Lawsuit hinges on apartment's justification for banning guns

AP News
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Posted: Nov 17, 2015 3:49 PM

PORTLAND, Maine (AP) — A lawsuit brought by a disabled former volunteer police officer in Maine who wants to keep a gun to defend himself could come down to how strong the justification is for banning guns in his subsidized apartment unit.

Dmitry Bam, a professor at the University of Maine School of Law, said some states ban gun ownership in government-run housing complexes, "and at least some of those have been upheld."

Harvey Lembo, who uses a motorized wheelchair, was warned by his property management company that tenants in his Rockland apartment complex are prohibited from having firearms after Lembo shot and wounded an alleged burglar. The 67-tear-old Lembo said he needs a gun for personal protection after a series of break-ins.

His lawsuit, filed Monday in Knox County Superior Court, accuses the landlord of violating the Maine Civil Rights Act, which bans parties from interfering with an individual's constitutional rights.

His lawyer contends his landlord violated his Second Amendment rights to bear arms. Stanford Management Co., operator of Park Place Apartments, hasn't returned messages seeking comment.

The U.S. Supreme Court upheld an individual's right to keep a gun in the District of Columbia v. Heller in 2008, but the court said "the right secured by the Second Amendment is not unlimited."

Key to the case is a determination that Lembo received subsidized housing because the constitutional protections tend to apply to government actions, not a private apartment complex, Bam said.

Even then, Lembo's case is not a slam dunk.

Courts have been examining such constitutional claims on a case-by-case basis, Bam said.

"I believe it will come down to how strong the justification is for banning guns in the building, and balancing those justifications with the plaintiff's need for a weapon for self-defense reasons," he said.

The shooting happened early on Sept. 1, just 12 hours after Lembo bought the gun after he'd been targeted five times by burglars seeking the prescription medication he uses for chronic pain.

According to the lawsuit, he shot Christopher Wildhaber when the alleged assailant lurched at him while he was dialing 911. Wildhaber survived being shot in the shoulder, and was charged with burglary and refusing to submit to arrest.

After the shooting, Lembo was warned that he could be evicted for violating the no-gun policy.

Lembo, a retired lobsterman and former volunteer police officer on Vinalhaven Island, contends he cannot move to a new home because there are few available subsidized apartments for low-income tenants. Therefore, the no-gun policy forces him to choose between forfeiting his constitutional rights "or lose his home," according to the lawsuit.