National Housing Law Project Housing Law Bulletin

A federal judge in the Northern District of California recently enjoined the Oakland Housing Authority (OHA) from terminating the tenancies and evicting four long-term elderly tenants when members of their household violated OHA's so-called "one-strike" lease provisions, which prohibit any drug-related criminal activity on or near the premises by a resident, any member of the household, guest, or another person under the resident's control. Rucker v. Davis, No. C 98-00781 CRB (N.D. Cal. June 19, 1998), 1998 WL 345403.¹

The case arose when OHA terminated the leases and initiated eviction proceedings in state court against four of its residents for violating the "one-strike" provisions in its leases. In three of the cases, the violations occurred outside the apartments and were carried out by members of the resident's household without the knowledge of the resident. In the fourth case, the resident's caregiver engaged in the criminal activity, possession of cocaine, in the residence of the disabled tenant but without his knowledge or consent.

Threatened with the loss of their homes, the residents initiated federal court proceedings against OHA and HUD, seeking to enjoin the evictions on the grounds that the lease provisions and the HUD regulations upon which they are based, when applied to "innocent" tenants, are contrary to statutory provisions which prohibit housing authorities from using leases that contain unreasonable terms and conditions. In addition, the plaintiffs contended that the lease provisions violate the residents' due process and First Amendment rights to freedom of association, and that the attempted eviction of the disabled resident and one resident with a disabled daughter violated the Americans with Disabilities Act (ADA).

The Defendants' Motion to Dismiss

OHA and HUD sought to dismiss the federal complaint on the grounds that the plaintiffs had no standing, that the court should abstain from hearing the case because a state action was already pending, and that the residents had failed, as a matter of law, to state a valid cause of action.

Issues of standing. The defendants' standing claim, based on the argument that none of the residents suffered an injury because no one had yet been evicted, was summarily rejected by the court. It found that the residents had suffered a sufficient injury for standing purposes when OHA terminated their tenancies by issuing a three-day notice to quit. The court pointed out that, had the residents vacated in response to the notice, eliminating the need for the unlawful detainer action, they would still have standing to sue since they suffered an injury.² Moreover, the court held that one of the three residents, whose unlawful detainer action had been dismissed by OHA, continued to have standing because she had a reasonable expectation that she would again be subject to the challenged policy because OHA had not rescinded the eviction notice and only dismissed the case without prejudice.³

Abstention doctrine challenge rejected. The defendants' abstention doctrine claim was also summarily rejected by the court because the case did not meet two of the criteria established by the Younger doctrine.⁴ First, the defendants failed to show what important state interests were implicated by an unlawful detainer action that involves federally subsidized housing. Second, the state court proceedings did not provide the residents an adequate opportunity to raise their federal Administrative Procedure Act (APA) claims against HUD, both because HUD was not a party to the state court actions and because federal courts have exclusive jurisdiction over APA claims.⁵

Plaintiffs' APA claim upheld. OHA and HUD sought to dismiss plaintiffs' APA claim on the ground that Congress expressly authorized the termination of leases of innocent tenants and that, therefore, the HUD regulations and OHA leases were valid. The defendants relied on 42 U.S.C. § 1437d(l)(5) which provides that any drug-related criminal activity on or off the premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of the lease. The court disagreed with the defendants' argument, concluding that the legislation does not address the crucial issue of whether or not a tenant must have knowledge of, or the ability to control, the drug-related criminal activity of a household member, guest or other person in order for that other person's conduct to be cause for terminating the tenant's lease.

The court rejected HUD's argument that Congress' silence on the issue evinced an intention to allow evictions without knowledge and control by the tenant. In the court's view that argument goes too far because it leads to the conclusion that Congress must also have specifically intended that the drug-related activity could occur anywhere and at any time, since the statute is also silent on when the activity must occur and what is meant by off the premises.

In other words, such reasoning leads to the conclusion that Congress specifically intended that if the tenant invites a guest into her apartment and the guest engaged in drug-related criminal activity five years earlier on the other side of the country, the drug-related criminal activity of the guest could be cause for termination regardless of whether the tenant had any knowledge or reason to know of the activity.⁶

Moreover, the court concluded that the statute's legislative history was also silent, or at best inconclusive, on the issue of whether Congress intended to authorize evictions without the knowledge or ability to control the wrongdoer.⁷

Having found no support in the statute or the legislative history for HUD's position, the court next inquired whether HUD's interpretation of the statute, as codified in its regulations permitting the eviction of innocent tenants, was permissible in light of the statutory provision prohibiting the use of leases that contain "unreasonable terms and conditions." In answering this question, the court relied primarily on Richmond Tenants Organization, Inc. v. Richmond Redevelopment and Housing Authority, 751 F. Supp. 120 (E.D. Va. 1990), which held, after a trial on the merits, that a lease provision that prohibited tenants from illegal use, sale or distribution of drugs and alcoholic beverages off the premises was unreasonable. The court in Rucker concluded that, based on the allegations in the complaint, it did not appear as a matter of law that terminating the leases of innocent tenants is reasonable. Thus, it refused to dismiss plaintiffs' APA claim.

