Doe v. Wilmington Hous. Auth., C.A. No. 10–473–LPS.

• Decision Date: 27 July 2012
• Docket Number: C.A. No. 10–473–LPS.
• Citation: 880 F.Supp.2d 513
• Parties: Jane DOE and Charles Boone, Plaintiffs, v. WILMINGTON HOUSING AUTHORITY and Frederick S. Purnell, Sr., in his official capacity as executive director of the Wilmington Housing Authority, Defendants.
• Court: U.S. District Court — District of Delaware

880 F.Supp.2d 513

Jane DOE and Charles Boone, Plaintiffs,

v.WILMINGTON HOUSING AUTHORITY and Frederick S. Purnell, Sr., in his official capacity as executive director of the Wilmington Housing Authority, Defendants.

C.A. No. 10–473–LPS.

United States District Court,

D. Delaware.

July 27, 2012.

Francis G.X. Pileggi and Jill K. Agro, Eckert Seamans Cherin & Mellott, LLC, Wilmington, DE, for Plaintiffs.

Barry M. Willoughby and Lauren E. Moak, Young, Conaway, Stargatt & Taylor, LLP, Wilmington, DE, for Defendants.

OPINION

STARK, District Judge:

Pending before the Court are cross-motions for summary judgment filed by Plaintiffs Jane Doe and Charles Boone (“Plaintiffs”) and Defendants Wilmington Housing Authority (“WHA”) and Frederick S. Purnell, Sr. (“Defendants”). (D.I. 86; D.I. 88) Both motions concern the WHA's policies relating to possession of firearms by residents of public housing. Plaintiffs challenge two versions of WHA's policies under the Second Amendment of the United States Constitution as well as Article I, Section 20 of the Delaware Constitution. The parties' motions also require the Court to consider issues including standing, mootness, and preemption.

For the reasons set forth below, the Court will deny Plaintiffs' motion for summary judgment and grant Defendants' motion for summary judgment.

BACKGROUND¹

Plaintiff Jane Doe is a resident of The Park View, a privately-owned housing facility managed by the WHA. (D.I. 20 ¶¶ 2–3) In connection with her residence at The Park View, Doe entered into a lease agreement with WHA. Residents of The Park View are required to abide by “House Rules” that are incorporated into their lease agreements. (D.I. 20 ¶¶ 9–10) Original House Rule 24 stated, “Tenant is not permitted to display or use any firearms, BB guns, pellet guns, slingshots, or other weapons on the premises.” (D.I. 87 Ex. A at 6)

Plaintiff Charles Boone is a resident of Southbridge Apartments, a public housing facility owned and operated by WHA. (D.I. 40 ¶ 2) Residents of Southbridge Apartments are subject to mandatory rules included within their lease agreements. Boone's lease agreement originally provided that residents are “[n]ot to display, use, or possess ... any firearms, (operable or inoperable) or other dangerous instruments or deadly weapons as defined by the laws of the State of Delaware anywhere on the property of the Authority.” (D.I. 87 Ex. B at 14)

Thus, by virtue of original House Rule 24 at The Park View and the original lease agreement at Southbridge Apartments (collectively referred to hereinafter as the “Original Policies”), Plaintiffs Doe and Boone were prohibited from possessing firearms. Plaintiffs were subject to eviction from their housing units if they violated this prohibition.

Defendant WHA is a non-profit agency of the State of Delaware, created pursuant to 31 Del. C. § 4303, that provides housing to low-income families and individuals in the City of Wilmington. (D.I. 20 ¶ 1) Delaware statutes confer upon the WHA the power to acquire property, improve conditions, construct facilities, borrow money, and sue and be sued. See31 Del. C. §§ 4302, 4308; Wilmington Hous. Auth. v. Williamson, 228 A.2d 782, 786 (Del.1967). Defendant Frederick S. Purnell, Sr. is the WHA's executive director. (D.I. 20 ¶ 1)

On May 26, 2010, Plaintiff Doe instituted this judicial action by filing a complaint in the Delaware Court of Chancery, seeking to invalidate the WHA's Original Policies. (D.I. 1 Ex. A) Plaintiff Boone was later added in an Amended Complaint. (D.I. 23) On June 1, 2010, Defendants removed this case to the United States District Court for the District of Delaware. (D.I. 1) On June 2, 2010, Plaintiff Doe filed a motion for a preliminary injunction and a motion to expedite, both of which were later denied as moot. (D.I. 5; D.I. 7; D.I. 108)

On June 28, 2010, the United States Supreme Court issued its decision in McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), which incorporated the Second Amendment against the states through the Due Process Clause of the Fourteenth Amendment. Thereafter, on July 29, 2010, Defendants announced that, in light of McDonald, they were reevaluating the constitutionality of the Original Policies. (D.I. 20 ¶ 21) They further announced that they had authorized the adoption of a new firearms policy and, consistent with regulations of the United States Department of Housing and Urban Development (“HUD”), were scheduling a public hearing at which all interested parties could comment on the proposed amendments. ( Id. ¶¶ 22–23) Defendant Purnell decided that during the process of amending WHA's policies, WHA would not enforce the Original Policies. ( Id. at ¶ 25)

