Opposition Brief — Portland Housing Authority v. Doe

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In THe :

Supreme Court of the United State

OcToser TERM, 1995

PORTLAND HousING AUTHORITY,

: Petitioner

¥.

Joun Doe and Jane Doe,

Respondents

‘On Petition for Writ of Certiorari to the

‘Supreme Judicial Court of Maine

RESPONDENT'S BRIEF IN OPPOSITION

RoBpert DOWLUT *

KEVIN M. CUNNINGHAM

11250 Waples Mill Road

5th Floor

Fairfax, VA 22080

(708) 267-1250

* Counsel of Record Attorneys for Respondent

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QUESTION PRESENTED

In the opinion of the Respondent, the following ques-

tion is presented:

Do federal laws requiring a local public housing au-

thority to provide decent, safe, and sanitary housing to its

residents preempt a state firearm preemption law which

voids a lease provision banning the possession or display

of a firearm on public housing authority property by

tenants?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................... i

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NS I I ih Si ao ena oceccnscvocmitcsnteccecdick ne 1

STATEMENT OF JURISDICTION ..02022.......cessseeeeeeeee 1

STATEMENT OF THE CASE ..002.0.2.n..o.s.c.ccecescececeseceeeeneee 2

SUMMARY OF ARGUMENT 000... secesececceeeeseceeeeee 4

a EERE SELLE RT LS Ne LEI ETS 5

i EERE ERS COME ORAS SS A Pe 9

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Doe v. Portland Housing Authority, 656 A.2d 1200

Ry Fae CR renee ea A ONES OR Rey sk EM 14% 6,9

Michigan Canners & Freezers Ass’n, Inc. v. Agri-

cultural Mktg. & Bargaining Bd., 467 U.S. 461,

104 S.Ct. 2518, 81 L.Ed.2d 399 (1984) -............... 5

New York v. United States, 112 S.Ct. 2408

ORGY picccicciniosossiecasakipdaheaaelad de ekg ties RC eR 4-5

Rozanski v. A-P-A Transp., Inc., 512 A.2d 335

$ : | ees Pare ey re eRe 5

United States v. Lopez, 115 S.Ct. 1624 (1995) ........ 9

STATUTES

Housing Act of 1937, 42 U.S.C.A. § 1404, et seq...passim

Be a I bles steve sedebanseis sosivsicn Ad cpcasiasaacdndicdesmeahioslaguc 4

a Re BE iii ecscrincenheacacdinsseb itdirnesceanbine Piro 4, 5-6

25 M.R.S.A. § 2011 (Supp. 1994) ..........000220.22..--22200.- 2,4

y Re oe 6 11 GRR Raine Oot reba an tp MiSs eR DOPE 1, 2,9

30-A M.R.S.A. § 4721 (Pamph. 1994) ~.....0000000000..... 2

Firearms Owners’ Protection Act of 1986, Pub. L.

eo Fee ROO es OOP nes 6

Gun Control Act of 1968, 18 U.S.C. § 921, et seq... 5,6

Violent Crime Control and Law Enforcement Act

of 1994, Pub. L. No. 103-322, 108 Stat. 1796........ 5, 7

OTHER AUTHORITIES

Accident Facts, 1993 Edition, National Safety

cca ain ccc saith lahat cdaamictegiena dik aaleuaiads damn 7,8

pho AR XL Sienna ey eee ee 4

pa ot Rg SR RER ERD RE en eae ies elnino MNO ee enon 4

Gary Kleck, Crime Control Through the Private

Use of Armed Force, 35 Social Prob. 1 (Feb.

