ONE STRIKE AND OUT, IN PUBLIC HOUSING

High Court Considers Legality of Evicting Residents for Relatives' Drug
Offenses

Washington - A grandmother who has lived in a public housing project in
Oakland, Calif. for 30 years is ordered evicted from her apartment. The
action is taken not because the grandmother has done anything wrong.

Instead, she is losing her home because her grandson, unknown to her,
smoked marijuana in the complex parking lot.

Barbara Hill is one of four public housing tenants in Oakland who were
ordered out of their homes because of someone else's wrongdoing of which
they had no knowledge.

Housing authority officials ordered the eviction of Ms. Hill and the others
under a law passed by Congress to help fight the war on drugs. It says, in
essence, that a tenant in public housing shall be evicted if the tenant,
any member of the tenant's household, or any guest engages in drug-related
criminal activity on or off the premises.

Today, the US Supreme Court will examine whether such evictions comply with
the law as written by Congress, and whether the evictions in any way
violate constitutional rights.

"It is a fundamental principle of fairness that our country is built on
that you can't be held responsible for the acts of another person," says
Anne Tamiko Omura, the Oakland lawyer who took up the four tenants' case.

Lawyers for the Oakland Housing Authority and the Department of Housing and
Urban Development counter that there is nothing in the law that requires
proof that a tenant had knowledge of others' drug offenses.

"The plain language of (the law) unambiguously authorizes eviction without
regard to tenants' knowledge of the drug-related activity of guests,"
writes US Solicitor General Theodore Olson in his brief to the court.

The law, passed in 1988, is designed to create an incentive for public
housing tenants to become foot soldiers in the war on drugs by forcing them
to police their own families and guests. Congress noted at the time the law
was written that many housing projects suffered from rampant drug-related
or violent crime and that in some cases drug dealers were imposing a "reign
of terror" on public housing tenants.

"The federal government has a duty to provide public ... housing that is
decent, safe, and free from illegal drugs," the Congressional findings say
in part.

Lawyers for the housing authority argue in their brief that public housing
is a government benefit that should be given only to drug-free households
willing to ensure they don't contribute to illegal drug activity.

"Many drug violators are afoot as guests or household members without the
admitted knowledge of the responsible tenants. Yet, such tenants are very
much part of the problem," writes Gary LaFayette in his brief filed on
behalf of the Oakland Housing Authority. "They are harboring illegal drug
activity, even if unwittingly," he says.

The brief continues: "Reallocating their units to equally deserving, needy
but drug-free households will improve the habitability of the developments
just as much as replacing those who violate drug laws personally."

Lawyers for the tenants say such public housing laws are unfair to the
people housing authorities are supposed to be helping.

"It is a sentence of homelessness," says Ms. Omura. "For someone who is
disabled and getting $700 a month, how do you find a place to live when you
lose your subsidized housing?"

Of the four tenants, both Barbara Hill and Willie Lee, 71, were ordered
evicted because their grandsons were caught smoking marijuana in the
parking lot.

Herman Walker, a 75-year-old disabled man with a live-in caregiver,
received his eviction notice because his caregiver and her guests were
found with cocaine. Pearlie Rucker, 63, who has lived in public housing for
17 years, was ordered out because her daughter was found with cocaine three
blocks from the housing complex.

Lawyers for the tenants fought the evictions in federal court, arguing that
the agency was applying the law in an unfair and unconstitutional manner.

A federal judge agreed, but was reversed by a divided federal appeals court
panel. That panel was then reversed when the full Ninth US Circuit Court of
Appeals in San Francisco heard the case.

The Ninth Circuit ruled 7 to 4 that the law doesn't apply to tenants who
have no prior knowledge of the illicit drug activity. The judges said even
though the law doesn't specifically outline a requirement of knowledge, the
same "innocent owner" provisions that Congress enacted to protect unknowing
property owners from government attempts to claim their property also
applies to public housing lease holders.

Critics of this decision say it is an example of unelected appeals court
judges replacing congressional policy judgments with their own. "Our system
of checks and balances isn't meant to have judges second- guess the
fairness of laws passed by Congress," says H. Joseph Escher III, a San
Francisco lawyer who filed a friend-of-the-court brief for the Center for
the Community Interest, supporting the housing authority.

In November, the Eleventh US Circuit Court of Appeals in Atlanta took up a
similar case involving a single mother being evicted from a Tampa housing
complex because her son was involved in a drug transaction. That court
ruled that a tenant's lack of knowledge of her son's drug activity was not
a defense to an eviction notice.

The US Supreme Court will resolve this split between the two appeals court
circuits. The case, Housing and Urban Development v. Rucker, is expected to
be decided by late June.