Pubdate: Tue, 19 Feb 2002
Source: Christian Science Monitor (US)
Copyright: 2002 The Christian Science Publishing Society
Contact:  http://www.csmonitor.com/
Details: http://www.mapinc.org/media/83
Author: Warren Richey

ONE STRIKE AND OUT, IN PUBLIC HOUSING

High Court Considers Legality of Evicting Residents for Relatives' Drug 
Offenses

Washington - A grandmother who has lived in a public housing project in 
Oakland, Calif. for 30 years is ordered evicted from her apartment. The 
action is taken not because the grandmother has done anything wrong.

Instead, she is losing her home because her grandson, unknown to her, 
smoked marijuana in the complex parking lot.

Barbara Hill is one of four public housing tenants in Oakland who were 
ordered out of their homes because of someone else's wrongdoing of which 
they had no knowledge.

Housing authority officials ordered the eviction of Ms. Hill and the others 
under a law passed by Congress to help fight the war on drugs. It says, in 
essence, that a tenant in public housing shall be evicted if the tenant, 
any member of the tenant's household, or any guest engages in drug-related 
criminal activity on or off the premises.

Today, the US Supreme Court will examine whether such evictions comply with 
the law as written by Congress, and whether the evictions in any way 
violate constitutional rights.

"It is a fundamental principle of fairness that our country is built on 
that you can't be held responsible for the acts of another person," says 
Anne Tamiko Omura, the Oakland lawyer who took up the four tenants' case.

Lawyers for the Oakland Housing Authority and the Department of Housing and 
Urban Development counter that there is nothing in the law that requires 
proof that a tenant had knowledge of others' drug offenses.

"The plain language of (the law) unambiguously authorizes eviction without 
regard to tenants' knowledge of the drug-related activity of guests," 
writes US Solicitor General Theodore Olson in his brief to the court.

The law, passed in 1988, is designed to create an incentive for public 
housing tenants to become foot soldiers in the war on drugs by forcing them 
to police their own families and guests. Congress noted at the time the law 
was written that many housing projects suffered from rampant drug-related 
or violent crime and that in some cases drug dealers were imposing a "reign 
of terror" on public housing tenants.

"The federal government has a duty to provide public ... housing that is 
decent, safe, and free from illegal drugs," the Congressional findings say 
in part.

Lawyers for the housing authority argue in their brief that public housing 
is a government benefit that should be given only to drug-free households 
willing to ensure they don't contribute to illegal drug activity.

"Many drug violators are afoot as guests or household members without the 
admitted knowledge of the responsible tenants. Yet, such tenants are very 
much part of the problem," writes Gary LaFayette in his brief filed on 
behalf of the Oakland Housing Authority. "They are harboring illegal drug 
activity, even if unwittingly," he says.

The brief continues: "Reallocating their units to equally deserving, needy 
but drug-free households will improve the habitability of the developments 
just as much as replacing those who violate drug laws personally."

Lawyers for the tenants say such public housing laws are unfair to the 
people housing authorities are supposed to be helping.

"It is a sentence of homelessness," says Ms. Omura. "For someone who is 
disabled and getting $700 a month, how do you find a place to live when you 
lose your subsidized housing?"

Of the four tenants, both Barbara Hill and Willie Lee, 71, were ordered 
evicted because their grandsons were caught smoking marijuana in the 
parking lot.

Herman Walker, a 75-year-old disabled man with a live-in caregiver, 
received his eviction notice because his caregiver and her guests were 
found with cocaine. Pearlie Rucker, 63, who has lived in public housing for 
17 years, was ordered out because her daughter was found with cocaine three 
blocks from the housing complex.

Lawyers for the tenants fought the evictions in federal court, arguing that 
the agency was applying the law in an unfair and unconstitutional manner.

A federal judge agreed, but was reversed by a divided federal appeals court 
panel. That panel was then reversed when the full Ninth US Circuit Court of 
Appeals in San Francisco heard the case.

The Ninth Circuit ruled 7 to 4 that the law doesn't apply to tenants who 
have no prior knowledge of the illicit drug activity. The judges said even 
though the law doesn't specifically outline a requirement of knowledge, the 
same "innocent owner" provisions that Congress enacted to protect unknowing 
property owners from government attempts to claim their property also 
applies to public housing lease holders.

Critics of this decision say it is an example of unelected appeals court 
judges replacing congressional policy judgments with their own. "Our system 
of checks and balances isn't meant to have judges second- guess the 
fairness of laws passed by Congress," says H. Joseph Escher III, a San 
Francisco lawyer who filed a friend-of-the-court brief for the Center for 
the Community Interest, supporting the housing authority.

In November, the Eleventh US Circuit Court of Appeals in Atlanta took up a 
similar case involving a single mother being evicted from a Tampa housing 
complex because her son was involved in a drug transaction. That court 
ruled that a tenant's lack of knowledge of her son's drug activity was not 
a defense to an eviction notice.

The US Supreme Court will resolve this split between the two appeals court 
circuits. The case, Housing and Urban Development v. Rucker, is expected to 
be decided by late June.
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