Innocent But Still Guilty Enough To Be Evicted?

“Many of our nation’s poor live in public housing projects that, by many accounts, are little more than illegal drug markets and war zones. Innocent tenants live barricaded behind doors, in fear for their safety and the safety of their children. What these tenants may not realize is that, under existing policies of the Department of Housing and Urban Development (“HUD”), 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 or took all reasonable steps to prevent the activity from occurring (“innocent tenants”).”

n Rucker v Davis (Court of Appeals, en banc)

Solutions to problems arising from poverty, illegal drugs, crime, and other related areas are seldom easy. The threats these blights on society bring are as harsh if not harsher than the visceral emotions they raise. Therefore, a federal law dealing with public housing that provides “any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy,” seems legitimate. If a tenant in government subsidized housing allows illegal drug use (other violent criminal activity also comes under this general rule) or takes part of such use him/herself, the tenant is breaking the law and threatening the safety of the housing development. But what if the tenant does not know a member of the household is using drugs? And let’s say s/he actually does; is such a potential “one strike and your out” law good policy or even constitutional?

Four residents of public housing made a challenge of the law, all of whom were senior citizens, and long-term tenants. Two had grandsons caught smoking pot in the parking lot, one had a mentally ill daughter (a couple other children lived their as well) who were caught with a cocaine nearby, and the final person had a caregiver found more than once to be using cocaine inside the apartment. This last person also raised an Americans with Disabilities Act claim. The first three claimed to not have known about the drug use, and if anything made efforts to prevent such activity. The fourth was unable to survive without aid, and had limited “control” over the drug use of those who took care of him. Overall, the argument was that they were innocent tenants, so it was unjust to evict them. They also argued the law, properly interpreted, and so protected them. Finally, sundry other issues were raised, including the right to association and protection from excessive fines.

The district court partially agreed. The court of appeals did not, but on reargument, the full court also agreed. The United States Supreme Court (unanimously) did not. The lower courts gave the issue extended discussion; the US Supreme Court dealt with it in a few conclusionary pages. Now, putting aside the fact that the case arose from the Ninth Circuit (one the Court has a habit of overturning), this cursory handling of a policy that potentially evicts whole families from public housing because of the actions of one member of which the primary tenant might have no way of knowing about is just a tad outrageous. The fact it was done without dissent was equally upsetting. A proper respect of fairness, the needs of poor families, and basic constitutional values demands more than the Court offered. Three of the people involved actually in the end got to stay in their homes, but what of those not so in the public eye or open to public sympathy?

Now, the tenants and appellate court did argue the law could be read to protect “innocent tenants,” as in tenants who reasonably are not at fault (unless strict liability is put in place, which it ultimate was) for those who illegally used drugs. Part of argument was that the public housing law as a whole included protections from “unreasonable” provisions and for “innocent tenants” in other areas. Is it reasonable, so the argument goes, to assume it deters tenants to require strict liability, when many don’t know about the illegal drug use, or make various efforts to prevent it? Well, strict liability would encourage more effort and make enforcement easier, though there is no way to prevent all illegal drug use, especially since the policy covered use outside the apartment. The reading at any rate was debatable, and common policy in such cases is to give the benefit of the doubt to those who carry out the law. This gives a lot of power to those who have to carry out some vague and open-ended laws, but that is how things work these days.

There also was an attempt to suggest the wording of the law was a bit more ambiguous than one honestly can make it. The law covers a “public housing tenant, any member of the tenant’s household, or a guest or other person under the tenant’s control.” Does “under the tenant’s control” only modify “other person” or all that precedes it? If it modifies all three categories (member of household, guest, or other person), an argument can be made that someone whose guilt the tenant isn’t aware of is not “under the tenant’s control.” So, an important issue can boil down to the meaning of the word “or.” Furthermore, the law says, “such criminal activity shall be cause for termination of tenancy.” The tenancy of whom? Arguably, these are interesting questions, but again, surely a reasonable interpretation would be that the tenant is responsible for all whom live, visit, or (separate category) are under his/her control. Also, termination for all who reside in the unit is also a reasonable interpretation. Under the so-called “Chevron” doctrine, this is enough.

