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One Dover Housing Authority commissioner is seeking legal advice, saying if the gun bans are illegal, they should be withdrawn.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

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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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Newark Housing Authority residents will now be allowed to possess firearms in their homes, as long as they comply with applicable state and federal law.

By Lee Williams

A residents’ handbook containing rules and regulations for everyone living in property operated by the Newark Housing Authority was “misleading,” according to Rob Detwiler, who chairs the authority’s Board of Commissioners.

A section in the handbook requiring that tenants must “not possess explosives, firearms or flammable material on NHA’s property,” will be removed, Detwiler told the Caesar Rodney Institute Wednesday morning.

Detwiler, who is nearing the end of his six-year term as commissioner, said NHA executive director Marene Jordan is “looking to change the pamphlet a soon as possible.”

Meanwhile, Detwiler said, NHA residents may possess firearms, “as long as they’re legal.”

“It should be an absolute moot issue in the near future,” Detwiler said. “The handbook was misleading. I think the previous executive director made up that policy. I do believe it is my constitutional right [to own firearms]. I support my Constitution.”

Jordan did not immediately return calls seeking comment

Gun bans at the Newark Housing Authority, along with the Delaware State Housing Authority and those in Wilmington and Dover are the subject of an ongoing series by the Caesar Rodney Institute.

After the series was published, the National Rifle Association informed the housing authorities they would take legal action if the unconstitutional gun bans were not immediately withdrawn.

“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,” NRA General Counsel Robert Dowlut said Monday in letters sent to the executive directors of the housing authorities that operate their own low-income housing in Delaware.

The Newark Housing Authority is the first to withdraw its ban, rather than face litigation from the NRA.

Reaction to the NHA’s decision was swift.

“Obviously I am very pleased to learn that the Newark Housing Authority’s Board of Commissioners has reconsidered its ban on the otherwise lawful ownership and possession of firearms within their public housing properties. They are to be congratulated for doing the right thing by lifting their ban and restoring their residents to full citizenship,” said Dover attorney John Sigler, a CRI board member and former NRA president.

John Thompson, president of the Delaware State Sportsmen’s Association, the state NRA affiliate, said that the DSSA is “very pleased the Newark Housing Authority responded in a positive fashion to the information that was presented.”

“We look forward to the other agencies cooperating as well,” Thompson said.

Sigler said the Newark Housing Authority and its Board of Commissioners now serve as an example to the other three housing authorities of how responsible public figures can be informed of a problem by an outside source and then work together to resolve that problem.

“Newark did the right thing for their residents and for the taxpayers whose monies support the Newark Housing Authority,” Sigler said. “By acting responsibly and quickly to resolve this issue, the Newark Housing Authority’s Board of Commissions has saved the taxpayers the expense of attempting to defend an indefensible position in court. Now it is time for the Wilmington Housing Authority, the Dover Housing Authority and the Delaware State Housing Authority to follow Newark’s lead.”

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.3, 2010 by the Caesar Rodney Institute

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State lawmakers support legislation to overturn the gun bans if housing authority officials ignore the NRA’s demand letters.

By Lee Williams

In four strongly-worded letters, the National Rifle Association has put the state’s public housing authorities on notice: they should voluntarily remove their prohibitions against individual firearms ownership to avoid a lawsuit.

NRA General Counsel Robert Dowlut sent the letters via e-mail Monday to the executive directors of the four housing authorities that operate their own low-income housing in Delaware.

“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 in a letter to the Delaware State Housing Authority.

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

To support the unconstitutionality of the bans, Dowlut cited Article I, § 20 of the Delaware Constitution, which guarantees, “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.”

“Furthermore, the United States Supreme Court in District of Columbia v. Heller… held that the right to keep an operable firearm in the home for self-defense is a core right guaranteed by the Second Amendment,” Dowlut told the executive directors. “Consequently, the court struck down a ban on the possession of handguns and a ban on the possession of operable firearms in the home.”

The government cannot place conditions on an entitlement to a benefit, such as public housing, by requiring the tenants to surrender a constitutional right, such as the right to keep and bear arms, Dowlut wrote.

None of the four housing authority executive directors responded to calls seeking comment for this story.

John Thompson is president of the Delaware State Sportsmen’s Association (DSSA), the state NRA affiliate.

