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."

But tenants' advocates claim that a stricter reading of the rule, like the one endorsed by HUD and OHA in the suit, gives very little recourse to evictees. "In reality, this is a 'No Strike' policy to the extent that if the housing authority believes that some sort of criminal activity is going on, the tenant is not given a chance. You don't get one strike. They immediately move to evict," says Catherine Bishop of the Oakland-based National Housing Law Project, which filed an amicus brief on behalf of the tenants. In the Oakland case, the tenants contend that their evictions were clearly contrary to the intent of the Anti-Drug Abuse Act. "We will not assume that Congress intended an odd or absurd result," wrote Hawkins in the majority opinion. "We need look no further than the facts of this case for an example of the odd and unjust results that arise under HUD's interpretation."

Although constitutional issues were not raised at the district or Ninth Circuit level, Hawkins also wrote that the Supreme Court might be about to open another can of worms -- does penalizing innocent tenants by depriving them of their property interest (i.e., their apartment lease) "run afoul" of their right to due process under the Fourteenth Amendment? The tenants think so. "Is it constitutional to punish someone for something they didn't participate in and had no knowledge of? At a common-sense gut level, every single one of us would say 'No,'" says Eviction Defense Center executive director Anne Omura. "We're hoping everyone will set their politics aside and see this for what it is, that it's eating away at the Constitution."

But in this case, the government argues that it needs protection, too. As dissenting Ninth Circuit justice Michael Sneed wrote, "If the government is to act as a landlord, the Constitution must permit it to act as a prudent one." It's already well-established that private-sector landlords have the right to get rid of tenants who deal drugs or cause other problems. "If you participate in that conduct and live in a private residence, then you can be evicted," says Gary Lafayette, the attorney for OHA. "What HUD and OHA is asking for is nothing more than what private landlords already have." That includes the right to be selective. "The basic premise is that public housing is not a right; it's a privilege and it's a scarce resource," says Kaiser. "There are waiting lists with thousands of names of people waiting to get into public housing around the country. Therefore, if you commit crimes or individuals who reside with you commit crimes, you're going to be evicted, and then we will open up that resource to a family that is waiting for affordable housing."

Lafayette also points out that HUD and OHA have a duty to prevent harm to neighboring residents -- harm that might result from drug traffic on public housing premises. "The only thing the housing authorities are looking for in this is to provide safe and decent housing to those who don't engage in these kinds of activities, and to provide the same opportunities for living situations that are available to individuals who don't live in public housing," he says. Does the One Strike policy really work as a deterrent to drug-related crimes? It's hard to say. HUD, which does not comment on cases currently in litigation, was unable to furnish any statistics showing whether or not drug activity or police response to drug-related offenses on public housing sites has decreased over the five years the policy has been in place. However, Kaiser says that in preparation for the Supreme Court hearing, for which PHADA intends to file an amicus curiae brief in support of One Strike, he's been conducting a survey of PHA directors, and the preliminary results show that they think it works.

Tenants' rights advocates, however, say that One Strike can't possibly work as a preventive measure because it penalizes good tenants along with bad ones, and doesn't ensure that the next family to move in will behave any better. "[HUD] wrongly believes that this is a way to rid housing of drugs and criminal activity, but evicting innocent tenants does nothing," says Bishop. "As a matter of fact, it puts tenants in a situation where they're afraid to reveal any activity in their homes or address the issue because they know the moment they say anything, the housing authority could move to evict them."

It's undisputed, however, that one statistic the One Strike rule has been very good at inflating is the number of drug-related evictions from public housing complexes. According to a HUD survey completed in 1997, in the six months before One Strike went into effect, PHAs nationwide had performed 2,698 drug-related evictions. In the six months after One Strike, that figure shot up to 3,794. In that same time period, the number of people barred from admission to public housing due to criminal or drug-related activities doubled. While it could be argued that the PHAs are simply preventing future problems, some impute a financial motivation for their actions. Hawkins points out in his ruling that local housing authorities are awarded "points" toward federal grants if they increase the number of evictions for drug-related crimes. "If they show that they're evicting people for what they perceive as drug-related offenses, then the federal government gives them more money," says the Eviction Defense Center's Jacobowitz. "There's no attempt to correlate that number of increases in evictions with the elimination of drugs."

In the meantime, Rucker v. Davis is one of those strange cases in which both sides claim to essentially have the same interests at heart -- the well-being of public housing residents. How the Supremes will manage to break the draw is still anyone's guess.

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