Collateral Damage from the Drug War 

Elderly OHA tenants hope the US Supreme Court will allow them to stay in their homes.

A lawsuit that started as a standoff between the Oakland Housing Authority and four of its elderly tenants is now headed for the US Supreme Court. The court will determine the constitutionality of a federal policy that allows public housing residents to be evicted if their relatives or guests bring drugs onto public housing sites. Established in 1996 by the US Department of Housing and Urban Development (HUD), the "One Strike and You're Out" policy was a response to public housing administrators who were demanding a sharper tool to fight what they called drug dealers' "reign of terror" over their residents. But tenants' rights activists claim that the Oakland case illustrates a bizarre side effect of the One Strike policy that Congress never intended -- the eviction of innocent leaseholders for crimes in which they did not participate and did not even know had been committed.

Willie Lee and Barbara Hill are both elderly women whose grandsons were caught in Oakland Housing Authority (OHA) complex parking lots with marijuana. Herman Walker, also elderly and partially paralyzed, was cited three times by OHA for having houseguests in possession of cocaine and drug paraphernalia; once it was his health caretaker, and twice a female guest. Pearlie Rucker, the case's named plaintiff, was cited after her mentally disabled adult daughter was discovered several blocks from her apartment with cocaine. All four claimed to have had no knowledge of or control over the drug possession of their guests or relatives. In Walker's case, he fired his caretaker after learning about the drugs; in Rucker's case, she says she routinely checked her daughter's room for drugs and had never found evidence of them. In three of the cases, the drug offense was committed outside the leaseholder's apartment. Yet Lee, Hill, Walker, and Rucker all received eviction notices.

Originally filed in 1996, Rucker v. Davis (the named defendant is former OHA chief Harold Davis) has worked its way up through the courts, with the outcome seeming to favor a different side after every hearing. After the district court ruled in the tenants' favor in 1998, HUD and OHA filed an appeal. In February 2000, a three-judge panel representing the Ninth Circuit Court of Appeals then issued a ruling favorable to HUD and OHA. The tenants pressed on, requesting an en banc hearing before a larger panel. This January, eleven Ninth Circuit justices heard the case, and then ruled 7-4 in the tenants' favor, although the dissenting justices were vigorous in their disapproval. As a result of their ruling, HUD has suspended the One Strike rule in the nine western states under the Ninth Circuit's jurisdiction. In the meantime, OHA dropped its charges against Rucker after she asked her daughter to leave her home; the evictions of the three other plaintiffs have been stayed until the suit is finally completed.

Now, prodded by the Bush administration and a HUD administration loath to abandon the One Strike policy, Rucker v. Davis will go before the Supreme Court, with a decision likely to be handed down next summer. It's a turn of events that worries the tenants' legal counsel. After all, they worry, the Supremes agree to hear very few of the cases presented to them, and are unlikely to accept one in which they plan to merely affirm the ruling of a lower court. Worse, says attorney Ira Jacobowitz of Oakland's Eviction Defense Center, which has been representing the tenants, the current court lineup rarely upholds Ninth Circuit decisions.

The federal One Strike policy has its origins in the Anti-Drug Abuse Act of 1988 but didn't come into its own until 1996, when it was implemented as part of a larger HUD anticrime package that also boosted drug education programs and community policing and gave public housing authorities access to tenants' criminal records. One Strike has caused problems from the beginning and resulted in multiple lawsuits -- the Oakland case is just the first to get such a high-profile hearing. In writing the majority opinion, Ninth Circuit Justice Michael Hawkins dryly described the policy as "not a model of clarity." Among the most pressing questions it has raised: How much control does a resident have over guests and family members? Who should be evicted -- just the offender or everyone on the lease? How does HUD draw the distinction between truly oblivious tenants and those who simply turn a blind eye toward criminal actions? The disagreement over the culpability of noncriminals evicted via the One Strike rule is evident even in the Ninth Circuit justices' word choice: The majority justices refer to them as "innocent tenants," the dissenting justices refer to them as "ignorant tenants."

However, while One Strike gives each local public housing authority (PHA) the right to evict, they are not required to evict and are free to choose more lenient methods of dealing with drug-related problems. "The name 'One Strike' appears to be saying that if you commit one act that's wrong you're out, and that's not necessarily the case," says Timothy Kaiser, executive director of the Washington, DC-based Public Housing Authorities Directors Association (PHADA). "Each housing authority has some latitude in terms of how they structure their eviction policy."

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