Lawsuit challenges gun ban in state parks

Wilmington attorney Thomas Shellenberger said he can legally carry his handgun on his morning walks on some public lands in Delaware but if he decides to stroll in a state park or forest, that gun isn't allowed.

State park regulations and rules in state forests bar firearms unless they are being used for hunting.

Now, two sport shooting groups along with some individuals claim those regulations violate the state Constitution and have challenged the gun ban in a lawsuit filed in Chancery Court.

The state park and state forest restrictions apply to all guns not used for hunting. There is no provision for individuals who have a permit to carry a concealed, deadly weapon. In Sussex County alone, that accounts for 3,983 people as of Dec. 31. Data for Kent and New Castle Counties wasn't immediately available.

Shellenberger, a spokesman for the Delaware State Sportsmen's Association, one of the plaintiffs in the complaint, said the restriction amounts to a "blanket prohibition. That's a problem," he said. The Bridgeville Rifle & Pistol Club and several individuals are also part of the lawsuit, filed by attorney Francis G.X. Pileggi.

Deputy Environmental Secretary Kara Coats wrote in an email: "We intend ...  to file a motion asking the court to dismiss the litigation. We believe that the approach the Department has taken is a balanced one and has proven historically that it is in the best interest of all users of public lands. We allow appropriate firearms and archery equipment during seasons for those using these lands for recreational hunting, but do not believe it is appropriate to allow deadly weapons that are not associated with hunting in Delaware state parks."

Officials with the state Department of Agriculture, which oversees state forest land, declined comment, citing the pending litigation.

The lawsuit claims the state regulations "forbid the lawful use and possession of firearms" and are "inconsistent with and pre-empted by" both state law and the state Constitution.

Shellenberger said that no particular incident prompted the lawsuit. He said his organization was looking at other restrictive policies on firearms following the 2014 state Supreme Court ruling that overturned a ban on firearms at Wilmington Housing Authority locations.

In that case, the court ruled that the Wilmington Housing Authority couldn't set limits on residents' rights to carry guns in the common areas of their facilities.

Delaware's Constitution provides broader gun right protections than the U.S. Constitution and the court found that the WHA limits were "overbroad and burdened the right to bear arms more than is reasonably necessary."

"Public Housing is 'a home as well as a government building,' " Justice Henry DuPont Ridgely wrote for the panel in deciding the case.

Pileggi, in this latest filing, wrote that while the Delaware Constitution provides broader gun rights, firearms are allowed in national parks.

In addition, he suggested there were real hardships for recreational gun users such as the people who compete in shooting competitions at the state's new Owens Station Shooting Sports & Hunter Education Center near Greenwood. Often, people who compete there like to camp. One of the favorite locations is nearby Trap Pond State Park. A problem arises because under the regulations, they can't have a gun on state park land unless they are hunting, he said.

He questioned what happens to the boater who arrives at the Delaware Seashore State Park to refuel. What does that person do with the gun he is legally allowed to have when he stops at the state marina?

And, he wrote, two of the plaintiffs are active cyclists. They are barred from carrying their handguns in parks and forests, even though they both have concealed carry permits.

Schellenberger said that means there was already a detailed background check done.

Another concern, he said, is that many Delawareans may not be aware of the restrictions on some state public lands.

"There's really not much notice," he said.

So, suppose the retired state police officer, who routinely carries a weapon, goes surf fishing at Cape Henlopen State Park. That person, who is law abiding, may not know he is in violation because there aren't warning signs on most restricted public lands, he said.

"Our Supreme Court has been pretty clear," he said. "The State of Delaware gave you that right" to have a firearm "and you have a bureaucrat take it away."

Reach Molly Murray at (302) 463-3334 or mmurray@delawareonline.com. Follow her on Twitter @MollyMurraytnj.