Preemption and public housing

[KBCraig]

In an article today about the Housing Authority of Texarkana Texas (HATT), the Texarkana Gazette reported that "All firearms are banned from public housing properties."

I have an email poised to send to the city attorney asking how this squares with Texas being a "preemption" state. I concede that HATT, as a landlord, might be able to contractually restrict tenants from having firearms on their property. But as a government agency, they have no authority to ban firearms in general, and are specifically enjoined from doing so by Texas law.

Thoughts?

Kevin

[seamusTX]

I can't give a proper lawerly answer, but housing authorities have the power do a lot of things that you would think a government entity couldn't. They can prohibit classes of visitors, such as those with criminal records. The issue has been to the U.S. Supreme Court.

- Jim

[KBCraig]

Thanks, Jim. I know that HA's have a history of imposing outrageous rules that free citizens would never accept. But in this case, it's an agency of local city government banning all firearms possession (if the article is accurate), despite Texas law prohibiting them from doing so.

I have no connection to our local public housing, know no one living there, and no interest in ever setting foot there. But I do have an interest in keeping wannabe authoritarian bureaucrats in check, as do all freedom-loving citizens.

Because I worked midnight-8 and need to go to bed --oh, about, two hours ago!-- I couldn't wait for further responses. I fired this off to the Texarkana city attorney:

I read with interest an article in the Friday Texarkana Gazette, about the Housing Authority of Texarkana, Texas (HATT) declining to hold residents responsible if their guests bring guns onto Housing Authority property.

Does your office advise the Housing Authority on legal matters?

I ask, because the article included the statement that "All firearms are banned from public housing properties." (I realize that news articles frequently lack accuracy when they summarize technical points of law, so if the article has inaccurately stated HATT policy, I apologize for taking your time with my questions.)

That quoted statement, if it accurately reflects HATT policy, is inconsistent with Texas law. Texas is a "full preemption" state, meaning that only the state may regulate where guns may or may not be carried or possessed. Counties and municipalities may only regulate discharge of firearms, with a view to safety. This was further strengthened in the 2005 legislative session, when all government agencies were limited from using Penal Code 30.06 to restrict carry of firearms by Concealed Handgun Licencees.

HATT, as a landlord, might have the right to contractually restrict tenants from possessing firearms. But as a local government agency, they are specifically prohibited from banning all firearms from city property.

I'd appreciate hearing your thoughts on this matter, especially if you can provide a cite in the Texas statutes supporting HATT's authority to issue such rules.

Thank you for your time,

Kevin Craig

[KBCraig]

Oh, and this article about HATT from yesterday is also interesting.

I don't have a dog in that fight. Just thought it was interesting.

Kevin

[KBCraig]

The city attorney replied to my email: "No sir, the city attorney does not advise the Housing Authority on legal matters."

Guess I'll have to ask the HA what their authority is.

[lrb111]

Stay on 'em. Give an inch they will take a mile.

[KBCraig]

In recent months, the Texarkana Gazette opinion pages have given me hope that there's a spark of libertarianism there, a love for liberty and freedom, and a jaded view of government power.

But then they printed this inexplicable column about the HATT debate, and I wonder if they even realize what they're really saying. Do they realize they're opining that "those people" in public housing (as well as their guests) are automatically criminal suspects? Do they realize that they support disarming victims in a high crime area? Do they really think that the answer to crime is universal disarmament? Have they seen the recent news reports from Washington, DC?



Here's the column, without further introduction.

In Our View: HATT’S OFF
Saturday, July 22, 2006 12:26 PM CDT

Residents should be held responsible for armed guests

We have to side with Housing Authority of Texarkana, Texas, administrators in their efforts to amend lease agreements to make residents responsible for guests who come armed when they are visiting. It’s a burden responsible residents should and must bear.

Firearms are banned from public housing properties. If residents are found with them, they can be evicted.

But people who come to visit public housing tenants do not face such restrictions. Sometimes this has caused problems with violence and criminal activity.

HATT administrators wanted to amend the lease agreement so tenants will be held responsible for armed guests. This means, we presume, that if guests come packing a firearm, tenants should send them packing.

Authority board members, however, didn’t like the idea of making residents responsible for gun-toting guests. They failed to muster a vote on the plan, so the lease restrictions died.

The only board member to actually take a stand said he did not believe residents should be held accountable for their guests who might be armed, comparing the situation to that of parents who cannot always know what their children are up to.

We have a problem with that.

