Delaware State Sportsmen's Association v. Garvin

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DELAWARE STATE SPORTSMEN’S .

ASSOCIATION, BRIDGEVILLE RIFLE :

& PISTOL CLUB, LTD., and JOHN R. : C.A. No. K18C-05-047 JJC
SYLVESTER, : In and for Kent County

Plaintiffs,

V.

SHAWN M. GARVIN, DELAWARE
DEPARTMENT OF NATURAL .
RESOURCES AND ENVIRONMENTAL :
CONTROL, MICHAEL T. SCUSE, and
DELAWARE DEPARTMENT OF
AGRICULTURE,

Defendants.

Submitted: July 26, 2018
Decided: October ll, 2018

OPINION

Upon the Parties’ Cross Motions for Summary Judgment
GRANTED in part and DENIED in part.

Francis G. X. Pileggi, Esquire, Eckert Seamans Cherin & Mellott, LLC,
Wilmington, Delaware, Jamie L. Inferrera, Esquire, (pro hac vice) Eckert
Seamans Cherin & Mellott, LLC, Pittsburgh, Pennsylvania, Attomeys for
Plaintiffs.

Ralph K. Durstein, III, Esquire and Devera B. Scott, Esquire, Deputy Attorneys
General, Delaware Depamnent of Justice, Dover, Delaware, Attorneys for
Defendants.

CLARK, J.

Plaintiffs Delaware State Sportsman’s Association, Bridgeville Rifle &
Pistol Club, Ltd. and John R. Sylvester (hereinafter “Plaintiff`s”) seek a
declaratory judgment regarding their rights under regulations issued by the
Delaware Department of Natural Resources and Environmental Control and the
Delaware Department of Agriculture (hereinafter collectively the “Agencies”).
Plaintiffs challenge newly promulgated regulations that they allege infringe upon
their rights to keep and bear arms and to be free from unreasonable searches and
seizures.

F or the reasons discussed below, a straightforward application of the
Delaware Supreme Court’s decision in Bridgeville R. & P. Club v. Smalll
(hereinaf`ter “Bridgeville 1”) requires the Court to hold that some of the Agencies’
newly promulgated regulations violate Article I, Section 20 of the Delaware State
Constitution. Furthennore, other portions of the regulations require a State Park
or Forest guest to produce identification to law enforcement officers absent
reasonable articulable suspicion of illegal activity. Accordingly, they violate the
Fourth and Fourteenth Amendments to the United States Constitution as well as
Article I, Section 6 of the Delaware Constitution. Finally, with one exception,
Bridgeville 1 ’s reasoning demonstrates that the General Assembly did not
statutorily preempt the field of firearm regulation. For these reasons, and those
that follow, the Parties’ cross motions for summary judgment are GRANTED in
part and DENIED in part.

Background and Stipulated Facts

On December 7, 2017, in Brz`dgeville I, the Delaware Supreme Court
invalidated regulations prohibiting firearm possession in State Parks and Forests.2
The Department of Natural Resources and Environmental Control (hereinaf`ter

“DNREC”) and the Delaware Department of Agriculture (hereinaf`ter “DDA”)

1 Bria'geville R. & P. Club v. Small, 176 A.3d 632 (Del. 2017).
2 Id. at 636.
2

had promulgated these regulations many years before the Delaware Supreme
Court held them to be unconstitutional in Bridgeville 1.3 After the Bridgeville I
decision, the Agencies drafted emergency regulations that took effect on
December 26, 2017, to temporarily fill the void left by that decision.4

The Agencies invited and received public comment regarding the interim
regulations to make them final. They also published them in the February 1,
2018, issue of the Delaware Register of Regulations.5 Thereafter, the Agencies
scheduled public workshops regarding the new regulations In support, they
created a series of detailed satellite maps delineating the sensitive areas where
visitors, other than concealed carry permit-holders and active and qualified
retired law enforcement officers, were barred from possessing firearms The
Agencies then held a joint public hearing on March l2, 2018, and then accepted
further public comment.

The Agencies’ record includes, inter alia, the findings of fact within the
orders promulgating the final regulations, the hearing officer’s report dated April
9, 2018, and the two legal responses by Mr. Durstein addressed to the Agencies’
hearing officer, dated April 10, 2018, It also includes correspondence and studies
submitted by both sides of the gun rights issue.

On April 16, 2018, the Secretaries of DNREC and DDA extended the
effective dates of the interim regulations for an additional 60 days and signed

orders promulgating final revised regulations The final regulations were

3 Id. at 644.

4 Under those regulations, the holders of concealed carry permits and both active and qualified
retired law enforcement officers Were authorized to carry firearms in all areas of State Parks
and Forests. Other visitors could still “open-carry” firearms in the majority of the area
comprising the State Parks and Forests, but were restricted from carrying the flrearms in certain
“sensitive areas” identified by the Agencies These included, inter alia, areas such as lodges,
offices, bath houses, and public campgrounds.

5 Volume 21, Issue 8.
3

published in the Register ofRegulations on May l, 2018,6 and took effect on May
11, 2018.

Eleven days after the new regulations’ effective date and within thirty days
of publishing, the Plaintiffs filed a complaint seeking a declaratory judgment.
The Plaintiffs allege that many of the DNREC regulations amending 7 Del.
Aa’min. C. 9201-21.1 (hereinaf`ter “DNREC Regulations”) and the DDA
regulations amending 3 Del. Aa’min. C. 402-8.8 (hereinaf`ter “DDA Regulations”)
were unconstitutional and violated several statutory restrictions ln response, the
Agencies rely upon information from their public hearings and comment period
to demonstrate a sufficient basis under the Administrative Procedures Act to
justify the new regulations The Agencies also emphasize their substantial efforts
to comply with the holding of Bridgeville I. They maintain that their new
regulations comply with the Delaware Supreme Court’s decision.

In summary, the challenged final regulations now permit any person with
a valid concealed carry permit and present or past law enforcement officers to
possess firearms throughout State Parks and Forests The regulations also
delineate designated areas where “open carry” is banned. Other than in those
designated areas, the regulations no longer prohibit open carry in State Parks and
Forests. The final regulations also permit law enforcement officers to perform
background checks of all persons carrying firearms, and to demand persons
legally carrying concealed weapons to produce their permits upon request.
Finally, the regulations also authorize the Agencies to grant exceptions to both
concealed carry requirements and open carry restrictions

After the parties stipulated to the facts comprising the administrative
record, and to a number of other facts, the Plaintiffs moved for summary

judgment. The Agencies filed a cross motion for judgment on the pleadings

6 Volume 21, Issue 11.

Thereafter, the parties stipulated to an expedited briefing schedule and the Court
held oral argument on July 20, 2018,
Standard of Review and Burden of Proof

Plaintiffs seek a declaratory judgment pursuant to 10 Del. C. §§ 6501 and
6502 that give the Court the power to “declare rights.”7 When an interested
person’s8 rights are affected by a statute, ordinance, contract or franchise, that
person “may have determined any question of construction or validity arising
under [it], and obtain a declaration of rights, status or other legal relations
thereunder.”9 Although the declaratory judgment statute does not expressly
address regulations, the Administrative Procedures Act authorizes an aggrieved
person to file a declaratory judgment to challenge agency regulations10

The Court may refuse to enter a declaratory judgment when granting such
a judgment “will not terminate the uncertainty or controversy giving rise to the
proceeding.”]l A central concern accompanying declaratory judgments is to
avoid hypothetical questions because judicial resources are limited. The judicial
branch’s contributions to the legal system is “[interstitial] and it is required to
do so by reason of specific facts that necessitate a judicial judgment.”12

Nevertheless, the purpose of a declaratory judgment “is to settle and to afford

7 See 10 Del. C. § 6501 (providing that “[e]xcept where the Constitution of this State provides
otherwise, courts of record within their respective jurisdictions shall have power to declare
rights, status and other legal relations whether or not further relief is or could be claimed. ...The
declaration may be either affirmative or negative in form and effect, and such declaration shall
have the force and effect of a fmal judgment or decree.”).
8 See 10 Del. C. § 6513 (providing that “[t]he word ‘person,’ wherever used in this chapter,
shall be construed to mean any person, partnership, joint stock company, unincorporated
association or society, or municipal or other corporation of any character whatsoever.”).
9 10 Del. C. § 6502.
10 29 Del. C. § 10141(a).
11 10 Del. C. 6506.
12 Schick Inc. v. Amalgamated Clothing & Textile Workers Union, 533 A.2d 1235, 1239 (Del.
Ch. 1987).