RRR CLE Nate ew ere MESSE CR PY EOE NINDS

Bi Se is ak A a soca sh adtccscisasicccscdsiblinensdecacccrmalaciated

is a ie, Se sisted cease ce eaceicatdse ese mice

St tT pin

U.S. Department of Justice, Bureau of Justice

Statistics, Criminal Victimization in the United

States, 1992, NCJ 145125 (Washington, D.C.:

U.S. Department of Justice, 1994) ...0000002022. 8

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arrears

Vv

TABLE OF AUTHORITIES—Continued

Page

Wright & Rossi, Armed and Considered Danger-

ous, A Survey of Felons and Their Firearms

(Aldine de Gruyter, Hawthorne, NY, 1986)... 8

In THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-15

PORTLAND HOUSING AUTHORITY,

¥ Petitioner

JOHN DoE and JANE DoE,

Respondents

On Petition for Writ of Certiorari to the

Supreme Judicial Court of Maine

RESPONDENT’S BRIEF IN OPPOSITION

The Respondents, John and Jane Doe, by and through

their attorneys, respectfully submit that the Supreme

Court should deny the Petition for certiorari because the

case was properly decided as a matter of state law and

that the Court does not have jurisdiction under 28 U.S.C.

§$ 1257(a).

OPINION BELOW

The decision of the Maine Supreme Judicial Court in

this case has been reported at 656 A.2d 1200 (Me.

1995).

STATEMENT OF JURISDICTION

Just as alchemists of old sought to change lead into

gold by intoning a few magic words, so too does Peti-

tioner seek to invoke the jurisdiction of the court under

28 U.S.C. § 1257(a) by re-characterizing the nature of

this case from a simple matter of state contract law by

wrongly asserting that “the validity of a state law is

2

drawn into question on the grounds of its being repug-

nant to the Constitution, treaties or laws of the United

States and, correspondingly, a title, right, privilege, or

immunity is claimed under authority exercised pursuant

to the Constitution and statutes of the United States.”

In fact, it is only Petitioner’s illogical reading of the

Housing Act of 1937 that has drawn the validity of the

Maine firearm preemption statute * into question.

The holding of Maine’s Supreme Judicial Court is clear

and succinct:

“Because we conclude that the PHA is a political

subdivision within the meaning of 25 M.R.S.A.

§ 2011 (Supp. 1994), the lease provision, which is

based on a resolution enacted by the PHA in 1975,

is preempted by section 2011. Accordingly, we va-

cate the judgment without reaching the [state] con-

stitutional issues advanced by the Does.” Doe, supra,

656 A.2d at 1201.

Contrary to Petitioner’s assertion, Respondents dispute

that this holding invalidates “a state law” as being repug-

nant to the Constitution, treaties or laws of the United

States,” and, therefore, no title, right, privilege or im-

munity conceivably held by the Petitioner is called into

question. For that reason, the Court should deny the

Petitioner’s petition for a writ of certiorari as failing the

requisite requirements for jurisdiction under 28 U.S.C.

§ 1257(a).

STATEMENT OF THE CASE

The following facts were found by the Maine Supreme

Judicial Court. The Public Housing Authority (PHA)

is a municipal housing authority created pursuant to 30-A

M.R.S.A. § 4721 (Pamph. 1994). In 1975, the PHA

Board of Commissioners passed a resolution prohibiting

125 M.R.S.A. § 2011 (Supp. 1994).

2 The holding of the Maine Supreme Judicial Court invalidated

a lease provision prepared by the Public Housing Authority—a

municipal corporation. It did not invalidate any state law.

3

tenants from possessing firearms on PHA property. The

firearms ban provision is a provision in the leases of all

PHA tenants.* The Does are married and live in Saga-

more Village, a PHA development. They have lived in

PHA housing since 1981. John Doe is a veteran of

the United States Marine Corps, a former federally

licensed firearms dealer, and a licensed hunter in Maine.

He works nights, and when he is away, Jane, who has

used handguns for twenty-seven years and target shoots

at a gun club, is fearful for her safety. In violation of

the lease agreement, they own and possess hunting rifles

and handguns. To remain in their home without the

threat of having their lease terminated, the Does brought

a declaratory judgment action seeking, inter alia, a dec-

laration that the firearms ban in their lease is contrary

to the Maine Constitution and therefore is void and

unenforceable, and that the lease is preempted by state

law regulating firearms.

