Federal Court rules Wilmington Housing Authority ban on open carry is Constitutional - Page 2

johnbt · July 20, 2011, 04:19 PM

"Why are we paying other people's rent? "

So they won't move in with us.

The residents had to sign a contract/lease to live in public housing. Just like an HOA, if you don't like the rules, don't go there.

John

Glenn E. Meyer · July 21, 2011, 10:58 AM

However, we return to the issue of rights. HOAs used to be able to discriminate on race, religion, ethnicity. Now they can't and that is a good thing.

Many feel that self-defense is an intrinsic property of folks that cannot be used as a basis to discriminate. While it is not now a protected class, so to speak - the same concept should apply.

Esp. if this is housing has a governmental supervision - then such rights should not be constrained.

Al Norris · July 21, 2011, 12:55 PM

The case was filed back in May of 2010 in the Delaware Court of the Chancery. It was later moved to federal District Court, by whom? The NRA or by Wilmington Housing Authority?

At any rate, I tried searching Justia last night and couldn't find the case. Anyone know the actual name of the case?

Evan Thomas · July 21, 2011, 03:49 PM

It's Doe v. Wilmington Housing Authority et al.

Here's the link you want, Al:
http://dockets.justia.com/docket/del...cv00473/44289/

Nature of Suit: Civil Rights - Housing/Accommodations
Cause: 28:1441
Jurisdiction: Federal Question
Jury Demanded By: None

So, it looks like the judge took one look and said, "Nuh-uh, I'm passing this to the Feds."... ?

And that's all I know, as I don't have a subscription...

Al Norris · July 21, 2011, 10:42 PM

But I do! ... Back in a few moments...

The Docket will be here in a few minutes (until the archive is refreshed, you will get a "404 Not Found" error).

Unlike the (what's become) traditional 2A civil rights cases we have been following, this one is proceeding at a normal pace - real slow - lots of discovery. This is more how Chicago wants to go (and we may see it yet), in Benson v. Chicago. I have made the 2nd Amended Complaint (#40) and the defendants MSJ (#89) available to read.

Al Norris · July 21, 2011, 11:24 PM

Oh, and thanks for the Justia link, Vanya. I was looking for the wrong Judge on Justia.

Al Norris · July 22, 2011, 08:52 AM

After reading the complaint (as amended) and the response that the WHA gave, the methods the Housing Authority went into revising its policies and the manner in which the NRA recruited the plaintiffs and refusal to participate in the revisions of the leasing policies (defendants MSJ #89), I find that the court will most likely dismiss the entire suit.

At best, this was a reach for the NRA. At worst, it was ill conceived as a method of litigation. The plaintiffs simply do not have standing.

Is there an actual case here? Yes, but not in the manner the NRA has executed this debacle.

Evan Thomas · July 22, 2011, 01:04 PM

Thanks, Al, for putting up the links to those two documents.

This is just.... pathetic. I especially liked the part where the two plaintiffs, in their depositions, allowed as how they thought the restrictions at issue in the lawsuit (on weapons in public areas) were actually a pretty good idea. "Straw plaintiffs," indeed.

Sheesh. What a waste. The NRA should've known better.

Al Norris · July 22, 2011, 01:35 PM

I will say I was tempted to download a few more filings... Until I finished reading the complaint and the defendants MSJ.

The problem I see is that the NRA (actually, the NRA associate attorney) did not do a good job of vetting their clients. Nor did they do a particularly good job in mitigating the damages (failing to attend and input their views at the public meetings - mitigation of damages is required by law).

This could have been a decent lawsuit. It could have set some decent precedence in public housing. As it stands however, it may have the exact opposite effect. sigh. Strategy was good, tactics were abhorrent.

ltc444 · July 24, 2011, 01:49 PM

I Thought there was a case from the 70s or 80s dealing with possessing firearms in Public Housing. Don't remember the particulars. It may not be realivant.

johnbt · July 25, 2011, 10:26 AM

"However, we return to the issue of rights."