There is one more reason to accept the tenant’s argument. The original law did not have House or Senate reports that explained the purpose of the law in detail. An amendment to the law however did have a Senate Report, which noted “eviction would not be the appropriate course if the tenant had no knowledge of the criminal activities of his/her guests or had taken reasonable steps under the circumstances to prevent the activity.” Even if this was just meant to provide guidance, it surely suggests the Supreme Court was wrong to say there was an “absence of statutory ambiguity,” when said guidance goes against current HUD policy!

Nonetheless, all of this interpretative gymnastics were not just done out of liberal concern for the poor, though this alone as a policy (or even equal protection) matter is arguably sound. The reason it was done was that the alternative was a constitutionally dubious statute that deprived innocent people of their home, which seems a violation of basic fairness. The Supreme Court gave such concerns short shrift, but if they are properly respected, stretching the law makes more sense. Furthermore, even if the law cannot be properly stretched to fit it, constitutional and policy concerns make the policy unsound. The ultimate question is does the ends (cutting down drug related crimes) justifies the means (strict liability of tenants)?

The Supreme Court spent most of its opinion criticizing (at times, nearly ridiculing) the appeal (and indirectly the district) court’s statute interpretation. Nonetheless, it did note that: “strict liability maximizes deterrence and eases enforcement difficulties” and a tenant (even one without knowledge of the crime) who cannot control drug crime is a threat to other members of public housing. Even if we assume this to be true, penalizing innocent people because it might protect the public at large is not something usually thought as just. Requiring search warrants, fair and public trials, equal treatment, no cruel and unusual punishments, and any number of other basic constitutionally based procedures lessens “deterrence” and burdens “enforcement,” but is held to be necessary to uphold freedom and to prevent error and injustice. Such protections do not suddenly disappear when those involved live in public housing.

The government might subsidize public housing, housing that often leaves something to be desired. Nonetheless, it remains home to those who live there, and the courts have given more protection when “the right is so fundamental as the tenant’s claim to his home … even [if] it be in the slums” (Lindsey v Normet, Justice Douglas, dissenting). The home and the sanctity of family live is at the heart of the concept of “one man’s home is his castle,” as well as the privacy respected by the Fourth Amendment. An amendment, which in particular protects “the right of the people to be secure in their … houses.” Obviously, “houses” is not read literally, or the government would be able to ransack rented rooms, trailers, and other living areas at will. Furthermore, the fact the home in particular was protected from invasion shows that a higher degree of respect is needed than usual for it to be invaded. Finally, not only the physical area of one’s home is involved here. Ultimately, the courts have honored “the private realm of family life” (see, for instance, the often cited dissenting opinion of Justice Harlan in Poe v Ullman).

The family is not only respected as an aspect of home life, but as an important association required to fully enjoy various constitutional liberties. The right to association (pushed aside as applied here by the Supreme Court in a brief footnote) has especially been seen as an important aspect of First Amendment freedoms, including freedom of speech and religion. The importance of family life in education, morals, and general instruction is obvious. Furthermore, poor families like the ones at issue here are especially important to band together to survive in desperate circumstances, to try to provide a sense of equal opportunity or at the very least security is trying conditions (see, for instance, Justice Douglas concurring in US Dept. of Agriculture v Moreno [unrelated poor] and Justice Brennan concurring in Moore v City of East Cleveland [grandparent taking caring of children]). The importance of a home, a bit of property of their own (even if partly or fully subsidized by the state) is necessary to hold this association together. To put it in constitutional terms, an assurance such property is deprived in a “due” matter, that is, that “due process” is followed, is essential.