The trial court found that the lease provision does not

violate the sections of the Maine Constitution relied on

by the Does: the right to keep and bear arms,* the right

to defend life and liberty,” or the right to equal protec-

tion of the laws. The court also concluded that the ban

on the possession of firearms is not preempted by state

law and, therefore, upheld the lease provision and denied

the Does any relief. The Does appealed to the Maine

Supreme Judicial Court which reversed and remanded,

finding specifically:

3 The Does’ lease agreement with PHA provides, “The Tenant’s

possession of or display of a firearm upon the premises is pro-

hibited. A violation of this Section is grounds for automatic

termination of this Lease.”

4 Me. Const. art. I, § 16.

5 Me. Const. art. I, § 1.

® Me. Const. art. I, § 6-A.

4

“Because we conclude that the PHA is a political

subdivision within the meaning of 25 M.R.S.A.

§ 2011 (Supp. 1994), the lease provision, which is

based on a resolution enacted by the PHA in 1975,

is preempted by section 2011. Accordingly, we va-

cate the judgment without reaching the [state] con-

stitutional issues advanced by the Does.” Doe, supra,

656 A.2d at 1201.

This Petition for a writ of certiorari followed.

SUMMARY OF ARGUMENT

The petition alleges that the Maine preemption law

(25 M.R.S.A. § 2011 (Supp. 1994)) is in conflict with,

and superseded by the Housing Act of 1937 (42 U.S.C.A.

$ 1404, et seg.) as that statute has been implemented by

rules and regulations promulgated by the Department of

Housing and Urban Development (HUD). Certain of

these provisions are found at 24 C.F.R. §§ 960.204, and

966.4 (April, 1994).

Respondents submit that there is no conflict between

the federal and state statutes, and furthermore, that the

Congress never intended the Housing Act of 1937 to

become a vehicle to thwart the rights of states to pass

on the question of firearms regulation as a matter of state

law concern. Indeed, recent legislative enactments by the

Congress make clear that not only has the Congress

specifically disclaimed the authority to preempt state fire-

arms laws,” but it has also vested even juveniles with the

right to keep firearms in the home.®

Finally, to the extent that the Petitioner relies on the

Housing Act of 1937 as authority for the PHA to enforce

federal mandates to “provide decent, safe, and sanitary

housing to its residents,” such reliance is misplaced.

Where a federal interest is sufficiently strong enough to

718 U.S.C. § 927.

818 U.S.C. § 922(x) (3) (D) ; section 110201 of the Violent Crime

Control and Law Enforcement Act of 1994.

5

cause Congress to legislate, it must do so directly; it may

not conscript state governments [or their political subdivi-

sions] as its agents. New York v. United States, 112

S.Ct. 2408, 2429 (1992).

Respondents urge that this case was correctly disposed

of by the Maine Supreme Judicial Court under applicable

state law. Consequently, this Court need not, and should

not, resort to a convoluted reading of the Housing Act

in order to search out a federal right where none is needed

to resolve the controversy.

ARGUMENT

As correctly noted in the opinion below, a federal

statute—such as the Housing Act of 1937—preempts a

state law only when Congress has explicitly stated its

intention to preempt state regulation of a certain field.

Doe, supra 656 A.2d at 1202, citing Rozanski v. A-P-A

Transp., Inc., 512 A.2d 335, 339 (Me. 1986), (quoting

Michigan Canners & Freezers Ass'n, Inc. v. Agricultural

Mktg. & Bargaining Bd., 467 U.S. 461, 468, 104 S.Ct.

2518, 2522, 81 L.Ed.2d 399 (1984)). Nowhere in the

Housing Act of 1937 does Congress manifest an intent to

preempt state regulation of public housing, and certainly

the Housing Act does not indicate any intent on the part

of Congress to exclusively occupy the field of firearms

regulation.

