One strike and out, in public housing

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.