There are limits to rights, especially when a person agrees to forgo an activity. Example: When you buy a ticket to a movie you agree not to be disruptive. And they can throw you out for exercising your first amendment rights during the screening.

Gary L. Griffiths · August 1, 2012, 11:34 AM

http://www.usatoday.com/news/nation/...*********=Feed

The headline reads, "Gun ruling may become a model for the nation" but that's Brady fueled optimism on the part of the MSM over a ruling upholding the prohibition of open carry in common areas by the Wilmington Housing Authority.

The real news is that after the NRA sued them, they immediately rescinded their total ban on weapon possession for residents, then implemented this ban on open carry. While I disagree with the ban, it does appear Constitutional under Heller and McDonald in that it doesn't prohibit possession or concealed carry.

Ultimately it may be a good thing (although open-carry advocates may disagree). Historically, the fight has been to permit concealed carry, overcoming 19th Century rulings equating concealed carry to cowardice, treachery, and ambushing. I, for one, would welcome such provisions, if that means that concealed carry must then be allowed as a matter of law. That would strengthen the argument that concealed carry is a right that should not require a permit or license to be exercised.

**Tom Servo** · August 1, 2012, 12:27 PM

I can't find a link to the actual ruling, but if I recall, this was a follow-up to the Montag case brought (and settled) shortly after Heller.

Was carry a question in this case, or simply ownership?

Gary L. Griffiths · August 1, 2012, 02:58 PM

Quote:

Was carry a question in this case, or simply ownership?

Originally it was possession, but Wilmington caved on that shortly after the NRA filed suit. Then they passed an ordinance against open carry in the common areas of the housing area, which the NRA continued to fight.

I thought I saw the case listed in your master list some time ago, but I don't remember the name of the case.

In any event, it looks to me like the NRA managed to snatch defeat from the jaws of victory. I just don't see prohibiting open carry as being that big a deal so long as concealed carry was available, and the prohibition on open carry could be used as an argument against discretionary issue. Now, the media are literally shouting in triumph that this is the beginning of a national trend...

Jim March · August 1, 2012, 05:22 PM

This is DELAWARE! Concealed carry is on a "may issue" basis so this ruling stinks to high heaven.

IF it had happened in a shall-issue CCW state, no big deal.

**Frank Ettin** · August 1, 2012, 06:53 PM

Just another District Court (trial court level) decision. Thus far, the thread court judges, except in Maryland, have been ruling against us in the "carrying outside the home" cases.

This is all just part of the preliminaries.

Al Norris · August 1, 2012, 08:55 PM

The case is #53. Doe v. Wilmington Housing Authority et al.

The docket is here and the opinion is here.

ETA: Merged new thread with old thread and changed thread title.

**Tom Servo** · August 1, 2012, 09:38 PM

Thanks, Al!

According to the court, Heller protects the possession and use of a firearm in the home. The court finds that "home" is an area from which a person exerts ownership and may exclude others. They find that the common areas in question do not qualify as "home."

One good note is on page 29, regarding the level of scrutiny required. The Brady Campaign argued for a "reasonable regulation" test, which the court finds lacking.

Quote:

Given the Third Circuit's application of intermediate scrutiny in Mazzarella, the Court concludes that the reasonable regulation test does not provide enough protection of the Second Amendment rights that are assumed to be at issue.

They find that, as time, place and manner regulations on 1st Amendment speech are acceptable, so they are with the 2nd.

I don't particularly like the decision, but I can see how the Court ended up there.

**Frank Ettin** · August 1, 2012, 11:07 PM

Quote:

Originally Posted by Tom Servo

...The court finds that "home" is an area from which a person exerts ownership and may exclude others. They find that the common areas in question do not qualify as "home."...

