Rucker v. Davis, 98-16322

• Decision Date: 14 February 2000
• Docket Number: No. 98-16322,N,98-16322
• Parties: (9th Cir. 2000) PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; BARBARA HILL, Plaintiffs-Appellees, v. HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, Defendants, And U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant-Appellant. PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; BARBARA HILL, Plaintiffs-Appellees, v. HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, Defendants-Appellants, And U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant. o. 98-16542
• Court: U.S. Court of Appeals — Ninth Circuit

Page 627

203 F.3d 627 (9th Cir. 2000)

PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; BARBARA HILL, Plaintiffs-Appellees, v. HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, Defendants And U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant-Appellant.

PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; BARBARA HILL, Plaintiffs-Appellees, v. HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, Defendants-Appellants And U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant.

No. 98-16322, No. 98-16542

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted March 12, 1999

Filed February 14, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL: Howard S. Scher (argued), United States Department of Justice, Washington, D.C.; Carole W. Wilson, Howard M. Schmeltzer, Harold J. Rennett, Office of Litigation and Fair Housing Enforcement, Office of General Counsel, United States Department of Housing and Urban Development, Washington, D.C., for defendant-appellant United States Department of Housing and Urban Development.

Gary T. Lafayette (argued), Susan T. Kumagai, Lafayette, Kumagai & Clarke, San Francisco, California, for defendantsappellants Oakland Housing Authority and Harold Davis.

Ira Jacobowitz (argued), Oakland, California; Martin S. Checov, Whitty Somvichian, O'Melveny & Myers, San Francisco, California; John Murcko, Oakland, California; Anne Tamiko Omura, Donna Teshima, Robert Salinas, Oakland, California; William Simpich, Matthew Siegel, Oakland, California, for plaintiffs-appellees Pearlie Rucker, Herman Walker, Willie Lee, and Barbara Hill.

H. Joseph Escher III, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, San Francisco, California, for amicus curiae Center for the Community Interest. Before: Joseph T. Sneed, Diarmuid F. O'Scannlain, and William A. Fletcher, Circuit Judges.

Appeals from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. No. CV-98-00781-CRB, D.C. No. CV-98-00781-CRB

Opinion by Judge O'Scannlain; Dissent by Judge W. Fletcher

O'SCANNLAIN, Circuit Judge:

We must decide whether a local public housing agency may evict a tenant on the basis of drug-related criminal activity engaged in by a household member on or near the premises regardless of whether the tenant was personally aware of such activity.

I

Established in 1937, the first public housing program was intended to assist states and localities in providing affordable housing to low-income families. See Pub. L. No. 75-412, 50 Stat. 888 (1937). The Housing Act of 1937 vested responsibility for managing, maintaining, and operating public housing developments in local public housing agencies ("PHAs") rather than in the federal government. See 42 U.S.C. S 1437. Over 3,192 local PHAs currently oversee the 1,326,224 public housing units that are home to over 3 million people. See U.S. Dep't of Hous. & Urban Dev., "One Strike and You're Out": Policy in Public Housing 3 (1996); Office of Policy Dev. & Research, U.S. Dep't of Hous. & Urban Dev., A Picture of Subsidized Households, Volume 11, United States: Large Projects & Agencies 14, 72 (1996); Michael H. Schill, Distressed Public Housing: Where Do We Go From Here? , 60 U. Chi. L. Rev. 497, 499-522 (1993). In exchange for monetary assistance for the construction and operation of lowincome housing, local PHAs agree to abide by federal regulations promulgated by the Department of Housing and Urban Development ("HUD") under the United States Housing Act. See generally 42 U.S.C. S 1437 et seq .; see also Hodge v. Department of Hous. & Urban Dev., 862 F.2d 859, 860-61 (11th Cir. 1989) (discussing the relationship between HUD and PHAs); Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 20 (1st Cir. 1991); Thomas v. Chicago Hous. Auth., 919 F. Supp. 1159, 1163 (N.D. Ill. 1996).

Intended as a sanctuary for low-income families, see Office of Policy Dev. & Research, supra, at 72 (reporting that public housing residents have an average total household income of $8,500 per year), many public housing projects -primarily the larger ones located in urban areas -have been transformed into havens of crime, with severe and tragic social and physical distress resulting for residents and for the surrounding neighborhoods generally. See U.S. Dep't of Hous. & Urban Dev., supra, at 3; Schill, supra , at 500-01. A White House report states: "Public housing has become a staging area for the distribution of drugs and the violence related to drug trafficking and consumption." Office of Nat'l Drug Control Policy, Executive Office of the President, National Drug Control Strategy 64 (1991); see also D. Saffran, "Public Housing Safety Versus Tenants' Rights," 6 The Responsive Community 34-35 (Fall 1996) (discussing the problem of drugs and crime in public housing).

