D.

In addition to his writing, lectures and casework, Halbrook has been involved in the two most notable firearms suits Heller and McDonald.

Halbrook said if the housing authorities don’t withdraw the bans, and the National Rifle Association files suit on behalf of the tenants, the NRA will likely prevail.

“The bans are illegal. In fact, they were even illegal before the U.S. Supreme Court’s ruling on Heller,” Halbrook said. There’s a well-established body of federal case law saying the fact someone gets an entitlement or state benefit can’t be used to make them forfeit a right or privilege that other people have. Just because someone lives in public housing, doesn’t mean they have to give up their right against search and seizure.”

The housing authorities’ legal position post-Heller, he said is much flimsier.

“It’s even worse for the housing authorities now since the Supreme Court got involved. For them to say these people don’t have a constitutional right just because they need public assistance is totally beyond the pale,” he said. “I think these regulations are illegal. If they’re litigated in court, they’ll be easily thrown out.”

Like Michel, Halbrook predicted the housing authorities, and ultimately the taxpayers, will be left holding the bill for the trial expenses.

“That’s the nice thing about the Civil Rights Act. Attorneys fees are recoverable,” he said. “The housing authorities will have to pay the attorney fees of the prevailing party, which will be the tenants.”

It is the cost to the taxpayer that Dover attorney John Sigler said has been overlooked in the discussion about the gun bans. Sigler is a board member of CRI and the NRA, and a former NRA president.

“The shame of this entire issue is that no one seems to be focused on the financial impact these bans have had on the taxpayers of the State of Delaware. Not only are taxpayer dollars being used to create these bans, but taxpayer dollars have also been spent enforcing these bans,” Sigler said. “Someone should be asking how much in terms of attorney fees, court filing fees and litigation expenses have been diverted from the true and important work of providing affordable housing for Delaware’s less fortunate citizens? How many tens of thousands of taxpayer dollars have been spent by the Dover Housing Authority over the admittedly 16-plus years enforcing its “one strike and you’re out” eviction policy? And how many tens of thousands of taxpayer dollars have been spent enforcing similarly unconstitutional and immoral bans by the Wilmington Housing Authority, Newark Housing Authority and the Delaware State Housing Authority over the years that their bans have been in place?”

John Sigler

The taxpayer dollars spent enforcing the bans will pale when compared to the hundreds of thousands of dollars that will be spent if litigation is launched.

“Every taxpayer in the State of Delaware, be they businesses or individuals, should be outraged by the prospect of having these three governmental entities – Dover Housing Authority, Wilmington Housing Authority and the Delaware State Housing Authority – spending literally hundreds of thousands of additional taxpayer dollars in defense of an indefensible policy while simultaneously exposing the Delaware taxpayer to additional hundreds of thousands – if not millions – of dollars in compensatory and punitive damages and plus the other side’s costs and attorney fees paid to them as winners, all of which can be avoided simply by following the law and, as [NRA Chief Lobbyist} Chris Cox said, ‘doing the right thing,’” Sigler explained.

A voice for change

Dover City Council President Beverly Williams has served on the Dover Housing Authority board since 1982.

She learned the DHA banned guns after CRI published the first installment of its ongoing special report.

“If the ban is in violation of the Constitution, I would want to do things to correct it right away, so as it does not become adversarial,” Williams said. “Right now we need information, but if the ban violates people’s constitutional rights – nothing, no rule should go past the constitution. I am speaking as a single commissioner, but I don’t believe any commissioner wants to be adversaries, but rather collaborators.”

Williams said she is not a member of the NRA, but is “well aware of what they are trying to do. I understand and appreciate their goals.”

The intent of the ban, she recently learned, was to “hold safe all residents. The large majority of our residents are good people who work hard to support their families.”

Now, she and other board members will be seeking information about the ban, and whether it violates the state and federal constitution.

“We don’t have enough information to know. The Dover Housing Authority is pretty progressive in trying to get services and resources for our tenants,” she said. “I would imagine this was an information lapse. I would imagine we’ll uphold the constitution, and we’ll attempt to amend our internal rules to protect our residents as much as we can, and at the same time not violate anyone’s rights.”

Another lawmaker supports change

Delaware Rep. Ruth Briggs-King, R-Georgetown, has joined an ever-growing group of state lawmakers who have pledged to support legislation that will overturn the gun bans.

Briggs-King is a gun owner and a strong supporter of the Second Amendment who secured an “A” rating and an endorsement from the NRA.

“These people in public housing, they try to overcome discrimination all the time,” she said. “Now they can’t hunt, can’t get venison, can’t defend themselves? Anyone has the right to keep and bear arms. To ask them to give up this right because they live in public housing is unfair. It’s a basic right, and they’re treating them differently.”