And that, standing alone, isn't an unreasonable or unsupportable conclusion. It is consistent with the principles of property law applicable in many contexts and for many purposes.

The case really needs to be understood in terms of the right to bear arms outside the home -- which is arguably also protected under the Second Amendment and as was so found in Heller and McDonald.

July 21, 2011, 10:58 AM	#27
Glenn E. Meyer Senior Member Join Date: November 17, 2000 Posts: 20,064	However, we return to the issue of rights. HOAs used to be able to discriminate on race, religion, ethnicity. Now they can't and that is a good thing. Many feel that self-defense is an intrinsic property of folks that cannot be used as a basis to discriminate. While it is not now a protected class, so to speak - the same concept should apply. Esp. if this is housing has a governmental supervision - then such rights should not be constrained. __________________ NRA, TSRA, IDPA, NTI, Polite Soc. - Aux Armes, Citoyens

July 21, 2011, 03:49 PM	#29
Evan Thomas Senior Member Join Date: July 7, 2008 Location: Upper midwest Posts: 5,631	It's Doe v. Wilmington Housing Authority et al. Here's the link you want, Al: http://dockets.justia.com/docket/del...cv00473/44289/ Nature of Suit: Civil Rights - Housing/Accommodations Cause: 28:1441 Jurisdiction: Federal Question Jury Demanded By: None So, it looks like the judge took one look and said, "Nuh-uh, I'm passing this to the Feds."... ? And that's all I know, as I don't have a subscription... __________________ Never let anything mechanical know you're in a hurry.

July 22, 2011, 01:04 PM	#33
Evan Thomas Senior Member Join Date: July 7, 2008 Location: Upper midwest Posts: 5,631	Thanks, Al, for putting up the links to those two documents. This is just.... pathetic. I especially liked the part where the two plaintiffs, in their depositions, allowed as how they thought the restrictions at issue in the lawsuit (on weapons in public areas) were actually a pretty good idea. "Straw plaintiffs," indeed. Sheesh. What a waste. The NRA should've known better. __________________ Never let anything mechanical know you're in a hurry.

August 1, 2012, 11:34 AM	#37
Gary L. Griffiths Senior Member Join Date: April 7, 2000 Location: AZ, WA Posts: 1,466	Federal Court rules Wilmington Housing Authority ban on open carry is Constitutional http://www.usatoday.com/news/nation/...********=Feed The headline reads, "Gun ruling may become a model for the nation" but that's Brady fueled optimism on the part of the MSM over a ruling upholding the prohibition of open carry in common areas by the Wilmington Housing Authority. The real news is that after the NRA sued them, they immediately rescinded their total ban on weapon possession for residents, then implemented this ban on open carry. While I disagree with the ban, it does appear Constitutional under Heller* and McDonald in that it doesn't prohibit possession or concealed carry. Ultimately it may be a good thing (although open-carry advocates may disagree). Historically, the fight has been to permit concealed carry, overcoming 19th Century rulings equating concealed carry to cowardice, treachery, and ambushing. I, for one, would welcome such provisions, if that means that concealed carry must then be allowed as a matter of law. That would strengthen the argument that concealed carry is a right that should not require a permit or license to be exercised. __________________ Violence is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and valorous feeling which believes that nothing is worth violence is much worse. Those who have nothing for which they are willing to fight; nothing they care about more than their own craven apathy; are miserable creatures who have no chance of being free, unless made and kept so by the valor of those better than themselves. Gary L. Griffiths (Paraphrasing John Stuart Mill)

August 1, 2012, 12:27 PM	#38
Tom Servo Staff Join Date: September 27, 2008 Location: Foothills of the Appalachians Posts: 13,059	I can't find a link to the actual ruling, but if I recall, this was a follow-up to the Montag case brought (and settled) shortly after Heller. Was carry a question in this case, or simply ownership? __________________ Sometimes it’s nice not to destroy the world for a change. --Randall Munroe

