Affordable Housing and Tax Credit Developments in DelawareAffordable Housing and Tax Credit Developments NationallyThe Delaware Supreme Court Protects Public Housing Tenants’ Right to Possess Firearms for Self Defense in Common Areas

March 28, 2014by George Danneman

This blog is mainly committed to discussing topics impacting the Affordable Housing Industry.  I am not looking to start a Second Amendment discussion on this blog.  However, I cannot ignore the recent Delaware Supreme Court decision ruling the actions and rules by the Wilmington Housing Authority (WHA) preventing possession of firearms by law abiding residents unconstitutional.  Importantly, I would also like to note up-front that the decision was based on the Constitution of the State of Delaware and the Wilmington Housing Authority’s actions and rules had already been approved in a local Federal court decision because Delaware’s Constitution provides more expansive rights to its citizens with respect to firearms than the United States Constitution.  For this reason, this decision is clearly important to affordable housing developers and public housing authorities in Delaware, but may be less influential for properties outside of Delaware.

The two questions presented were as follows and in both cases the Delaware Supreme Court disagreed with the Wilmington Housing Authority (WHA):

*   Whether, under Article I, §20 of the Delaware Constitution (enacted in 1987), a public housing agency such as the WHA may adopt a policy prohibiting its residents, household members, and guests from displaying or carrying a firearm or other weapon in a common area, except when the firearm or other weapon is being transported to or from a resident’s housing unit or is being used in self-defense.

*   Whether, under Article I, §20 of the Delaware Constitution, a public housing agency such as the WHA may require its residents, household members, and guests to 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 Del. Code Ann. tit. 11, §1441, on request, when there is reasonable cause to believe that the law or policies have been violated.

The Wilmington Housing Authority (WHA) originally implemented house rules that outright banned possession, display or use of firearms on the premises.  Recognizing, the Constitutional issues, the Wilmington Housing Authority later revised its rules allowing possession for self defense in a resident’s apartment but continuing the ban in possession of firearms in common areas.  An additional rule required residents to have available upon request for inspection any license to posses a firearm (practically, if one has a license to carry concealed and that person carries in a concealed manner, I am not sure how a property manager would know to ask to inspect the license).  There were additional safety rules as well.  In disagreeing with the Wilmington Housing Authority (WHA), the Supreme Court noted that “the common areas are effectively part of the residences” for the residents increasing the scrutiny of rules impacting residents’ use of common areas.  The Supreme Court also concluded “the individual’s need for defense of self, family and home in an apartment building is the same whether the property is owned privately or by the government.”

I feel very strongly that the US Constitution and Delaware’s Constitution make this Country and State great places to live.  I tend to agree with the decision by our State’s Supreme Court and believe it also helps protect my rights to free speech (write this blog) and to practice my religion, among others.    We located a few posts on local firearm carry forums and national firearm carry forums highlighting the need for carry etiquette.  As such, on a parting note, just because you can do something, does not mean you should do something, especially when trying to be a good neighbor.  When living in an apartment community, this concept is magnified because you are living very close to your neighbors and sharing walls and common spaces with your neighbors.

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