Thompson said the DSSA will work “hand in hand” with the NRA to overturn the bans.

“I find the arrogance of the public officials responsible for this to be amazing,” Thompson said. “They publically express their concern for these people, yet at the same time they leave them defenseless. They presume to know what’s best for others, without any concern for what the people want.”

Lawmakers respond

The Caesar Rodney Institute was told Monday by members of all four legislative caucuses that they would support legislation to overturn the gun bans.

“I think we should be taking a look at it,” said Sen. Joe Booth, R-Bridgeville. “I do think they have the right to protect themselves in their own household.”

Booth recalled the recent DSSA candidates’ forum held last month in Dover, which drew more than two-dozen candidates for office and 600 people.

“There was a boat-load of politicians who got up there and said they’d defend the Second Amendment,” Booth said. “Here’s a clear case and we need to take a look at it. This is a stand-up-and-be-counted thing.”

Thompson hopes the housing authorities educate themselves about the law before deciding upon a response to the NRA’s letters.

“My crystal ball is kind of cloudy, but initially I think they’ll resist, just because I don’t think they’re familiar with the issues, and they’re not aware of the success the NRA has had around the country,” he said. “Until they get competent legal advice, I think they’ll get their backs up and stand their ground, for a while.”

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.2, 2010 by the Caesar Rodney Institute

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Robert Dowlut, General Counsel to the National Rifle Association, sent demand letters to all four Delaware housing authorities that ban their residents from owning firearms for self-defense.

The text of Dowlut’s letters follows:

1 February 2010

Wilmington Housing Authority

Frederick S. Purnell, Sr., Executive Director

400 N. Walnut Street

Wilmington, Delaware 19801

Dear Mr. Purnell:

It has been brought to our attention by members of the National Rifle Association and by the Caesar Rodney Institute that the Wilmington Housing Authority imposes a lease provisions that prohibits a resident from possessing a firearm. Such a restriction is unconstitutional.

Article I, § 20 of the Delaware Constitution guarantees that “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” Furthermore, the United States Supreme Court in District of Columbia v. Heller, 128 S. Ct. 2783, 171 L.Ed.2d 637 (2008), held that the right to keep an operable firearm in the home for self-defense is a core right guaranteed by the Second Amendment. Consequently, the court struck down a ban on the possession of handguns and a ban on the possession of operable firearms in the home.

The Housing Authority of Portland, Oregon, proposed like regulations. The Attorney General of Oregon on September 12, 1988, in Opinion No. 8196, held that a lease provision proposed by the Housing Authority of Portland, which would prohibit any resident to possess any firearm within his apartment, would violate the state constitutional guarantee to bear arms. Cf. Doe v. Portland Housing Authority, 656 A.2d 1200 (Maine 1995), cert. denied 133 L.Ed.2d 112 (1995). Maine’s preemption statute voided public housing gun ban. Delaware has enacted a preemption statute that bars a municipal government from, among other things, banning the possession of firearms. 22 Del. Code § 111. See also Robert Dowlut, Bearing Arms in State Bills of Rights, Judicial Interpretation, and Public Housing, 5 St. Thomas L. Rev. 203, 212 (1992).

It is well-settled law that the government may not condition entitlement to a public benefit, whether gratuitous or not, upon the waiver of constitutional rights that the government could not abridge by direct action. Lefkowitz v. Turley, 414 U.S. 70 (1973); Keyishian v. Board of Regents, 385 U.S. 589, 606 (1967); Sherbert v. Verner, 374 U.S. 398 (1963). The government is not free to place unconstitutional prerequisites upon the securing of public housing. Eligibility for low income housing provided by a housing authority plainly is a public benefit or privilege. While the housing authority may lawfully condition eligibility on satisfaction of income criteria and other factors designed to ensure that only eligible tenants reside in that housing, the housing authority may not require an otherwise eligible individual to surrender his rights in order to obtain low income housing.

Labeling housing as a right or a privilege is of no moment. Morrisey v. Brewer, 408 U.S. 471, 481 (1972), teaches that “this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege’.”

In summation, the ban on firearm possession adopted by the housing authority of Dover, Newark, and Wilmington is unconstitutional and should be promptly rescinded to avoid litigation.

Sincerely,

Robert Dowlut

General Counsel

cc: Mayor James M. Baker

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