Doe v. Wilmington Housing Authority et al
OPINION re cross-motions for summary judgment. Signed by Judge Leonard P. Stark on 7/27/12. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JANE DOE and CHARLES BOONE,
C.A. No. 10-473-LPS
WILMINGTON HOUSING AUTHORITY and
FREDERICK S. PURNELL, SR., in his official
capacity as executive director of the
Wilmington Housing Authority,
Francis G.X. Pileggi and Jill K. Agro, Eckert Seamans Cherin & Mellott, LLC, Wilmington,
Attorneys for Plaintiffs.
BarryM. Willoughby and Lauren E. Moak, Young, Conaway, Stargatt & Taylor, LLP,
Attorneys for Defendants.
July 27, 2012
STARK, U.S. 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 FrederickS. Purnell, Sr. ("Defendants"). (D.I. 86; D.l. 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.
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 ~~ 9-1 0) 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
The facts presented are based on the parties' summary judgment filings and a review of
the record created by the parties. Where there are disputes of fact, all reasonable inferences are
drawn in the non-moving parties' favor. As is evident from the Court's ruling on the motions,
the Court does not find any genuine issues of material fact.
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. Bat 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 ofDelaware, 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. See 31
Del. C.§§ 4302, 4308; Wilmington Hous. Auth. v. Williamson, 228 A.2d 782, 786 (Del. 1967).
Defendant FrederickS. 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)
PlaintiffBoone 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, PlaintiffDoe 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 ofChicago, 130 S. Ct. 3020 (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 ,-r 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. (!d. ,-r,-r 2223) Defendant Purnell decided that during the process of amending WHA's policies, WHA
would not enforce the Original Policies. (!d. at ,-r 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§ IX.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 ofprotectiNg 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:
HUD requires that public housing authorities provide for at least a 30-day period for
public comment prior to amending a public housing lease. See 24 C.F.R. § 966.3.
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.
Shall not discharge or use any firearm or other weapons on
WHA property except when done in self-defense.
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's unit, or is being used in selfdefense.
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
Shall exercise reasonable care in the storage ofloaded or unloaded
firearms and ammunition, or other weapons.
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.
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 ,-r 18; D.l. 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. (!d. ,-r,-r 42-43) Count II alleges
that both versions of the WHA policies also violate Plaintiffs' rights under the Delaware State
Constitution. (!d. ,-r,-r 50-51) In Count Ill, Plaintiffs seek a ruling that Defendants' firearms
policies are inconsistent with and preempted by Delaware law and Delaware's comprehensive
regulatory scheme. (!d. ,-r 60) Count N alleges that Defendants have exceeded the scope of their
authority by enacting the policies at issue. (!d. ,-r 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 N. (!d. ,-r 69)
The parties filed their cross-motions for summary judgment on February 21, 2011. (D.I.
86; D.l. 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 subsequently advised by the parties of their views concerning a recent Delaware Supreme
Court decision (D.I. 111; D.I. 112; D.l. 113).
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R.
Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 n.1 0 (1986). An assertion that a fact cannot be- or, alternatively, is- genuinely disputed
must be supported either by citing to "particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for the purposes ofthe motion only), admissions, interrogatory answers, or
other materials," or by "showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact." Fed. R. Civ. P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the
nonmovant must then "come forward with specific facts showing that there is a genuine issue
for trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted) (emphasis in original).
The Court will "draw all reasonable inferences in favor ofthe nonmoving party, and it may not
make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000).
To defeat a motion for summary judgment, the non-moving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586; see also Podohnik v. U.S. Postal Service, 409 F.3d 584, 594 (3d Cir. 2005) (stating
party opposing summary judgment "must present more than just bare assertions, conclusory
allegations or suspicions to show the existence of a genuine issue") (internal quotation marks
omitted). However, the "mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment;" and a factual dispute
is genuine only where "the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247-48 (1986). "lfthe
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted." ld. at 249-50 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (stating entry of summary judgment is mandated "against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial"). Thus, the "mere existence of a
scintilla of evidence" in support of the non-moving party's position is insufficient to defeat a
motion for summary judgment; there must be "evidence on which the jury could reasonably find"
for the non-moving party. Anderson, 477 U.S. at 252.
Defendants assert that Plaintiffs lack standing to bring this suit. (See, e.g., D.I. 89 at 7-
10) Defendants' contention is based primarily on their view that neither of the Plaintiffs owns a
firearm or actually disagrees with most or all of the WHA Revised Policy.
It is Plaintiffs' burden to show that they have standing to bring this suit. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). Each of the standing requirements "must be
supported in the same way as any other matter on which the plaintiffbears the burden of proof,
i.e., with the manner and degree of evidence required at the successive stages of the litigation."
To meet Article III standing requirements, a plaintiff must have suffered an injury-in-fact,
that is an invasion of a legally-protected interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical. See Lujan, 504 U.S. at 560-61. There must
also be a causal connection between the injury and the conduct complained of, and the injury
must be "fairly ... trace[ able] to the challenged action ofthe defendant, and not ... [the] result
[of] the independent action of some third party not before the court." Simon v. Eastern Ky.
Welfare Rights Org., 426 U.S. 26, 41-42 (1976). Additionally, it must be likely that the injury
will be "redressed by a favorable decision." Id. at 38; see also id. at 27, 43.
In addition, a plaintiff must establish "prudential standing." See Elk Grove Unified Sch.
Dist. v. Newdow, 542 U.S. 1, 11-12 (2004); Twp. ofLyndhurst v. Priceline.com Inc., 657 F.3d
148, 154 (3d Cir. 2011). The Court must take into consideration whether prudential concerns
should merit a limitation on the exercise of its judicial authority. See Lozano v. City ofHazleton,
620 F.3d 170, 183 (3d Cir. 2010), vacated by 131 S. Ct. 2958 (2011). Prudential standing
embraces the following principles:
(1) the plaintiff generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal rights or
interests of third parties; (2) even when the plaintiffhas alleged
redressable injury sufficient to meet the requirements of Article III,
the federal courts will not adjudicate abstract questions of wide
public significance which amount to generalized grievances
pervasively shared and most appropriately addressed in the
representative branches; and (3) the plaintiff's complaint must fall
within the zone of interests to be protected or regulated by the
statute or constitutional guarantee in question.
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 485 (3d Cir. 1998)
(internal quotation marks and citations omitted).
Here, Defendants argue that Plaintiffs cannot meet their burden with respect to standing
because neither Doe nor Boone owns a firearm. In their depositions, both Plaintiffs testified that
they do not currently possess firearms. (D.I. 90 at A29-30, A63) Moreover, neither Plaintiff has
ever sought a license to carry a concealed deadly weapon, has ever requested information
regarding the WHA's firearms policies, or has ever been subject to any ramifications as a result
ofthe WHA's firearms policies. (D.I. 90 at A30-34, A59, A63, A66-68, A70)
In the Court's view, Plaintiffs need not own firearms in order to have standing. Under the
Original Policies, if either Plaintiff owned a firearm and kept it in his or her residence, he or she
would be subject to eviction. Even under the Revised Policy, if a Plaintiff kept a firearm in his
or her residence and took it into a common area- other than incidentally to transporting it
through a common area- he or she would again be subject to eviction. Plaintiffs suffer an actual
and imminent threat of an injury-in-fact that is personal to them by being threatened with
eviction solely as a result of engaging in what they contend are protected Second Amendment
rights. Plaintiffs do not have to own a firearm and possess it in violation ofWHA policy in order
to obtain standing. See Ezell v. City of Chicago, 651 F.3d 684, 695 (7th Cir. 2011) ("It is wellestablished that 'pre-enforcement challenges ... are within Article III."') (quoting Brandt v. Vi//.
ofWinnetka, Ill., 612 F.3d 647, 649 (7th Cir. 2010)). Plainly, the cause ofPlaintiffs' injuries is
the WHA firearms policy; consequently, Plaintiffs' injuries would be redressed by a judicial
decision invalidating that policy. 3
Defendants also argue that Plaintiffs lack standing because Plaintiffs do not really
disagree with the Revised Policy. In their depositions, Plaintiffs appeared to testify that they
agree with much if not all ofthe Revised Policy. (D.I. 90 at A45-49, A64-65, A72-73) In
Defendants' view, "Plaintiffs raise merely hypothetical concerns about the policy." (D.I. 89 at 7)
In fact, however, PlaintiffDoe's testimony is reasonably understood to be that she does
not agree with paragraph 3 of the Revised Policy, the Common Area Provision. (D.I. 90 at A64) 4
Also, Plaintiff Boone indicated that he might feel the need for a gun, even in a common area, if
he were relocated to a WHA facility where he was unfamiliar with the people. (D.I. 90 at A5154)
More fundamentally, Plaintiffs were never asked their views as to the constitutionality of
the WHA policies, which is the crux of the dispute Plaintiffs have brought to this Court. While
the reasonableness of these policies and their constitutionality are related (given the applicability
of the intermediate scrutiny constitutional test, as will be discussed), the issues are not identical.
