National Housing Law Project Housing Law Bulletin

Maryland Housing Authority's Trespass Policy Enjoined

A strict trespass policy adopted by the Fredrick Maryland Housing Authority (FMHA) in order to fight a perceived drug dealing problem was preliminarily enjoined recently by a federal district court as impermissibly excluding many potential guests of residents. Diggs v. Housing Authority of the City of Fredrick, 67 F.Supp.2d 252, 1999 WL 988,969 (D. MD. July 15, 1999).

FMHA adopted the policy in 1992. Using the local police department as its agent, the authority cited non-residents who were on any housing authority property "without apparent legitimate reason." Once cited, a person was subject to arrest for trespassing without further warning if seen on the same property again even if visiting a resident. FMHA maintained a log of all persons cited indefinitely and, while having adopted a procedure for residents to remove a visitor’s name from the log, written notice of the procedure had not been distributed to residents until 1998 and the decision to actually remove a person from the log was in the unfettered discretion of the authority’s director.

Two residents of FMHA and several guests brought an action in 1998 to enjoin the policy on the grounds that it was unconstitutional and in violation of the Housing Act of 1937. Subsequent to the preliminary injunction hearing, but before the court’s ruling, the resident plaintiffs were evicted from their apartment. The plaintiffs filed a motion to amend the complaint to add an additional resident plaintiff. The housing authority opposed the motion, contending that the former residents lacked standing to continue to challenge the policy, thus rendering the case moot and precluding the joining of additional plaintiffs. In addition, the authority sought to dismiss the plaintiffs’ Housing Act claim altogether on the basis that the plaintiffs could not maintain a cause of action under Section 1983 for the authority’s violation of the Housing Act.

Ruling on the plaintiffs’ motion to amend, the court found in plaintiffs’ favor. While it agreed with the authority that the original resident plaintiffs no longer had standing to challenge the policy, it did not agree that the case was moot. The court found that the guest plaintiffs had a legally cognizable personal interest in the preliminary injunction motion and that the former resident plaintiffs retained an interest in their damage claims against the authority. Thus, the court concluded that the case was not moot and that it was not prohibited from permitting the addition of a new resident plaintiff on jurisdictional grounds(1). Moreover, the court rejected as insubstantial the authority’s claim that joining a new plaintiff after the preliminary injunction hearing would cause it undue prejudice. It reasoned that the salient facts with respect to the plaintiff’s challenge of the policy, namely that she is a resident and that her guests are subject to the trespass policy, were not challenged by the authority, that the primary issue at the preliminary injunction hearing was the validity of the trespass policy under the Housing Act and Constitution, and that all the evidence presented at the hearing was relevant to the new plaintiff.(2)

The court also rejected the authority’s motion to dismiss the Housing Act claim. Under that claim the plaintiffs alleged a cause of action under 42 U.S.C. §1983, for the authority’s alleged violations of the Housing Act and its implementing regulations allowing for guests in their homes. The authority contended that no cause of action existed under the Housing Act for failure to permit guests who have violated a trespass policy to enter upon its property. Analyzing the scope of a Section 1983 cause of action, the court found that it imposes civil liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution or laws, including federal laws, so long as the federal statute creates enforceable rights, privileges or immunities and Congress has not foreclosed enforcement of the statute. Relying on Wright v. City of Roanoke Redev. and Hous. Auth.(3), the court concluded that Congress has not foreclosed individual suits under Section 1983 for violation of the Housing Act. Thus, the court narrowed the issue to whether the Housing Act and its implementing regulations confer upon the residents a "right" to have guests visit them in the plaintiffs’ public housing apartments.

In addressing the question, the court followed the Supreme Court’s tripartite analysis, set out in Blessing v. Freestone(4), to determine whether [1] Congress intended the statutory provision to benefit the plaintiffs; [2] the right assertedly protected by the statute is not so vague and amorphous that its enforcement would stain judicial competence; and [3] the statute unambiguously imposes a binding obligation on the state. It found that Congress intended to benefit residents of public housing when it enacted 42 U.S.C. § 1437d(1)(2), which prohibits the inclusion of unreasonable terms and conditions in public housing leases. It further found that HUD’s interpretation of the statue, requiring housing authorities to "reasonably accommodate the resident plaintiffs’ guests," 24 C.F.R. § 966.4(d)(1), is a valid interpretation of the statute entitled to deference and that it prohibits public housing authorities from unreasonably interfering with tenants’ ability to entertain guests in public housing.(5)

Next, the court concluded that the term "reasonable," while permitting more than one type of guest policy, is not vague and ambiguous and is sufficient for the court to determine whether the trespass policy is unreasonable. Lastly, it found that HUD’s inclusion of the word "shall" in the regulations requiring for reasonable accommodation of tenants’ guests makes the regulation mandatory rather than precatory. Thus, the court concluded that the plaintiffs stated a private cause of action under Section 1983 for violation of the HUD regulations.(6)

Turning to plaintiffs’ motion for a preliminary injunction, the court found that the plaintiffs were substantially harmed by the trespass policy because it is a virtual

"permanent bar to a tenant’s right to invite a guest into her home, no matter how close a friend or relative that potential guest might be. Under the policy, all persons who have been issued a trespass citation, whether correctly or incorrectly, are indefinitely prohibited from returning to Housing Authority property even if a tenant personally escorts them from the public sidewalk into the tenant’s own apartment. Furthermore, tenants have been told that they face eviction if they invite persons known to be on the trespass log into their homes. A tenant’s only recourse if she wishes to receive such a guest is a burdensome appeal to the Authority’s Executive Director who exercises unfettered discretion in her rulings."(7)

In contrast, it found that the authority would not be substantially harmed by an injunction against the trespass policy. "There is no evidence that the trespass policy in its present incarnation is the only effective drug- and crime-fighting measure available to local authorities or even that it is the most effective."(8)

The court also concluded that the plaintiffs are likely to succeed on the merits of their claim because the current policy impermissibly excludes many potential guest from the Apartments. They have also "effectively argued that the burdensome and subjective nature of the ‘delogging’ review by the Executive Director of the Housing Authority renders it an inherently unreasonable procedure"(9). Moreover, the court found that even though the police officers had been retrained with respect to who is cited, the authority had not purged the existing logs which may contain names of persons who were actually on the way to visit a resident. The plaintiffs "should not be burdened with the responsibility for removing such persons’ names from the log."(10)

Lastly, the court concluded that the public interest would be served by enjoining the trespass policy because the interest in curbing drugs is not likely to be significantly harmed by the injunction while the trespass policy so strongly interferes with the resident plaintiffs’ right to reasonable accommodation of their guests that the public interest favors granting an injunction. Accordingly, the court enjoined the FMHA trespass policy.(11)

Notes-