5

relief from uncertainty and insecurity with respect to rights, status and other legal
relations, and this purpose is to be liberally construed and administered.”13

The burden of proof in this case, as highlighted by the parties, is a complex
amalgamation Here, Plaintiffs challenge (1) all the regulations as illegal because
they allege that they are statutorily preempted, and (2) a portion of the regulations
as illegal because they are unconstitutional Generally, the burden of proof in
challenging the legality of regulations rests on the plaintiff.14 On the other hand,
in the context of a challenge to regulations based upon their alleged
unconstitutionality, the burden is on the agency to establish their
constitutionality 15

Regarding statutory challenges to regulations, pursuant to 29 Del. C.
§10141(e), an agency action under review “shall be presumed to be valid and the
complaining party shall have the burden of proving either that the action was
taken in a substantially unlawful manner and that the complainant suffered
prejudice or that the regulation was adopted without a reasonable basis on

3’16

the record or is otherwise unlawful With regard to a constitutional challenge,

the regulations are subject to intermediate scrutiny.17 In this case, to survive
intermediate scrutiny, the Defendants as agencies of the State have the burden
to:

j€rst, articulate their important governmental objectives in
enacting the Regulations; second, demonstrate that the
Regulations are substantially related to achieving those
objectives; and, third, show that the Agencies have not burdened
the fundamental right to bear arms in self-defense more than is
reasonably necessary to ensure that the asserted governmental

1310Del.C. § 6512.

14 Baker v. Delaware Dept. of Nat. Resources & Environ ’l Control, 2015 WL 5971784, at *5
(Del. Super. Oct. 7, 2015), a#d, 137 A.3d 122 (Del. 2016) (TABLE).

15 Doe v. Wilmington Housing Authorily, 88 A.3d 654, 666 (Del. 2014).

16 29 Del. C. §10141(e).

17 Bridgeville, 176 A.3d at 656.

objectives are met. The Agencies are required to show more than
a “general safety concern.”18

With these burdens in mind, the posture of the case is one of cross-motions
for summary judgment. Initially, the Agencies moved for judgment on the
pleadings while the Plaintiffs moved for summary judgment. At oral argument,
the Agencies conceded that their motion should be considered as one for
summary judgment because both parties rely extensively upon factual matters
outside the pleadings.19

ln reviewing a motion for summary judgment, when viewing the facts in
the light most favorable to the nonmoving party, the moving party must
demonstrate “that there are no material issues of fact still in dispute and that the
moving party is entitled to judgment as a matter of law.”20 The mere fact that
both parties filed motions for summary judgment “does not act per se as a

”21 However, “where the

concession that there is an absence of factual issues
parties have not presented to the court that there is an issue of material fact, the
court shall deem the motion to be the equivalent of a stipulation for decision on
the merits based on the record submitted with the motion[s].”22 Here, based on
the stipulated facts and cross motions for summary judgment, it is appropriate for

the Court to decide this case as a matter of law.

18 Id. (emphasis added).
19 See Velocity Exp., Inc. v. O]Yice Depot, Inc., 2009 WL 406807, at *2 (Del. Super. Feb 4,
2009) (finding that “Superior Court Civil Rule 12 states that if matters outside of the pleadings
are presented and not excluded by the Court, the Court must convert the motion to one for
summary judgement.”). See also Appriva Shareholder Litigation Co., LLC v. EV3, Inc., 937
A.2d 1275, 1284-85 (Del. 2007) (converting a motion to dismiss into a motion for summary
judgment).
20 Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
21 United Vanguard Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (Del. 1997).
22 Super. Ct. Civ. R. 56(h); Ct. Ch. R. 56(h).

7

This matter is justiciable because both the individual Plaintiff and the
organizational Plaintiffs have standing and the action constitutes an actual
controversy for purposes of the Declaratory Judgment Act.

There are a number of requirements for the Court to find a matter to be
justiciable The two requirements for justiciability challenged by the Agencies
include the Agencies’ claim that the Plaintiffs do not have standing and that the
case is not an actual controversy.23

Standing

The Agencies challenge the standing of both the individual Plaintiff, Mr.
Sylvester, and the organizational Plaintiffs. At the outset, the Court recognizes
that it has jurisdiction to consider the lawfulness of a regulation promulgated by
an agency when an aggrieved party brings an action for declaratory relief.24 This
Court has expressed its preference in these cases for a review on the merits
because pre-enforcement review often benefits both those subject to the

5 Those subject to a contested regulation

regulations and those who issue them.2
benefit from pre-enforcement review because their alternative is to make the
Hobson’s choice between complying with the regulation they believe to be

26 Those issuing the regulation may also

invalid or risking possible sanctions
benefit from pre-enforcement review because, if a regulation is found invalid
during pre-enforcement review, it may still be revised instead of simply being

declared void.27 In addition, it helps minimize costly and burdensome litigation

23 See 13 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 3529 (3d ed. 2008) (sumrnarizing the U.S. Constitutional and prudential
requirements for justiciability).

24 American Ins. Ass ’n v. Delaware Dept. of Ins., 2006 WL 3457623, at *2 (Del. Super. Nov.
29, 2006).

25 American Auto Mfi's. Ass ’n v. Public Service Comm ’n ofState of Del., 1997 WL 718656, at
*1 (Del. Super. Jul. 23, 1997).

26 American, 2006 WL 3457623, at *2.

27 Id.

by not forcing agencies to defend the legality of their regulations piecemeal
across many separate enforcement actions

The Court is not clear as to what extent the Agencies challenged the
Plaintiffs’ standing in Bridgeville 1. This case follows on the heels of Bridgeville
land all parties involved in this case were involved in that case. The Court also
recognizes that the Delaware Supreme Court did not expressly address the 30-
day filing deadline required by 29 Del. C. § 10141.28 The plaintiffs in that case
filed their case well outside the 30-day statutory limit and argued against the
constitutionality of decades old regulations Accordingly, since the Supreme
Court decided Bridgeville lon the merits, its decision can fairly be read to provide
that for a constitutional challenge, the 30-day statutory limit does not apply. In
Such cases, the regulation can later be challenged through a declaratory judgment
action. Although the Delaware Supreme Court also decided Bridgeville 1 on
administrative grounds, it did so with a constitutional underlay. On balance, since
that case was decided within the last year and involved primarily the same parties,
this Court will not contradict the Delaware Supreme Court’s implied finding that
the parties have standing to challenge these regulations

Notwithstanding the Bridgeville I decision, the Agencies argue that Mr.
Sylvester has not sustained an injury in fact because he is not an “aggrieved
person.” Independent of the Delaware Supreme Court’s implied finding on the
issue, the Court separately finds that Plaintiffs have standing to bring a claim for
declaratory relief. Plaintiffs filed this case on May 22, 2018, twenty-two days
after the regulations were published on May 1, 2018, and thus within the 30-days
required by statute. An individual or organization is “aggrieved” for purposes of

the statute when the individual or organization is subject to the regulations29 The

28 See 29 Del. C. § 10141(d) (prohibiting judicial review of a regulation after 30 days from

when it was published).
29 Id. at *10.

party need not have suffered any injury in fact before having the ability to
challenge the regulations30 In fact in Doe v. Wilmington Housing Authorily,31
the Delaware Supreme Court held that a plaintiff does not even need to own a
firearm to have standing to seek redress from a violation of his or her
constitutional right.32

ln the analogous federal context, the Federal Court of Appeals for the
Seventh Circuit recognized it as “well-established” that pre-enforcement
challenges of regulations are within the purview of Article III of the United States
Constitution for individual standing purposes.33 As the Seventh Circuit noted, an
individual plaintiff need not violate a regulation and risk prosecution in order to
challenge it.34 The very “existence of a statute [or regulation] implies a threat to
prosecute, so pre-enforcement challenges are proper, because a probability of
future injury counts as ‘injury’ for the purpose of standing.”35

In the case at hand, Mr. Sylvester has individual standing because he is
sufficiently aggrieved under the law. Mr. Sylvester, as a resident of Pennsylvania
who frequents Delaware State Parks and Forests, desires to bring his firearms into
the Parks and Forests, and is therefore subject to the disputed regulations He
participates in rifle competitions in the State of Delaware and but for the
regulations at issue that prohibit firearms in the State’s camping areas and lodges,
he would avail himself of the overnight accommodations available in State Parks
and Forests. The Agencies’ regulations prevent him from keeping his rifle in a
lodge, tent or campground while he is en route to a rifle competition and thus the

regulations substantially affect his Delaware Constitutional rights If Mr.

