Federal Court Rejects
Public-Housing Evictions
By Steven Wishnia

A federal appeals court in San Francisco has ruled that the Oakland Housing Authority cannot evict four public-housing tenants for other people’s drug use.

The OHA had begun eviction proceedings against the four, all elderly, in 1998, after their relatives or caretakers had been caught using drugs. Under federal regulations adopted in 1991--popularly known as the "one-strike" rule--local hous- ing authorities may summarily evict tenants for crimes committed on or near public-housing property by a household member, guest or "other person under the tenant’s control."

The rule, based on a 1988 law intended to stop drug dealing in housing projects, was written broadly enough for the OHA to try to evict two of the four tenants because their grandsons had been caught smoking marijuana in the parking lot. Another tenant, Herman Walker, a disabled 78-year-old, had his lease terminated after his caretaker was caught using cocaine in his apartment.

But in a 7-4 vote, the 9th Circuit Court of Appeals held that it was unfair to punish tenants for acts that they did not know about. "Congress did not intend to authorize the eviction of innocent tenants," Judge Michael Daly Hawkins wrote in the majority opinion. Judge Joseph T. Sneed, one of the four dissenters, argued that the 1988 federal law had intended to do just that. "This is a big win for public-housing tenants, especially those who have no control over what goes on outside of their housing," Whitty Somvichian, one of the lawyers representing the four tenants, told High Times.

While the decision is only law in California and the eight other western states covered by the 9th Circuit, it may affect New York indirectly. "Because the courts held that Congress did not intend housing authorities to be authorized to evict innocent tenants, and because it’s a persuasive decision, it is likely to be followed by the courts in New York," Scott Rosenberg of the Legal Aid Society told City Limits.

The Department of Housing and Urban Development may appeal.