Legal Affairs: Oakland Tenants' Case

SUPREME COURT JUSTICES TOUCHY ABOUT DRUGS

The Supreme Court unanimously allowed housing authorities in Oakland last
week to evict low-income tenants for drug activity they knew nothing about.
A year ago, the court -- in another unanimous ruling, also from Oakland --
barred distribution of medical marijuana to seriously ill patients. The
justices also appear ready to expand drug testing of students not suspected
of drug use.

Is the court moving to the front ranks of the war on drugs?

Don't jump to conclusions, say legal analysts who have studied recent cases
and can cite evidence to the contrary.

"They do not have a uniform response to drug-related disputes," said Rory
Little, a professor at the University of California's Hastings College of
the Law in San Francisco.

He and others noted that the court, in its 2000-01 term, ruled against
police roadblocks on a city street to search cars for drugs; rejected
mandatory drug testing of pregnant women for law enforcement purposes; and
refused to allow the warrantless use by police of a thermal scanner on the
exterior of a house to detect marijuana growing inside.

In the previous term, the justices refused to let police squeeze the bags
of public transit passengers for evidence of drugs.

In trying to gauge the court's direction, it's not as simple as just saying
"this is a drug case" -- and therefore the government wins, said Jesse
Choper, a professor at the University of California at Berkeley's Boalt
Hall School of Law. Perhaps, he said, "the justices identify with
roadblocks, but they don't identify with housing developments."

"The closer you get to the Supreme Court, the more sensitive they become,"
said Little, noting that the only time the court has found random drug
testing unconstitutional was when it was directed at judges and legislators
in Georgia.

The court is "highly sensitive to the threat of drugs . . . especially in
places where there are children," like schools and housing projects, said
Douglas Kmiec, dean of the Catholic University School of Law in Washington,
D.C.

At the same time, Kmiec said, the justices are unwilling to let the war on
drugs disrupt an everyday activity, like downtown driving, "in ways that
are counter to the freedom of travel Americans expect as a matter of right."

Still, the four elderly Oakland tenants who lost Tuesday's ruling were only
the latest in a long line of Americans whose claims of individual rights
before the nation's highest court lost out to the government's power to
fight the scourge of narcotics.

The list in the last two decades includes Native Americans smoking peyote
for ritual purposes, high school athletes who objected to drug testing,
drivers stopped on pretexts for minor traffic violations and air travelers
who fit "drug courier" profiles.

"For the last 20 years, the Supreme Court has been tremendously deferential
to the government in drug cases. This (eviction) case is the most recent
manifestation," said Erwin Chemerinsky, a University of Southern California
law professor.

The justices' attitudes were on display March 19 in arguments over an
Oklahoma high school's drug testing of students involved in extracurricular
activities, an expansion of the testing of athletes previously approved by
the court. A ruling is due by the end of June.

American Civil Liberties Union attorney Graham Boyd, representing a choir
singer and her parents, was reproached by Justice Anthony Kennedy, who said
no parents -- except possibly Boyd's clients -- would want to send their
children to a "druggie school."

At another point, Justice Antonin Scalia asked Boyd, "You think life and
death is not an issue in the fight against drugs?"

Likewise, Chief Justice William Rehnquist began Tuesday's ruling in the
eviction case quoting Congress about drug dealers' "reign of terror" in
public housing projects. But the terse 10-page opinion was notable for its
cool, clinical tone and the virtual invisibility of the Oakland tenants who
challenged their evictions.

Lower court rulings had included the tenants' stories to illustrate what,
in their view, was an absurd eviction policy: Pearlie Rucker, 63, whose
mentally disabled daughter was caught with cocaine three blocks away;
Willie Lee, 71, and Barbara Hill, 67, whose grandsons were arrested for
smoking marijuana in a nearby parking lot; and Herman Walker, 75, a
partially paralyzed man whose caretaker hid crack pipes in Walker's apartment.

The lower courts ruled in their favor, saying such tenants -- who had no
knowledge of the drugs, had tried to keep drugs out of their apartments and
posed no threat to their neighbors -- could not have been the intended
targets of the federal law in question. That 1988 law allowed public
housing authorities to evict tenants for drug crimes by household members
and guests.

The Supreme Court ruling mentioned the tenants only once and noted that
they had signed leases allowing the Oakland Housing Authority to evict them
in such cases.

Rehnquist said he saw nothing absurd or unconstitutional in enforcing the
leases since a tenant who can't control drug-using household members is a
menace to the entire project.

Hastings' Little said the court was ignoring reality in concluding that the
tenants had any control over the terms of their leases.

"The idea that these HUD clients, the poorest of the poor, have any
negotiating power is an example of the Supreme Court living in an ivory
tower, " he said.

But John Dwyer, Boalt Hall dean and, like Little, a former Supreme Court
clerk, said the court wasn't to blame for the harsh result of the case.

"It's Congress that enacts these draconian laws," he said. "To many people,
including myself, the way (lawmakers) deal with it is heavy-handed -- but
heavy-handed is not the same as unconstitutional."