HUD'S DRUG RULE OVERTURNED

Appeals Court Says 'One-Strike' Policy Evicts Tenants Unfairly

Saying Congress never intended to drive innocent people from their homes, a
federal appeals court overturned the government's "one-strike" policy,
which let public housing authorities evict tenants for drug activity they
knew nothing about.

Yesterday's 7-to-4 ruling in an Oakland case invalidates the policy in
California and eight other Western states. Nationwide, more than 3 million
low-income residents of federally funded housing live under the rules
adopted by the Department of Housing and Urban Development in 1991.

Those rules allow, but do not require, local housing authorities to evict
tenants for illegal drug activity by any household member or guest, on or
off the premises. HUD says the rules apply no matter when or where the
wrongdoing took place; government lawyers told the court a relative's
possession of a marijuana cigarette 3,000 miles away would be enough.

"Tenants should take some level of responsibility for making sure their
friends or family aren't engaging in drug-related conduct," said Whitty
Somvichian, lawyer for four elderly Oakland tenants who challenged their
eviction orders. "HUD's policy goes far beyond that, and provides for
eviction even when tenants can show they've taken every reasonable step
within their power."

Eviction for those tenants is often "a sentence of homelessness," said Anne
Omura, managing attorney at the Eviction Defense Center in Oakland.

But Gary Lafayette, lawyer for the Oakland Housing Authority, said allowing
tenants who deny knowledge of drug use to avoid eviction would hurt
children who "want to play in public housing without the threat of violence
connected to drugs." Even if the tenant is lying, it's often hard to prove,
he said.

HUD spokeswoman Donna White said the department would not comment until it
had studied the ruling. HUD, led by newly confirmed Bush appointee Mel
Martinez, can appeal the ruling to the Supreme Court and was virtually
invited to do so by the court's dissenting judges.

"It is HUD, and not this court, that can best determine what is reasonable
in the context of the public housing drug crisis," said Judge Joseph Sneed,
writing for the dissenters. He said a broad eviction policy would
discourage drug use, encourage tenant vigilance and still allow local
authorities to make humanitarian exceptions.

But the majority, led by Judge Michael Hawkins, said HUD's policy went
beyond the bounds of federal laws passed in 1988 and 1990 that authorized
evictions for household drug use.

"Imposing the threat of eviction on an innocent tenant who has already
taken all reasonable steps to prevent third-party drug activity could not
have a deterrent effect," and might also be unconstitutional, Hawkins said.

He said the law, though "not a model of clarity," should be interpreted to
allow evictions only when the tenant knew about the drug activity or should
have known about it.

The San Francisco-based court is the first appellate panel to rule on the
legality of the policy.

The four Oakland tenants included Pearlie Rucker, 67, who faced an eviction
order because her mentally disabled daughter allegedly possessed cocaine
three blocks from her apartment. Rucker said she had monitored her
daughter's activities and searched her room but knew nothing of her alleged
drug use.

After the suit was filed in 1996, the Oakland Housing Authority dropped its
case against Rucker. Lafayette, the authority's lawyer, said Rucker had
addressed the problem by removing her daughter from the household.

Two other tenants, Willie Lee, 73, and Barbara Hill, 67, had grandsons who
lived in their apartments and allegedly possessed marijuana in the housing
project parking lot.

The fourth tenant, Herman Walker, 78, a disabled man, was ordered out after
being notified three times that his in-home caretaker possessed cocaine in
his apartment.

He said he fired the caretaker as soon as he could find a replacement, and
argued that his eviction for the caretaker's drug use would violate
disability-rights laws.

U.S. District Judge Charles Breyer ruled in the tenants' favor in 1998 and
issued an injunction prohibiting the OHA, which has about 5,000 residents,
from making drug-related evictions without proof that the tenant was aware
of the illegal activity.