Second Amendment experts say public housing gun bans are illegal, and could cost taxpayers millions of dollars

CaesarRodney.org Second Amendment experts say public housing gun bans are illegal, and could cost taxpayers millions of dollars One Dover Housing Authority commissioner is seeking legal advice, saying if the gun bans are illegal, they should be withdrawn. 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. 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. C.D. Michel 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 attorneys 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. 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. Stephen P. Halbrook, Ph.D. 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? 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. John Sigler 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. 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.