The court also refused to dismiss the plaintiffs' civil rights claim against the OHA director under Section 1983. The director argued that he had acted under color of federal law, namely the HUD regulations, and not under color of state law as is required by Section 1983. The court disagreed, finding that the HUD regulations permit but do not require evictions for drug-related criminal activity. Thus, the court concluded, when OHA's director, who is a state official, exercised his discretion to evict, he was acting under color of state law and was subject to a Section 1983 claim.⁸

Plaintiffs' ADA and Rehabilitation Act claims. HUD and OHA also sought to dismiss the residents' ADA claims although the reasons presented by each defendant were different. HUD successfully argued that an ADA claim may not be brought against a federal agency because the act does not apply to actions by the federal government. Since, however, the Rehabilitation Act applies to the federal government and the plaintiffs were entitled to amend their complaint, the court considered whether the residents had a Rehabilitation Act claim against HUD and concluded that they did not. With respect to the first resident, who was being evicted because her disabled daughter engaged in criminal drug activity off the premises, the court concluded that the resident herself was not disabled and therefore could not maintain an action under the Rehabilitation Act.⁹ The second resident, who was disabled, also could not maintain a Rehabilitation Act cause of action against HUD because HUD's regulations do not mandate an eviction but simply permit it and otherwise require that housing authorities not discriminate against anyone on the account of their disability. Thus, the court granted HUD motion to dismiss plaintiffs' ADA claims.¹⁰

The court also granted OHA's motion to dismiss the ADA claim of the one resident who was being evicted for the actions of her disabled daughter on the grounds that she herself was not disabled.¹¹ However, it refused to dismiss the claim of the disabled tenant. It found that this tenant was placed at a greater risk of forfeiting his tenancy than other tenants because his disability required that he allow the caregiver to be inside his unit and precluded him from controlling the caregiver. Thus, he was entitled to a reasonable accommodation for his disability, and OHA's failure to modify the lease to cover persons with disabilities, states a cause of action under the ADA.

Plaintiffs' Motion for a Preliminary Injunction

In response to plaintiffs' motion seeking to preliminarily enjoin HUD's and OHA's enforcement of regulations and leases that permit eviction of innocent tenants, on the ground that the regulations and leases violate the statutory prescription of unreasonable terms and conditions, the court concluded that the plaintiffs have shown, at a minimum, the existence of serious questions and a fair chance of success with respect to innocent tenants where the drug-related criminal activity is conducted off the premises.¹²

The court found that the policy of evicting innocent tenants is irrational because it will not reduce drug-related criminal activity since the tenants, by definition, neither engaged in the activity nor allowed it to occur. Moreover, the court found that the policy may facilitate or at least prolong such activity because tenants who knew of the activity would not report it for fear of being evicted. Further, the court found that the only apparent rationale for the policy — namely that household members are discouraged from engaging in drug-related criminal activity by knowing that their conduct would lead to the eviction of the entire household — violates the First Amendment's guarantee of freedom of association. The person penalized "is not being punished for his own conduct and failure to police his own apartment or home, but rather because he lives with someone who committed a drug-related crime while outside the apartment or home."¹³ Accordingly, the court preliminarily enjoined OHA and HUD from evicting innocent residents for off-premises drug activity they had no reason to know about.

The court was not persuaded, however, that the argument extends to drug activity within the premises.

A tenant may control what occurs in her unit by ensuring that no one is present when she is not and searching her apartment and perhaps, her guest or household members before they enter. In other words, terminating the lease of a tenant for her failure to maintain a drug-free environment in her apartment holds the tenant responsible for something over which she has some control. Eviction under such circumstances appears rationally related to a legitimate public housing goal and [is] constitutional.

Thus, the court refused to enjoin the eviction of innocent tenants for on-premises drug-related activity.

The court, however, did enjoin the eviction of the one disabled resident for the on-premises drug-related activity of his caregiver on the grounds that the resident alleged that he could not choose not to let his caregiver enter the apartment because his life was dependent upon his care and he was physically incapable of conducting a search. when enjoining this eviction, the court concluded that the ADA may require the housing authority to modify its on-the-premises policy in order to accommodate a disabled resident.

¹  The slip opinion is also posted on the Handsnet/Legal Services/Substantive Law/Litigation/One Strike Cases Forum.
²  Rucker, slip op. at 5.
³  Id. at 6.
⁴  See Younger v. Harris, 401 U.S. 37 (1971).
⁵  Rucker, slip op. at 6-7.
⁶  Id., slip op. at 8.
⁷  But see Charlotte Hous. Auth. v. Patterson, 464 S.E.2d 68 (1995), wherein the court states that the statute's legislative history clearly reveals that eviction is appropriate only if the tenant is personally at fault.
⁸  Rucker, slip op. at 11.
⁹  Id., slip op. at 12.
¹⁰  Id., slip op. at 12-13.
¹¹  Id., slip op. at 13.
¹²  Id., slip op. at 16.
¹³  Id., slip op. at 18.