COURT BATTLE ON DRUG EVICTION RULES

HUD Policy Allows Tenants To Be Thrown Out Even If They Don't Know About
Violation

In a test case of a controversial federal housing policy, low-income tenants
in Oakland will get another chance to persuade a federal appeals court that
their rights would be violated by eviction because a household member
possessed drugs without their knowledge.

The U.S. 9th Circuit Court of Appeals announced Friday that a majority of
its judges had voted to reconsider a panel's ruling in February upholding
the Department of Housing and Urban Development's drug eviction rules. The
rules, in effect since 1991, apply to more than 3 million tenants of
federally funded housing nationwide.

"We're enormously encouraged," said attorney Ira Jacobowitz of Oakland's
Eviction Defense Center, which represents four elderly tenants fighting
their evictions.

"The courts have an obligation to step in and tell Congress that it can't
pass a law like this, housing authorities can't enforce it and tenants
shouldn't be thrown out because of the acts of somebody outside their
control."

Gary Lafayette, lawyer for the Oakland Housing Authority, declined comment.

HUD's so-called one-strike policy allows, but does not require, local
housing authorities to evict families if a household member or guest is
involved in illegal drug activity, on or off the premises and with or
without the tenant's knowledge. Is the policy legal?

The rehearing before an 11-judge panel, not yet scheduled, will determine
the legality of the policy in California and eight other Western states in
the nation's largest appellate circuit. Lawyers said no other federal
appeals court has considered the issue.

The four Oakland tenants all denied consenting to drug use by household
members.

Pearlie Rucker, 63, faced an eviction order because her mentally disabled
daughter allegedly possessed cocaine three blocks from her apartment,
without Rucker's knowledge. Willie Lee, 71, and Barbara Hill, 63, had
grandsons who lived with them and allegedly possessed marijuana in the
housing project parking lot.

The fourth tenant, Herman Walker, 75, a disabled man, was ordered out after
twice being notified that his in-home caretaker possessed cocaine in the
apartment. All four tenants remain in their apartments pending the outcome
of the case.

U.S. District Judge Charles Breyer ruled in their favor in 1998, saying
evictions of "innocent" tenants did not appear to be authorized by federal
law and would not discourage drug crimes.

But an appeals court panel ruled 2-1 in February that the government could
authorize evictions regardless of a tenant's knowledge of drug use.

Requiring housing agencies to prove that a tenant knew or should have known
about illegal drug activity "would hamstring (agencies') efforts to rid
public housing of the crime and violence with which low-income families must
cope on a daily basis," said the opinion by Judge Diarmuid O'Scannlain.

O'Scannlain, joined by Judge Joseph Sneed, said the policy had the
legitimate goal of "preventing tenants from turning a blind eye to the
conduct of a household member or guest." "Punishes innocent people'

In dissent, Judge William Fletcher said the eviction policy exceeds the
scope of federal law and "deprives innocent people of property that was not
involved in any crime and punishes innocent people for crimes they did not
commit and could not prevent."

A 1988 federal law said drug-related crimes on or near public housing
property by a tenant, a household member or a "guest or other person under
the tenant's control" were grounds for eviction.

In adopting regulations that implemented the law in 1991, HUD refused to
exempt tenants who were unaware of the drug activity.