In a subsequent declaration, Doe states that she does, in fact, own a gun, and that she was
retaliated against for filing her lawsuit (by being charged miscellaneous fees). (D.I. 100 Ex. B
~~ 2, 5) Defendants seek to strike this declaration as a "sham." See Yatzus v. Appoquinimink
Sch. Dist., 458 F. Supp. 2d 235,247 (D. Del. 2006). Because ownership of a firearm is not
necessary for Doe to have standing, the Court need not determine whether her declaration should
PlaintiffDoe testified that, if she owned a weapon, she might have reason to take it to the
community room, testifying: "Well, if it's for protection, you need protection from your
apartment to the community room, because it can happen - anything can happen to you
anywhere." (D.I. 90 at A64) As Defendants' counsel appeared to recognize during the
questioning, Doe did seem to object to the Common Area Provision. (D.I. 90 at A72) (counsel
stating, in course of inquiring whether Doe objected to each particular paragraph of Revised
Policy, "We've talked about the common areas already, so I'll skip that one")
It is self-evident from Plaintiffs' initiation and prosecution of this action that Plaintiffs believe
the WHA policies are unconstitutional and violate their constitutional rights - regardless of
whether these policies are "good" or "reasonable" policies. (Tr. at 13)
Accordingly, the Court finds that Plaintiffs have established that they have standing to
bring their claims.
Although the WHA replaced its Original Policies with the Revised Policy in October
2010, Plaintiffs continue to press their challenge to the constitutionality ofboth the old and new
versions of the WHA's firearms policies. 5 Plaintiffs contend that "[t]his Court should rule on the
constitutionality of the original policies that Defendants have revised, otherwise Plaintiffs will
have no judicial protection if Defendants return to their prior unconstitutional conduct." (D.I. 87
at 2) The Court disagrees. Instead, the Court will grant Defendants' motion for summary
judgment with respect to Plaintiffs' challenge to the Original Policies because this portion of
Plaintiffs' claims is now moot.
"It is well settled that a defendant's voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the practice." City ofMesquite v.
Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982). Otherwise, "courts would be compelled to
leave '[t]he defendant ... free to return to his old ways."' Id. at 289 n.10 (quoting United States
v. W.T. Grant Co., 345 U.S. 629, 632 (1953)).
Nevertheless, a case is moot if (1) there has been a complete discontinuation of the
During a scheduling conference on November 12, 2010, the Court indicated that it would
likely determine the constitutionality of the Revised Policy but not the Original Policies, although
the Court expressly permitted the parties to address each version if they wished. (D.I. 37 at 7-8)
disputed conduct; (2) there are no continuing effects after the discontinuation; and (3) there are
no other factors justifying relief. See Magnuson v. City ofHickory Hills, 933 F .2d 562, 565 (7th
Cir. 1991 ). A case is moot if it is clear that the wrongful behavior being challenged is not
reasonably expected to recur. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 528
u.s. 167, 189 (2000).
The determination of mootness requires a fact-sensitive analysis and a prediction based
on the likelihood of the recurrence of the
a defendant's expressions of
future intent, and the public interest in the resolution of the dispute. See Camreta v. Greene, 131
S. Ct. 2020, 2033-34 (2011). A party asserting mootness must demonstrate that it is
unreasonable to believe the challenged conduct would, without a judicial ruling, begin anew. See
Where, as here, 6 a defendant is a government actor, there is a rebuttable presumption that
the objectionable behavior will not recur. See Troiano v. Supervisor ofElections, 38 F.3d 1276,
1283 & n.4 (11th Cir. 2004). In the case ofthe actions of public officials, to avoid a conclusion
of mootness following a policy change there must be a substantial likelihood that the regulation
or policy in dispute will be reenacted. See Princeton Univ. v. Schmid, 455 U.S. 100 (1982)
(finding that repeal of university regulations mooted challenge to their validity).
Here, Defendants have demonstrated that Plaintiffs' challenge to the constitutionality of
the Original Policies is moot. There is no reason to believe that the WHA, after having
suspended, reviewed, and replaced the Original Policies (undertaking the HUD-mandated
procedure for doing so) in view ofthe Supreme Court's holding in McDonald, would attempt to
As noted earlier, WHA is a state agency created by statute.
adopt these policies again. See DeBolt v. Espy, 47 F.3d 777, 782 (6th Cir. 1995) (holding
plaintiffs claim against Farmer's Home Administration ("FmHA") moot after FmHA revised its
lease to comply with applicable regulations); D.I. 102 at 6 ("Defendants have engaged in the
time-consuming process of amending their public housing lease in accordance with applicable
HUD regulations, thereby creating significant disincentive to revert to previous practices.") This
is particularly so because Defendants have all but conceded that their Original Policies are
unconstitutional in light of McDonald. (See Tr. at 58: Defendants' counsel stating his clients
"rely on me" for legal advice and opining, "I think under the current law, post- McDonald lawthis is my opinion - it probably would be a violation of the Second Amendment to say no
weapons in your unit for  self-defense"); D .I. 101 at 7 ("The Original Policies Were Lawful
Under Pre-McDonald Precedent") (emphasis added) 7 There is also no evidence in the record
that the Original Policies were ever enforced, further reducing the likelihood that these policies
will be reenacted. See Wis. Right to Life, Inc. v. Schober, 366 F.3d 485, 492 (7th Cir. 2004).
To the extent Plaintiffs are arguing that their challenge to the Original Policies is not
moot because the Revised Policy shows that the WHA is intent to repeat unconstitutional
conduct, the Court rejects this argument. As explained below, the Court has concluded that the
ln the "Resolution Adopting the Wilmington Housing Authority Firearms and Weapons
Policy" (D.I. 90 at A22), the Board of Commissioners stated that it had "determined that the
Court's decision in McDonald raised questions about the permissibility of the firearms policy
previously contained within the WHA public housing lease." The Synopsis of that Resolution
adds that "[a]s a result" of McDonald, "questions were raised about the permissibility ofthe ban
on the use and possession of firearms imposed by WHA's public housing lease." (D.I. 90 at
Revised Policy is not unconstitutional. 8
Also, Plaintiffs point out that Defendants, in several pleadings - including their answers
to the Amended and Second Amended Complaints (D.I. 24 ~~ 42-45; D.I. 47 ~~ 42-47)- denied
the allegations that the Original Policies were unconstitutional. (Tr. at 6) In the Court's view,
Defendants were merely preserving their rights to proceed in this litigation. Defendants'
"denials" of the allegations do not demonstrate that there is any realistic possibility Defendants
will attempt to readopt the Original Policies.
Thus, the Court will grant Defendants' motion for summary judgment due to mootness
with respect to Plaintiffs' challenges to the Original Policies.
Recent Second Amendment Jurisprudence
The Second Amendment to the United States Constitution provides: "A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed." U.S. Const. amend. II. "Modem Second Amendment doctrine is a
relatively new frontier." Piszczatoski v. Hon. Rudolph A. Filko, 840 F. Supp. 2d 813, 819
(D.N.J. 2012). As the Third Circuit has recently summarized:
In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct.
