Federal Court rules Wilmington Housing Authority ban on open carry is Constitutional

[Hypnogator]

http://www.usatoday.com/news/nation/story/2012-08-01/gun-restrictions-wilmington/56644990/1?csp=34news&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed

The headline reads, "Gun ruling may become a model for the nation" but that's Brady fueled optimism on the part of the MSM over a ruling upholding the prohibition of open carry in common areas by the Wilmington Housing Authority.

The real news is that after the NRA sued them, they immediately rescinded their total ban on weapon possession for residents, then implemented this ban on open carry. While I disagree with the ban, it does appear Constitutional under Heller and McDonald in that it doesn't prohibit possession or concealed carry.

Ultimately it may be a good thing (although open-carry advocates may disagree). Historically, the fight has been to permit concealed carry, overcoming 19th Century rulings equating concealed carry to cowardice, treachery, and ambushing. I, for one, would welcome such provisions, if that means that concealed carry must then be allowed as a matter of law. That would strengthen the argument that concealed carry is a right that should not require a permit or license to be exercised.

 

[One_Jackal]

High society wants us sheeple to be sophisticated. Only a barbarian would carry his weapon for the world to see is their logic. When in fact, open carry forces people to engage in civil discourse. Who in their right mind is going to intentionally anger someone with a service pistol on their hip? Not to mention that open carry says I am not a victim. In NC open carry is legal. Yet no one carries their weapon openly. People are quick to accuse people who open carry of brandishing a firearm. Brandishing a firearm is a difficult charge to defend. It's your word against the accuser, no evidence is required. The accuser doesn't even have to appear in court. All that is required is a police statement brandishing charges are initially heard in a traffic court since they are a misdemeanor. To get a fair and open trial the accused has to appeal the charges to a superior court.

 

[General Geoff]

I certainly hope it gets appealed.

"It is a good day for the residents of public housing," the housing authority's executive director, Frederick S. Purnell, said Tuesday, adding the policy is designed to protect the safety of tenants, not limit their rights.

Logic flying right out the window. How does mandating the concealment of a firearm in public, protect the safety of tenants in any way, real or imagined?

 

[JERRY]

if youre sucking on the public teet by living in the "projects" you have bigger problems than open carry.

 

[barnbwt]

if youre sucking on the public teet by living in the "projects" you have bigger problems than open carry.

True, and I can actually see some logic in an OCW ban in this one case for that reason. The folks in this housing project are "economically disadvantaged," to use the parlance of our times. These souls are arguably the most vulnerable members of a community, simply because they are unable to afford the means to protect themselves. The people who do have money to spend, but choose to stick around public housing for the poor, are likely involved in crime (either lying about their income to stay in subsidized housing, or more likely, earning their income through nefarity). Gangs would relish the freedom to openly carry their weapons, intimidating the destitute/unarmed people around them, and stoking tensions between local gangs and police, all perfectly legally.

Granted, this is the exact same logic used to pass "Jim Crow" era gun and knife possession/carrry laws that still abound here in the South. It is hardly some bureau's job to determine what's best for it's citizens. Except, that's exactly what this Housing Authority's job is; provide (ideally) a safe, stable living environment for those presently unable to attain it for themselves. Rights are God-given but Government-granted, and so long as they are dependant on a government for sustenance, the claim on their rights is horribly weakened. That is ultimately the reason this ban stands, and an identical ban by an HOA in a wealthy suburb wouldn't be attempted without the approval of the residents.

I say, let the residents of this community (not the Housing Authority, not the NRA) decide whether they think an open-carry ban will reduce (what I assume are the problems of) gang violence and intimidation. Poverty is not a mental illness, these people are perfectly capable of deciding what course of action best suits their situation.

TCB

 

[General Geoff]

barnbwt, I would disagree with your assertion that needing to rely on public housing precludes the funds necessary to purchase/own a gun.

Staying afloat while renting even a cheap apartment can run up to, or even over one thousand dollars a month after all things are considered (security deposit, rent itself, utilities, food, clothing, etc.). A cheap but reliable firearm (long gun or pistol) is a one-time sunk cost of 150-300 dollars, plus 20-30 bucks for ammunition. I know this represents a bare minimum cost of just the hardware, and that training and practice should be utilized by those who wish to be somewhat competant in a self defense scenario; but when you're stretching your paycheck to keep food on the table, other priorities come first.

My point is that while shooting as a hobby is expensive, strictly buying and keeping a gun for defensive purposes is not, in the grand scheme of things. it's entirely plausible to have a financially struggling person or family that cannot afford to live anywhere but public housing, yet can afford and wisely chooses to invest in a firearm for defense.

 

[Zoogster]

I too would have to disagree Barnbwt.

A used gun sold quickly would net even less than its used value many times (like pawned where the pawn shop gives a fraction of value to insure profit.)
People in such situations are the most likely to need a gun, they live in close proximity to many criminals.

In California even basic rent for a studio, or even a room in an apartment can run over $600, especially in a city.
Minimum wage at full time would be about twice that, and most minimum wage jobs don't hire full time. Minus food, basic clothing upkeep and utilities and most of that check should be gone. That is if they don't have a vehicle. In California a vehicle is standard many places to get to even a basic job, and reliable transportation a job requirement of even many minimum wage jobs. In a bad area not having a vehicle and walking/using public transit makes you even more likely to need a gun.