30 Id.
31 Doe v. Wilmington Housing Authority, 880 F.Supp.2d 513 (D. Del. 2012) (rev 'd on other
grounds).
32 Id. at 522.
33 Ezell v. Cin ofChicago, 651 F.3d 684, 695 (7th Cir. 2011).
34 Id. (citing Schirmer v. Nagoa'e, 621 F.3d 581, 586 (7th Cir. 2010)).
35 Ia'. at 695-696, (citing Bauer v. Shephara', 620 F.3d 704, 708 (7th Cir. 2010)).
10

Sylvester were to keep his firearms in a restricted area, such as a tent or lodge, he
would be subject to criminal sanctions36

The Agencies also contest the organizational Plaintiffs’ standing
notwithstanding Bridgeville I. With regard to organizational standing, both
parties rely upon Oceanport v. Wilmington Stevedores.37 There, the Delaware
Supreme Court held that an organization may sue on behalf of its members if (l)
the interests to be protected by the suit are germane to the organization's purpose;
(2) neither the claim asserted nor the relief requested requires the participation of
individual members; and (3) the organization's members would otherwise have
standing38

Determining whether an organization’s interests are germane for purposes
of this test is an undemanding standard that requires only “mere pertinence
between the litigation subject and organizational purpose.”39 This standard only
bars those whose litigation goals and organizational purposes are totally
unrelated.40 The Delaware State Sportsmen’s Association is an organization that
promotes and protects the interests of gun owners in and around Delaware. Its
members include competitive shooters, casual recreational shooters, hunters,
collectors and persons with interests in personal and home protection. Similarly,

the Bridgeville Rifle and Pistol Club conducts rifle and pistol sporting

36 Plaintiffs assert that if Mr. Sylvester were to carry a concealed flrearm without a license, it
would be a Class D felony pursuant to ll Del. C. § 1442. The new regulations at issue here,
do not address Mr. Sylvester’s right regarding concealed carry. If he has no permit to do so,
these regulations do not affect any of his rights or cause him to be subject to any greater
prosecution for carrying a concealed deadly weapon. However, the Agencies assert correctly
that a violation of the firearms regulations before the Court would be classified as an
“Environmental D” violation pursuant to 7 Del. Admin. C. Ch. 9201, and Parks Rule 25.1.1
and that a violator would face a fine of $50-$100 for a first offense and a $100-$500 fine for
subsequent offenses within five years In any event, Mr. Sylvester would face potential
sanctions sufficient to give him individual standing
37 Oceanport v. Wilrnington Stevedores, 636 A.2d 892 (Del. 1994).
38 Id. at 902 (citing Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333 (1977)).
39
40 §§

l 1

competitions and its members often seek to use facilities in Delaware State Parks
and Forests. Pursuant to the DNREC and DDA regulations at issue, the
organization’s members who do not have concealed carry permits or are not
retired law enforcement officers are prohibited from using camping and lodging
facilities while possessing their firearms The organizational interests to be
protected in this case, therefore, include the right to bear arms for recreational
and self-defense purposes Thus given the Plaintiff organizations purposes to
protect and promote such rights, the Court finds the first prong of the test to be
satisfied.

The organizational Plaintiffs also meet the second prong because neither
the claim asserted nor the relief requested requires their individual members’
participation While Mr. Sylvester is included among the Plaintiffs in this case,
and he himself satisfies individual standing, he is not a required party for either
the claim or for the relief requested Furthermore, no individual members of the
organizations seek monetary damages and they are not required to participate in
the case on an individual basis for the Court to determine if the regulations violate
the Delaware Constitution.

The third prong for the test for organizational standing is easily satisfied
Mr. Sylvester, as a member of the organizations has standing in this case. Thus,
many of the other organizational members like him who participate in shooting
competitions will also satisfy the requirements for individual standing. Since the
three Oceanport requirements are satisfied, both Bridgeville and Sportsmen have
organizational standing.

The cases relied upon by the Agencies in disputing the Plaintiffs’ standing
are distinguishable For instance, the Agencies rely on Stevenson v. Delaware

Dept. of Nat. Resources.41 That case is distinguishable because those plaintiffs

41 Stevenson v. Delaware Dept. of Nat. Resources, 2018 WL 3134849, at *16 (Del. Super. Ct.
Jun 26, 2018).
12

could not establish a concrete injury that could be redressed by a favorable
decision.42 The injury to those plaintiffs was merely “conjectural or
hypothetical.”43 As opposed to the matter at hand, the plaintiffs in Stevenson
failed to establish standing with data, research and expert opinions in order to
prove their injury under regulations regulating greenhouse gases The challenge
to the regulation in Stevenson was based not on a constitutional issue, but rather
on alleged non-compliance with statutory requirements and the financial harm
that the non-compliance allegedly caused the plaintiffs.44 In this case, the facts
are much simpler and expert opinion and data are not necessary to evaluate and
to challenge regulations that allegedly violate a iiindamental constitutional right.
Finally, as discussed above, the injury to the Plaintiffs is not “conjectural or
hypothetical” and it can be redressed by a favorable decision
Actual Controversy

The second requirement for justiciability raised by the Agencies is whether
this case involves an actual controversy. The Agencies argue that this action does
not, while Plaintiffs argue that it does At the outset, as with the standing issue,
this suit is as much of an actual controversy as the claim in Bridgeville I. There,
the Delaware Supreme Court impliedly found the case to be an actual controversy
before issuing its decision Since the Agencies evidently did not contest this issue
in the first instance, but do now, the Court will address it.

The Delaware Supreme Court has articulated the prerequisites for an
“actual controversy,” for purposes of declaratory judgments as follows:

(l) [i]t must be a controversy involving the rights or other
legal relations of the party seeking de[c]laratory relief; (2) it
must be a controversy in which the claim of right or other
legal interest is asserted against one who has an interest in
contesting the claim; (3) the controversy must be between

42 Ia'.
43 Id. at *12.
44 Id. at *l.
13

parties whose interests are real and adverse; [and] (4) the
issue involved in the controversy must be ripe for judicial
determination45

Applying these factors the case is an actual controversy and does not
involve a hypothetical question First, the regulations at issue substantially
impact the rights of both the individual and organizational Plaintiffs as provided
in the previous standing discussion Second, the Plaintiffs assert their rights
against the Agencies who likewise oppose the claim because they enacted the
regulations in dispute. Third, the Plaintiffs and the Agencies have interests that
are real and adverse. Namely, if Mr. Sylvester were to violate the regulations he
could face a potential criminal sanction On the other hand, DNREC and DDA
have expended considerable resources in drafting these regulations They would
have to invest even more resources to potentially redraft them piecemeal after
future narrow court decisions addressing singular issues

Fourth and finally, the issue is ripe for judicial determination The ripeness
doctrine is invoked to determine whether a dispute has matured to a point that it

warrants a decision46

Ripeness of an issue is essential for the matter to be
justiciable, because “[u]nless a controversy is ‘ripe for judicial determination,’ a
court may simply be asked to render an advisory opinion.”47 A matter is ripe
when “[t]he state of a dispute has reached, but has not passed the point when the
facts have developed sufficiently to permit an intelligent and useful decision to
be made.”48

This issue must be evaluated by assessing whether “given the facts at hand,

a sufficient threat of enforcement exists such that judicial review is warranted.”49

45 Rollins Int'l, Inc. v. Int'l Hya'ronics Corp., 303 A.2d 660, 662-63 (Del. 1973).
46 13 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Fea'eral Practice and
Procea’ure § 3532 (3d ed. 2008).
47 Baker, 2015 WL 5971784, at *9.
48 Black's Law Dictionary (10th ed. 2014).
49 Baker’, 2015 WL 5971784, 31*9.
14

Here, the regulations became effective on May ll, 2018, and are already being
enforced. The ripeness of a matter is determined by using practical judgment in
balancing whether “postponing review until the question arises in some more
concrete and final form, [is] outweighed by the interests of those who seek relief
from the challenged action's immediate and practical impact upon them.”50
Declining Court review in this case would mean that individuals like Mr.
Sylvester, and members of the organizational Plaintiffs would have to risk
criminal sanctions or abide by regulations they believe to be unconstitutional
This is the Hobson’s choice that, in faimess, is inappropriate The Plaintiffs are

entitled to seek review of the challenged regulations

Delaware statutes have not completely preempted
the field of firearms regulation

In Bria’geville 1, the Delaware Supreme Court’s holding singularly answers
the question at hand; the Agencies’ recently promulgated regulations were not
preempted per se by Delaware statutes or the Delaware Constitution. There, the
Court held that DNREC and DDA’s regulations violated the Delaware
Constitution by broadly banning firearms in State Parks and Forests. The Court
separately held that they violated administrative law requirements by
promulgating unconstitutional regulations.31 The Court, however, did not hold
that the Agencies lacked authority to enact firearm related regulations in any
instance,52 In fact, the Delaware Supreme Court had previously recognized in
Doe v. Wilmington Housing Authority that “[s]ome regulation of possessing
firearms could pass intermediate scrutiny, and thus governmental agencies are

not prohibited from enacting firearm regulations”33

50 Ia’. (citing Nichols v. State Coastal Zone Ina'us. Control Boara', 2013 WL 1092205, at *3

(Del. Super. Mar. 14, 2013), aj"'a', 74 A.3d 636 (Del. 2013)).