2783, 171 L.Ed.2d 637 (2008), the Supreme Court held for the first
time that the Second Amendment confers an individual right to
keep and bear arms. The right, however, is not unlimited. !d. The
Second Amendment does not guarantee a "right to keep and carry
any weapon whatsoever in any manner whatsoever and for
whatever purpose." !d. at 626, 128 S.Ct. 2783. The Court
Thus, the situation here is unlike that confronted by the Supreme Court in Northeastern
Florida Chapter of the Associated General Contractors ofAmerica v. City ofJacksonville,
Florida, 508 U.S. 656, 662 (1993), in which the Court found a challenge to a repealed ordinance
not to be moot. In that case, there was "no mere risk that Jacksonville will repeat its allegedly
wrongful conduct; it has already done so." !d.
cautioned that, "nothing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of firearms
by felons and the mentally ill, or laws forbidding the carrying of
firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the
commercial sale of arms." !d. at 626-27, 128 S.Ct. 2783 .... The
Court made clear that it was "identify[ing] these presumptively
lawful regulatory measures only as examples"; the list was not
intended to be exhaustive.
United States v. Huet, 665 F.3d 588, 599-600 (3d Cir. 2012) (internal footnotes omitted).
At issue in Heller was a D.C. law that "ban[ ned] handgun possession in the home" and
"require[ d] that any lawful firearm in the home be disassembled or bound by a trigger lock at all
times, rendering it inoperable." 554 U.S. at 628. Explaining that the Second Amendment
"elevates above all other interests the right of law-abiding, responsible citizens to use arms in
defense ofhearth and home," the Supreme Court held that D.C.'s ban could not survive any
degree of scrutiny. Id. at 628-29, 635. Heller suggested that the "core" ofthe Second
Amendment right is the right of "law-abiding, responsible citizens to use arms in defense of
hearth and home." Id. at 634-35.
Two years after Heller, in McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010),
the Supreme Court held that "the Due Process Clause of the Fourteenth Amendment incorporates
the Second Amendment right recognized in Heller." Thus, in McDonald, the Supreme Court
struck down a ban on handguns that had been imposed by the City of Chicago. See id. at 3026.
In doing so, the McDonald Court described its "central holding in Heller" as being that "the
Second Amendment protects a personal right to keep and bear arms for lawful purposes, most
notably for self-defense within the home." Id. at 3044.9
The Third Circuit has had several occasions to consider the Supreme Court's Heller and
McDonald decisions, most extensively in United States v. Marzzarella, 614 F.3d 85 (3d Cir.
2010); see also Huet, 665 F.3d at 588 (rejecting Second Amendment challenge to indictment
alleging aiding and abeting possession of firearm by convicted felon); United States v. Barton,
633 F.3d 168, 169-70 (3d Cir. 2011) (same for conviction for possession of firearm by convicted
felon). In Marzzarella, the Third Circuit rejected a Second Amendment challenge to the federal
statute criminalizing possession of a firearm with an obliterated serial number, 18 U.S.C. §
922(k). See 614 F.3d at 87.
In reaching its decision, the Third Circuit in Marzzarella echoed the Supreme Court by
stating, "At its core, the Second Amendment protects the right of law-abiding citizens to possess
non-dangerous weapons for self-defense in the home." Id. at 92 (footnote omitted). Marzzarella
also set forth a framework for courts to apply in assessing Second Amendment challenges:
As we read Heller, it suggests a two-pronged approach to Second
Amendment challenges. First, we ask whether the challenged law
imposes a burden on conduct falling within the scope of the
Second Amendment's guarantee. If it does not, our inquiry is
complete. If it does, we evaluate the law under some form of
means-end scrutiny. If the law passes muster under that standard,
it is constitutional. If it fails, it is invalid.
There are also broader statements in McDonald, in which the right to possess firearms
for self-defense is not tied explicitly to being in the home. See, e.g., 130 S. Ct. at 3036 ("Selfdefense is a basic right, recognized by many legal systems from ancient times to the present day,
and in Heller, we held that individual self-defense is 'the central component' of the Second
Amendment right. ... [C]itizens must be permitted 'to use [handguns] for the core lawful
purpose of self-defense."') (quoting Heller, 128 S. Ct. at 2801-02, 2818); see also id. at 3048
("[S]elf-defense was 'the central component of the right itself."') (quoting Heller, 128 S. Ct. at
614 F .3d at 89 (internal citations and footnote omitted). 10
In connection with the first step of this test - asking whether a challenged provision
imposes a burden on conduct falling within the scope of the Second Amendment's guaranteethe Third Circuit considered what it described as "Heller's list of presumptively lawful
regulations," which the Third Circuit held was "not exhaustive." 614 F.3d at 92-93 (internal
citations omitted). Presumptively lawful measures "are exceptions to the right to bear arms." !d.
at 91; see also Huet, 665 F.3d at 600 ("[T]he 'presumptively lawful' regulatory measures
identified by the Supreme Court in Heller carry the presumption of validity because they regulate
conduct falling outside the scope of the Second Amendment's guarantee. In other words, the
longstanding limitations mentioned by the Court in Heller are exceptions to the right to bear
arms.") (internal quotation marks and citations omitted). While there are presumptively lawful
measures other than just those listed in Heller, "the approach for identifying ... additional
[presumptively lawful] restrictions is also unsettled." Marzzarella, 614 F.3d at 92-93 (internal
citations omitted). Hence, in Marzzarella, the Third Circuit declined to find the federal statute
criminalizing possession of a firearm with an obliterated serial number to be presumptively
lawful, instead noting "prudence counsels caution when extending these recognized exceptions to
novel regulations unmentioned by Heller." !d. at 93; see also id. at 95 ("[W]hile the Government
argues that § 922(k) does not impair any Second Amendment rights, we cannot be certain that the
possession of unmarked firearms in the home is excluded from the right to bear arms. Because
0ther circuits have adopted similar two-step approaches to Second Amendment
challenges. See Heller v. District of Columbia, 670 F.3d 1244, 1252-53 (D.C. Cir. 2011)
("Heller IF'); Ezell v. City of Chicago, 651 F.3d 684, 702-04 (7th Cir. 2011); United States v.
Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800-01 (lOth
we conclude § 922(k) would pass constitutional muster even if it burdens protected conduct, we
need not decide whether Marzzarella's right to bear arms was infringed.").
Marzzarella also addressed the test to be applied when a provision is found to be or
assumed to burden conduct within the scope of the Second Amendment. This is largely a
question left unresolved by the Supreme Court, as "Heller did not prescribe the standard
applicable to the District of Columbia's handgun ban." Marzzarella, 614 F.3d at 95. 11 The Third
Circuit stated: "Whether or not strict scrutiny may apply to particular Second Amendment
challenges, it is not the case that it must be applied to all Second Amendment challenges. Strict
scrutiny does not apply automatically any time an enumerated right is involved." !d. at 96.
Instead, Marzzarella analogized the Second Amendment to the First Amendment, explaining that
just as "the right to free speech ... is susceptible to several standards of scrutiny, depending upon
the type of law challenged and the type of speech at issue ... [there is] no reason why the Second
Amendment would be any different." !d. at 96-97; see also id. at 89 n.4 ("[W]e look to other
constitutional areas for guidance in evaluating Second Amendment challenges. We think the
First Amendment is the natural choice."). Hence, strict scrutiny is appropriate only when the
challenged law "severely limit[ s] the possession of firearms," as in Heller. !d. at 97.
Conversely, a law seeking just to "regulat[e] ... the manner in which persons may lawfully
exercise their Second Amendment rights ... merit[s] intermediate, rather than strict, scrutiny."
To withstand intermediate scrutiny, "the asserted governmental end [ofthe challenged
1n Heller, the Supreme Court explicitly ruled out a rational basis test for analyzing
Second Amendment challenges. See 554 U.S. at 628 n.27; see also Huet, 665 F.3d at 600.
policy must] ... be more than just legitimate, either 'significant,' 'substantial,' or 'important."'
ld. at 98. Also, ''the fit between the challenged regulation and the asserted objective" of the
regulation must "be reasonable," but it need not be "perfect." ld. Moreover, "[t]he regulation
need not be the least restrictive means of serving the interest, but may not burden more [protected
conduct] than is reasonably necessary." ld. (internal citations omitted).