Indeed, where Congress has regulated firearms (e.g.,

pursuant to the Gun Control Act of 1968,’ as amended),

it has specifically disclaimed an intent to preempt state

law:

§ 927. Effect on State Law. No provision of this

chapter shall be construed as indicating an intent

on the part of the Congress to occupy the field in

which such provision operates to the exclusion of

the law of any State on the same subject matter,

®18 U.S.C. § 921, et seq.

6

unless there is a direct and positive conflict between

such provision and the law of the State so that the

two cannot be reconciled or consistently stand to-

gether. 18 U.S.C. § 927.

In addition, when Congress undertook to pass the Fire-

arms Owners’ Protection Act of 1986, (amending the

Gun Control Act) it specifically included a declaration of

legislative intent that “additional legislation is required to

reaffirm the intent of the Congress, as expressed in section

101 of the Gun Control Act of 1968, that ‘it is not the

purpose of this title to place any undue or unnecessary

Federal restrictions or burdens on law-abiding citizens

with respect to the acquisition, possession, or use of fire-

arms appropriate to the purpose of hunting, trap-shooting,

target shooting, personal protection, or any other lawful

activity, and that this title is not intended to discourage

or eliminate the private ownership or use of firearms by

law-abiding citizens for lawful purposes.’” Pub. L. No.

99-308 (1986).

Simply put, Congress has never indicated any expressed

or implied desire to preempt state regulation of firearms—

either in the Housing Act of 1937, the Gun Control Act

of 1968, or in any other federal statute. Thus, the Maine

legislature had every right under its sovereign police power

to enact statewide preemption as a matter of establishing

and expressing that state’s public policy on firearms and

nothing in any federal statute supports the proposition

that it is beyond the power of the Maine legislaure to do

so. Certainly if the Gun Control Act does not establish

federal preemption, the Housing Act most assuredly can-

not be stretched to read to do so.

It appears that Petitioner is simply attempting to play

the Housing Act as a federal “trump card” in an effort

to circumvent the clear language of the state preemption

statute which forbids political subdivisions of the State—

including the PHA—from imposing localized firearms

regulations. Such an attempt to stretch the powers dele-

J

gated to the states under the Housing Act would require

that this Court undertake a reading of the Act which is

not supported by the clear language of the statute.

Likewise, Petitioner claims the offending lease provi-

sion was adopted in the furtherance of a federal mandate

to provide “decent, safe, and sanitary housing,” and thus,

that the lease provision is somehow, therefore, a mani-

festation of the will of Congress. Interestingly, however,

just last year Congress specifically provided authority for

even juveniles to possess firearms in the home for self-

defense. Subtitle B (Youth Handgun Safety) of Title XI

of the Violent Crime Control and Law Enforcement Act

of 1994 (i.e., the “crime bill”) prohibits the possession of

a handgun or ammunition by, or the private transfer of\a

handgun or ammunition to, a juvenile. Exceptions to the

general prohibition include “the possession of a handgun

Or ammunition by a juvenile taken in defense of the

juvenile or other persons against an intruder into the

residence of the juvenile or a residence in which the juve-

nile is an invited guest.” It would be strange, indeed, that

Congress would expressly authorize all juveniles to possess

firearms in the home under the provisions of the crime

bill, while simultaneously allowing a local government to

use the Housing Act to cloak itself in federal authority to

ban whole classes of low-income adults from possessing

firearms in their homes.

Finally, even Petitioner’s factual underpinnings for pro-

mulgating the lease provision in the first place are suspect.