July 20, 2011, 04:19 PM	#26
johnbt Senior Member Join Date: December 6, 1999 Location: Richmond, Virginia USA Posts: 6,004	"Why are we paying other people's rent? " So they won't move in with us. The residents had to sign a contract/lease to live in public housing. Just like an HOA, if you don't like the rules, don't go there. John

July 21, 2011, 12:55 PM	#28
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	The case was filed back in May of 2010 in the Delaware Court of the Chancery. It was later moved to federal District Court, by whom? The NRA or by Wilmington Housing Authority? At any rate, I tried searching Justia last night and couldn't find the case. Anyone know the actual name of the case?

July 21, 2011, 10:42 PM	#30
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	But I do! ... Back in a few moments... The Docket will be here in a few minutes (until the archive is refreshed, you will get a "404 Not Found" error). Unlike the (what's become) traditional 2A civil rights cases we have been following, this one is proceeding at a normal pace - real slow - lots of discovery. This is more how Chicago wants to go (and we may see it yet), in Benson v. Chicago. I have made the 2nd Amended Complaint (#40) and the defendants MSJ (#89) available to read.

July 21, 2011, 11:24 PM	#31
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	Oh, and thanks for the Justia link, Vanya. I was looking for the wrong Judge on Justia.

July 22, 2011, 08:52 AM	#32
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	After reading the complaint (as amended) and the response that the WHA gave, the methods the Housing Authority went into revising its policies and the manner in which the NRA recruited the plaintiffs and refusal to participate in the revisions of the leasing policies (defendants MSJ #89), I find that the court will most likely dismiss the entire suit. At best, this was a reach for the NRA. At worst, it was ill conceived as a method of litigation. The plaintiffs simply do not have standing. Is there an actual case here? Yes, but not in the manner the NRA has executed this debacle.

July 22, 2011, 01:35 PM	#34
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	I will say I was tempted to download a few more filings... Until I finished reading the complaint and the defendants MSJ. The problem I see is that the NRA (actually, the NRA associate attorney) did not do a good job of vetting their clients. Nor did they do a particularly good job in mitigating the damages (failing to attend and input their views at the public meetings - mitigation of damages is required by law). This could have been a decent lawsuit. It could have set some decent precedence in public housing. As it stands however, it may have the exact opposite effect. sigh. Strategy was good, tactics were abhorrent.

July 24, 2011, 01:49 PM	#35
ltc444 Senior Member Join Date: March 3, 2011 Location: Vernon AZ Posts: 1,195	I Thought there was a case from the 70s or 80s dealing with possessing firearms in Public Housing. Don't remember the particulars. It may not be realivant.

July 25, 2011, 10:26 AM	#36
johnbt Senior Member Join Date: December 6, 1999 Location: Richmond, Virginia USA Posts: 6,004	"However, we return to the issue of rights." There are limits to rights, especially when a person agrees to forgo an activity. Example: When you buy a ticket to a movie you agree not to be disruptive. And they can throw you out for exercising your first amendment rights during the screening.

August 1, 2012, 05:22 PM	#40
Jim March Senior Member Join Date: February 14, 1999 Location: Pittsburg, CA, USA Posts: 7,417	This is DELAWARE! Concealed carry is on a "may issue" basis so this ruling stinks to high heaven. IF it had happened in a shall-issue CCW state, no big deal. __________________ Jim March

August 1, 2012, 06:53 PM	#41
Frank Ettin Staff Join Date: November 23, 2005 Location: California - San Francisco Posts: 9,471	Just another District Court (trial court level) decision. Thus far, the thread court judges, except in Maryland, have been ruling against us in the "carrying outside the home" cases. This is all just part of the preliminaries. __________________ "It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper

August 1, 2012, 08:55 PM	#42
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	The case is #53. Doe v. Wilmington Housing Authority et al. The docket is here and the opinion is here. ETA: Merged new thread with old thread and changed thread title.