The Court now proceeds to consider this recent Second Amendment jurisprudence in the
context of Plaintiffs' constitutional challenge to the WHA's Revised Policy, and particularly the
Common Area Provision. 12
Does The Revised Policy Regulate Conduct
Within The Scope Of The Second Amendment?
At the first step of the Marzzarella analysis, the Court must determine whether the
Revised Policy imposes a burden on conduct falling within the scope of the Second
Amendment's guarantee. Under the Revised Policy, Plaintiffs are permitted to possess firearms
for their self-defense within their own units. However, WHA's Common Area Provision
restricts Plaintiffs from possessing, carrying, using, or displaying firearms in the common areas,
except when incidental to transporting such weapons to or from Plaintiffs' personal units. Thus,
with respect to Plaintiffs' challenge to the Common Area Provision, the first step is to determine
whether the Second Amendment protects Plaintiffs' right to possess firearms outside of their own
Although the precise contours of the "common areas," to which the Common Area
Provision applies, are not entirely clear, this much is undisputed: every portion of the "common
The Court will address the Reasonable Cause Provision in a separate section. See infra
areas" is a space over which no individual resident has the power to exclude all other
individuals. 13 The "common areas" are open to all tenants and guests, as well as WHA
employees; they are not Plaintiffs' private residences, i.e., the unit for which a resident has signed
a lease agreement. (D.I. 104 at 4) The common areas include "various community spaces such
as daycare facilities, libraries, and community rooms" (D.I. 89 at 15), as well as laundry rooms
and administrative offices (Tr. at 42). Plaintiff Boone testified that one such common area, the
community room, is "where the kids go after school, do their homework ... and you can have
access to the computer." (Boone Dep. at p. 49) [submitted by Plaintiffs, but not docketed, on
July 15, 2011] Both sides agree that the television rooms are common areas. (Tr. at 20, 40)
The Court agrees with Defendants that "while a tenant's unit is treated as his or her home
under the [Revised] Policy, the common areas are community spaces that WHA has the right and
obligation to regulate." (D.I. 104 at 5) One's "hearth and home," by contrast, is space from
which one has the right to exclude others. Hence, the "common areas" covered by the Common
Area Provision are not the "hearth and home" which was expressly at issue in Heller.
Thus, the Common Area Provision regulates conduct that is not within the "core" of what
is protected by the Second Amendment. See Barton, 633 F.3d at 170 ("At the 'core' of the
Second Amendment is the right of 'law-abiding, responsible citizens to use arms in defense of
hearth and home."') (quoting Heller, 554 U.S. at 635). Is the conduct regulated by the Common
Area Provision within the scope of the Second Amendment?
Plaintiffs point out that WHA' s Commissioners could not agree with one another as to
the meaning of "common area." (D .I. 87 at 13 n.1 7) Nonetheless, the parties acknowledged that
there are no genuine disputes of material fact as to the definition of"common areas." (Tr. at 14,
This is a question that neither the Supreme Court nor the Third Circuit has answered.
Indeed, the Third Circuit has warned that "Second Amendment doctrine remains in its nascency,
and lower courts must proceed deliberately when addressing regulations unmentioned by Heller."
Marzzarella, 614 F.3d at 101; see also id. at 92 ("Heller did not purport to fully define all the
contours of the Second Amendment, and accordingly, much of the scope of the right remains
unsettled.") (internal citations omitted). Other courts of appeals have provided similar guidance.
See, e.g., United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011) ("The upshot ofthese
landmark decisions is that there now exists a clearly-defined fundamental right to possess
firearms for self-defense within the home. But a considerable degree of uncertainty remains as to
the scope of that right beyond the home and the standards for determining whether and how the
right can be burdened by governmental regulation.").
On the fundamental issue ofthe Second Amendment's scope, the parties' views, of
course, are directly in conflict. Plaintiffs assert that while the focus in Heller may have been on
the right to self-defense in the home, nothing about Heller (or McDonald) limits the Second
Amendment right to one's home. In Plaintiffs' view, just because the Supreme Court recognized
in Heller that "the need for defense of self, family, and property is most acute" in the home (554
U.S. at 628) (emphasis added), this does not imply that no such need exists outside the home.
Defendants counter that the Second Amendment right "defined in Heller is much more
narrow than the rights asserted by Plaintiffs." (D.I. 89 at 11) As Defendants read Heller, the
Supreme Court only recognized "a right to bear arms in one's home, not in common areas of the
building shared with other residents." (D.I. 89 at 12) Defendants contend that Heller's reach is
limited to protecting a citizen's right to possess a weapon in one's home and does not stretch to
public spaces. It follows, in Defendants' view, that Plaintiffs have no Second Amendment right
in the common areas of their housing developments that they share with other residents.
The Third Circuit has emphasized that this "prong one of Marzzarella (whether conduct
is protected by the Second Amendment) should be applied with caution." Huet, 665 F.3d at 602;
see also Marzzarella, 614 F.3d at 92 (stating "much of the scope of the [Second Amendment]
right remains unsettled"). Here, there are strong arguments on both sides. Plaintiffs are correct
that the Supreme Court's description of the "core" of the Second Amendment right as pertaining
to possession of a firearm for self-defense in one's home suggests that there is more to the
Second Amendment right than just this core. Plaintiffs are also undoubtedly correct that the need
for self-defense may arise outside the home, just as it does inside the home. On the other hand,
Defendants are correct that the Supreme Court and Third Circuit have not expressly recognized a
Second Amendment right beyond the home-bound core described in Heller and McDonald.
Given these circumstances, and the repeated warnings to proceed with caution, the Court declines
to determine whether Second Amendment rights extend outside of the "hearth and home."
As explained below, the Court has concluded that the Common Area Provision is
constitutional under intermediate scrutiny. Therefore, following the example of the Third Circuit
in Marzzarella, the Court assumes without deciding that the Common Area Provision regulates
conduct within the scope of the Second Amendment. See 614 F.3d at 95 (stating Court will
"assum[e]" policies at issue "burden [Plaintiffs'] Second Amendment rights" and proceeding to
"evaluate the law under the appropriate standard of constitutional scrutiny"); see also
Masciandaro, 638 F.3d at 470-75 ("[A]s we move outside the home, firearm rights have always
been more limited, because public safety interests often outweigh individual interests in self-
defense .... On the question of Heller's applicability outside the home environment, we think it
prudent to await direction from the Court itself.").
Is The Common Area Provision Presumptively Lawful?
In Marzzarella, the Third Circuit applied the first prong of its analysis by evaluating
whether the provision at issue - a statute criminalizing possessing of a firearm with an
obliterated serial number- was of a type that is "presumptively lawful" as envisioned in Heller.
"[T]he 'presumptively lawful' regulatory measures identified by the Supreme Court in Heller
carry the presumption of validity because they regulate conduct falling outside the scope of the
Second Amendment's guarantee .... In other words, the longstanding limitations mentioned by
the Court in Heller are exceptions to the right to bear arms." Huet, 665 F.3d at 600 (internal
quotation marks omitted); see also Marzzarella, 614 F.3d at 91 (explaining "presumptively
lawful" regulations "are exceptions to the right to bear arms"). The Third Circuit has "explicitly
held that Heller's list of 'presumptively lawful' regulations was not dicta, and thus we are bound
by it." Huet, 665 F .3d at 600 n.11.
Although statutes prohibiting the possession of firearms with obliterated serial numbers
were not specifically identified in Heller as being presumptively lawful, Marzzarella explained
that the Heller list was not exhaustive. See 614 F.3d at 91. Hence, as part of the Court's inquiry
into whether the WHA Revised Policy violates Plaintiffs' Second Amendment rights, the Court
must consider whether the challenged provisions are of a type that is "presumptively lawful," and
in that way regulate conduct that is outside the scope of the Second Amendment's guarantee.