Several reasons support the proposition that firearms do

not make a residence inherently dangerous, but rather

provide a safe and effective means of self-defense. When

properly handled, firearms pose no inherent risk of death

or injury. According to the National Safety Council’s

1993 Accident Facts, firearms were responsible for less

than 2 percent of all accidental deaths—ranking just be-

hind “suffocations caused by ingested objects” and “medi-

cal misadventures,” and just ahead of “natural environ-

8

mental factors” and “poisonings caused by gases and

vapors.” In fact, since 1930 the number of annual fatal

firearms accidents has decreased 56%,*° while the number

of privately owned guns has quadrupled and the U.S.

population has doubled. Based on NSC data, one is al-

most twice as likely to die from a “medical misadventure”

than from a firearm accident.”

Firearms in the home also provide a very real and

credible deterrent to crime, and, consequently, Petitioner’s

claim that banning firearms from public housing authority

property will make residents safer is unfounded. A 1994

study conducted by Florida State University criminologist

Gary Kleck estimates that law-abiding citizens lawfully

use firearms as many as 2.5 million times a year for pro-

tection from criminals or would-be criminals.” Further-

more, a Department of Justice sponsored survey of over

1,800 convicted felons found that 40% of felons chose not

to commit at least one specific crime for fear that the vic-

tim was armed, and 34% admitted to being scared off or

shot at by armed victims.** Finally, Department of Justice

victimization surveys show that protective uses of firearms

lessens the chance that rape, robbery and assault attempts

will be successfully completed and reduces the chances

of injury to the intended victim.** Thus, residents of PHA

housing would be “safer” with firearms than without them.

10 Accident Facts, 1993 Edition, National Safety Council.

11 Accident Facts, supra.

12 Gary Kleck, Crime Control Through the Private Use of Armed

Force, 35 Social Prob. 1 (Feb. 1988).

13 Wright & Rossi, Armed and Considered Dangerous, A Survey

of Felons and Their Firearms, p. 154 (Aldine de Gruyter, Haw-

thorne, NY, 1986).

14U.S. Department of Justice, Bureau of Justice Statistics,

Crimianl Victimization in the United States, 1992, NCJ 145125,

p. 86, table 77 (Washington, D.C.: U.S. Department of Justice,

1994).

9

CONCLUSION

When laid bare, this case amounts to nothing more

than a simple contract case which certainly does not give

rise to a jurisdictional claim under 28 U.S.C. § 1257(a).

A lease provision has been invalidated, not a state statute.

The Supreme Judicial Court of Maine has found that

as a matter of state law the Portland Housing Authority—

as a municipal corporation created by the state—does

not have authority to include a lease provision which

bans the possession or display of firearms in the home by

residents of public housing, and ordered that the offending

provision be stricken from the leases of PHA tenants.

Such a decision reflects a fair interpretation and appli-

cation of Maine’s firearm preemption law enacted as a

matter of public policy by the Maine legislature.

The Portland Housing Authority, however, claims that

federal law, namely the Housing Act of 1937, gives it the

authority to completely disregard this expressed will of

the state legislature and that the Housing Act further

demands that the PHA ban firearms for the safety of

public housing tenants. Such an assertion amounts to a

gross display of paternal arrogance, and is not supported

by either prior Congressional enactment or empirical evi-

dence. If Congress wants to ban firearms from public

housing projects, it must do so directly subject to the limi-

tations identified by this Court in United States v. Lopez,

115 S.Ct. 1624 (1995). The fact that Congress has never

indicated an intent or desire to preempt state firearms laws

despite many forays into the field of firearms regulation,

coupled with its pronouncement of less than a year ago

that even juveniles have the right to possess firearms in

the home, provides clear and ample evidence that Con-

gress has not empowered the Portland Housing Authority

to include this provision in its tenants’ leases.

WHEREFORE, premises considered, Respondents pray

that this Court will deny Petitioner the writ of certiorari

to the Supreme Judicial Court of Maine.

10

Respectfully submitted.

ROBERT DOWLUT *

KEVIN M. CUNNINGHAM

11250 Waples Mill Road

5th Floor

Fairfax, VA 22030

(703) 267-1250

* Counsel of Record Attorneys for Respondent