Reforming HUD's "one-strike" public housing evictions through tenant participation.

• Author: Hellegers, Adam P.

1. INTRODUCTION: THE CONFLUENCE OF POPULAR AND LEGAL CONTROVERSY

   With a garden overflowing with nasturtiums and three grandchildren in her care, Ann Greene seems like the last person anyone at the Alemany housing complex would call a criminal. "It's not fair," said the 63-year-old Greene, holding the eviction notice she received on Friday. "I don't have any place to go. I haven't done anything wrong."(1) Vanessa Ballentine hoped to make a difference at Wilkes Villa by converting an abandoned apartment building into a learning center for children. .... Now, because of [the criminal activity of] her own children, Ballentine is being evicted from her apartment and has been ordered to stay away from the center.(2) Any federal policy that results in the eviction of nasturtium-toting grandmothers and well-meaning community activists from public housing is bound to elicit criticism from both investigative reporters and public housing residents alike.(3)

   In 1996, President Clinton announced during his State of the Union Address that "[c]riminal gang members and drug dealers are destroying the lives of decent tenants. From now on, the rule for residents who commit crime and pedal [sic] drugs should be one strike and you're out."(4) How did the reach of the President's national policy declaration expand to envelop the very "decent tenants" the President intended to protect?(5)

   The U.S. Department of Housing and Urban Development's controversial "one-strike" regulation, C.F.R. [sections] 966.4, empowers local public housing authorities ("PHAs") to terminate a resident's tenancy for "any criminal activity that threatens the health, safety, or quiet enjoyment of the PHAs ... premises ... or (B) any drug-related criminal activity on or near the premises."(6) Section 966.4 extends far beyond evicting individuals for their own criminal actions; it creates a cause for termination of tenancy where a "tenant, any member of the household, a guest, or another person under the tenant's control," engages in criminal activity.(7)

   Popular critique of this provision has not focused on the notion of eviction for criminal activity. In a 1995 national poll, 88% of the adult African-Americans surveyed agreed that people living in public housing should be evicted if they are convicted of possession or sales of illegal drugs.(8) Accordingly, media accounts are peppered with expressions of tenant support for "a federally mandated policy that calls for automatic eviction of tenants who commit crimes."(9) In this sense, the one-strike policy appears to enjoy a broad base of support.(10)

   Considerable criticism is brought when tenants are evicted for "the crimes of others," or for third party criminal activity.(11) Section 966.4 is constructed in such a way that leads to one of three possible circumstances for third party eviction. First, the criminal activity of someone under a tenant's "control" may lead to a tenant's eviction.(12) The statutory structure suggests that a person need not be a household member or guest to be under a tenant's control.(13) For example, the San Francisco Housing Authority served a notice of eviction on Ann Greene "because her 38-year-old son, Ladell Greene, was accused of possessing drugs four blocks away from the apartment complex,"(14) even though he did not live with her, and was not visiting.(15) Similarly, in Chavez v. Housing Authority of El Paso,(16) Elfida Chavez was evicted after her son allegedly threatened two housing project security guards.(17) Ms. Chavez's son was neither a household member nor a guest at the time he allegedly committed this criminal act, but public housing officials deemed him to be under his mother's control.(18) While familial relations between tenants and criminal actors can be sufficient to establish the required "control" that may trigger eviction,(19) some courts may require that the relationship consist of more than blood ties.(20)

   PHAs have also employed the one-strike policy to evict entire households for the criminal activity of one wayward household member, on the reasoning that section 966.4 triggers a termination of the entire tenancy, and does not just evict individuals for their own criminal behavior.(21) For instance, in Charlotte Housing Authority v. Patterson,(22) the Authority moved to evict Roxieanne Patterson and her two daughters for the alleged criminal behavior of a third child listed on the lease, her son Jonathan Givens.(23)

   Lastly, a notice of eviction may be served on a tenant for a guest's criminal activity.(24) In Chicago Housing Authority v. Rose,(25) the Chicago Housing Authority ("CHA") filed a complaint against Jacqueline Rose, seeking possession of her CabriniGreen public housing apartment, after police found two shotguns in her unit.(26) Her visiting half-brother admitted to stashing them there without Ms. Rose's knowledge or consent.(27)