31 Bria'geville, 176 A.3d at 661.

52 Ia'.

33 Doe, 88 A.3d at 668 (holding that the Wilmington Housing Authority, a nonprofit agency in

the state of Delaware that provides housing to low-income individuals and families could
15

Notwithstanding this recognition in Doe and Bria’geville I, the Plaintiffs
argue that the Agencies have no authority to enact or enforce the disputed
regulations because the field has been preempted by the General Assembly.
DNREC may promulgate and enforce regulations pursuant to 7 Del. C.§ 6010,
while DDA has the power to promulgate rules and regulations pursuant to 3 Del.
C. § 101. Furthermore, DNREC has the authority to both dedicate and administer
State Parks under 7 Del. C. § 4701. Likewise, DDA has similar authority over
State Forests pursuant to 3 Del. C. § 1001. Nevertheless, Plaintiffs argue that
despite these enabling statutes neither agency has the authority to restrict the
possession of firearms in State Parks and Forests through regulations because
such regulations would be inconsistent with a number of Delaware statutes

For instance, Plaintiffs rely significantly on the Delaware Code provision
prohibiting “municipal govemments” from enacting firearm restriction
ordinances that restrict firearm use.54 At the outset, the State and its agencies are
not addressed by that section Furthermore, any agency or political subdivision
may adopt ordinances or regulations that affect similar areas to those addressed
by legislation as long as they do not conflict with a law passed by the General
Assembly.55 Where there is a conflict between the statute and a regulation, the
statute will always prevail.56 In this regard, the test in preemption analysis is
whether the state statute was intended to be exclusive.57 Legislative intent to

make a Statute exclusive may be either express or implied.58

regulate the possession of firearms on its premises if those regulations passed intermediate
scrutiny).
54 See 22 Del. C. § lll(a) (Providing that “[t]he municipal governments shall enact no law,
ordinance or regulation prohibiting, restricting or licensing the ownership, transfer, possession
or transportation of firearms or components of firearms or ammunition except that the
discharge of a firearm may be regulated ...”).
55 See Cantinca v. Fontana, 884 A.2d 468, 473 (Del. 2005) (referring to state statutes and
municipal ordinances as opposed to agency regulations).
56
57 552
58 Ia'.

16

The Delaware Supreme Court in Cantinca v. Fontana59 set forth the
benchmark for evaluating these two preemption avenues as follows:

Express exclusivity intent exists where the statutory text or
legislative history explicitly provides or demonstrates that the
state statute is intended to replace or prevail over any pre-existing
laws or ordinances that govern the same subject matter. Implied
exclusivity intent may be found where the regulations are
inconsistent; for exarnple, where a state statute prohibits an act
that is permitted by a local ordinance to be inconsistent by
implication, however, the local ordinance must hinder the
objectives of the state statute60 (emphasis added).

In this case, there was no express preemption of the Agencies’ power to
adopt regulations regulating gun use While Article I, Section 20 of the Delaware
Constitution gives citizens the “right to keep and bear arms for the defense of
self, family, home and State, and for hunting and recreational use,” it does not

1 Furthermore,

expressly preempt any other rules regulations or ordinances6
there is no statute prohibiting state agencies from adopting regulations regarding
firearm possession as there is with municipalities pursuant to 22 Del. C. § 111.
There was also no implied preemption in this case While the Court
acknowledges the significant restrictions placed by the General Assembly on the

possession and use of firearms62 these restrictions do not demonstrate that the

59 884 A.2d 468 (Del. 2005).
60 Ia' at 473-474.
61 Del. Const. art. I, § 20. See 11 Del. C. Ch. 5, subchapter VII, subpart E (where the General
Assembly passed a significant amount of legislation regulating firearm use); see also
Bria’geville, 176 A.3d at 658 (recognizing that there “certainly could be” sensitive areas in State
parks and forests where firearms may be restricted and thus regulated).
62 See, e.g., 11 Del. C. § 1444 (restricting sale, use and possession of sawed-off shotguns
machine guns and other destructive weapons); 11 Del. C. § 1445 (prohibiting the sale or
transfer of a firearm to a minor); 11 Del. C. §§ 1447, 1447A (criminalizing the possession of a
firearm during the commission of a felony); 11 Del. C. § 1448 (prohibiting certain persons
from owning, using or purchasing firearms); 11 Del C. § 1448A (requiring a criminal
background check prior to the purchase or sale of a firearm); 11 Del. C. §§ 1454, 1455
(criminalizing the act of giving a firearm to a prohibited person or engaging in a sale or
17

General Assembly intended to impliedly occupy the entire field. Namely, the
statutes that Plaintiffs rely upon are all narrowly tailored to address specific
issues such as prohibiting the sale of firearms to minors or further criminalizing
the possession of a firearm during a felony. Nothing about regulating those
separate, narrow subjects demonstrates the General Assembly’s intent to
exclusively occupy the field of firearm regulation

While the Agencies may only act within the confines of the legislative acts
creating them,63 they also derive authority to promulgate regulations from those
same acts Both Agencies have broad statutory power delegated to them by the

64 Each Secretary also has broad

General Assembly to promulgate regulations
general authority to administer their agencies65 Since DDA administers State
Forests and DNREC administers State Parks it follows that they have broad
authority to regulate conduct within those areas The Agencies are not prohibited
from regulating firearm use within their respective areas simply because the
General Assembly has extensively regulated firearms through statutes Thus
while the Court finds for the reasons discussed below that some of the regulations
at issue are unconstitutional the Agencies are not prohibited from adopting
firearm regulations because the field is preempted. Namely, Bria’geville I’s
holding recognizes that the Agencies may promulgate firearm regulations so long

as they are not inconsistent with the laws of Delaware, and also pass intermediate

scrutiny.

purchase of a firearm on behalf of a person not legally allowed to sell or purchase fireaims);
11 Del. C. § 1456 (criminalizing unlawfully permitting a minor access to a firearm).
63 Diamona' State Liquors v. Delaware Liquor Comm 'n, 75 A.2d 248, 253 (Del. Ct. Gen. Sess.
1950).
54 3 Del. C. § 101(3); 29 Del. C. § 8003(7); 29 Del. C. § 8103(8); 7Del. C. § 4701(4); 7 Del.
C. § 6010(a).
65 See 3 Del. C. § 101; 7 Del. C. Ch. 60 (granting the Secretary of the DDA the authority to
issue regulations); see also 29 Del. C. § 8003; 29 Del. C. § 8103 (granting the Secretary of
DNREC the authority to issue regulations).

18

Some of the regulations defining sensitive areas are
unconstitutional in light of Bridgeville I.

The Agencies assert that all of their regulations are lawful ln the
altemative, they argue that if the Court disagrees it should examine the
regulations individually and find any unconstitutional portions to be severable
ln the Agencies’ parlance, they request an ala carte review. Plaintiffs also argue,
based on their constitutional challenges that the Court should examine the
regulations line by line. Since the Plaintiffs’ argument regarding total preemption
is without merit, the Court will examine the challenged regulations from both
DNREC and DDA line by line as requested.

