EVICTIONS OVER DRUG ABUSE UPHELD

Court Stands By No-tolerance Rule In Public Housing

In a case watched by public housing officials and tenants across the
country, a federal appeals court ruled yesterday that the Oakland Housing
Authority can evict a tenant because of illegal drug use by a family member
or guest even if the tenant was unaware of it.

The ruling most immediately affects four elderly residents in Oakland
housing projects, who now face eviction from their longtime homes. But it
also frees housing authorities in the western states under the court's
jurisdiction to follow a similar hard-line policy against drug use.

The four tenants were evicted under a 1996 "one strike, you're out" policy
enacted by Congress that provides for the termination of a lease for a
low-income public housing resident for "any drug-related criminal activity
on or near the premises" by a tenant, "any member of the household or
another person under the tenant's control."

In essence, the divided appeals court said that "any" means all.

The court said that the plain language of the statute allows public housing
officials to evict innocent tenants regardless of whether they know about
the drug use of others, and that is what Congress intended.

Pearlie Rucker was ordered out of her home after her mentally disabled
daughter possessed cocaine three blocks away. Willie Lee and Barbara Hill
were given eviction notices after their grandsons, who live with them, were
caught smoking marijuana in the housing project parking lot.

The fourth tenant, Herman Walker, who is disabled and cannot live
independently, was ordered evicted after an in-home caregiver who came into
his home possessed cocaine and drug paraphernelia.

U.S. District Court Judge Charles Breyer in San Francisco issued a
preliminary injunction stopping the evictions. He ruled the federal law
"appears irrational" since tenants did not personally engage in drug use or
knowingly allow it to occur.

But Circuit Judge Diarmuid O'Scannlain, writing for the majority in the
2-to-1 decision reversing the injunction, said that while it is right to
consider the differing circumstances in individual cases, it is not a
matter for the courts to decide.

"We see arguments on both sides," O'Scannlain wrote, "but how we judges
might weigh competing policy considerations is irrelevant. Congress
entrusted these questions to (the U.S. Department of Housing and Urban
Development) and the local (housing authorities)."

Ira Jacobowitz, a lawyer for Oakland's Eviction Defense Center, said he was
surprised and disappointed by the decision.

"What is so devastating about the ruling is that unless we get further
relief from the federal courts, we will be faced with evictions in which
the housing authority doesn't even have to prove the tenant did anything,
only that the police allege something happened," Jacobowitz said.

Jacobowitz said he has not yet closely studied the decision and conferred
with his clients, so he isn't sure what action he will take.

Gary Lafayette, who represented the housing authority in the case, said the
ruling lifts a cloud that has hung over the federal policy, allowing
housing authorities to pursue tough antidrug policies.

He said the children, grandchildren and guests of tenants must now
understand that loved ones can suffer from their drug use.

Dissenting, Circuit Judge William Fletcher said the law leads to "absurd
results."

"If 'any' truly means 'all' without limitation, then Congress must also
have specifically intended that drug-related criminal activity could occur
at any time," meaning that if it happened, say, five years ago, a tenant
could still be evicted.