With respect to the Common Area Provision, one aspect of this inquiry would seem to be
whether this is the type of regulation that is presumptively lawful due to its longstanding history.
The record does not contain evidence from which the Court could conclude that the Common
Area Provision (or the Reasonable Cause Provision) has the type of pedigree as those regulations
expressly identified by the Supreme Court in Heller, such as prohibiting possession of firearms
by felons and mentally incompetent individuals. To the contrary, the record reveals that the
Common Area Provision was adopted only recently, in October 2010, as part of the WHA's
replacement of its Original Policies with the Revised Policy.
The Court concludes that, here again, it should follow the approach taken by the Third
Circuit in Marzzarella. There, the Third Circuit decided not to decide whether the obliterated
serial number statute was presumptively lawful, concluding, instead, that it was more appropriate
to apply constitutional scrutiny. See 614 F.3d at 95. So, too, here, rather than determining
whether the Common Area Provision should be added to the list of presumptively lawful
regulations, the Court will assume that the Common Area Provision is not presumptively lawful
and will proceed to determine whether the challenged regulation can withstand constitutional
Before doing so, the Court must consider yet another issue that arises at the first prong of
Marzzarella. Related to the question of whether the Common Area Provision is presumptively
lawful is whether the "common areas" that are subject to the Common Area Provision are
"sensitive places." Regulations governing "sensitive places" are presumptively lawful. See
Heller, 554 U.S. at 626 ("[N]othing in our opinion should be taken to cast doubt on ... laws
forbidding the carrying of firearms in sensitive places such as schools and government buildings .
. . ."); Huet, 665 F.3d at 599-600.
As already explained, the "common areas" to which the Common Area Provision applies
are areas "open to all tenants and guests," as well as WHA employees; they do not include
Plaintiffs' assigned residential units. (D.I. 104 at 4) Defendants contend that these "common
areas" are "sensitive places," as they are places where multiple, unrelated individuals congregate.
Common areas are also places in which government business is performed and people have a
reasonable expectation they will be kept safe. Hence, in Defendants' view, the common areas are
sensitive places outside the reach of the Second Amendment.
Plaintiffs counter that the common areas are quite dissimilar from places that have
generally been characterized as sensitive places. The places where the Common Area Provision
applies are not "places of regular government business," such as public schools, post offices, or
courthouses. See United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. Oct. 14, 2009);
DiGiacinto v. Rectors & Visitors of George Mason Univ., 704 S.E.2d 365 (Va. 2011). In
Plaintiffs' view, the common areas are part of a residence, and should not be treated for Second
Amendment purposes any differently than a private residence.
Several courts have had occasion to consider the meaning of"sensitive place." These
courts have found that places where youth and children recreate and are most likely to be present,
as well as places where the possession of firearms would place a large number of defenseless
people at risk of danger, are sensitive places. See Nordyke v. King, 563 F.3d 439 (9th Cir. 2009),
vacated by 611 F.3d 1015 (9th Cir. 2010); Warden v. Nickels, 697 F. Supp. 2d 1221 (W.D. Wash.
2010). Open-space venues, where large numbers of people might congregate, as well as places
used for government business or important to government functioning, have also been found to
be sensitive places. See Nordyke, 563 F.3d at 460. Additionally, the Supreme Court of Virginia
determined that George Mason University qualified as a sensitive place because: (1) it is an
agency of the state and its property is owned by the government; (2) the statutory structure
creating the university indicated its sensitive nature; and (3) people on university property have
"a reasonable expectation that the university will maintain a campus free of foreseeable harm."
DiGiacinto, 704 S.E.2d at 370. This expectation arose from the fact that the University's Board
of Visitors was "tasked with safeguarding the university's property and the people who use it by
making all needful rules and regulations concerning the university," including policies promoting
campus safety. !d. (internal quotation marks omitted).
The analogy between the "common areas" of Plaintiffs' housing facilities and the
foregoing examples of"sensitive places" seems fairly strong. As Defendants observe, the
common areas include places where people congregate, as well as administrative offices in which
government work may be said to be done. Many of the individuals who might be expected to
congregate in a community room or TV room, for instance, would be youth and children (e.g.,
grandchildren of elderly WHA residents). Moreover, residents and guests ofWHA housing
facilities have a reasonable expectation that the WHA will do everything within the bounds of its
power to keep its property safe, consistent with the statutory structure that created the agency.
See 31 Del. C.§ 4302 (directing WHA to "promote and protect the health, safety, morals and
welfare of the public" and vesting WHA with "all powers necessary or appropriate" to
accomplish these aims).
On the other hand, the "common areas" are also part of Plaintiffs' residences. The
laundry rooms and TV rooms, for instance, are like similar rooms that are typically found in
private residences. The government business done in the common areas does not appear to be of
the same extent or nature as that done in schools, post offices, and courthouses. The common
areas do not appear, from the record, to be places where the general public at large gathers.
Given this uncertainty, and again exercising caution, the Court will not decide whether
the common areas are sensitive places. As the Common Area Provision survives the appropriate
level of constitutional scrutiny, it is unnecessary to resolve the parties' disagreement as to
sensitive places. See GeorgiaCarry.org, Inc. v. Georgia, 764 F. Supp. 2d 1306, 1317 (M.D. Ga.
2011) ("[T]he better analytical approach is to lay aside the Heller list for the moment, to assume
that [the Revised Policy] burdens conduct within the scope of the Second Amendment, and to
test whether [Defendants] can make the necessary showing to demonstrate [that the challenged
regulation is permissible].").
Assuming The WHA Policy Regulates Protected Conduct,
What Level Of Scrutiny Should Be Applied?
Before the Court can apply constitutional scrutiny to the Common Area Provision, it must
determine what type of scrutiny to apply. Four tests have been proposed: rational basis,
reasonable regulation, intermediate scrutiny, and strict scrutiny.
A court applying the rational basis test must uphold a challenged regulation as long as the
Court finds that it furthers any legitimate governmental goal. See generally Board of Trustees of
State University ofNew York v. Fox, 492 U.S. 469, 480 (1989); see also Marzzarella, 614 F.3d at
95 n.13 ("A rational basis test presumes the law is valid and asks only whether the statute is
rationally related to a legitimate state interest."). In Heller, the Supreme Court explicitly
declared that Second Amendment challenges may not be subjected merely to rational basis
review. See 554 U.S. at 628 n.27; see also Huet, 665 F.3d at 600.
Amicus, The Brady Center, advocates a "reasonable regulation test," which is used by
many state courts. (D.I. 91-1 at 17) A reasonable regulation test is "[m]ore demanding than
rational basis review, but more deferential than intermediate scrutiny." (!d. at 18) When a
reasonable regulation test is applied, the government "may regulate the exercise of [the] right [to
bear arms] under its inherent police power so long as the exercise of that power is reasonable."
Robertson v. City & County ofDenver, 874 P.2d 325, 328, 330 n.IO (Colo. 1994). In this way,
laws that are reasonably designed to further public safety are upheld, whereas laws that destroy
Second Amendment rights are struck down. See id. at 328, 330 n.1 0.
The Court will not apply a reasonable regulation test. It does not appear that any federal
court has applied such a test in resolving a Second Amendment challenge. To the contrary, at
least the D.C. Circuit has rejected this test, believing that the Supreme Court has already done the
same. See Heller v. District of Columbia, 670 F.3d 1244, 1256 (D.C. Cir. 2011) ("Heller clearly
does reject any kind of 'rational basis' or reasonableness test ... .");see also Piszczatoski v.
Filko, 840 F. Supp. 2d 813, 833 (D.N.J. 2012) (same); Kachalsky v. Cacace, 817 F. Supp. 2d
235, 268 (S.D.N.Y. 2011) ("[R]easonableness review is virtually absent from post-Heller Second
Amendment jurisprudence."). Given the Third Circuit's application of intermediate scrutiny in
Marzzarella, the Court concludes that the reasonable regulation test does not provide enough
protection of the Second Amendment rights that are assumed to be at issue in the instant case.