As for gangs carrying? They are generally prohibited persons. Even someone who has only committed a misdemeanor will often be on probation and not allowed to have such items.
The poor won't have money for good lawyers, so if they have no record is it not likely because their lawyer got them off, but because they were not charged with something to begin with (career criminals may often get plea deals or reduced charges, but they are still criminals with records, and most on probation/parole.)
So those in a project with no record are probably not too bad. Especially with the bad options all around (many such places have high substance abuse and access to drugs.) Law enforcement also typically targets such places heavily with raids and stings of these people that they know won't be hiring fancy lawyers to stand up for them, and where they can generally get away with some heavy handed approaches in dealing with a population where most likely have a record and no money. So those that avoid charges generally are pretty clean.
Prohibited persons carrying would be breaking the law anyways, and since cops patrol rounding up the usual suspects in the target rich environments of such places where they can meet their arrest quotas more easily (a large percent will have drugs and if on probation/parole no 4th amendment rights, so they can readily search and charge whoever they stop), they often will know many prohibited persons and what they look like. So if they saw them with a gun they would be reacting pretty aggresively if they know it is possessed by someone that shouldn't have one. Officers often keep track of known gang members, and even have a log of the local known gang members they can access and browse in their cars some places. So local gang members still couldn't legally carry, and those that did wouldn't be much different than those that already do whether it was allowed for the rest of the population with clean records to carry or not.

 

[JohnBT]

I imagine the WHA is run like the RRHA (Richmond Redevelopment Housing Authority). There were some court cases here about traffic stops, tresspassing, etc. Iirc, the outcome hinged on the fact that it was private property and therefore the owners could make the rules.

" The No Trespassing Policy and street privatization resulted in the City of Richmond deeding certain interior streets and sidewalks as private property in Creighton Court, Hillside Court, Gilpin Court, Whitcomb Court, Afton Avenue Apartments and Raven Street in Mosby Court. Therefore, only lawfully residing residents or persons visiting with lawful social and business reasons are allowed on that street. "

www.rrha.org/html/trespassing/faq.shtml

 

[JERRY]

JohnBT, thats an excellent link to housing authority property!

 

[barnbwt]

but when you're stretching your paycheck to keep food on the table, other priorities come first.

That's my point exactly, the folks in subsidized housing are less likely to be able to sacrifice the money and time to buy a gun and become proficient with it. It's mostly pointless to own a firearm for protection if you can't use it. I didn't say they couldn't own guns, just that they are less likely to. If 20$ determines whether you miss meals in a given week, it's unlikely you can save up 300$ for a Glock. The guy down the hall with a chrome Kimber on his hip likely didn't either.

What's worse, these same (more likely to be unarmed) citizens are smack in the middle of crime hotbeds, at the mercy of others who arm themselves with ill-gotten money. A big reason otherwise law-abiding people affiliate with gangs, just to try to gain some protection they cannot attain individually.

As for gangs carrying? They are generally prohibited persons.

Indeedy-do, but legality has nothing to do with hormonal tough-guys showing guns at eachother. They at least have to be discreet about it when an OC ban is enforced (emphasis on enforced). I believe CC does a better job at reducing tension by maintaining a sense of "unknown dread" among would-be combatants. Just a personal opinion.

Besides, in the absence of profiling you rightfully disdain, a policeman couldn't stop a "shady guy" with a piece on his hip, unless he was familiar with the subject, or a crime was in process.

TCB

 

[Girodin]

People are quick to accuse people who open carry of brandishing a firearm. Brandishing a firearm is a difficult charge to defend. It's your word against the accuser, no evidence is required. The accuser doesn't even have to appear in court. All that is required is a police statement brandishing charges are initially heard in a traffic court since they are a misdemeanor. To get a fair and open trial the accused has to appeal the charges to a superior court.

How exactly can one get a conviction if the accuser does not testify in court? Lets say A claims B "brandished" B's gun at him. A calls the police. A makes a statement to the police. The police arrest/cite B. The proper authority decides to file charges against B. It goes to court, justice court is what the type of lower court you referred to is called here. There is still a trial at the justice court. The burden of proof still lies with the prosecution. The burden of proof is still beyond a reasonable doubt. Most importantly for what you asserted above, the rules of evidence still apply. Most, if not all of B's statements to the police are going to be inadmissible as hearsay without an exception. Some that might come in under an exception are likely to be excluded by the 6th amendment's confrontation clause. I can think of hypothetical scenarios in which one might make enough statements that fall within a hearsay exception and yet are not "testimonial" (i.e. they do not violate the confrontation clause) but give enough information to establish a prima facie case for brandishing. However, it is going to be the exception. Furthermore, would such statements get a trier of fact to beyond a reasonable doubt? That is hard to know but its not the strongest case and the defense is going to hammer on the fact that the only evidence is inherently unreliable second hand evidence.

A police statement alone is simply not going to get a conviction most of the time. The officers can only testify to things they have knowledge of. They cannot just come in and say you brandished. As discussed above they are going to be limited by both the constitution and the rules of evidence in testifying about what the person making allegations said to them.

I don't know about where you live, here trials in justice court are both fair and open (at least as much so as those in district court). If one has a right to a jury trial they can get a jury trial in justice court. However, proceedings in justice court are not "on the record." And, as mentioned, one has an automatic right of appeal from justice court and can receive a trial de novo. In sum, if you lose at justice court you can appeal without needing any reason and get a total do over in district court. As a defendant I would rather have a charge go to justice court first than straight to district court. You get a second bite at the apple if things don't go your way. I have seen people lose in Justice court, "refine their strategy", and win in district court.