Article l, Section 20 (hereinafter “Section 20”) of the Delaware
Constitution creates the rights to balance against the Agencies purposes in
regulating firearm use in State Parks and Forests. As the Delaware Supreme
Court recognized, Section 20 provides broader protection regarding gun rights
than the Second Amendment to the United States Constitution66 Bria'geville 1
and Doe v. Wil)nington Housing Authority turned on a Delaware Constitutional
provision Because that provision provides greater protection then the Second
Amendment, the Court will not address Plaintiffs’ Second Amendment
arguments

In Doe, the Delaware Supreme Court confirmed that Section 20, though
passed in 1987, continued the long-standing rights “of responsible citizens to
lawfully carry and use firearms in our state.”67 ln recognizing this right, our
Supreme Court confirmed again that Delaware is an “open carry” state.68 This
right to bear arms includes the right to do so for purposes of hunting, recreation

and protection of self and family both inside and outside the home69

66 Bria'geville, 176 A.3d at 636.
67 DO€, 88 A.3d at 663.
68 Id.
69 Id at 665.
19

Although Section 20 preserves greater rights greater than those preserved
in the Second Amendment, the right to public carry for self-defense is not
absolute.70 ln applying the standard set forth in Doe, the Delaware Supreme
Court in Bridgeville I confirmed that intermediate scrutiny must be applied when

1 Moreover, the Supreme Court

firearm restrictions are not a complete ban.7
recognized that the “rights of Delaware citizens to defend themselves with
firearms is especially critical ‘when the intervention of society on their behalf
may be too late to prevent injury.”’72

A primary area of contention includes the Agencies’ findings regarding
sensitive areas that they refer to as “designated areas” At the outset, the new
regulations permit persons with concealed carry permits and law enforcement
officers to possess firearms throughout the State Parks and Forests, including in
designated areas However, the new regulations prohibit open carry or possession
of firearms in the designated areas if a person is not a member of law enforcement
or is not a concealed carry permit holder. Accordingly, the challenged regulations
restrict only open-carry within these designated areas

Both Agencies promulgated similar, parallel regulations so they will be
jointly addressed by the Court. First, DNREC promulgated the following
definition of “designated areas”:

21.1.1 Designated areas shall include park offices visitor
centers nature centers bathhouses restaurants and snack bars
stadiums and facilities while used for sporting events concerts
and festivals museums zoos stables educational facilities
dormitories playgrounds camping areas swimming pools
guarded beaches and water parks and shall be identified by
appropriate signage.73

70 Ia' at 667.
71 Bria'geville, 176 A.3d at 654-55.
72 Id. at 659.
73 7 Del. Admin. C. 9201-21.1.1.
20

Likewise, DDA promulgated the following definition of “designated

areas”:

8.8.1 Designated areas shall include State Forest Offices

education centers and lodges and shall be identified by

appropriate signage.74

While the Plaintiffs originally argued in their briefing that all designated
areas set forth in the regulations above were unconstitutional, they narrowed their
constitutional challenge during oral argument to (1) camping areas in DNREC
Regulation 21.1.1 and (2) lodges in DDA Regulation 8.8.1. Separately, while
cabins were not included as designated areas in either set of regulations the
Plaintiffs repeatedly addressed cabins in their briefing and at oral argument
Plaintiffs no longer contest that areas such as bathhouses stadiums, museums and
offices qualify as sensitive Based on the Plaintiffs’ representations at oral
argument, the Court deems all constitutional challenges regarding those areas to
be withdrawn

The administrative record does not support a finding that the
Agencies’ designation of camping areas as sensitive
survives intermediate scrutiny.

In Bria’geville I the Delaware Supreme Court invalidated the Agencies’

blanket restrictions on firearms and held that:

[t]he limited ability to have a hunting rifle or shotgun while engaged in a
controlled hunt on State park or forest land does not fulfill and cannot
substitute for the people’s right to have a firearm while camping
overnight in a State park . . ..The Regulations not only unduly burden
that Constitutional right, they eviscerate it all together.75

The Agencies’ argument that this portion of the decision was qualified to

apply to only complete restrictions of firearms is not availing. ln this vein, the

74 3 Del. Admin. C. 402-8.8.1.
75 Bria’geville, 176 A.3d at 638 (emphasis added).
21

Agencies argue strenuously and persuasively regarding the differences between
our State Parks and Forests and the expansive forests and parks in the west where
camping is not segregated to controlled areas Nevertheless, the above quoted
language in the Bria'geville 1 decision signals strongly that prohibiting the right
to possess a firearm while camping overnight would face a high hurdle in passing
intermediate scrutiny. In fact, the language quoted above goes so far as to
actually define the ability to possess firearms at a camp site as being within the
definition of the fundamental right at issue

While the Delaware Supreme Court in Bridgeville 1 held that there
“certainly could be some ‘sensitive’ area in State Parks and State Forests where
the carrying of firearms may be restricted,” the Agencies must justify their
decision to delineate sensitive areas so as not to infringe on Section 20 rights 76
ln Bridgeville 1, the Court gave the following guidance to evaluate whether an
area in a State Park or Forest could constitute a sensitive area warranting such
restrictions

[i]n contrast to a permissible sensitive place such as a courthouse,
where visitors are screened by security, most State Parks and
State Forests do not have controlled entry points One can easily
enter a State Park or State Forest with a weapon-either
intentionally or by inadvertently wandering across a State Park
boundary while exercising the right to open carry Whereas
courthouses are supervised by law enforcement personnel or
easily accessible to law enforcement and other emergency
responders making the need to defend oneself with a personal
firearm seemingly less acute, State Parks and State Forests are
relatively remote and, for cxamplc, have less than thirty rangers
to police Delaware's entire State Parks77

The Delaware Supreme Court’s guidance quoted above can be distilled to

the following three factors that the Court must evaluate in determining if an area’s

76 Id. at 658.
77 Id. at 659.
22

designation as sensitive satisfies intermediate scrutiny. Namely, these factors
include whether the area is: (1) one with a controlled entry point; (2) where
visitors are screened by security; and (3) where an area is supervised by law
enforcement personnel or easily accessible to law enforcement and other
emergency responders78

The Court considered the arguments of the Agencies and has thoroughly
reviewed the Agencies’ rulemaking record. The Agencies articulated the basis
for their factual findings as required by 29 Del. C. §10118. Included in the
Administrative Procedures Act are agency obligations to provide a “[b]rief
summary of [their] findings of fact with respect to the evidence and information
[of record]”79 The Agencies’ decisions to adopt rules or regulations must “be
supported by [their] findings as to the evidence and information received.”80

A review of this record demonstrates that the Agencies worked diligently
during their rulemaking proceedings ln advocating that their decision to include
camping areas as a sensitive area survives intermediate scrutiny, the Agencies
emphasize that the designated areas make up less than one percent of the total
area of the State Parks and Forests and that firearms are still permitted in the other
ninety-nine percent. While the Court appreciates that argument, it does not find
it wholly persuasive, since the one percent of the State Parks and Forests that the
firearms are banned are the parts where many visitors spend much of their time.
Moreover, that argument does not address the factors the Agencies should have
addressed when evaluating camping areas Despite the regulations’ prohibition
against firearms in only small geographical sections under Bridgeville 1’s

reasoning, the burden it places on visitors in camping areas is still substantial

78 1a
79 29 Del. C. § ioiis(b)(z).
80 id. at§ ioiis(b)(z).
23

The Agencies while arguing the appropriateness of their designation and
emphasizing the expansive public record, do not point to evidence or facts found
during their rulemaking process that justify designating camping areas as
sensitive areas The record includes generalized studies regarding gun safety.
However, nothing within those studies addresses why a camp site is a sensitive
area. Counsel for the Agencies filed “Legal Response Memoranda” that included
the only area in the record articulating why camping areas should be considered
sensitive lt provides legal arguments not evidence, that (1) they are “contained
spaces”, (2) not remote but rather in areas regulated by permit; and (3) that
permitting firearms in camp sites would present unacceptable risks to children
This legal argument from the Agencies offered in support of designating camp
sites as sensitive, however, is unsupported by evidence of record.

The Court has reviewed the summary of studies provided by the Giffords
Center to Prevent Gun Violence and Giffords Law Center’s comments submitted
to the hearing officer. Neither the summarized studies nor the comments on the
proposed regulations address camping areas They do address gun imposed
dangers to children in crowded areas and reference increased stress placed upon
children in areas where children frequent ln this sense, the studies do support,
in part, the Agencies’ governmental objectives when designating areas such as
public beaches resource centers and bathhouses as sensitive In contrast, the
studies as with the remainder of the record, do not address how camp sites have
the above described attributes

In determining whether the record substantiates that camping areas are
sensitive areas the Court recognizes that camping areas have no controlled entry
points other than a reservation check-in site While there may be a gatekeeper’s
shed at the entrance to the State Parks campers and visitors are not screened by
security in any manner. As the Supreme Court noted in Bridgeville 1, anyone

could stumble into a camping area with a firearm without park personnel’s

24

knowledge31 The Agencies’ arguments are conclusory with regard to the
controlled entry point factor.

