Fight the drug war: Evict Grandma!

Fight the drug war: Evict Grandma!

Fight the drug war: Evict Grandma!

Oral argument from the court.
Feb. 19 2002 6:30 PM

Too Old To Narc

The justices toss their bingo buddies into the street.

Illustration by Robert Neubecker

In case you missed Alex Kotlowitz's There Are No Children Here, the best account of life in government housing projects, the facts of HUD v. Rucker provide a pretty good summary of what a senior citizen must endure there. Poverty, fear, drug deals and drive-bys, kids and grandkids who come and go, nurses who use your apartment in lieu of a crack den.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

And that's before the federal government evicts you because some grandkid fired up a doobie in the parking lot. So out go Pearlie Rucker (the 63-year-old great-grandmother whose mentally retarded daughter was caught with a crack pipe three blocks from the project); Willie Lees (a 71-year-old grandma whose grandson smoked pot in the parking lot); Barbara Hill (a 63-year-old grandma whose grandson smoked pot in the parking lot); and Herman Walker (a 75-year-old semi-paralyzed former preacher whose caretaker was stashing crack paraphernalia at his apartment). Maybe the court thinks Rucker can move into the Plaza Hotel. A useful reality check for all of us renters, for whom the most onerous requirement in our lease agreement is that we refrain from driving nails into the walls …

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At issue today is 42 U.S.C. Section 1437d(1)(6), a 1988 law allowing public housing agencies to evict any tenant for any drug-related activity (with or without a criminal conviction) "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."

It's unclear what a tenant—particularly an elderly tenant with a shifting roster of house guests—can purport to "control." But according to the Department of Housing and Urban Development and the various public housing authorities in question, the rules mean that whether or not the tenants in question knew about the drug use, once it happens, they're out. Raising the question: Does Florida Gov. Jeb Bush live in government-subsidized housing?

The four tenants evicted from their homes by the Oakland Housing Authority all claim to have known nothing about the drug use of their various children/grandchildren/caregivers. They each claim to have warned their families about the consequences of drug use on the premises. And in three of the four cases, the drug use happened out of the apartment—either blocks away from the project or in the parking lot. And you may want to stop and consider whether your own grandma ever knew more than about 3 percent of what you were doing in your spare time.

Still, the government theory seems to be one of strict liability for old poor people. Strict liability means the courts don't care what the accused knew or didn't know. You are guilty regardless of fault or intention. A good example of a strict liability crime is statutory rape. The courts don't care if she looked 16, said she was 16, or was too drunk to remember. The burden is on the squire to sort it out. So making the drug use of your grandchildren subject to strict liability evictions assumes that public housing tenants are the best source of "control" over their families and guests. Of course, HUD could go further and demand that residents of public housing projects actually make citizens' arrests for any drug use on the premises, on penalty of eviction. Or maybe the police should just do their jobs.

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In any event, the district court in Oakland prevented the Oakland Housing Authority from evicting the seniors, a three-judge panel of the 9th Circuit Court of Appeals reversed this, and then the whole 9th Circuit, sitting en banc, reversed the reversal, stating that the law didn't authorize evictions of innocent tenants. Meanwhile, a panel of the 11th Circuit Court of Appeals went the other way, and the Supreme Court agreed to hear the case.

With facts this sympathetic, you might think that it would be hard to lose the votes of the entire Supreme Court at oral argument, but you'd be wrong. Paul Renne, arguing on behalf of the evicted tenants, manages to do just that. Which leads to the list of "The 10 Best Ways To Lose the Most Sympathetic Case in History":

1) Argue That Acts of Congress Don't Mean What They Say: Renne and the 9th Circuit must prove that Congress didn't mean to impose strict liability on public housing tenants in Section 1437d(1)(6). The 9th Circuit did that by suggesting that Congress was confused, and the results would be absurd (i.e., your nephew in Boston's drug use could get you kicked out of an Oakland public housing project). Renne tries to argue the same point and promptly loses the right-tilting five justices, who always hold that laws mean what they say, unless a Bush presidency is on the line.

2) Argue That Regulatory Agencies Don't Mean What They Say: The law of the land is that courts give federal agencies deference to interpret their own regulations. Once HUD agrees that it wants a zero-tolerance policy for drug abuse, no court in the world (except the 9th Circuit) would try to mess with that.

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3) Argue That the Tenants Have No Recourse in Eviction Court Without Having Ever Filed an Action in Eviction Court: Renne argues that his clients should have had their day incourt. But they never tried to appeal the eviction in state court; they sought a big fancy injunction in federal court instead. Here's where Renne loses Justice O'Connor and forces Chief Justice Rehnquist to sigh, "We're just going in circles."

4) Argue That Eviction From Public Housing Is Analogous to Forfeiture of Personal Property: Renne bangs on this drum for most of the morning, even after it's clear that Justices Kennedy, Rehnquist, and Scalia all reject the analogy. Says Rehnquist, "Forfeiture suggests the government coming in and taking. Here the government is the landlord."

5) Argue for a Better Result Than You Achieved in the Court of Appeals: Although Renne won his case in the 9th Circuit, he asks the Supreme Court to create an even higher standard for drug-related evictions. This loses even Justice Ginsberg, who gasps, "You seem to be asking us to reverse the district court because it didn't go far enough."

6) Try To Convince the High Court That Anything Coming Out of the 9th Circuit Makes Sense: Talk about one strike and you're out. The court barely attempts to hide its disdain for the 9th Circuit's reasoning. "This isn't in the federal rules!" sputters O'Connor. "This is manufactured by the 9th Circuit! It isn't there!" Later Rehnquist dismisses the 9th Circuit opinion as "extremely weak."

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7) Argue There's a Silent "Innocent Tenant Defense" Implied in Every Statute: Renne keeps insisting that the statute's silence about a possible innocent tenant defense somehow means that the defense exists. This drives Scalia to insist that the statute "says nothing about it because it doesn't exist."

8) Insist the Contract Signed by the Tenants Meant Nothing: Fairly or not, each tenant agreed to HUD's drug policy in writing. And fairly or not, this court has never met a contract it didn't like. Dismissing these agreements as having been signed under duress just makes the justices—particularly Kennedy and Rehnquist—mad.

9) Argue That There's a Constitutional Violation: Even Souter seems to reject the argument that making someone sign on as a guarantor of their visitors' behavior is unconstitutional.

10) Try To Make This About Age: Sure, the court is about to toss four senior citizens out onto the streets. But why should they feel any compassion? The average age of the four tenants is 68. The average age of the nine justices is 68, too. Do they have any idea what their grandkids are doing tonight?