Volume 18, Number 6
Strict Liability in Public Housing?
By Barclay Thomas Johnson
Should a Public Housing Agency (PHA) be allowed to evict "innocent" tenants for third-party criminal activity on a strict-liability or no-fault basis? This article argues that 42 U.S.C. § 1437(d)(l)(6) does not authorize "one strike" or strict liability evictions. Rather, § 1437d(l)(6) should be interpreted to contain either a fault, knowledge, or foreseeability requirement or an innocent tenant defense. Such an interpretation avoids absurd results, gives effect to congressional intent, and makes the civil forfeiture laws and § 1437d(l)(6) work as a "harmonious whole."
President Clinton introduced the "one strike" policy in his 1996 State of the Union Address. However, the policy was based on existing laws. The statute governing the "one strike" policy was enacted as part of the Anti-Drug Abuse Act of 1988. As amended, it requires that a public housing lease shall provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or 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.
The federal civil forfeiture laws are also important. The Anti-Drug Abuse Act of 1988, which enacted § 1437d(l)(6), also amended the civil forfeiture laws to permit the forfeiture of leasehold interests. This amendment was designed to combat drug crime in public housing. However, unlike § 1437d(l)(6), the civil forfeiture laws have always provided an innocent owner defense.
HUD initially promulgated regulations based on § 1437d(l)(6) in October 1991. Amended rules took effect June 25, 2001. The vast majority of "one strike" cases proceeded under these initial regulations found at 24 C.F.R. § 966.4(l)(2). HUD's new regulations made changes to the rules regarding eviction from public housing for criminal activity largely through its definitions of the people involved. Overall, the substance of the rule changed little.
Interpretations of § 1437d(l)(6) have taken two distinct routes. HUD's position holds that the statute and related regulations allow no-fault evictions and impose strict liability on tenants. The other position holds that § 1437d(l)(6) requires fault, knowledge, or foreseeability on the part of the tenant being evicted.
No-fault evictions. Some courts have concluded that under § 1437d(l)(6), drug use or criminal activity by a household member, guest, or a person under the tenant's control "is cause per se for termination of a [tenant's] lease." However, such cases can be readily distinguished.
For example, in Minneapolis Public Housing Authority v. Lor, the Minnesota Supreme Court reversed lower court rulings barring Mai Lor's eviction for her 17-year-old son's off-property criminal acts. However, the Minnesota Supreme Court based its decision on Minnesota's unlawful detainer statute, which limits the court's role to merely determining whether the facts are true-that is, whether the tenants materially breached the lease. Lor's precedential value is largely confined to jurisdictions that have similar unlawful detainer statutes.
Similarly, in Ann Arbor Housing Commission v. Wells, the tenant's eviction was affirmed even though "there [wa]s no evidence that the tenant knew or should have known of the illegal drug activity...." Wells is bad law because it is based solely on the Ninth Circuit's panel opinion in Rucker v. Davis, which was later vacated.
HUD's interpretation. HUD's interpretation of § 1437d(l)(6) is important because it reveals that the agency has been inconsistent in its interpretation of the statute. HUD, it seems, has taken three positions. In 1991, when it promulgated the regulations governing § 1437d(l)(6), it argued for a strict liability interpretation. In 1996, when the policy was promulgated, HUD softened its stance and admitted that fault or knowledge are elements of an eviction under § 1437d(l)(6). Today, HUD essentially maintains that it has the ability to evict anyone from public housing for any association they might have with criminal activity. The fact that HUD's view has changed several times means that under I.N.S. v. Cardoza-Fonseca, "[a]n agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is 'entitled to considerably less deference than a consistently held agency view.'" Hence, a reviewing court is fully able to decide the scope of § 1437d(l)(6) for itself.
Fault, knowledge, or foreseeability. The remaining arguments in favor of a fault, knowledge, or foreseeability standard or an innocent tenant defense concern the text of § 1437d(l)(6), its legislative history, and how the civil forfeiture laws inform an interpretation of the statute.