Defendants contend that the appropriate test to be applied (assuming the Court reaches
the issue) is intermediate scrutiny. To withstand intermediate scrutiny, there must be a
reasonable, but not necessarily perfect, fit between the challenged regulation and a significant,
substantial, or important government interest. See Marzzarella, 614 F.3d at 98. The Third
Circuit explained in Marzzarella that if a regulation is "neither designed to nor has the effect of
prohibiting the possession of any class of firearms, it is more accurately characterized as a
regulation of the manner in which persons may lawfully exercise their Second Amendment
rights." !d. at 97. Just as the regulations on the time, place, and manner ofFirst Amendment
rights are evaluated by intermediate scrutiny, so too are analogous regulations on the exercise of
Second Amendment rights. See id.
The Court agrees with Defendants that the Common Area Provision was not intended to
prohibit the possession of any class of firearms, nor does it have the effect of doing so. Instead,
the Common Area Provision is appropriately viewed as a regulation of the manner in which
Plaintiffs may lawfully exercise their Second Amendment rights. In particular, the Common
Area Provision - and, indeed, the entire Revised Policy - does not prohibit Plaintiffs from
possessing firearms in their private residences (i.e., their units) for self-defense of their "hearth
and home." Nor does the Common Area Provision entirely prohibit residents from possessing, or
using for self-defense, firearms even in the common areas, although it restricts such possession
and use to the times in which a resident is transporting a firearm to or from his or her unit. The
fact that the Common Area Provision only applies to places outside of Plaintiffs' "hearth and
home" is another factor favoring application of intermediate, rather than strict, scrutiny. See
Masciandaro, 638 F.3d at 470-71 ("[T]his longstanding out-of-the-home/in-the-home distinction
bears directly on the level of scrutiny applicable. . . . [A] lesser showing is necessary with
respect to laws that burden the right to keep and bear arms outside of the home.").
The Court disagrees with Plaintiffs' contention that strict scrutiny should be applied.
"For a law to pass muster under strict scrutiny, it must be 'narrowly tailored to serve a
compelling state interest."' Marzzarella, 614 F.3d at 99 (quoting Fed. Election Comm 'n v. Wis.
Right to Life, Inc., 551 U.S. 449, 465 (2007)). Strict scrutiny is appropriate only where the
challenged law "severely limit[s] the possession of firearms." Marzzarella, 614 F.3d at 97.
Plaintiffs contend that strict scrutiny applies because the Common Area Provision
"prohibits the possession of firearms while sitting or standing in the common area." (Tr. at 21;
see also id. at 29 ("[This] is more than just a time, place or manner restriction. In our view, it
should be treated as a complete prohibition in terms of exercising the rights in that common
area."); D.I. 87 at 11 (arguing Revised Policy "effectively eliminates a WHA resident's ability to
defend herself with a firearm in the 'common areas' or her residential facility")) In this way, the
Common Area Provision effectively eliminates WHA residents' abilities to defend themselves in
the common areas, in violation ofthe "core lawful purpose of self-defense." Heller, 554 U.S. at
630. But any time, place, and manner restriction can be construed as a prohibition on conduct
during the time, at the place, or in the manner which the regulation precludes. To accept
Plaintiffs' characterization of the Common Area Provision as a prohibition would eviscerate the
distinction between a time, place, and manner regulation and an outright prohibition.
Furthermore, the Common Area Provision expressly permits some use of firearms for selfdefense in the common areas, provided that the need for self-defense arises while one is
transporting a firearm to or from one's unit. 14
Although Plaintiffs are correct when they state that "public housing is, fundamentally, a
home" (D.I. 100 at 19), not every square foot of public housing is any individual's "hearth or
home." Hence, regulations of the common areas do not have the same impact as regulations
Plaintiffs' suggestion that this aspect of the Common Area Provision is "absurd" is
considered in connection with applying intermediate scrutiny. It does not, however, affect the
selection of which degree of constitutional scrutiny to apply.
applying to the spaces within the four walls of a resident's individual unit. In the Court's view,
the level of constitutional scrutiny should also differ. See Masciandaro, 638 F.3d at 470 ("[W]e
assume that any law that would burden the 'fundamental,' core right of self-defense in the home
would be subject to strict scrutiny. But, as we move outside the home, firearm rights have
always been more limited, because public safety interests often outweigh individual interests in
self-defense."); United States v. Skoien, 587 F.3d 803, 814 (7th Cir. 2009) ("[F]or gun laws that
do not severely burden the core Second Amendment right of self-defense, there need only be a
'reasonable fit."'); GeorgiaCarry.org, 764 F. Supp. 2d at 1317 (stating that policy that "does not
impact" ability to carry firearms for purposes of self-defense in one's home does not burden
"core" of Second Amendment right).
In the Court's view, this case presents exactly the type of situation that merits the
application of intermediate scrutiny. The Revised Policy, including the Common Area Provision,
does not impose a complete ban, expressly recognizes a right to possess firearms in the home,
and provides an exception for self-defense. Hence, the Revised Policy preserves the "core" of
Plaintiffs' Second Amendment rights. Because the Revised Policy does not severely limit those
rights inside the home- or come close to the level of infringement struck down in Heller- the
Court's job is to determine whether the challenged policies can pass muster under intermediate
scrutiny. That is the task to which the Court now turns.
Whether The Common Area Provision Survives Constitutional Scrutiny
As already noted, to survive intermediate scrutiny, the "asserted governmental end [of the
challenged provision must] be more than just legitimate," it must be '"significant,' 'substantial,'
or 'important."' Marzzarella, 614 F.3d at 98. Additionally, "the fit between the challenged
regulation and the asserted objective [must] be reasonable, not perfect," and the regulation "need
not be the least restrictive means of serving the interest." ld. However, the regulation must not
burden the right more than is reasonably necessary to ensure that the asserted government end is
met. See id.
Here, the stated goal of the Common Area Provision is to promote and protect the safety
ofWHA residents, their guests, and WHA employees. (See D.l. 90 at A24) ("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.") WHA, as a
state agency, has an important and substantial interest in protecting the health, safety, and welfare
of its residents, their guests, its employees, and the public at large while on WHA property. See
generally Schenck v. Pro-Choice Network ofW N.Y., 519 U.S. 357,376 (discussing "significant
governmental interest in public safety"); 42 U.S.C. § 1437c-l(d)(l4)(A) (mandating public
housing entities to devise safety plans that "shall provide, on a project-by-project or jurisdictionwide basis, for measures to ensure the safety of public housing residents") Plaintiffs "concede
that there is a compelling state interest in safety." (Tr. at 21) Thus, it is undisputed that the first
part of the intermediate scrutiny analysis is satisfied.
The issue then becomes whether the fit between the Common Area Provision and the
WHA's interest in safety is reasonable. Pursuant to the Revised Policy, WHA residents are
permitted to lawfully possess firearms within the confines of their homes, that is, their particular
assigned units. Residents also have the right to transport lawfully owned and obtained weapons
to and from their units; in the course of such transportation, should the need arise, they may use
their weapons for purposes of self-defense. (Tr. at 41-42, 52-53) As Defendants' counsel
explained during oral argument, the Common Area Provision was developed to curb "the
potential for accidental discharge, potential for there to be a fight and somebody has a weapon
available, [and] bystanders could be injured." (Tr. at 54)
The Court concludes that there is a reasonable fit between the Common Area Provision
and the WHA' s interest in protecting the safety of residents, guests, and others who are present
from time to time at housing facilities owned or operated by the WHA. Public housing
authorities like the WHA are generally afforded wide latitude in their ability to regulate what
occurs on their property and determine the best policy for protecting the health, safety, and
welfare of their residents. See generally Heller v. District of Columbia, 698 F. Supp. 2d 179, 191
(D.D.C. 2010) (stating intermediate scrutiny permits authorities to "paint with a broader brush
than strict scrutiny") (internal quotation marks omitted), aff'd in part and rev 'din part by Heller
II, 670 F.3d at 1244. The Common Area Provision promotes these interests by limiting guns in
the common areas, thereby limiting potential violence within those areas. Also relevant is the
fact that a large proportion of the tenants and guests who are frequently present in the common
areas are elderly or children, who may be particularly vulnerable.