Camp sites are also not monitored by law enforcement As the Delaware
Supreme Court recognized in Bridgeville 1, there are approximately thirty
DNREC law enforcement officers statewide.82 As was also emphasized in
Bridgeville 1, DDA Hunting and Rules and Regulations specifically stress that in
State Forests there is no protection available to campers stating that “[c]amping
is at your own risk” and that “there is no after-hours nighttime or weekend
security.”83 ln many instances the camping areas are located miles from the
nearest town and it would take law enforcement and emergency personnel a
substantial time to reach the camping area in an emergency. Accordingly, with
regard to this factor, the Agencies’ designation of camping areas as sensitive does
not pass intermediate scrutiny.

To satisfy intermediate scrutiriy, the government must articulate important
governmental objectives and then demonstrate that the regulations are
substantially related to achieving those objectives without burdening the
fundamental right to self-defense more than is reasonably necessary.34 While the
Agencies claim that these regulations will make the State Parks and Forests safer,
they still rely upon only a general safety concern to demonstrate an “important
governmental objective”35 Even assuming that the governmental objective was
sufficient to meet the intermediate scrutiny test, there is no evidence in the record
in the Agencies’ rulemaking proceedings that demonstrates that the regulations

are substantially related to achieving this objective Moreover, there is simply no

81 Id.
32 Id.
83 Id.
134 Id. at 656.
85 Id.
25

evidence in the rulemaking record regarding any meaningful security or
controlled entry points in camping areas

Finally, by banning firearms in camping areas the regulations burden the
fundamental right to bear arms in self-defense more than is reasonably necessary.
Bridgeville 1 recognized the need for protection of self and family while camping
in a state park overnight as a fundamental right recognized by Section 20. The
effect of including camp sites within sensitive areas forces State Park and Forest
visitors to give up their right to self-defense in order to camp overnight in those
areas The right for self-protection, as recognized by the Delaware Supreme
Court, is unduly burdened when an overnight guest is banned from possessing his
or her firearm “while camping overnight in a State Park.”36Accordingly, this
portion of the challenged regulations does not pass intermediate scrutiny.

DDA’s designation of' lodges as sensitive areas
does not pass intermediate scrutiny.

Similarly, the Agencies’ record does not demonstrate that designating the
lodge at Redden Forest as a sensitive area passes the required scrutiny.87 In fact,
the administrative record is devoid of evidence supporting that the lodge is a
sensitive area. Namely, as conceded at oral argument, there is no controlled entry
point for the lodge or even at the forest entrance point itself. Reservations are
accepted on line for self check-in Furthermore, there is not a gatekeeper shed
similar to the ones located at the camping areas This means that no visitors are
screened by security when they enter the Forest to stay in the lodge Moreover,
unlike in State Parks controlled by DNREC, DDA which controls the lodge and
administers the Forest, has no security staff that patrols the area. Finally, the

entrance to the Forest is a significant distance from the lodge, making it, at a

86 1d. at 63 8.
87 The regulations designate “lodges” as sensitive areas No lodge other than a lodge located
at Redden Forest has been identified by the parties however.

26

minimum, not a place providing easy access to law enforcement and emergency
personnel

In applying intermediate scrutiny, first, the important governmental
objectives when enacting the regulations that the Agencies refer to are once again
no more than a general safety concem. Second, there is no evidence of record that
these regulations would aid in this governmental objective As with camping
areas these regulations burden the fundamental right to self-defense more than is
reasonably necessary because the Agencies’ fail to justify in any way their
selection of the lodge as a sensitive area. Finally, the rulemaking record is devoid
of any evidence supporting that the lodge has (1) controlled entry points (2)
security screening or (3) easy access by law enforcement personnel For these
reasons the lodge is not an area akin to a school, court house or government
office that could qualify as a sensitive area. As with camping areas the Agencies’
designation of lodges as sensitive areas does not survive intermediate scrutiny.

Plaintiffs argued that the Agencies were not justified in designating cabins
as sensitive areas; since cabins are not identified in the regulations as
designated areas the Court need not address them.

Plaintiffs fairly raised challenges in their briefing to more than just
camping areas and lodges They initially challenged all of the designated areas
They also challenged cabins and other overnight accommodations that were not
specifically mentioned in the regulations At oral argument, Plaintiffs narrowed
their constitutional challenge to camping areas and lodges In doing so, they
conceded that areas such as bathhouses offices education centers and guarded
beach areas are appropriately deemed “sensitive.” Accordingly, the Court will
not address whether the Agencies’ decisions to designate them to be sensitive
areas survive intermediate scrutiny. Furthermore, with regard to cabins in State
Parks or Forests the Court will not address what has not been addressed in the

regulations

27

The Agencies’ regulations that permit identification and permit checks
without reasonable, articulable suspicion of illegal
activity are facially unconstitutional

Analyzing another portion of the newly promulgated regulations requires
consideration of the protections of the Fourth and Fourteenth Amendments to the
United States Constitution and Article l, Section 6 of the Delaware Constitution.
Namely, some of the challenged regulations permit automatic background checks
whenever requested by law enforcement officers The Plaintiffs challenge those
regulations and argue that this unfettered discretion infringes on State Park and
Forest visitors’ rights under the Fourth Amendment, Both Agencies promulgated
parallel regulations so they will be jointly addressed by the Court

First, DNREC promulgated the following regulation authorizing
identification checks as follows:

21.1.7 Any person possessing a firearm shall display identi-
fication upon request, sufficient to enable a law enforcement
officer to undertake a background check.88

Separately, DNREC also granted similar power to law enforcement officers
pursuant to the following regulation:

21.1.4 Delaware residents holding an active current permit to
carry a concealed deadly weapon may carry a firearm within
areas administered by the Division, including designated areas
provided that the permit shall be produced upon request
(emphasis added)89

DDA promulgated the following regulation identical to 21.1.7:

8.8.6 Any person possessing a firearm shall display identification
upon request, sufficient to enable a law enforcement officer to
undertake a background check.90

88 7 Del. Admin. C. 9201-21.1.7
89 7 Del. Admin. C. 9201-21.1.4
90 3 Del. Admin. C. 402-8.8.6
28

DDA likewise granted law enforcement officers parallel authority as provided
in its regulation identical to 21.1.4 above:

8.8.3. Delaware residents holding an active current permit to
carry a concealed deadly weapon may carry a firearm within
areas administered by the Department, including designated

areas provided that the permit shall be produced upon request
(emphasis added)91

Plaintiffs argue that sections 21.1.7 and 8.8.6 (as well as the clauses in 8.8.3
and 21.1.4 emphasized above) give law enforcement officers the ability to
demand that visitors “display identification upon request” and are therefore
unconstitutional on their face The Fourth Amendment, as incorporated through
the Fourteenth Amendment, guarantees the right of the people “to be secure in
their persons houses papers and effects against unreasonable searches and
seizures.”92 The purpose of the Fourth Amendment is “to safeguard the privacy
and security of individuals against arbitrary invasions by governmental
officials”93 Plaintiffs argue that since these regulations require no reasonable
articulable suspicion that the person to be searched committed a crime, they
authorize unconstitutional detentions

A facial challenge is an attack on a statute or regulation itself as opposed
to a particular application of that statute or regulation.94 To succeed in a facial
attack, Plaintiffs must show that “no set of circumstances exist under which the
[regulations] would be valid,”95 or that the regulations lack any “plainly
legitimate sweep.”96 A facial challenge to an act or regulation is the most difficult

challenge to mount successfully.97 The United States Supreme Court lias

91 3 Del. Admin. C. 402-8.8.3
92 U.S. Const. amend. IV.
93 Camara v. Municipal Court ofCity and County ofSan Francisco, 387 U.S. 523, 528 (1967).
94 City of Los Angeles, Calif. v. Patel, 135 S. Ct. 2443, 2449 (2015).
95 United States v. Salerno, 481 U.S. 739, 745 (1987).
96 United States v. Stevens, 559 U.S. 460, 472 (2010), (citations omitted).
97 Salerno, 481 U.S. at 745.
29

nevertheless permitted facial challenges to proceed under a diverse array of
constitutional provisions including the First Amendment, Second Amendment,
and the Due Process Clause of the Fourteenth Amendment,98