READ THE SPECIAL REPORT: “Disarmed by Decree”

PDF Version: for printing, slower to download

HTML Version: loads faster, no photos

CRI Blog Version: story, photos and access to reader comments

Subscribe: to CRI to receive email updates about this story and other issues

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 Feb. 12, 2010 by the Caesar Rodney Institute

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The U.S. Department of Housing and Urban Development denies ordering Delaware public housing authorities to ban guns. State lawmakers, however, are drafting legislation to overturn the gun bans, regardless of who ordered them.

By Lee Williams

The Delaware State Housing Authority and the Dover Housing Authority have turned to their lawyers and HUD to help them determine what to do about their firearms prohibitions – gun bans experts say violate the state and federal Constitutions.

HUD, however, does not want to get involved.

Ami Sebastian-Hauer, executive director of the Dover Housing Authority, said she will “check regulations, check with our higher-ups, HUD and the Attorney General’s Office, to see what they recommend.”

Her colleague at the Delaware State Housing Authority, executive director Anas Ben Addi, told the Caesar Rodney Institute last week he too is seeking legal advice. Ben Addi declined further comment.

“Whatever the recommendation, we will certainly adopt,” Sebastian-Hauer said. “We’re doing all of our due diligence.”

Sebastian-Hauer explained her recent “due diligence” was motivated by the threat of legal action from the National Rifle Association, which has promised to challenge the firearms bans.

“We’re always concerned about a lawsuit,” she said. “I will be speaking to the rep at HUD, talking to other housing authorities, and I will also bring it up to the board.”

Sebastian-Hauer did not know how or why the firearms ban was implemented, but believes it was the result of a federal order.

“It was in place when I started 16 years ago,” she said. “I’m sure it is a federal regulation.”

HUD, however, told the Caesar Rodney Institute Monday that the agency does not tell local housing authorities to ban firearms.

“We don’t have any policy that relates to that,” said Maria Bynum, spokesperson for HUD’s regional office in Philadelphia, which oversees operations in Delaware.

Bynum explained that while HUD subsidizes public housing, and conducts limited inspections, they do not get involved, “in day-to-day operations. We’re not involved in that.”

As to incorporating gun bans into tenant handbooks and leases, such as the document tenants must sign at the Dover Housing Authority, Bynum said, “Leases are a local thing that HUD does not control.”

More unanswered questions

The lawlessness in the 290 public housing units operated by the Dover Housing Authority ranges from “petty crime to shootings,” Sebastian-Hauer said.

Still, residents are strictly prohibited from acquiring or possessing a means of self-defense.

“We have a one-strike-and-you’re-out policy,” Sebastian-Hauer said. “It makes it a violation of the lease. Anyone caught with a firearm is out. Our whole purpose is to keep people safe.”

She could not explain why an unarmed tenant is safer from the crime that pervades the neighborhoods than an armed tenant.

“I really can’t address that. I will not address that. I have my own opinion against firearms,” Sebastian-Hauer said. “Our job is to keep people safe.”

Neither could she explain why her residents should forfeit their constitutional rights in order to live in public housing.

“I don’t see it in that manner,” she said. “I see it as the housing authority keeping families safe.”

Several residents and civil rights leaders told CRI that the gun bans, though perhaps not racist by design, effectively create racial disparity.

Sebastian-Hauer disagrees.

“I don’t see it as anything having to do with race,” she said. “I see it as policies in place to keep people – we’re not trying to discriminate against any one race. It’s an across the board policy for everyone, regardless of race.”

Dover attorney John Sigler is a CRI board member and former NRA president. Sigler had hoped the DHA would voluntarily withdraw its weapons prohibitions.

“Obviously, my first reaction is one of disappointment that the director of the Dover Housing Authority did not immediately follow Newark’s lead by rescinding Dover’s ban and restoring full citizenship to her public housing residents,” Sigler said. “I am encouraged, however, by her willingness to submit the issue to the Attorney General for advice. I say that because I have little doubt that once competent counsel has reviewed the NRA’s demand letter and read the authorities cited therein in light of both the majority opinion in D.C. v. Heller and Article I Sec. 20 of the Delaware Constitution, said counsel will have little choice but to advise Dover’s director to immediately rescind the Dover Housing Authority’s patently illegal and immoral ban on self defense in public housing.”

Sigler was disturbed by the local public housing officials turning to the federal government for guidance on gun control.

“I am somewhat startled by the Director’s revelation that she would be seeking advice from HUD on this matter. Although it is easy to understand why local housing authorities would give great deference to federal officials in matters relating to public housing,” he said. “I must admit that I was unaware that HUD had anything to do with the institution of such illegal gun bans. But if it were true that HUD did play a role in such matters, that fact would explain why literally all of Delaware’s public housing agencies had adopted such bans.”

An ongoing special report by the Caesar Rodney Institute revealed that all four of the state’s public housing authorities prohibited their residents from owing firearms in their homes for self-defense, even though many of the neighborhoods dedicated to public housing constitute some of the most dangerous, crime-ridden real estate in Delaware. Several residents told CRI they seldom venture out because of the crime outside their doors.

