Court scrutinizes housing authority eviction policy

11/26/2001

In 1996, representatives of the Lucas Metropolitan Housing Authority and Toledo police stood proudly by President Clinton's side on the steps of the Capitol after he signed into law a “one-strike-and-you're-out” policy intended to push drug users out of taxpayer-subsidized apartments.

The authority had received national attention two years earlier when it adopted the policy, which has been credited with helping to turn the agency into one of the nation's top public housing operations.

But the one-strike policy that LMHA and officials across the country used to try to clean up drug-infested housing developments could be gutted depending on how a highly publicized case from California is decided by the U.S. Supreme Court.

The case involves a 63-year-old grandmother from Oakland, Calif., who was evicted from public housing when her daughter was caught with drugs three blocks from the complex. No evidence was presented to indicate that the grandmother, Pearlie Rucker, knew her daughter was using drugs.

The central issue is whether a tenant can be evicted even when he or she is unaware that a family member or guest is in possession of drugs. The right of public housing officials to evict leaseholders for using drugs is not being questioned.

“As a dad, I feel like I know what's going on in my house. So I think most people probably know what's going on,” said Larry Gaster, who took over in January as executive director of Lucas Metropolitan Housing Authority from Dennis Morgan, under whom the one-strike policy was adopted. Mr. Morgan left in December to join a private firm that advises public housing agencies.

Mr. Gaster said LMHA doesn't keep statistics on the number of people it has evicted for third-party drug possession cases, but he said the tough policy is an important tool to limit drug use in the public housing agency, which has about 10,000 tenants in 3,100 units.

“Taking that tool away, it will more than likely have an [undesired] effect,” agreed Toledo police Chief Mike Navarre, who remembers when officers assigned to public housing complexes responded to a steady stream of calls revolving around drugs and violent crimes.

As important as they think the one-strike rule is, the U.S. Ninth Circuit Court of Appeals in San Francisco says the policy goes too far because it allows for the eviction of people who don't know of the criminal wrongdoing of family members or guests whose names aren't on the lease.

In its opinion, the court said, “evicting the innocent tenant will not significantly reduce drug-related criminal activity in public housing, since the tenant has not engaged in any such activity personally or knowingly allowed such activity to occur.”

By the accounts given in court records, that's apparently what happened to Ms. Rucker, who had lived in public housing since 1985. She was evicted when her “mentally disturbed” daughter was found in possession of crack cocaine three blocks from the apartment.

Ms. Rucker said she regularly searched her daughter's room and never found any evidence of drug use, but she was still evicted under a policy championed by the U.S. Department of Housing and Urban Development.

HUD claims the Oakland housing authority was within its rights to evict Ms. Rucker based on the one-strike policy statute passed by Congress. The law states that “any drug-related criminal activity” on or off the premises by the tenant, a member of the tenant's household, or guest under the tenant's control is cause for eviction.

Based on the statute's legislative history, the 9th Circuit said it doesn't believe Congress intended for innocent leaseholders to be evicted. It said such a broad reading would mean that a tenant could be tossed out if his or her child was caught with drugs while on vacation across the country, which the court called an absurd and unjust consequence that Congress never intended.

HUD argues in its appeal brief before the Supreme Court that the 9th Circuit's decision would make it “difficult or impossible” for a housing authority to prove the tenant had knowledge of a family member's drug use. All the tenant would have to do to escape culpability is deny knowledge, the department notes.

Laura Garrett, LMHA's staff attorney, agrees with HUD's position and hopes the Supreme Court does too. She's been at the housing authority since 1994 and has seen the effect the one-strike policy has had in rooting out drug users from the LMHA.

Like Mr. Gaster, she said she finds it hard to believe that tenants don't know drugs are being used in or around their apartments.

“The feeble grandma who doesn't know what's going on - I don't buy it,” Ms. Garrett said.

LMHA has evicted tenants who claimed they weren't aware of drug use by others in their households, but she said the evidence in those cases didn't support those assertions.

She points to a case decided in June by the Ohio 6th District Court of Appeals in Toledo in which a woman initially claimed she had no knowledge that the father of her three children was keeping drugs in the apartment.

The woman later admitted at trial that she knew the father kept some drugs in her residence. This admission, combined with the fact that police found more than 2,000 grams of cocaine in her freezer and five bundles of marijuana in her kitchen, sunk her case in front of the court.

Susan Choe, supervising attorney for housing at Legal Services for Northwest Ohio, which has defended public housing clients who could not afford to hire their own attorneys, said the law is clear that a tenant caught with drugs should be evicted. But she said it's simply not fair to hold an innocent tenant responsible for drug use by a family member or guest that they simply didn't know about.

Just as unfair, she said, is holding the tenant responsible for family members under the tenant's control for their behavior away from the housing complex.

“If a kid gets caught at school with something, does that mean the whole family gets evicted?” asked Ms. Choe. “At least give legal services advocates the chance to prove the person is innocent.”

LMHA officials generally have allowed innocent tenants to stay in public housing as long as the offending family member or guest moves out, Ms. Choe said. Usually, mediation resolves the conflict before it goes to court.

Regardless of any flexibility LMHA may show, Jeffrey Gamso, a Toledo attorney who is vice president of the American Civil Liberties Union, said he hopes the Supreme Court upholds the 9th Circuit's ruling.

“I'm sympathetic, as I'm sympathetic to much of what the government wants to do. But the problem is that it's the wrong weapon,” Mr. Gamso said. “The collateral damage it causes is worse than the good it produces. What happens is that you have a lot of innocent people getting thrown out of their homes because they have some unfortunate family members or guests.”

Toledo Municipal Court Judge Allen McConnell, who handles housing cases for the court, said his reading of the statute is that LMHA has the right to evict as advocated by HUD and is backed up by the leases signed by the tenants that contain similar warning language.

However, he said he particularly disagrees with the section of the statute that gives housing authorities the power to evict tenants for behavior of family members away from the complex.

“I think that's absurd.”