Convict, prohibited from having gun, in civil suit vs. victim
By RANDALL CHASE
Associated Press
01/28/2006
DOVER -- Anthony Higgins was driving along U.S. 113 in Sussex
County three years ago when a bullet from a high-powered rifle
shattered the windshield of his car and slammed into his head.
The shot was fired by Benjamin Walls III, a felon prohibited from
carrying a firearm but nonetheless allowed under Delaware law to
obtain a hunting license.
Walls, 37, has a string of felony convictions dating to at least
2001, when he was sentenced to probation after felony convictions for
possession of a deadly weapon by a person prohibited and terroristic
threatening.
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While awaiting trial on charges stemming from the January 2003
wounding of Higgins, Walls was charged and convicted of felony
marijuana possession. In November 2003, he was sentenced in the
hunting incident to 10 years for assault and five years for possession
of a firearm during the commission of a felony.
Higgins, who narrowly escaped death, is suing Walls and other
members of the hunting party, as well as the plumbing supply store
that sold Walls a hunting license despite his failure to present proof
of required hunter education training.
Meanwhile, state officials say they have no idea how many hunting
licenses have been sold to other people prohibited from possessing
guns.
"I think it's a dangerous situation, and the state should do
whatever it can to protect the public," said Richard DiLiberto, an
attorney and former state legislator who is representing Higgins.
Following the incident in which Higgins was wounded, Gov. Ruth Ann
Minner signed a bill sponsored by Sen. Robert L. Venables, D-Laurel,
that provides immunity from civil suits to licensing agents unless the
plaintiff can show "gross or wanton negligence."
In an August ruling dismissing the owners of the land upon which
Walls and his companions were hunting as defendants in the lawsuit,
Superior Court Judge Joseph Slights wrote that "the parties appear to
agree that Walls was ineligible for licensure because he was a
convicted felon."
But, DiLiberto said, that's not the law. Nothing in the Delaware
code prohibits Walls or any other felon from getting a hunting
license.
"In Delaware, it's not illegal for you to buy a license because
you're a felon," said James Graybeal, director of enforcement for the
Division of Fish and Wildlife. "The breaking of the law comes when you
are carrying a firearm when hunting, because that's against the law."
"Some of the police agencies, they can't understand why we sell a
license to a felon, and I try to make them understand that we don't
have the technological infrastructure set up to not allow it,"
Graybeal added.
Delaware is not the only state that allows felons to obtain hunting
licenses.
An Associated Press investigation of Montana records found that at
least 660 felons on parole or probation received tags in the past year
that would allow them to hunt with rifles or shotguns. In Florida, a
game officer was killed by a felon hunting with a gun.
Graybeal said he understands why some people might question the
practice of allowing felons to buy hunting licenses.
"It makes sense," he said. "Why would somebody buy a hunting
license if you can't possess a firearm?"
The state Attorney General's Office has taken no position on
whether the statute should be changed.
"This is a Fish and Wildlife issue, not a criminal issue," said
Janice Fitzsimons, a spokeswoman for the state Department of Justice.
"If Fish and Wildlife are interested in coming up with a procedure ...
we would provide their legal guidance, but as far as taking a stand on
it, it's basically a Fish and Wildlife issue."
While allowing license vendors such as bait and tackle shops and
outdoor supply stores to check the state's criminal offender database
could alert officials when a felon tries to get a license, Graybeal
noted that criminal history information is protected under state
privacy laws.
"In my mind, there's no sense in having a law that you can't
enforce," said Pat Emory, director of the state Division of Fish and
Wildlife, which issued 18,510 hunting licenses in 2004.
Benjamin Walls III was sentenced to prison after he shot a driver
in the head on a 2003 hunting outing.
Copyright © 2006 2006, The News Journal.
