U.S. DEFENDS RIGHT TO EVICT DRUG USERS' HOSTS

In a test case of a national housing policy, a government lawyer says
authorities in Oakland must have the authority to evict tenants of
low-income public housing for any drug use by a household member or guest,
even if tenants were unaware of it.

Congress put no limits on local housing agencies' power to "rid themselves
of the scourge of drug activity" by evicting tenants for drug crimes by
anyone in the household, on or off the premises, Justice Department lawyer
Howard Scher argued Tuesday before an 11-judge panel of the 9th U.S.
Circuit Court of Appeals.

Some of the judges seemed skeptical.

"Suppose I had a guest who smoked a joint of marijuana an hour before (a
visit) or an hour after?" asked Judge Michael Hawkins.

What if the same guest flies across the country after the visit and smokes
marijuana in Yankee Stadium? asked Judge Stephen Reinhardt.

Suppose a disabled tenant hires a caregiver who, without the tenant's
knowledge, smokes marijuana in the parking lot? asked Judge Ronald Gould,
who uses a wheelchair.

In each case, Scher replied, federal law authorizes eviction and assumes
that local managers of federally subsidized housing can be trusted to act
humanely.

A lawyer for four elderly Oakland tenants urged the court to uphold a
federal judge's order barring the eviction of tenants who are unaware of
drug use by others in their household.

Federal law does not authorize eviction of innocent tenants - and, if it
did, it might violate the constitutional right to due process of law or
freedom of association, argued attorney Whitty Somvichian. One-strike policy

The Department of Housing and Urban Development's so-called one-strike
policy has been in effect since 1991 and applies to more than 3 million
tenants nationwide. It allows, but does not require, local housing
authorities to evict tenants for drug use by anyone in the household.

The court is the first federal circuit to review the policy and will decide
its legality in California and eight other Western states. A panel of the
court voted 2-1 in February to uphold the policy, but the full court set
the ruling aside last month and ordered a new hearing before a larger panel.

One of the Oakland tenants, Pearlie Rucker, 67, 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.

Willie Lee, 73, and Barbara Hill, 67, had grandsons who lived with them and
allegedly possessed marijuana in the housing project parking lot.

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

U.S. District Judge Charles Breyer ruled in their favor in 1998, saying
eviction of innocent tenants did not appear to be authorized by federal law
and would not discourage drug use. The four remain in their apartments
pending the outcome of the case. Eviction a severe remedy

Scher, the government's lawyer, acknowledged that eviction of unsuspecting
tenants was a "severe remedy" but said it was designed to "insure
appropriate, decent, safe housing" by encouraging tenants to keep drug
users off the premises.

Gary Lafayette, a lawyer for the Oakland Housing Authority, focused on the
case of Walker, who knew his caretaker had drugs in the apartment. If the
OHA has no power to evict him, "his apartment would become a safe haven for
criminal activity," Lafayette said.

But Judge Reinhardt quoted Walker as saying he fired the caretaker as soon
as he could find a replacement.

Somvichian, the tenants' lawyer, said the federal law does not refer to
eviction of innocent tenants and must be interpreted to include "some
reasonable limits," like awareness of drugs on the premises.