After the series was published, the NRA announced it would file suit against the housing authorities, to force them to withdraw the gun bans.

The Newark Housing Authority announced last week its ban was withdrawn, and its residents may now possess firearms in their homes – ending a restriction created by a previous executive director.

Delaware State, Dover and the Wilmington Housing Authority still prohibit their residents from possessing firearms for self-defense.

Neither WHA executive director Frederick Purnell, Sr. nor any of his board members responded to calls or e-mails seeking comment for this story.

Attorney General Beau Biden was not willing to be interviewed for this report.

Legislation is on the way

Delaware state Rep. John C. Atkins knows guns.

The Millsboro Democrat is a lifelong gun owner, hunter and target shooter, who has never received less than an “A” rating from the NRA.

Atkins had a strong reaction after reading CRI’s series.

“I had no idea those regulations were in effect,” he said. “My second thought was automatically that those regulations are unconstitutional. Just because someone lives in public housing doesn’t mean they have less constitutional rights than someone living in a $2 million mansion.”

In addition, Atkins said, “They have the right to protect their home, and they certainly have the right to possess legal firearms, hunt or shoot sporting clays.”

Atkins said he will introduce legislation to overturn the gun bans in public housing. He’s seeking and receiving bipartisan support for his bill.

“The NRA has won everything its challenged,” he said. “Right now, the smart thing for the housing authorities to do is reverse the bans – immediately.”

Like Atkins, Rep. Greg Lavelle, R-Sharpley, was struck by the restrictions in the state’s public housing communities.

“Initially I thought it bizarre,” Lavelle said. “I wouldn’t think your constitutional rights would be restricted based on where you live. It certainly came to mind that if someone is going to follow the law, they’d follow the law. If a group is going to break the law, they’ll break the law. They’re going after the wrong group.”

Though he wants to see the draft bill, Lavelle supports a legislative fix in principal.

“This seems to me to be a stereotypical reaction. Clearly there are issues with violence that are exacerbated in public housing, but this is knee-jerk to me,” Lavelle said. “People are carrying illegal weapons as it stands now. If someone wants to own a gun legally, they should be able to. They’re going after the wrong folks. The criminals are not worried about the law, or else they wouldn’t be criminals.”

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 Feb. 9, 2010 by the Caesar Rodney Institute

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If the three remaining Delaware public housing authorities that prohibit their tenants from owning firearms do not voluntarily withdraw their gun bans, the Delaware State Sportsmen’s Association, the state NRA affiliate, has found an attorney to file suit.

The DSSA will recommend the unnamed law firm as local counsel to the NRA, should a suit become necessary, according to a DSSA press release.

The Newark Housing Authority announced Wednesday their residents can now possess firearms. However, the Delaware State Housing Authority, the Wilmington Housing Authority and the Dover Housing Authority still have active firearms prohibitions.

Delaware State Sportsmen’s Association

P.O. Box 1786

Wilmington, Delaware 19899

Press Statement

By

John J. Thompson, President

For Immediate Release: 302-764-6899                                      February 4, 2010

The Delaware State Sportsmen’s Association is pleased to announce that it has identified an attorney and a law firm with a regional practice which encompasses the State of Delaware as the person whom it will recommend to the National Rifle Association of America to serve as local counsel should litigation be required to restore the constitutionally protected right to keep and bear arms to law-abiding citizens of Delaware residing within the properties owned and/or operated by the Delaware State Housing Authority, Wilmington Housing Authority, Newark Housing Authority and Dover Housing Authority, all of which I am not currently at liberty to divulge the identity of either the attorney or the firm with which that attorney is affiliated, I am able to say that both the attorney and the firm are well known and well respected in Delaware and throughout the region.

Both the recommended attorney and the firm are well established and highly successful litigators who are ready, willing and able to successfully litigate a class action civil rights action on behalf of thousands of public housing residents who are qualified to own firearms for self protection and who are being deprived of their constitutionally protected right to keep and bear arms and their God-given right to defend themselves, their homes and their families by these four governmental entities. We envision such an action, should it become necessary, being patterned after NRA’s successful litigation in California where the public housing gun ban in San Francisco resulted in that ban being withdrawn and significant attorneys fees being assessed against the offending housing authority without the necessity of a trial.

Obviously, our recommendation to the NRA will simply that- a recommendation. It will be up to the NRA to ultimately decide which lawyers and which law firms it will choose should litigation become necessary. It is our hope that litigation will not be necessary. However, let there be no mistake: the members of the Delaware State Sportsmen’s Association will not sit idly by while taxpayers’ hard-earned dollars are being used by governmental entities to systematically violate the rights of law-abiding Delawareans.

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CRI has obtained hardcopies of the demand letters sent by the NRA to the four housing authorities. Links to the letters can be found here.

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