[Hpn] Circuit Court of Appeals Boots HUD's Drug Eviction Policy
Thu, 25 Jan 2001 10:30:23 -0700
Circuit Boots HUD's Drug Eviction Policy
By Jason Hoppin
January 25, 2001
The 9th U.S. Circuit Court of Appeals on Wednesday struck down federal
regulations allowing local housing authorities to evict tenants whose
friends and family engage in drug activity, even if the tenants know nothing
of the crime.
A seven-judge majority on the sharply divided en banc panel ridiculed the
one-strike-and-you're-out policy as "odd" and "absurd" in holding that 1988
congressional reforms aimed at making public housing safer for law-abiding
tenants could not be interpreted to effect the eviction of so-called
"Innocent [public housing] tenants live barricaded behind doors, in fear for
their safety and the safety of their children," wrote Judge Michael Daly
Hawkins. "What these tenants may not realize is that, under existing
policies of the Department of Housing and Urban Development, they should add
another fear to their list: becoming homeless if a household member or guest
engages in criminal drug activity on or off the tenant's property, even if
the tenant did not know of or have any reason to know of such activity."
Six judges joined Hawkins to form the majority, while Judges T.G. Nelson,
Barry Silverman and Ferdinand Fernandez joined Judge Joseph Sneed in
"If the majority believes HUD's construction of the statute is
unconstitutional, it should say so," growled Sneed in a 30-page dissent.
"However, when this court rewrites legislative enactments and ignores the
considered judgment of executive agencies -- based on nothing more than the
majority's understanding of what is 'reasonable' or 'absurd' -- it is this
court that has overstepped constitutional limits."
Rucker v. Davis, 01 C.D.O.S. 675, was brought by four elderly tenants of the
Oakland Housing Authority whose guests or relatives were found with drugs
and/or drug paraphernalia. OHA initiated evictions against all four, but
U.S. District Judge Charles Breyer issued a preliminary injunction.
Wednesday's decision affects not only the 5,000 tenants of the OHA, but
those living in public housing throughout the West. The disputed lease
provision is written into the housing contract of every HUD-assisted tenant
in the country.
Once the court finished a long discussion about when the 9th Circuit can
reach the merits of a case during an appeal of a preliminary injunction,
judgment turned on whether the 1988 statute was ambiguous enough to be
interpreted differently than HUD did.
Sneed argued vigorously that it could not, while Hawkins wrote that it
"The statutory provision does not expressly address the level of personal
knowledge or fault that is required for eviction, or even make it clear who
can be evicted," Hawkins wrote.
Even, Hawkins wrote, if an examination of the legislative history of the
statute didn't support the tenants' lawyers' interpretation, the court would
reach the same result on different grounds.
"It is well established that we will not assume Congress intended an odd or
absurd result," Hawkins wrote. "We need look no further than the facts of
this case for an example of the odd and unjust results that arise under
The eviction of Pearlie Rucker, a 63-year-old grandmother whose daughter was
found with cocaine three blocks from her apartment, was dropped during the
course of the litigation. The other three plaintiffs are Willie Lee, 71, and
Barbara Hill, 63, facing eviction because their grandsons were caught
smoking marijuana in the apartment complex parking lot, and Herman Walker, a
disabled 75-year-old man whose caregiver and guest were found with drugs.
HUD interpreted provisions of the 1988 Anti Drug-Abuse Act to mean that any
tenant whose relative, guest or any other person otherwise under the
tenant's control who was found to be engaged in criminal drug activity on or
off the property could be kicked out.
Particularly irksome for the majority both in Wednesday's opinion and at
oral argument was the notion that a violation occurring off HUD property --
with seemingly no geographic limitations -- could trigger an eviction. That
forms the basis of the court's ruling that the statute, as interpreted, is
A family could be evicted, Hawkins wrote, "if a tenant's child was visiting
friends on the other side of the country and was caught smoking marijuana,
even if the parents had no idea the child had ever engaged in such activity
and even if they had no realistic way to control their child's actions 3,000
A lawyer for the OHA, Lafayette & Kumagai's Gary Lafayette, said that idea
has no basis in reality. Lafayette and Department of Justice lawyer Howard
Scher stressed at oral argument that the statute leaves discretion up to
local housing authorities.
Lafayette said Wednesday that the government and the OHA have not decided
whether to pursue the case further, but that, spurred on by a dissent by
Sneed which cries for judicial restraint, "a writ to the Supreme Court is a
very real possibility."
Similar cases are being litigated in both state and federal courts in other
parts of the country, with varying results. But none have reached as high as
a federal appeals court.
"I think it's a great victory for public housing tenants," said Whitty
Somvichian, an associate with Cooley Godward, handling the case pro bono. "I
really think the court went out of its way to hit all the issues."
Somvichian estimates nearly 3 million people live in HUD housing across the
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