Court won't let HUD evict tenants based on relatives' drug use

AP 24jan01

SAN FRANCISCO -- A federal appeals court overturned a government policy Wednesday that let federal low-income housing providers evict tenants for the drug activities of family members -- even if the tenants were unaware of those activities.

An 11-member panel of the 9th U.S. Circuit Court of Appeals ruled that Congress did not authorize the Department of Housing and Urban Development regulation, which applied to more than three million low-income tenants nationwide.

A three-judge panel of the circuit had voted 2-1 in favor of HUD's 1991 policy, but the full court abandoned that decision after concluding ``Congress did not intend to authorize the eviction of innocent tenants,'' Judge Michael Daly Hawkins wrote for the 7-4 majority.

HUD officials declined comment and said they were reviewing the decision.

Housing advocates said they expected the government to ask the U.S. Supreme Court to review the ruling.

``This is a great victory for public housing tenants,'' said Whitty Somvichian, a San Francisco attorney for tenants who were evicted from an Oakland housing project for others' drug use.

The case reached the appeals court after U.S. District Judge Charles Breyer barred the Oakland Housing Authority from evicting four tenants in 1998 in one of the nation's first rulings against the HUD policy. Breyer said evictions of innocent tenants did not appear to be authorized by federal law and would not discourage drug crimes.

But a three-member panel of the appeals court said in February the policy was legal and aimed at ``preventing tenants from turning a blind eye to the conduct of a household member or guest.''

The court, in reversing itself, said Wednesday that the eviction policy was ``absurd'' because it punishes innocent people for crimes that they did not commit nor could they have prevented. The court said HUD, which provides subsidized housing to the poor, exceeded the scope of the federal law on drug-related evictions.

That law, passed in 1988 and a precursor to HUD's policy, 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 in 1991, HUD used similar wording but refused to exempt tenants who were unaware of the drug activity. In a dissent, Judge Joseph T. Sneed wrote Wednesday that Congress did indeed intend to ``permit such evictions.''

Gary T. Lafayette, the Oakland Housing Authority attorney, said the decision was a blow to public housing tenants, which the judges said live in ``illegal drug markets and war zones.'' Because of the decision, Lafayette said, drug activity would continue to flourish and ``the innocent will be at risk from criminal activity and children will be solicited to buy drugs.''

The four evicted tenants in the Oakland case had been allowed to keep their apartments as the legal wrangling continued.

One evicted 63-year-old woman's mentally disabled daughter allegedly had cocaine three blocks from the apartment, without her mother's knowledge. Two other tenants, aged 71 and 63, had grandsons who lived with them and allegedly had marijuana in a parking lot.

The fourth tenant was a 75-year-old disabled man whose caretaker allegedly had cocaine in the apartment.

The case is Rucker vs. Davis, 98-00781