The primary controversy is whether a "plain meaning" reading and consequent strict liability interpretation should prevail. In Rucker v. Davis, the Ninth Circuit, sitting en banc, expressly considered the text. It thought the text did not resolve the matter because the statute did not "address the level of personal knowledge or fault that is required for eviction, or even make it clear who can be evicted." However, the Ninth Circuit did hold that HUD's strict liability interpretation, was infirm.
In the end, the Ninth Circuit held that § 1437d(l)(6) does not permit the eviction of tenants who take reasonable steps to prevent criminal activity but, "for lack of knowledge or other reason, could not realistically exercise control over the conduct of a household member or guest." The holding did not rely solely on the text and also considered the legislative history and civil forfeiture laws.
Legislative history. Most courts considering "one strike" evictions have examined § 1437d(l)(6)'s legislative history. In Rucker v. Davis and Charlotte Housing Authority v. Patterson, the courts relied, in part, on a 1990 Senate report to resolve the question of whether innocent tenants may be evicted for third-party criminal activity. The Rucker court noted that "Congress specifically rejects the notion that the PHA's discretion is so broad that it extends to the eviction of innocent tenants. These reports are very clear that such evictions would not be appropriate, and that in such circumstances good cause to evict would not exist."
A strict liability interpretation of § 1437d(l)(6) is also, conflicts with civil forfeiture laws designed and used to combat similar problems. The two provisions should, as the Ninth Circuit observed, be interpreted consistently so that they "fit...into a harmonious whole." Though both the "one strike" policy and civil forfeiture statutes were designed to fight drug activity in public housing, their application has led to different results. For instance, in United States v. Leasehold Interest in 121 Van Nostrand Ave., the district court held that the public housing tenant could invoke the innocent owner defense even though the tenant's daughters were involved in serious criminal activity (police found 35 vials of crack cocaine on the premises). Thus, the tenant avoided forfeiture because she had no knowledge of her daughters' criminal activities.
In contrast, another tenant was unable to avoid losing her leasehold through a "one strike" eviction after her daughter's acquaintance brought drugs into the apartment, hid them in a shoebox, and made at least one sale while the tenant was away. The eviction was upheld despite testimony from the owner of the drugs that neither the tenant nor her daughter knew the drugs were in the apartment, despite the tenant's testimony that she was unaware her daughter's acquaintance was involved in drug activity, and despite the fact that the tenant was "an exemplary tenant."
These two provisions, which both seek to deprive public housing tenants of their leaseholds as a consequence of criminal drug activity, should not offer different protections for innocent public housing tenants. Construing § 1437(d)(l)(6) to require an element of knowledge or an "innocent tenant" defense is consistent with basic rules of statutory construction, which suggest that two provisions of a statutory scheme should be interpreted consistently as "a harmonious whole."
A narrowly tailored innocent owner defense is a workable alternative to strict liability and will not inhibit a PHA's attempts to remove wrongdoers from public housing. In Massachusetts, state law provides that public housing tenancies may not "be terminated without cause." In Spence v. Gormley, the Supreme Judicial Court of Massachusetts held that "[w]e read § 32 to provide a limited protection against termination when special circumstances, not present in these cases, indicate that the tenant could not have foreseen the violence or taken steps to prevent it." Cases such as Gormley, where both tenants were evicted for failing to control the repeated racially motivated attacks of their children, show that the defense is a workable source of protection for tenants that does not weaken a PHA's ability to evict problem tenants.
When dealing with evictions from public housing for third-party criminal activity, § 1437d(l)(6) should be interpreted by courts to contain either a fault, knowledge, or foreseeability requirement, or an innocent owner defense. Such an interpretation is necessary to avoid absurd results, to give effect to congressional intent, and to make the civil forfeiture laws and § 1437d(l)(6) work as a harmonious whole.
Barclay Thomas Johnson is a third-year law student at Indiana University School of Law-Indianapolis.
This article is an abridged and edited version of one that originally appeared on page 234 of the Journal of Affordable Housing and Community Development Law, Spring 2001 (10:3).