Those of us who are homeowners generally have rules about acceptable behavior when people come to visit. We would not be shy about telling people that we don’t want them to smoke, or raise heck, or bring guns with them—if that kind of conduct bothered us.

Likewise, if someone comes to our homes and injures or kills someone with a firearm, we can be assured we will somehow be held responsible—more than likely in civil court where injured parties would insist we, and our insurers, pay up.

Whom do you think would be held accountable by a gunshot victim if a public housing tenant’s guest pops someone? Civilly, it won’t be the tenant; people who live in public housing typically live there because they have low or fixed incomes.

The Housing Authority would be a likely civil target because it’s got deeper pockets.

People do have the right and the obligation to require safe behavior in their homes, whether they live in mansions or high-rises. It’s part of being a solid member of society.

We hope the HATT Board will rethink its position.

[KBCraig]

I'm going to add this statute cite as a reminder to myself, and for information of other readers.

LOCAL GOVERNMENT CODE

CHAPTER 229. MISCELLANEOUS REGULATORY AUTHORITY OF MUNICIPALITIES

§ 229.001. FIREARMS; EXPLOSIVES.
(a) A municipality may
not adopt regulations relating to the transfer, private ownership,
keeping, transportation, licensing, or registration of firearms,
ammunition, or firearm supplies.
(b) Subsection (a) does not affect the authority a
municipality has under another law to:
(1) require residents or public employees to be armed
for personal or national defense, law enforcement, or another
lawful purpose;
(2) regulate the discharge of firearms within the
limits of the municipality;
(3) regulate the use of property, the location of a
business, or uses at a business under the municipality's fire code,
zoning ordinance, or land-use regulations as long as the code,
ordinance, or regulations are not used to circumvent the intent of
Subsection (a) or Subdivision (5) of this subsection;
(4) regulate the use of firearms in the case of an
insurrection, riot, or natural disaster if the municipality finds
the regulations necessary to protect public health and safety;
(5) regulate the storage or transportation of
explosives to protect public health and safety, except that 25
pounds or less of black powder for each private residence and 50
pounds or less of black powder for each retail dealer are not
subject to regulation; or
(6) regulate the carrying of a firearm by a person
other than a person licensed to carry a concealed handgun under
Subchapter H, Chapter 411, Government Code, at a:
(A) public park;
(B) public meeting of a municipality, county, or
other governmental body;
(C) political rally, parade, or official
political meeting; or
(D) nonfirearms-related school, college, or
professional athletic event.
(c) The exception provided by Subsection (b)(6) does not
apply if the firearm is in or is carried to or from an area
designated for use in a lawful hunting, fishing, or other sporting
event and the firearm is of the type commonly used in the activity.

Acts 1987, 70th Leg., ch. 149, § 1, eff. Sept. 1, 1987. Amended
by Acts 1995, 74th Leg., ch. 229, § 7, eff. Sept. 1, 1995; Acts
1997, 75th Leg., ch. 165, § 10.07, eff. Sept. 1, 1997.
Renumbered from § 215.001 by Acts 2001, 77th Leg., ch. 1420, §
12.002(10), eff. Sept. 1, 2001.


§ 229.002. REGULATION OF DISCHARGE OF WEAPON.
A municipality may not apply a regulation relating to the discharge
of firearms or other weapons in the extraterritorial jurisdiction
of the municipality or in an area annexed by the municipality after
September 1, 1981, if the firearm or other weapon is:
(1) a shotgun, air rifle or pistol, BB gun, or bow and
arrow discharged:
(A) on a tract of land of 10 acres or more and
more than 150 feet from a residence or occupied building located on
another property; and
(B) in a manner not reasonably expected to cause
a projectile to cross the boundary of the tract; or
(2) a center fire or rim fire rifle or pistol of any
caliber discharged:
(A) on a tract of land of 50 acres or more and
more than 300 feet from a residence or occupied building located on
another property; and
(B) in a manner not reasonably expected to cause
a projectile to cross the boundary of the tract.

Added by Acts 2005, 79th Leg., ch. 18, § 4, eff. May 3, 2005.

[The Marshal]

Do they realize they're opining that "those people" in public housing (as well as their guests) are automatically criminal suspects? Do they realize that they support disarming victims in a high crime area? Do they really think that the answer to crime is universal disarmament? Have they seen the recent news reports from Washington, DC?

Kevin, this goes directly to what I studied this morning.
"Knowledge is plentiful, but Wisdom is lacking."