"A state need not go beyond the demands of common sense to show that a statute
promises directly to advance an identified governmental interest." IMS Health, Inc. v. Ayotte,
550 F.3d 42,55 (1st Cir. 2008), abrogated on other grounds by 131 S. Ct. 2653. The Court
concludes that, as a matter of common sense, there is a reasonable fit between the Common Area
Provision and the promotion of safety in the common areas. Accordingly, again, intermediate
scrutiny is satisfied.
Although more is not needed, the parties, and amicus, also cite statistics to support their
competing conclusions. The Brady Center offers empirical evidence appearing to support the
view that preventing the possession of weapons in the common areas of public housing is
reasonably likely to promote safety. (See, e.g., D.l. 91-1 at 13) Plaintiffs counter with their own
studies, pointing to data purporting to show a negative correlation between gun ownership and
crime (i.e., the more guns the less crime). 15 Particularly on cross-motions for summary judgment,
the Court is not in a position to choose between The Brady Center's data and Plaintiffs' data on
the disputed question of the relationship, if any, between gun ownership and crime. Nor is it
necessary to do so in order to resolve the constitutional issue before the Court. The WHA's view
that safety in the common areas is promoted by restricting gun possession is not unreasonable,
and the WHA is entitled to make this decision under the circumstances presented here. It follows
that the fit between the Common Area Provision and the WHA's compelling interest in safety is
sufficient to withstand intermediate scrutiny.
As Plaintiffs point out, the Common Area Provision "prohibits residents from possessing
a firearm for self-defense in the common areas except when transporting the firearm into or out
of the building." (D .I. 100 at 26) Plaintiffs contend that this provision produces an absurd result,
limiting a tenant's Second Amendment rights to only those occasions when tenants are
transporting their weapons to and from their units, while denying tenants the same protection
when they undertake any other activity within the common areas.
Plaintiffs also argue that the Supreme Court, in Heller and McDonald, rejected the
notion that statistical and sociological studies could be a basis for overriding a constitutional
right. (D .I. 100 at 18)
The Court agrees with Plaintiffs that this is the effect of the Common Area Provision. 16
In this way, the provision has the consequence of burdening the right to possess, carry, and use
firearms for self-defense in the common areas (assuming, as the Court has, that such a right is
within the scope of the Second Amendment). But the Court does not draw the conclusion that
this result is absurd, or otherwise so ill serves the WHA' s interest in safety as to render the
provision unconstitutional. The WHA is charged with ensuring the safety of all residents, guests,
and employees on property owned or operated by the WHA. The WHA' s determination that
safety is best promoted by prohibiting possession of firearms in common areas - while a policy
decision with which others may reasonably disagree - is not so unreasonable as to fail
The Court makes two additional observations. First, at least one of the Plaintiffs, Mr.
Boone, testified that he agreed the Common Area Provision is a reasonable policy. (D.I. 90 at
A42-44, A47) Second, the Common Area Provision does not constitute a complete ban on use of
firearms for self-defense in the common areas. As defense counsel has explained, "We have
been very careful in our policy to say that a resident could take their weapon from outside and
vice versa and, if necessary, they could use it if there was a confrontation where that became
appropriate." (Tr. at 42) While the Common Area Provision may not be the least restrictive
means of serving the WHA's interest in protecting the safety ofthe common areas, and the fit
may not be "perfect," the provision does not burden Second Amendment rights (assuming they
Based on statements made during oral argument and a supplemental letter the parties
submitted pursuant to a Court order (Tr. at 53-54; D.I. 109), the parties appear to agree that
nothing in Delaware law per se prohibits open carry of a firearm. It follows that, absent the
Common Area Provision, a WHA resident would not need a permit to display a firearm in a
exist in this context) any more than is reasonably necessary to ensure that the asserted
government end is met.
Accordingly, the Court will deny Plaintiffs' motion for summary judgment and grant
Defendants' cross-motion for summary judgment on Count I of the Second Amended Complaint
(D.I. 40). 17
Reasonable Cause Provision
Most of the preceding discussion has been directed to the Common Area Provision. As
noted, this is the provision that received the overwhelming amount ofthe parties' attention in
their briefing and during the oral argument. 18 In evaluating Plaintiffs' challenge to the
Reasonable Cause Provision, the Court finds it adequate and appropriate to proceed directly to
the application of intermediate scrutiny, based on the same reasoning already detailed in
connection with the Common Area Provision. 19 Hence, the Court assumes, without deciding,
that the Reasonable Cause Provision regulates conduct that is within the scope of the Second
The Reasonable Cause Provision requires that a resident, household member, or guest
Plaintiffs additionally argue that the Firearms Policy is unconstitutional because it
forces residents ofWHA properties to relinquish at least a portion of their Second Amendment
rights in exchange for the government benefit of public housing. (D.I. 87 at 14-15) In light of
the Court's conclusion that the Revised Policy does not violate the Second Amendment,
Plaintiffs' contention fails.
The Reasonable Cause Provision was discussed in the Transcript at pages 15, 36-37, 5556, 64-65.
Both Doe and Boone testified that they had no objection to the Reasonable Cause
Provision. (D.I. 90 at A48, A 72) Nevertheless, because the Court has concluded that at least one
Plaintiff has standing to maintain this action, the Court concludes that it can, and should, address
Plaintiffs' constitutional challenge to the Reasonable Cause Provision.
produce upon request "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 ... when
there is reasonable cause to believe that the law or this Policy has been violated." (D.I. 90 at
A24) Among other things, the Reasonable Cause Provision applies to any license to carry a
concealed deadly weapon, as required under 11 Del. C. § 1441. However, as the parties agree,
Delaware law does not require a license for the open, unconcealed carrying of a weapon. (See
D.I. 109) Therefore, if the WHA ever has reasonable cause to ask a resident for documentation
related to the open carry of a weapon- for example, because the WHA has reasonable cause to
believe that the resident is carrying a weapon in the common areas not merely incidentally to or
from his or her unit -there may be no such documentation that the resident could produce. The
Reasonable Cause Provision, therefore, imposes little or no additional burden on a resident's
ability to carry an unconcealed weapon.
However, a resident would be required to produce a permit to carry a concealed deadly
weapon ifWHA had reasonable cause to believe that a resident was (1) carrying a concealed
weapon without a permit or (2) carrying a concealed weapon in violation of the Common Area
Provision. In the former circumstance, the Reasonable Cause Provision survives intermediate
scrutiny. The WHA's interest in ensuring that residents carrying concealed deadly weapons are
qualified to do so is substantial. Obtaining a concealed firearm permit requires a great deal of
knowledge and training regarding firearms, promoting safe handling. See 11 Del. C.
§ 1441(a)(3). In this way, the Reasonable Cause Provision promotes safety in the WHA
facilities. Under the latter of these circumstances, the Reasonable Cause Provision survives
intermediate scrutiny for the same reasons that the Common Area Provision itself survives it.
The Reasonable Cause Provision is a reasonable mechanism for assisting with enforcement of
the Common Area Provision.
In sum, the Court concludes that the Reasonable Cause Provision furthers the compelling
interest in protecting the safety of residents, guests, and others who are present at WHA owned or
operated facilities, by permitting WHA employees to review copies of any required permits for
carrying firearms. This allows the WHA to ensure, when there is reasonable cause to need such
assurance, that a firearm possessed in a public facility is possessed lawfully. It is reasonable to
believe that such a provision deters unlawful possession of firearms -by, for instance, felons or
those who are mentally incompetent- thereby, again, promoting safety. To the extent the
Reasonable Cause Provision burdens Second Amendment rights, it does not do so any more than
is reasonably necessary to ensure the promotion of the WHA's interest in safety.