Property itself is protected from unfair seizure, even aside from the family life affected from such seizure. The Supreme Court has protected individuals from losing their homes via civil forfeiture laws that require strict liability when property, even without the owner’s knowledge, was used for crime. It is true by bare 5-4 vote (Bennis v Michigan) the Court allowed the seizure of a married couple’s car, even though the wife did not know her husband used it for the crime of prostitution. Aside from the fact the ruling was unjust (innocent wife penalized for husband’s misdeeds), it is rather different from the situation here. For one thing, the trivial nature of the loss (half of the value of a second hand car, a value almost equal to the court expenses) and the fact one of the owners did use it to commit a crime makes it different from this case. A secondhand car is not a home, and the leaseholders here had no part in the crime.

The Supreme Court argued that a lease is not equivalent to the property interest protected in the “innocent owner” forfeiture law cases. Therefore, the constitutional prohibition of excessive fines (including fines for not doing anything wrong) does not apply. Nonetheless, their very wording shows the flaw of their reasoning: “And termination of tenancy is neither a cash nor an in-kind payment imposed by and payable to the government.” The loss of an important government benefit surely is a type of “in-kind payment.” “In-kind” means “like” and “payment” means “giving over what is required.” As noted in Goldberg v Kelly, an important case protecting the right not to have welfare benefits removed without a hearing: “such benefits are a matter of statutory entitlement for persons qualified to receive them. Many of the most important of these entitlements now flow from government: subsidies to farmers and businessmen, routes for airlines and channels for television stations; long term contracts for defense, space, and education; social security pensions for individuals.” This “new property” can’t be removed willy-nilly, or deprived only when poor people are the ones getting it. The government cannot hand out benefits without respecting important constitutional demands. In this, regardless of what the Supreme Court suggests in this case, they are not like the typical landlord or businessman.

Nor does it make a lot of sense to consider the government a typical landlord. Yes, those who move into public housing signed contracts that included the “strict liability” requirement involved here. Let’s put aside the fact that the average public housing resident might not have fully understood a requirement that two levels of federal courts misinterpreted (at least in the eyes of the US Supreme Court). The tenant surely is not on par with the usual tenant who signs such a contact; s/he clearly is under some compulsion to sign, having much fewer alternatives to said housing. Also, a tenant in housing comparable to most public housing would usually have more protection from eviction. Leases generally do have some kind of “threat to other residents” component to them, but one breach of the law (a breach that could be off the property) by a fellow resident of the apartment or even a guest would usually not be enough. Furthermore, lesser penalties such as evicting the person truly at fault or putting the tenants on alert that further trouble might lead to eviction are available.

It is true that in the desperate situation in some public housing units, strict liability might be useful. How useful is debatable. The dissent in the appeals decision quoted the suggestion that “Once tenants realize that they can rejoin the fight against drug dealers without fear of retaliation, we will have achieved an important victory.” How evicting innocent tenants truly does this is unclear. Will the dangerous thugs involved not threaten those that inform on say a drug using son of an innocent tenant, who cannot be removed without some proof of guilt? The point being that even if we make it easy for certain enablers to be evicted, there has to be some evidence (which requires investigation, help of those who fear retaliation, etc.) that someone is guilty of a crime to begin with. And just how broad of a net should we throw here? Why evict just innocent grandmothers and not neighbors who might just be more aware and useful to the criminals? After all, some of these neighbors might be less worthy of our concern than those who are making an honest effort to care for themselves and their families.

Finally, there is the ultimate question of proportionality, that is, balancing the punishment to the crime. The courts seem to have a hard time even calling depriving tenants of their homes because of the crimes of others punishment at all. Nonetheless, penalizing people for their actions (or inactions) seems to me punishment in everything but name. Whatever one wants to call it, the proper balance at stake here much take into consideration the important values at stake as well as the ends being sought. I think it is evident that the security of poor families is not exactly helped when we discourage family members and other concerned individuals from taking in people in need of assistance, including their adult children and grandchildren. This is surely the message being sent here, if no matter how innocent one is, they will lose their home of many years for the crimes of others. It adds insult to injury that some of these people, often older and having trouble caring for even themselves are often not given proper support when it is needed. Such assistance might cost more than throwing them out in the street, but it seems just a tad more just.