While mere police or law enforcement questioning does not constitute a
seizure for purposes of the Fourth Amendment,99 the regulations permit law
enforcement officers to do more than merely ask questions Under the challenged
regulations law enforcement officers can request any visitor to display his or her
identification or permit and then detain that visitor for a period of time sufficient
to conduct a background check. As the United States Supreme Court recognized
in Brown v. Texas, when an officer detains a person for purposes of requiring a
person to identify himself or herself, the officer has performed a seizure subject
to the requirements of the Fourth Amendment100 lt is termed an “investigatory
stop.” Since the visitor required to produce identification will be stopped “by
means of physical force or show of authority,” his or her liberty has been
restrained and a stop and a search for purposes of the Fourth Amendment

occurs.101

When law enforcement officers detain park visitors and require that
they produce identification or permits they perform a seizure of the visitor’s
person subject to the requirements of the Fourth Amendment because the Fourth
Amendment applies to “all seizures of a person, including seizures that involve
only a brief detention short of a traditional arrest.”102

These regulations give unfettered discretion to stop State Park and Forest
visitors question them and require identification without requiring a scintilla of
evidence of criminal activity. ln this regard, Delaware’s detention statute, 11 Del.

C. § 1902, recognizes two important components of search and seizure law. First,

98 Patel, 135 S.Ct. at 2449.
99 Florida v. BOStiCk, 501 U.S. 429, 434 (1991).
100 Brown v. Texas, 443 U.S. 47, 50 (1979).
101 Moore v. State, 997 A.2d 656, 663 (2010).
102 Brown, 443 U.S. at 50.

30

it recognizes the fact that a demand to produce identification constitutes a Terry
level detention 103 Second, its reference to the “reasonable grounds” requirement
to demand identification is equivalent to the requirement that an officer have
reasonable articulable suspicion of criminal conduct before requiring persons to
produce identification 104

A recent United States Supreme Court decision supports the Court’s
holding in a case where the Court found a facial challenge to an ordinance
authorizing warrantless searches to be appropriate105 In City of Los Angeles,
Calif v Patel, the Supreme Court found that a Los Angeles Municipal Code
provision facially violated the Fourth Amendment because it forced hotels to
maintain records of their guests and to make those records “available to any
officer of the Los Angeles Police Department for inspection” upon demand.106
When the Court applied the facially unconstitutional test to determine if the law
is unconstitutional in all of its applications it emphasized that it “considers only
applications of the statute in which it actually authorizes or prohibits conduct.”107
Thus when addressing a facial challenge to a statute that authorizes warrantless
searches the focus is only on searches that the law authorizes not those searches
for which the law is irrelevant i.e. searches that did not require a warrant in the

first place 108 ln that case, the Court held the municipal code at issue was facially

103 See ll Del. C. § 1902 (a) (providing that any person stopped based on an officer’s

reasonable ground to suspect that he or she is involved in criminal activity, must “give

identification” if requested, or be subject to further detention.).

104 Id_

105 Patel, 135 S. Ct at 2449.

106 1d. at 2447.

107 1d. at 2451.

108 1d. To illustrate their point, the Court used an example from Planned Parenthood of

Southeastern Pa. v. Casey, 505 U.S. 833 (1992). There “the Court struck down a provision of

Pennsylvania’s abortion law that required a woman to notify her husband before obtaining an

abortion Those defending the statute argued that facial relief was inappropriate because most

women voluntarily notify their husbands about a planned abortion and for them the law would

not impose an undue burden The Court rejected this argument, explaining: The ‘[l]egislation

is measured for consistency with the Constitution by its impact on those whose conduct it
3 1

unconstitutional because it violated the Fourth Amendment and that the hotel
owners must be “afforded an opportunity to have a neutral decision maker review
an officer’s demand to search the registry before he or she faces penalties for
failing to comply.”109

In the present case, a lower level of justification is needed for an
investigatory stop than the probable cause required for a warrant in Patel.
Nevertheless, the regulations at issue are similar to the municipal code examined
in Patel because the regulations give law enforcement officers in State Parks and
Forests the authority to stop individuals without reasonable articulable suspicion
of criminal activity. The Agencies allege that these regulations will only be used
by law enforcement officers when they observe a firearm within a designated area
and thus would have a reasonable articulable suspicion to ask for identification
Officers however, would have the right to do that without the regulation As
Patel makes clear with regard to facial challenges the Court need not look at the
circumstances in which a search is already authorized by sufficient evidence of
criminal activity, but at those where it is not. The searches that must be examined
are searches where there is not reasonable articulable suspicion of criminal
activity.

A final line of cases also support finding these regulations to be facially
unconstitutional Namely, a number of cases recognize that a law providing law
enforcement “unfettered discretion” to detain individuals violates the Fourth
Amendment Here, the regulations provide law enforcement this unfettered
discretion which in and of itself, makes them facially unconstitutional These
cases begin with the recognition that in Terry v. Ohio, the United States Supreme

Court held that to “[justify] the particular intrusion [of stopping and searching

affects The proper focus of the constitutional inquiry is the group for whom the law is a
restriction, not the group for whom the law is irrelevant”’ Casey, 505 U.S. at 894.
109 Patel, 135 S.Ct. at 2453.

32

someone on the street] the police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts

”110 Similarly, under Delaware law, a law

reasonably warrant that intrusion
enforcement officer may stop an individual if the officer has “reasonable ground
to Suspect” that the individual “is committing has committed or is about to
commit a crime, and may demand the person’s name, [and] address...”111
Germane to the challenged regulation the Delaware Supreme Court has held that
“questions concerning a suspect’s identity are a routine and accepted part of many
Terry stops” and that “it is well established that an officer may ask a suspect to
identity himself in the course of a Terry stop.”1 12

Separate from lawful Terry stops are stops made to perform identification
checks without reasonable cause ln Delaware v. Prouse, the United States
Supreme Court held that stopping a car on a public highway to check his or her
driver’s license and vehicle registration without probable cause or reasonable
articulable suspicion is unconstitutional.113 A regulation giving blanket authority
to a law enforcement officer in a State Park or Forest to demand identification
based upon the unfettered discretion of a law enforcement officer is likewise
unconstitutional

Unlike the stops authorized by the regulations at issue, checkpoint stops
are example of permissible administrative stops provided they are conducted
with procedures that eliminate unfettered law enforcement discretion In this
vein Delaware courts have that sobriety checkpoints do not violate Fourth
Amendment rights provided they meet certain neutral administrative

requirements because they do not occur at the “unfettered discretion of the police

110 Terry v. Ohio, 392 U.S. l, 21 (1968).
111 ll Del. C. § l902(a).
112 Mills v. State of Delaware, 900 A.2d 101, 2006 WL 1027202, at *2 (Del. Apr. 17, 2006)
(TABLE).
113 Delaware v. Prouse, 440 U.S. 648, 663 (1979).
33

officer in the field.”114 There is no such qualifying provision in the challenged
regulations that would check law enforcement’s unfettered discretion115 A law
enforcement officer with complete discretion to conduct searches “impinges on
[the] rights to be free from unreasonable searches under the Fourth
Amendment.”1 16
As a final note, absence of these regulations does not mean that law
enforcement personnel cannot enforce gun laws or gun related regulations in
State Parks and Forests Without the challenged regulations law enforcement
personnel will retain precisely the same authority to enforce both State gun laws
and State Park and Forest regulations as they would anywhere else in the State
Namely, without the challenged regulations upon reasonable articulable
suspicion that a Park or Forest regulation or State statute had been violated, a
Terry-stop level detention remains appropriate Law enforcement would then be
free to conduct an investigatory detention and then a separate extended detention
if so justified. Pursuant to these new regulations however, law enforcement
officers would have carte blanche authority to conduct background checks of all
park visitors at will. lt is in essence a “show me your papers” provision that
facially does not pass State or F ederal constitutional muster .
The Agencies’ regulations permitting DNREC and DDA to issue temporary
concealed carry permits are preempted by 11 Del. C. § 1448.
Plaintiffs also argue that the regulations enabling DNREC and DDA to

recognize out-of-state concealed carry permits for visitors of State Parks and

114 State v. Cook, 2013 WL 1092130, at *3 (Del. Super. Feb. 13, 2013).
115 C.f Doe, 88 A.3d at 668 (where the challenged WHA provision required “reasonable
cause” that a gun law or policy Was violated in order to justify an identification or permit
check, although the policy was deemed overbroad and thus unconstitutional on other
grounds).
116 State v. Faircloth, 1995 WL 465323, at *7 (Del. Super. Jul. 6, 1995).