You can overload them with knowledge, facts, and logical reason, but without wisdom they still will make the wrong choice.
But, that doesn't mean we don't try!

~Bill

[Charles L. Cotton]

I have to admit that I’ve been following this thread with a puzzled look on my face. I have no idea where HATT gets the authority to ban firearms on the property. It clearly violates Texas’ preemption statute and I know of no federal statute or rule that requires firearms prohibition on housing projects funded wholly or partially by federal money. (That was tried during Clinton’s reign, but that stopped - or so I was told.)

I’ll call NRA General Counsel’s office tomorrow and check for any federal authority. If that’s not it, then maybe I’ll draft . . .

Chas.

[seamusTX]

I just thought I'd remind everyone that when "gun control" first became an issue, it was about disarming "those people." In some places it was outright racist.

This kind of thing is a slap at those who live in public housing, inevitably poor people.

- Jim

[Charles L. Cotton]

This kind of thing is a slap at those who live in public housing, inevitably poor people.

- Jim

They also live in some of the highest crime areas in our cities.

Chas.

[KBCraig]

I have to admit that I’ve been following this thread with a puzzled look on my face.

Thanks for checking in on this one, Chas. I hoped you would.

I'm checking the city ordinances online, and I'm finding several that contravene the preemption statute. Most of them pre-date CHL, though. Some admin housecleaning is in order.

Kevin

[stevie_d_64]

My wife would say I look puzzled all the time, so its no big stretch for me...

After scratching my head on this one I very simply look at it from a standpoint of how stupid the concept is...From their standpoint...

If their agenda is to reduce the amount of crime committed with firearms, I doubt any rules or regulations to prohibit firearms in those communities will do any amount of good...So we all know and understand from years of experience...

So why has it not been learned by those who make these rediculous requirements?

If we can ever get those types of dunderheads to figure this one out, we may not have much of a problem to solve after that...So the battle continues...

I for one have no reason or desire to frequent a public housing community, if I am tasked to provide some sort of support, charity or other assistance to someone(s) there, it will simply not change the way I conduct myself on any other day...

All they might be able to do is ask you to leave, which brings a whole other set of issues into play at that point...Which I doubt will happen if you follow the law which provides you the guidelines on how you carry...

"Where" always seems to be an ongoing battle in this state which always seems to have legislation come up every two years on the subject...I like that!

Later,
Steve

[KBCraig]

My letter to the editor:

(Permission to publish as a letter to the editor is granted. If you wish to confirm, you may call me at 903-xxx-xxxx. I would be happy to expand and modify this letter as needed to have it serve as an opposing opinion piece, with prominence similar to the Gazette's op-ed.)

I was astounded to read the Gazette's editorial on July 22 ("HATT's Off"). I was surprised to learn the official opinion of the Texarkana Gazette, which is that residents of public housing (as well as their guests) are assumed to be criminals, untrustworthy, or otherwise undeserving of the right to own firearms and possess them for self defense.

The news article which prompted the editorial ("Lease change on authority’s gun ban deemed too strong"; Friday, July 21, 2006) raised several questions. First, what authority does the Housing Authority of Texarkana, Texas (HATT), have to ban firearms?

The answer: none. Texas law is explicit, and only the Legislature may decide where, when, or how guns may be owned, carried, or possessed in the state of Texas. Specifically, Local Government Code Chapter 229, Section 229.001, says, "A municipality may not adopt regulations relating to the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ammunition, or firearm supplies."

The law then continues to lay out the exceptions, which are few, and narrow. A municipality may use business zoning to regulate firearms sales, may regulate discharge of firearms within the city limits, and may restrict carrying firearms by anyone without a Concealed Handgun License at four narrowly-defined locations.

Public housing is not within the city's defined authority.

The Housing Authority is a "board or commission" of the city of Texarkana. While HATT might conceivably have the authority of any other landlord to ban firearms in their rental contract, they most definitely do not have the authority to regulate firearms in any other way. And, as a government agency, I do not believe they have any authority to regulate firearms even by their tenants.

Legalities aside, public housing residents are still Americans, and are still entitled to own, possess, and legally carry firearms. They are human beings, and entitled to the right of self defense. If there is more crime in HATT housing, that is no reason to ban firearms; instead, that is all the more justification for law-abiding residents to have the means to protect themselves and their families.

I do not know anyone who lives in public housing. But I do know that they are my equals, and should not be denied the rights that I have here in the suburbs.

Kevin Craig
XXX XXX XX
Nash, TX