PHILADELPHIA – Having lost a federal court battle over restricting guns in Wilmington's public housing, plaintiffs backed by the National Rifle Association asked an appeals court this morning to send the matter back to Delaware courts.
Attorney Francis G. X. Pileggi told a panel of the U.S. 3rd Circuit Court of Appeals that the case involves novel issues related to the Delaware Constitution and should either be sent to the Delaware Supreme Court or back to the District Court.
Pileggi argued that Delaware’s Constitution provides for a far-broader right to keep and bear arms than the U.S. Constitution’s Second Amendment so this case – involving limits on those rights -- is best resolved at the state level.
WHA attorney Barry M. Willoughby, however, charged that having lost in federal court the NRA is now attempting to get a do-over in state court.
“What we have here is an attempt by the plaintiff to use a legal gambit to deny this court jurisdiction,” Willoughby said, adding that the NRA backed plaintiffs did not attempt to set aside state issues during the lengthy and hard-fought federal litigation.
Willoughby further charged that the suit began with “straw plaintiffs” – WHA residents “Jane Doe” and Charles Boone -- that were recruited by the NRA to give the organization standing to challenge weapons policies in Wilmington public housing, just as the organization was doing in similar suits elsewhere.
National experts have said that ruling in this Delaware case could set a national precedent for how far public housing authorities are allowed to restrict gun ownership by residents.
Originally, the NRA-backed lawsuit was filed in June 2010 in the Delaware Court of Chancery seeking to overturn a flat ban on all guns in Wilmington Public Housing. The suit was then transferred to U.S. District Court at the request of the WHA because it involved federal constitutional issues.
Shortly after the case ended up in District Court, following several precedential rulings by the U.S. Supreme Court, the WHA dropped its flat ban on all weapons without a trial and allowed residents to keep guns for protection, though it limited guns in common areas like the lobby, lounges and laundry rooms.
The NRA, however, did not drop the suit and forced a ruling by U.S. District Court Judge Leonard Stark on claims that the new gun restrictions were unconstitutional.
In August 2012, Stark sided with the WHA ruling the gun restrictions were limited and reasonable and did not violate Second Amendment rights.
The three judge panel, led by Circuit Court Judge Marjorie O. Rendell, was skeptical of both sides. Rendell noted that if the plaintiffs wanted to raise a state court claim they can simply file a separate lawsuit in state court raising those issues. She told Pileggi she did not see what the urgency was for the Appeals Court to get involved.
At the same time the panel pressed Willoughby on if Stark had overstepped his bounds by making a ruling on an issue – gun rights under the Delaware Constitution -- where the Delaware Supreme Court had not ruled. The appeals judges also noted that there is precedent for the appeals court to do what the NRA-backed plaintiffs requested.
Willoughby, in his argument, noted that Delaware is an open-carry state, meaning you don’t need any kind of permit if you carry a gun out in the open. Combining that with no limits on guns in common areas of public housing could lead to a situation where the one who slaps down the biggest gun in the TV room gets the remote.
This prompted U.S. District Judge Lee H. Rosenthal, from of the Southern District of Texas who was sitting in on the appeals court panel, to react in apparent shock. “Texas gets an unfair rap,” she said.
But it further prompted Circuit Court Judge Joseph A. Greenaway Jr. to observe that with this open-carry history, the Delaware Supreme Court may look at gun restrictions differently than Judge Stark.
Afterward, Pileggi said that he was happy with how the arguments went for his side.
Willoughby said it was a “spirited discussion” and he remains confident that whatever court resolves the case that the restrictions on guns in the common areas of public housing will be upheld as Constitutional.
WHA Executive Director Frederick Purnell Sr. was in court for the arguments and said he thought it went well. “Housing authorities across the country are waiting with baited breath to see how it goes,” he said.
The panel is expected to make a ruling in the case in several months.
As John Sigler has said things dont always go they way you thing they might in court.
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DSSA Public Information Officer
Thomas D. Shellenberger
He has made press releases and been quoted in the papers. Sorry you missed it.