Furthermore, why the need to kick them all out? Why can’t the government remove only the troublemakers? After all, if the government evicts the innocent tenants, they will just have to live so place else, and theoretically be a danger there as well. Perhaps more so, since they now are liable to be more bitter after being removed from their home, even though they didn’t do anything wrong. Is their inability to totally prevent their wards and guests from breaking the law even once proof they are “wrong,” or at least justly liable? Perhaps, if it is just to penalize people for the fact that the world is not a perfect place, especially when you live in public housing. Public housing tends to be by its very nature somewhat dangerous; evicting innocents for acts beyond their control just makes it even more dangerous for them. Finally, even if sacrificing innocent tenants to retain the peace is sometimes justified, one doubts depriving sixty-year-old tenants because their family members were caught smoking marijuana off the property is quite what we should have in mind. Ultimately, this case shows just how extreme the drug war is taken, regardless of what essential rights of some of its victims is threatened.

Drugs don’t necessarily change matters, even when government money is involved. For instance, Gov. Bush lives in subsidized housing in Florida; the fact his daughter was charged with fraudulently obtaining prescription drugs didn’t mean he lost the right to live there. How about President Bush, whose daughters broke alcohol laws? Not the same thing? How about a private homeowner who has a government subsidized home mortgage or some other kind of government benefit? If his/her child, or even the person him/herself breaks drug laws said benefit is not lost. Is not the symbol of public servants following the laws and the source of the demand for drugs worthy of our concern? Governor Bush has requested for "the public and media to respect our family's privacy during this difficult time so that we can help our daughter." Such respect and reasonableness should also be in place in public housing.

Someone might agree with me on policy grounds, but still argue that the courts could only interpret the laws as they are given. It is quite true that the ultimate responsibility for the law here is Congress, who passed it and did not clarify the “innocent tenant” issue, even when lower courts gave conflicting views. Nonetheless, more than policy issues are at stake here. Depriving the property rights of innocent tenants is a violation of core values of constitutional fairness. Furthermore, by doing so, it inflicts a type of penalty and fine in an excessive matter, while threatening constitutionally protected values such as the sanctity of the home and family life. These liberties are surely important enough that the courts should go out of its way to read statutes broadly to protect them, or even overrule those that do violate them. Such was what two sets of lower federal courts did in this case via rulings that reasonably interpreted the statutes and respected the constitutional demands involved.

The housing regulation involved here was past with good intentions. It is arguably a valid interpretation of public housing law. Nonetheless, the ends do not justify the means. The threat of violence and crime to families in public housing is real, but the solution is not to inflict a different form of threat to some residents. The lower courts used a somewhat creative reading of the law, but the Supreme Court used their own creative reading of the protections of the Constitution to deny that the law was unjust. Ironically, the brother (Justice Breyer, who excluded himself from the Supreme Court’s decision) of one of the lower court judges suggested five years ago that the eviction of tenants from public housing under terms like these raise serious questions of whether a government benefit is being deprived fairly [the essay can be found in the book Reason & Passion]. In my opinion, it clearly does. As a matter of social policy as well as constitutional demand, depriving innocent tenants because of the crime(s) (often trivial ones, especially given the penalty demanded) of others is misguided and unjust. It surely deserves more respect than the brief unanimous opinion the Supreme Court supplied.

Note: An opinion piece in accord to this essay can be found at http://writ.news.findlaw.com/dorf/20020403.html, which also links those interested to the full rulings appellate rulings of this case, as well as to Goldberg v Kelly. The Findlaw site itself can be found at http://www.findlaw.com, and supplies links to the other cases cited here as well the Constitution and analysis of how the Supreme Court interpreted its provisions. Another good article that is dubious about the policy is found at http://www.salon.com/mwt/feature/2002/04/10/eviction_risk/. Actually, a Google search pops up articles that are mostly against the ruling, but one that supports it can be found at http://www.city-journal.org/html/eon_3_29_02hh.html. As usual, other essays by me can be found at https://www.angelfire.com/ny3/mythoughtsdotrules/tlinks.html.