34

Forests are preempted by statute The DNREC regulations outline this new
authority granted to DNREC as follows:

21.1.4 Delaware residents holding an active current permit to
carry a concealed deadly weapon may carry a firearm within
areas administered by the Division, including designated areas
provided that the permit shall be produced upon request
Residents of other states holding an equivalent permit or license
to carry a concealed firearm may be permitted to carry a
concealed firearm at the discretion of the Director.117

Similarly, the DDA regulation seeks to grant the following authority to DDA:

8.8.3 Delaware residents holding an active current permit to carry
a concealed deadly weapon may carry a firearm within areas
administered by the Department, including designated areas
provided that the permit shall be produced upon request
Residents of other states holding an equivalent permit or license
to carry a concealed firearm may be permitted to carry a
concealed firearm at the discretion of the Department.118

Plaintiffs argue that these regulations are unlawful because they are
preempted by statute The Court agrees Pursuant to ll Del. C. §1441(k), the
Attomey General has the sole authority to issue temporary concealed carry
permits and must issue those permits pursuant to the standards outlined in that
subsection Furthermore, the State official given sole authority to determine
which states receive reciprocity regarding concealed carry permits is also the
Attomey General.119 Thus this limited field is at a minimum impliedly
preempted by statute

Furthermore, Section 1441(a) of Title 11 of the Delaware Code clarifies
that licenses to carry concealed deadly weapons must be issued only upon certain

conditions Apart from these three-year licenses the General Assembly granted

117 7 Del. Admin. C. 9201-21.1.4 (emphasis added).
118 See 3 Del. Admin. C. 402-8.8.3 (emphasis added).
119 ii Dei. C. § 1444@).

35

the Attomey General the sole authority to issue temporary licenses for up to thirty
days lt is important to observe that notwithstanding a DDA or DNREC issued
temporary concealed carry permit, recipients of those permits would nevertheless
remain subject to prosecution for carrying a concealed deadly weapon in a State
Park or Forest Under State law with the challenged regulations intact, the
Agencies’ decisions to grant applicants permits based on reciprocity could also
easily conflict with the permits the Attomey General has already granted or
refused to grant.120 Although the Agencies intended for this part of the
regulations to expand rights regulations permitting them to recognize out-of-state
permits in a manner inconsistent with the decisions of the Attomey General are
unlawful Thus on state statutory law grounds these portions of the regulations
are preempted.

“Day pass” regulations are not preempted by any State statute.

Plaintiffs also challenge the legality of “day passes” that a new DNREC
regulation authorizes As opposed to the other regulations examined in this
Opinion there is no equivalent DDA regulation These passes would apply to
open carry rights in what are otherwise validly designated sensitive areas since
DNREC seeks to ban only open carry in non-designated areas The regulation
that Plaintiffs challenge provides:

21 .1 .2 The Director may grant written approval on a daily basis
for the possession of firearms within designated areas upon
written application showing good cause related to self-defense or
the defense of family, and due regard for the safety of others
within the designated areas.121

The Plaintiffs argue that these “day passes” are unlawfiil because the

Attomey General was granted the exclusive power by the General Assembly to

120 See 11 Del. C. § 1441(]') (setting forth the standards and proceedings to be employed by the

Attorney General in making reciprocity decisions as to out-of-state concealed carry permits).

121 7 Del. Admin. C. 9201-21.1.2 (no corresponding regulation in 3 Del. Admin. C. 402-8.8).
36

issue temporary concealed carry licenses to non-residents pursuant to ll Del. C.
§ 1441(k). However, this new regulation does not directly or impliedly conflict
with the Attomey General’s authority to issue and determine the reciprocity of
concealed carry permits in Delaware or its authority to issue temporary concealed
carry permits Rather, this regulation gives the Director the discretion to permit
open carry of firearms in areas that have been lawfully designated as sensitive
areas This regulation has not been preempted by statute and is therefore lawful
The unlawful portion of the regulations and the lawful portion
of the regulations are severable.

Both parties have requested that the Court examine the regulations line by
line When a regulation faces a constitutional challenge, “a Court may preserve
its valid portions if the offending language can lawfully be severed.”122 However,
if the remaining provisions cannot be implemented without the unconstitutional
or otherwise illegal provisions the Court must invalidate the entire scheme.123

Here, with the agreement of the parties and as independently determined
by the Court, the unlawful regulations can be severed so that the remainder of the
Agencies’ regulations remain in effect A number of the Agencies’ regulations
are valid and necessary for the orderly administration of Delaware’s Parks and
Forests ln this case, those that are not lawful can be effectively severed while
leaving the bulk of the scheme intact For clarity purposes the Court has included
as an Appendix to the Opinion a redlined copy of the regulations delineating
which regulations the Court declares to be unlawful and thus unenforceable

Conclusion
F or the aforementioned reasons the Court finds that the stricken portions

of the regulations as shown in the Appendix attached to this Opinion are unlawful

122 Doe, 88 A.3d at 669 (citing Farmers for Fairness v. Kent County, 940 A.2d 947, 962 (Del.
Ch. 2008)).
123 [d_

37

and unenforceable All other regulations examined by the Court are
Constitutional and are not preempted by Delaware statutes Consequently, the
parties’ cross motions for summary judgment are GRANTED in part, and

DENIED in part

/s/ Jeffrey J Clark
Judge

38

Appendix to Opinion of the Court

Challenged DNREC Regulations 7 Del. Admin. C. 9201-21.1

21.1 lt shall be unlawful to display, possess or discharge firearms of any
description air rifles B.B. guns sling shots or archery equipment within
designated areas administered by the Division, except with prior written approval

of the Director, or as set forth below.

21.1.1 Designated areas shall include park offices visitor centers nature
centers bathhouses restaurants and snack bars stadiums and facilities
while used for sporting events concerts and festivals museums zoos
stables educational facilities dormitories playgrounds eamping-areas
swimming pools guarded beaches and water parks and shall be identified

by appropriate signage.

21.1.2. The Director may grant written approval on a daily basis for the
possession of firearms within designated areas upon written application
showing good cause related to self-defense or the defense of family, and

due regard for the safety of others within the designated areas

21.1.3 Active duty and qualified retired law enforcement officers may

possess firearms within areas administered by the Division, including

designated areasrprevided-that_prepeiLaHd-eurreat-ereden%ials-shallbe
predaeed-uperi-request¢

21.1.4 Delaware residents holding an active current permit to carry a

concealed deadly weapon may carry a firearm within areas administered

39

by the Division, including designated areas,-previ€led-that-the-pei=mit-shall

ann n _¢. ». .
nu nn v

21 .1 .5 Firearms may be carried within areas administered by the Division,

outside of designated areas by any person not prohibited by 11 Del. C.
§1448.

21.1.6 Law enforcement officers may limit the discharge of firearms and

the use of other weapons within areas administered by the Division, in

order to protect public safety and preserve the peace

Challenged DDA Regulations 3 Del. Admin. C. 402-8.8

8.8 Target shooting is prohibited Firearms are allowed for legal hunting and are
otherwise prohibited within designated safe areas on State Forest lands except as

set forth below.

8.8.1 Designated areas shall include State Forest Offices education

Centers-and-lod-ges-and shall be identified by appropriate signage.

8.8.2 Active duty and qualified retired law enforcement officers may

possess firearms within areas administered by the Department, including

40

designated areas Previded-Eh&t-pfepeHHd-QMHI-He€lentiafs-SHHH-be
produced-aperi-i=equest-.

8.8.3. Delaware residents holding an active current permit to carry a

concealed deadly weapon may carry a firearm within areas administered

by the Department, including designated areas,-pi=ovided-that-t-he-pei=mit

nn » ¢.¢¢ -¢ .- n n n q . . ¢-¢¢
u' ' ¢-

8.8.4. Firearms may be carried within areas administered by the

Department, outside of designated areas by any person not prohibited by

11Del.C.§1448.

8.8.5 Law enforcement officers may limit the discharge of firearms and the

use of other weapons within areas administered by the Department, in order

to protect public safety and preserve the peace

41