Sean O’Sullivan

The News Journal

Court says common areas must be treated as if they are a part of tenants%27 homes.

Authority felt rule balanced public safety with the right to bear arms.

Delaware%27s Constitution has stronger wording on the issue than does the U.S. Constitution.

In a surprising blow to public housing officials and a clear win for the National Rifle Association, the Delaware Supreme Court has ruled that the Wilmington Housing Authority cannot set limits on residents' rights to carry guns in common areas of public housing.

The unanimous ruling by the state Supreme Court noted that under the Delaware Constitution, which offers broader gun rights protections than the U.S. Constitution, the WHA limitations on possessing a gun were "overbroad and burden the right to bear arms more than is reasonably necessary."

"Public Housing is 'a home as well as a government building,' " Justice Henry DuPont Ridgely wrote for the panel.

The ruling directly contradicts a July 2012 ruling by U.S. District Judge Leonard Stark who found that the limits on residents carrying guns in common areas like lounges, halls and laundry rooms was "a reasonable policy."

Because the case turned on questions of state, not federal law, the Delaware Supreme Court ruling prevails.

Poll: Guns in public housing

The Delaware justices wrote that in certain circumstances, the WHA could limit the "use" of firearms but it could not limit "possession" of firearms in what amounted to parts of the residents' homes.

The state justices said that more narrow regulations – like barring residents from bringing guns into portions of WHA buildings where state employees work – may be acceptable.

"It is definitely a win," said attorney Francis X. Pileggi, who represented two WHA residents in the NRA-funded lawsuit. "The result is excellent and exactly what we were looking for."

WHA Executive Director Frederick S. Purnell said he was very disappointed, "Overall I think the ruling sets us back."

Purnell said he thought the restrictions on guns in common areas "struck a good balance between the right to bear arms and the overall mandate we have to provide a safe environment for our residents."

Before the ruling, Purnell and others said that public housing agencies across the nation were watching the case to see what kind of limits could be placed on gun possession.

Purnell said the WHA would comply with Tuesday's ruling and said he does not expect there will be an appeal.

WHA attorney Barry Willoughby said he was at least pleased that the court adopted a standard of review which may give the WHA some limited authority to regulate weapons in future.

But, he said, "Effectively the case is over."

Before Tuesday's decision, residents of Wilmington public housing were divided. Some strongly opposed any weapons in the buildings while others said they wanted to have a firearm for self defense. And some, like WHA resident Mary Williams, who favored allowing residents to have guns, opposed guns in common areas.

"You don't need that," she said in August. "Just keep it in your room."

The case against the WHA started June 2010 when two WHA residents filed suit to keep guns in their public housing units. At that time, the WHA had a broad ban on all guns in public housing. But weeks later, the U.S. Supreme Court made a landmark ruling that state and local governments could not impose a blanket ban on gun ownership.

So in Sept. 2010, WHA dropped its flat ban on guns and instead adopted a policy that placed restrictions on guns in common areas of public housing like television lounges and laundry rooms. The NRA and the WHA plaintiffs, however, persisted in their legal challenge arguing the new restrictions improperly limited their rights. District Judge Stark disagreed, finding the limits were a reasonable safety measure.

The NRA then appealed to the U.S. Third Circuit Court of Appeals arguing that the issues in the case involved questions related to the Delaware Constitution, not the U.S. Constitution. The federal appeals court agreed in August and sent the matter to the Delaware Supreme Court for clarification.

As a technical matter, the case will now go back to the U.S. Third Circuit Court of Appeals, which will in turn likely send the case back to District Judge Stark. But it appears that will not be needed, as WHA officials said Tuesday they will comply with the Delaware Supreme Court ruling and lift the restriction on guns in common areas.

In court, the WHA had argued it was unsafe to allow guns to be carried in common areas because it could lead to a situation where the person with the largest caliber gun gets control of the television remote. On Tuesday, Pileggi said that was a false argument because other state and federal laws restrict the use of guns and place limits on how people can behave with firearms.

He said if someone used a gun in a threatening manner to gain control of the TV remote, then they could be charged with terroristic threatening.

Also, Pileggi said he did not believe this case would end up limiting other public institutions from putting restrictions on guns in places like courthouses and town halls.

"In this opinion, the court went out of its way to distinguish public residences from government buildings," he said. "There is a huge distinction" he said, because one is a home and the other is not.

Contact Sean O'Sullivan at 302 324-2777 or sosullivan@delawareonline.com or on Twitter @SeanGOSullivan