VIII. Delaware Constitution
Count II ofPlaintiffs' Second Amended Complaint alleges that the WHA's Revised
Firearms Policy violates Article I, Section 20 of the Delaware State Constitution. Article I,
Section 20 ofthe Delaware Constitution provides: "A person has the right to keep and bear arms
for the defense of self, family, home and State, and for hunting and recreational use." There is
scant judicial authority interpreting Delaware's constitutional right to bear arms, and none is
directly relevant to the issue now before this Court. 20
In letters (D.I. 111; D.l. 112; D.l. 113) the parties directed the Court's attention to
Griffin v. State, 2012 WL 2319050 (Del. June 18, 2012) (see D.l. 111-1). In Griffin, the
Delaware Supreme Court reversed a conviction based on the defendant's carrying a concealed
knife in his home and remanded for a new trial, stating that "Griffin's constitutional right to bear
arms authorized his carrying a concealed knife in his home." Id. at 8. In reaching its decision,
the Griffin Court observed that "[u]nder the Delaware Constitution ... Delaware citizens have a
constitutional right to keep and bear arms for the defense of themselves, their families, and their
When, as here, the highest state court has not authoritatively addressed the critical issue,
the Court's disposition "must be governed by a prediction of how the state's highest court would
decide were it confronted with the problem." Novosel v. Nationwide Ins. Co., 721 F.2d 894, 897
(3d Cir. 1983) (internal quotation marks omitted). Nothing in the language of the Delaware
constitutional provision speaks directly to the possession of firearms in common areas of public
housing facilities. Thus, the Court predicts that, if faced with the instant dispute, the Delaware
Supreme Court, in interpreting the Delaware Constitution, would look to Heller, McDonald,
Marzzarella, and other authority from the U.S. Supreme Court and Third Circuit construing the
Second Amendment. See generally Doe v. Cape Hen/open School Dist., 759 F. Supp. 2d 522,
528 (D. Del. 2011) (stating that, in context ofDelaware Constitution's provisions regarding
religion, "Delaware courts are guided by First Amendment case law"). 21
Accordingly, the Court concludes, for the same reasons already stated in evaluating
Plaintiffs' Second Amendment challenge, that the WHA's Revised Policy also does not violate
Plaintiffs' rights under Article I, Section 20 of the Delaware Constitution. As a result, the Court
denies Plaintiffs' motion for summary judgment, and grants Defendants' cross-motion for
summary judgment on Count II of the Second Amended Complaint.
homes." Id. at 2. This same right is the "core" ofthe right protected by the Second Amendment.
See Marzzarella, 614 F.3d at 89.
While Plaintiffs acknowledge that "Second Amendment jurisprudence is instructive"
(D.I. 100 at 2; Tr. at 32), they also contend that the Delaware Constitution affords greater
protections than the Second Amendment (see D.I. 87 at 17) (citing Randy J. Holland, The
Delaware Constitution: A Reference Guide at 67 (2002)). In the Court's view, although Article
I, Section 20 is more specific than the Second Amendment - explicitly calling out self-defense,
other defensive purposes, hunting, and recreational uses of firearms - none of the linguistic
differences are relevant to the policies in dispute here.
In Count III, Plaintiffs allege that WHA's firearms policies are preempted by state law.
Plaintiffs contend that the Delaware General Assembly has specifically preempted the area of
gun control in the State of Delaware, leaving the WHA without authority to adopt the Original or
Revised Firearms Policies. 22
'"Preemption' refers to circumstances where the law of a superior sovereign takes
precedence over the laws of a lesser sovereign." A. W. Fin. Servs., S.A. v. Empire Res., Inc., 981
A.2d 1114, 1121 (Del. 2009). Preemption may be either express or implied. Express preemption
is present "where the statutory text or legislative history explicitly ... demonstrates that the state
statute is intended to replace or prevail over any pre-existing laws or ordinances that govern the
same subject matter." Cantinca v. Fontana, 884 A.2d 468, 473 (Del. 2005). Implied preemption
exists where the legislature has enacted a regulatory scheme "in such a manner as to demonstrate
a legislative intention that the field is preempted by state law." !d. at 473 n.23 (internal quotation
Delaware law expressly prohibits municipalities and counties from regulating firearms.
See 22 Del. C. § Ill; 9 Del. C. § 330(c). The WHA, however, is a state agency. See Wilmington
Housing Authority v. Williamson, 228 A.2d 782, 787 (Del. 1967). Thus, it is not expressly
preempted by the statutory provisions just cited. Nor have Plaintiffs identified any other source
of express preemption.
Nor is the Court persuaded that the Delaware Supreme Court, if confronted with this
For purposes of its analysis, the Court assumes, without deciding, that Plaintiffs may
pursue a cause of action based on preemption.
issue, would find that the WHA' s firearms policies are implicitly preempted. Plaintiffs argue
that the Delaware General Assembly provided a regulatory scheme covering firearms through the
assortment of state laws which govern how firearms are regulated within the State of Delaware.
The Court concludes that if the General Assembly intended to preempt public housing authorities
such as the WHA from regulating firearms possession, it would have said so expressly.
Additionally, the Delaware General Assembly has explicitly conferred upon the WHA "all
powers necessary or appropriate in order that [it] may engage in low-rent housing ... projects,"
including "the power to acquire property, ... [and] to construct and operate housing
accommodations." 31 Del. C.§ 4302. The regulation of firearms comes within this broad
authority. Plaintiffs fail to identify any inconsistency between the WHA's firearms policies and
state law. See generally Cantinca, 884 A.2d at 4 73 (''In Delaware, the State and its political
subdivisions are permitted to enact similar provisions and regulations, so long as the two
regulations do not conflict.").
Accordingly, the Court predicts that the Delaware Supreme Court would reject Plaintiffs'
contention that the WHA is preempted from adopting the Revised Policy. Summary judgment on
Count III will be granted to Defendants and denied to Plaintiffs.
Whether The WHA Policy Exceeds WHA's Authority
Count IV of the Second Amended Complaint alleges that Defendants have exceeded the
scope oftheir statutory authority. The Court's discussion above in connection with Plaintiffs'
preemption claim has already substantively addressed whether adoption of the firearms policies
exceeds WHA's authority. See also 31 Del. C.§ 4302; Williamson, 228 A.2d at 786 (observing
that "extensive powers are conferred" upon Delaware housing authorities, including WHA).
Thus, Defendants' request for summary judgment on Count IV is granted and Plaintiffs' similar
request is denied. 23
Finally, in Count V, Plaintiffs seek a declaratory judgment that the WHA's firearms
policies are unconstitutional. Declaratory relief is available as "an additional or alternative form
of relief which may be granted on a cause of action within the jurisdiction of the court." Falcon
Steel Co. v. HCB Contractors, 1991 WL 166120, at *2 (Del. Super. July 31, 1991); see also 10
Del. C.§ 6501 ("[C]ourts of record ... shall have power to declare rights ... whether or not
further relief is or could be claimed"). Here, however, because Defendants will be granted
summary judgment on the substantive disputes among the parties, and judgment will be entered
against Plaintiffs, it follows that the Court must also deny Plaintiffs' request for declaratory
judgment relief. 24 Therefore, Plaintiffs' motion for summary judgment on Count V will be
denied and Defendants' motion for summary judgment on Count V will be granted.
For the reasons stated above, Plaintiffs' motion for summary judgment will be denied and
Defendants' motion for summary judgment will be granted. An appropriate Order follows.
For purposes of its analysis, the Court assumes, without deciding, that Plaintiffs may
pursue a cause of action based on lack of authority.
Plaintiffs acknowledge in their briefing that they "do not assert declaratory relief as an
independent cause of action." (D.I. 100 at 39) See also Smith v. BCE, Inc., 225 Fed. Appx. 212,
216 (5th Cir. Feb. 19, 2007) ('"Although the petition formally stated two independent causes of
action for breach of contract and declaratory judgment, the latter ground is merely a theory of
recovery for the former.'") (quoting Sid Richardson Carbon & Gasoline Co. v. Interenergy
Resources, Ltd., 99 F.3d 746, 752 n.3 (5th Cir. 1996)).
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