In 1988, Congress took decisive steps towards improving living conditions in public housing, attacking the problem of drugs and crimes, in particular, in the Anti-Drug Abuse Act of 1988. Beginning with the premise that "the Federal Government has a duty to provide public and other federally assisted low-income housing that is decent, safe, and free from illegal drugs," and that "public and other federally assisted low-income housing in many areas suffers from rampant drug-related crime," 42 U.S.C. S 11901(1)-(2),¹ Congress sought to create an effective and efficient mechanism for ridding public housing of those who sell or use drugs. More specifically, Congress required that:

Each public housing agency shall utilize leases which--

. . . .

provide that a public housing tenant, any member of the tenant's household, or a guest or other person under the tenant's control shall not engage in criminal activity, including drug-related criminal activity, on or near public housing prem ises, while the tenant is a tenant in public housing, and such criminal activity shall be cause for termina tion of tenancy.

42 U.S.C. S 1437d(l)(5) (1989).² In 1990 and in 1996, Congress altered the language of the statute, but left its effect unchanged in relevant part:

Each public housing agency shall utilize leases which--

. . .

provide that any criminal activity that threat ens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or near such 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 termi nation of tenancy . . . .

Id. S 1437d(l)(5) (1991). Congress amended this statute further in 1996, replacing the phrase "on or near such premises" with "on or off such premises." Id. (1997).³

In 1991, HUD issued regulations implementing section 1437d(l)(5). One such regulation, 24 C.F.R. S 966.4 (f)(12)(i)(B), provides:

S 966.4 Lease requirements.

A lease shall be entered into between the PHA and each tenant of a dwelling unit which shall contain the provisions described hereinafter.

. . .

(f) Tenant's obligations. The lease shall provide that the tenant shall be obligated:

. . .

(12)(i) To assure that the tenant, any member of the household, a guest, or another person under the tenant's control, shall not engage in:

. . .

(B) Any drug-related criminal activity on or near such premises.

Any criminal activity in violation of the preceding sentence shall be cause for termination of tenancy, and for eviction from the unit.

24 C.F.R. S 966.4(f)(12)(i)(B). Another regulation similarly provides:

Either of the following types of criminal activity by the tenant, any member of the household, a guest, or another person under the tenant's control, shall be cause for termination of tenancy:

. . .

(B) Any drug-related criminal activity on or near such premises.

Id. S 966.4(l)(2)(ii)(B).

In formulating these regulations, HUD considered comment by legal aid and by tenant organizations that tenants "should not be required to `assure' the non-criminal conduct of household members, or should have only a limited responsibility to prevent criminal behavior by members of the household" and "that the tenant should not be responsible if the criminal activity is beyond the tenant's control, if the tenant did not know or have reason to foresee the criminal conduct, if the tenant did not participate, give consent or approve the criminal activity, or if the tenant did everything `reasonable' to control the criminal activity." 56 Fed. Reg. 51560, 51566 (Oct. 11, 1991). Ultimately, however, HUD decided not to accept these suggestions, instead choosing to grant local PHAs the discretion to evict a tenant whose household members or guests use or sell drugs on or near the public housing premises regardless of whether the tenant knew or should have known of such activity. See id. at 51566-67. HUD stated quite explicitly: "The tenant should not be excused from contractual responsibility by arguing that tenant did not know, could not foresee, or could not control behavior by other occupants of the unit." Id. at 51567.

HUD offered several reasons for its decision. First, the "contractual responsibility of the tenant for acts of unit occupants is a conventional incident of tenant responsibility under normal landlord-tenant law and practice, and is a valuable tool for management of the housing. The tenant should not be excused from contractual responsibility by arguing that tenant did not know, could not foresee, or could not control behavior by other occupants of the unit." Id. at 51567. Second, HUD feared that allowing a tenant to escape eviction by claiming a lack of knowledge "would allow a variety of excuses for a tenant's failure to prevent criminal activity by household members" and "would thereby undercut the tenant's motivation to prevent criminal activity by household members." Id. Third, PHAs may often have difficulty proving in court that the leaseholder had knowledge or control over the offending...