   Both academic commentators and evictee litigants have seized upon the fact that HUD and local public housing officials assert that tenants who "did not know [of], could not foresee, or could not control [criminal] behavior,"(28) are still vulnerable to one-strike evictions.(29) Previous scholarly contributions have used the terms "no-fault" or "strict liability" interchangeably to describe this eviction standard;(30) in keeping with the latest jurisprudential trends, however, this Comment will describe this practice as the eviction of an "innocent" tenant.(31)

   This Comment lays siege to the legal rationale supporting innocent evictions. Cut off from popular support, HUD's position that a tenant targeted for eviction need not have knowledge of or consent to a third party's criminal activity has been weakened before an arsenal of challenges in the form of constitutional objections,(32) hostile lease interpretations,(33) and statutory silence on the matter.(34) This Comment forwards two arguments. First, an analysis of section 1437d(1)(5) of the Cranston-Gonzalez National Affordable Housing Act of 1990, which authorizes C.F.R. [sections] 966.4, reveals that Congress was silent on whether tenants need to have knowledge of or consent to the third party criminal activity for which they are evicted.(35) This silence prevents courts from applying any statutorily created legal standard to evaluate HUD's regulatory interpretation of section 1437d(1)(5), beyond asking merely whether such lease termination conditions are "reasonable.(36) Second, Congress has the opportunity to fill this statutory gap by providing a mechanism for public housing tenants to determine the scope of the one-strike rule themselves, rather than abdicating that decision to the uncertain discretion of the judiciary.

   The following section provides a backdrop and summary of crime in public housing and HUD anti-crime strategies, and then lays out the law and official policy surrounding the one-strike role as it currently stands. Part III describes the constitutional challenges that have been aimed at innocent evictions and other aspects of the one-strike rule. Part IV outlines various past and recent judicial reactions to innocent eviction lease terms, the instrument through which the one-strike rule's strictures are imposed. This discussion demonstrates the diversity of approaches that currently exist when federal regulation meets PHA discretion in lease clause drafting. Part V focuses on two recent interpretations of section 1437d(1) (5), and concludes that the statute's silence on the issue of tenant knowledge or consent, coupled with an ambiguous accompanying legislative history, demonstrates that Congress did not intend to decide the knowledge question. Part V resolves that in the absence of a clear Congressional mandate, courts must rely on the more broad pronouncement of section 1437d(1), that "[e]ach public housing agency shall utilize leases which--(1) do not contain unreasonable terms and conditions,"(37) to decide whether failing to require tenant knowledge in eviction lease clauses amounts to an "unreasonable" lease term. This section concludes that the inherent uncertainty of a "reasonableness" standard allows courts to exercise considerable discretion in deciding whether to enforce innocent evictions.

   Part VI suggests an alternative to leaving this issue up to the whim of a court's interpretive discretion. It proposes that section 1437d(1) (5) be amended to empower local public housing residents at each PHA to create a general rule determining the role of fault and knowledge of criminal activity in tenant evictions. This proposal finds support in (1) the language encouraging tenant consultation and citizen participation that can be found throughout HUD affordable housing legislation and policy,(38) (2) the advancement of tenant consultation as a method for empowering inner city and public housing residents in much more ambitious arenas,(39) and (3) popular accounts demonstrating that public housing residents are capable of achieving localized consensus on this discrete issue.(40)

   In recent years, the scholarly and legal attention paid to innocent evictions has kept pace with increasing public housing tenant concern.(41) This Comment concludes that public housing residents themselves have the most vested interest in creating policies that promote safe, functional public housing communities, and are best positioned to determine how far the rule must go in their own neighborhood to realize that objective. It would only be fitting for the controversy to be resolved by those who most clearly desire its resolution.(42)

2. WHERE AND HOW THE ONE-STRIKE RULE STANDS

   1. CRIME AND ANTI-CRIME STRATEGIES IN PUBLIC HOUSING AUTHORITIES

      In the United States, crime statistics are recorded as broadly as statewide, and are broken down as narrowly as individual police precincts.(43) Unfortunately, however, no comprehensive set of statistics measures crime rates in federally supported public housing, either individually or in the aggregate.(44) The...