On September 7, 2010, the Court stayed this action pending the outcome of the scheduled WHA Board meeting. (D.I. 29) ² On October 25, 2010, WHA formally adopted a new firearms policy to be implemented within all WHA public housing units, including Southbridge. (D.I. 90 at A22–25) (hereinafter “Revised Policy”)

The Revised Policy provides, in full:

WHA Firearms and Weapons Policy

Lease Modification (Replaces Lease Part I § DC.P.):

Ownership, possession, transportation, display, and use of firearms and weapons is governed by the Wilmington Housing Authority Firearms and Weapons Policy which is incorporated into and made a part of this lease.

Wilmington Housing Authority Firearms and Weapons Policy:

WHA recognizes the importance of protecting its residents' health, welfare, and safety, while simultaneously protecting the rights of its residents to keep and bear arms as established by the federal and state constitutions. WHA therefore adopts the following Firearms and Weapons Policy. Residents, members of a resident's household, and guests:

1. Shall comply with all local, state, and federal legal requirements applicable to the ownership, possession, transportation, and use of firearms or other weapons. The term “firearm” includes any weapon from which a shot, projectile or other object may be discharged by force of combustion, explosive, gas and/or mechanical means, whether operable or inoperable, loaded or unloaded, and any weapon or destructive device as defined by law.

2. Shall not discharge or use any firearm or other weapons on WHA property except when done in self-defense.

3. Shall not display or carry a firearm or other weapon in any common area, except where the firearm or other weapon is being transported to or from the resident'sunit, or is being used in self-defense.

4. Shall have available for inspection a copy of any permit, license, or other documentation required by state, local, or federal law for the ownership, possession, or transportation of any firearm or other weapon, including a license to carry a concealed weapon as required by 11 Del C. § 1441, upon request, when there is reasonable cause to believe that the law or this Policy has been violated.

5. Shall exercise reasonable care in the storage of loaded or unloaded firearms and ammunition, or other weapons.

6. Shall not allow a minor under 16 years of age to have possession of a firearm, B.B. gun, air gun, or spear gun unless under the direct supervision of an adult.

7. Shall not give or otherwise transfer to a minor under 18 years of age a firearm or ammunition for a firearm, unless the person is that child's parent or guardian, or unless the person first receives the permission of the minor's parent or guardian.

Violation of this Policy by any resident or member of the resident's household shall be grounds for immediate Lease termination and eviction. In addition, a resident or member of the resident's household who knowingly permits a guest to violate this Policy shall be subject to immediate Lease termination and eviction.

(D.I. 90 at A24–25) (emphasis added)

On December 13, 2010, Defendants replaced The Park View's Original House Rule 24 with Amended Rule 24, which was substantively identical to the Revised Policy reproduced above. (D.I. 47 ¶ 18; D.I. 90 at A26–27 (Resolution Adopting the Park View House Rules Amended Rule 24))

With respect to this Revised Policy, Plaintiffs challenge only paragraph 3, which the Court will henceforth refer to as the “Common Area Provision,” and paragraph 4, which the Court will henceforth refer to as the “Reasonable Cause Provision.” (D.I. 87 at 5 n. 5)

Plaintiffs filed the operative Second Amended Complaint on December 6, 2010. (D.I. 40) It consists of five counts. Count I alleges that both the Original Policies and the Revised Policy violate the U.S. Constitution in that they infringe upon Plaintiffs' rights to keep and bear arms as guaranteed by the Second and Fourteenth Amendments. ( Id. ¶¶ 42–43) Count II alleges that both versions of the WHA policies also violate Plaintiffs' rights under the Delaware State Constitution. ( Id. ¶¶ 50–51) In Count III, Plaintiffs seek a ruling that Defendants' firearms policies are inconsistent with and preempted by Delaware law and Delaware's comprehensive regulatory scheme. ( Id. ¶ 60) Count IV alleges that Defendants have exceeded the scope of their authority by enacting the policies at issue. ( Id. ¶ 64) Finally, in Count V, Plaintiffs seek a declaratory judgment that Defendants' lease provisions—in both the original and revised versions—are unlawful for the same reasons alleged in Counts I through IV. ( Id. ¶ 69)

The parties filed their cross-motions for summary judgment on February 21, 2011. (D.I. 86; D.I. 88) Amicus curiae the Brady Center to Prevent Gun Violence (“Brady Center”) also filed a Motion for Leave to file an amicus brief (D.I. 91), which Plaintiffs did not oppose, and which the Court granted (D.I. 108). The Court heard oral argument on July 15, 2011. (D.I. 110) (hereinafter “Tr.”) The Court also ordered and received a post-hearing submission (D.I. 109) and was subsequentlyadvised by the parties of their views concerning a recent Delaware Supreme Court decision (D.I. 111; D.I. 112; D.I. 113).

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