The ACLU’s Legal Challenge to Treating Domestic Violence as a Nuisance Problem

The law, lawyers, and the court.
Sept. 26 2013 6:26 PM

Public Nuisance

What happens when calling 911 could cost you your home.

911
In a lawsuit against a Pennsylvania town, the ACLU is arguing that disorderly behavior ordinances fall most heavily of victims of domestic violence.

Photo by Stokkete/Shutterstock

Lakisha Briggs was a 34-year-old single mom living in the suburbs of Philadelphia in subsidized rental housing. Her boyfriend had attacked her repeatedly in her home, and the police had been called on several occasions to intervene—10 times in the first five months of 2012 alone, according to her legal filings. But because an ordinance in Norristown, Pa., says that a tenant who makes three 911 calls within four months can be evicted and that tenant’s landlord could have his or her rental license suspended, Briggs did not call the police on the night of June 23, 2012, when the same boyfriend hit her in the head with a glass ashtray then stabbed her in the neck with a piece of broken glass. The police had already warned her that she was on her third strike after their last visit. So she didn’t make the call and—just before she passed out—Briggs begged a neighbor not to do so on her behalf.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The neighbor did call the cops, and Briggs was airlifted to a nearby trauma center. The boyfriend went to prison for the assault. Then police served Briggs’ landlord with a notice that said if she and her 3-year-old weren’t evicted within 10 days, he’d lose his rental license. Meet the new face of disorderly conduct.

Last April the Women’s Rights Project of the American Civil Liberties Union and Briggs’ lawyer sued the borough of Norristown on behalf of Briggs, arguing that its disorderly behavior ordinance—and hundreds of similar laws around the country—unconstitutionally punish protected First Amendment speech, fall most heavily of victims of domestic violence, and recast those victims as a public nuisance. Last week a federal judge in Pennsylvania ruled that the "complex and novel" question of whether towns can evict tenants who call 911 too often can go to trial. The Briggs suit is being watched by civil rights advocates around the country.

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Norristown Municipal Code No. 245-3 makes landlords responsible for their tenants’ “disorderly behavior.” The idea animating this and hundreds of similar laws in big cities and “blighted” suburbs is that landlords should be deputized to help weed out drug dealers and other violent and dangerous renters to create crime-free neighborhoods. Under the original Norristown ordinance, disorderly behavior was a remarkably capacious category that included “domestic disturbances that do not require that a mandatory arrest be made.” The police had sole authority to decide what constituted disorderliness.  

Norristown officials argue that the purpose of the disorderly behavior ordinance is to promote peaceful neighborhoods and discourage frivolous calls to the police. That certainly sounds nice. Norristown Council President Gary H. Simpson said in a statement to the Philadelphia Inquirer that the council “is looking to protect not only those who suffer from these deplorable acts, but also those who believe they deserve a better quality of life. We are looking to place greater levels of accountability on the landlords.” But asking the landlords of rental units—from which the majority of 911 calls will originate—to police their tenants is profoundly problematic. Landlords have no better idea of what really happens in their tenants’ apartments than the cops do, and pressing them to either turn on renters who are domestic violence victims or suffer the consequences themselves is proving disastrous.

Last December, following complaints by Briggs’ lawyers, the town repealed the original law, then re-enacted it two weeks later. Instead of allowing the police to evict tenants after three strikes, landlords are faced with escalating fines, which they can appeal in court. The eviction action against Briggs was halted. The ACLU, saying the new law was functionally as bad as the old one, filed suit nonetheless.

The basis for Briggs’ constitutional claim is that the ordinance runs afoul of the First Amendment’s right to petition clause, which protects her right to communicate and petition law enforcement. (There are other grounds for relief, including a claim under the Violence Against Women Act, which protects victims of violence living in public housing.) As Briggs told the New York Times last month, “If I called the police to get him out of my house, I’d get evicted. If I physically tried to remove him, somebody would call 911 and I’d be evicted.”

Norristown officials, for their part, argue that the law amply provides for exigent domestic violence situations. They contend that Briggs never sought protective orders and that over multiple visits the police never saw any evidence that she was being physically abused. At the hearing last week, a lawyer for the borough argued that they were simply “trying to preserve the peaceful enjoyment of the neighborhood. These restrictions are not onerous.”

The problem with these nuisance statutes is that, more often than not, the so-called nuisance in question is the abused woman. But that isn’t the only problem. In a new study called “Unpolicing the Urban Poor: Consequences of Third-Party Policing for Inner-City Women,” Harvard’s Matthew Desmond and Nicol Valdez describe the real issue as the move in recent decades to decentralize crime control, which slowly shifted responsibility from the police onto business owners and landlords to monitor and deter public misconduct. Their study of the consequences of so-called “third-party policing” is about more than just the ways the police treat domestic abuse victims. It’s also about what happens when you put landlords into the position of policing them. Examining every nuisance property citation in Milwaukee from 2008 to 2009, Desmond and Valdez found that the vast majority of “nuisance properties” (319 out of a total of 503) were located in black neighborhoods and that more than one-third of the so-called nuisance citations came in domestic violence cases. But what they also learned is what happens when you interpose a landlord—who has every incentive to either evict domestic abuse victims or persuade them not to report—into a fraught domestic controversy. Perhaps predictably what you don’t get is a deep understanding of domestic violence.

Desmond and Valdez cite one landlord who lays out his theory on the matter:

“Like I tell my tenants: You can’t be calling the police because your boyfriend hit you again. They’re not your big babysitter. It happened last week, and you threw him out. But then you let him back in, and it happens again and again. Either learn from the first experience or, you know, leave. Don’t take him back and get hit because you tell him, I don’t know, ‘I don’t want to sleep with you.’ ”

They also quote landlords who feel that there is no reason not to evict tenants who become a “nuisance.” One puts it this way: “Look, you’re rolling the dice if you don’t evict the tenant. [The police] want the problem eliminated. Not gradually fixed, but totally eliminated.” Another clarified, “Tenants have been required to vacate the unit or terminate the causes via a 30-day [eviction] notice. It does not matter if they are the cause of the problems or not. It is their responsibility to prevent the problems at all times.” Gwyn Kaitis, director of the Illinois Domestic Violence Helpline, told the New York Times last month about “a woman with five children called to say that her boyfriend had choked her and she was trying to end their relationship, but her landlord had told her that if the police were called one more time, he would evict her.” It’s bad enough when the police are making judgments about domestic violence in the context of creating a more peaceful neighborhood. But these nuisance statutes make even the most sympathetic landlords the unwilling first responders.

The Norristown ordinance and its counterparts across the country don’t simply imperil poor and vulnerable women because they force the women to choose between being abused or being evicted. It also makes their landlords the unwilling arbiters of whether and when the women deserve that protection in the first instance. Policing domestic violence disputes is one of the most difficult things our law enforcement officers are tasked with. Contracting that out to landlords is not the answer.

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