Amicus Curiae Brief — Department of Housing and Urban Development v. Rucker

Nos. 00-1770 & 00-1781

2001

IN THE

Suprene Court of the United States

OCTOBER TERM. 2001

——<jP-

UNITED STATES DEPARTMENT OF HOUSING

AND URBAN DEVELOPMENT.

Petitioner.

—y\ —

PEARLIE RUCKER. e7 al..

Respondents

OAKLAND HOUSING AUTHORITY. er ai..

Petitioners.

PEARLIE RUCKER. er ai/..

Re spre mdents

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION AND THE ACLU OF NORTHERN

CALIFORNIA, IN SUPPORT OF RESPONDENTS

Alan L. Schlosser Mark J. Lopez

ACLU Foundation of (Counsel of Record)

Northern California Steven R. Shapiro

1663 Mission Street American Civil Liberties Union

San Francisco. California 94103 Foundation

(415) 621-2488 125 Broad Street

New York. New York 10004

212) 549-2500

—

TABLE OF CONTENTS

I. PETITIONERS’ NO-FAULT EVICTION

POLICY VIOLATES SUBSTANTIVE

DUE PROCESS BY THREATENING IN-

NOCENT TENANTS WITH EVICTION

FROM THEIR HOMES .............. (. 6

A. By Evicting Respondents From

Their Homes, Petitioners’ Policy

Abridges Substantial Property

And Liberty Interests .............. 9

B. By Disregarding The Principle Of

Individual Guilt, Petitioners’

Policy Violates Core Notions Of

Fundamental Fairness .............. 15

II. PETITIONERS’ NO-FAULT EVICTION

POLICY IS NOT PROPERLY SUBJECT

TO MINIMUM SCRUTINY, WHICH IT

CANNOT SURVIVE IN ANY EVENT ..... 23

GG bods bs 0 oe eps beeen se enenent 29

TABLE OF AUTHORITIES

Page

Cases

Alamo Land and Cattle Co. v. Arizona,

ts ewe eth cepa baseeeuetes 11

Austin v. United States,

ee ED ow occ ee viecees 16, 17, 18, 21, 27

Bartnicki v. Vopper,

EE I ae ee ee ee 7

Bennis v. Michigan,

i ik eee aes ee ees ee passim

Board of Regents v. Roth,

ES a ee i)

Calero-Toledo v. Pearson

Yacht Leasing Co.,

Ee 16, 17, 18, 28

Cleveland Board of Education

v. Loudermill,

i iii eee een ee bs eeee eens 7)

County of Sacramento v. Lewis,

EE eee 10

Dandridge v. Williams,

OO re eee 24

Daniels v. Williams,

a i Ce wt eb hee bh eeee 10

Davis v. Mansfield Metropolitan

Housing Authority,

A ee ll

i

Page

Dobbins v. Distillery,

ie hae ee ce geaueheceeneaee 17

Escalera v. New York City

Housing Authority,

UTE, DUE cvcccccccessctesewen 10

Federal Election Commission v. Colorado

Republican Federal Campaign Committee,

i a aah ae ee 7

Fuentes v. Shevin,

as Din wn kh sen en en been ee es 10

Goldberg v. Kelly,

ee 9

Greene v. Lindsey,

re id ton o6bd ee ene as eek 9

Harmony v. United States,

43 U.S. (2 How.) 210 (1844) ... 2... 0... eee, 17

Hodgson v. Minnesota,

i Non ee ee eaneneeenseseens 13

Holbrook v. Pitt,

643 F.2d 1261 (7th Cir. 1981) ...............4.. 1]

J.W. Goldsmith, Jr.-Grant Co.

v. United States,

ee oi ean wee cg beeee bt ee 17,

Jeffries v. Georgia Residential

Financial Authority,

678 F.2d 919 (llth Cir. 1962) .. 2... eee eee

Johnson v. Zerbst,

i 6 cs ead oe ebb eebeeeeeeée

ill

Legal Services Corporation v. Velazquez,

Se Ws SE a 6 cated eesned koes kde etass 23

Lindsey v. Normet,

Ge ee SD heed bdsdcneusceeteneeevescs 24

Lyng v. United Auto Workers,

— | PPT CTT TTT Tee 24, 25

Morrisette v. United States,

Se ee, ED. ease vecuts cee bee EHS OES 6

National Labor Relations Board

v. Catholic Bishops,

Gs EE cee cedcceveniconécencduen 4

Ohio Bureau of Employment

Services v. Hodory,

Se Gee GE a oc a6edeeeceeeeeuns 24, 25, 26

Payton v. New York,

Gee es ED avec chancedecedscentenaues 14

Peisch v. Ware,

8 U.S. (4 Cranch) 347 (1808) ................ 17, 18

Perry v. Sinderman,

es OED 06 on sb kv 00 06n60eh O2esw ees y

Plyler v. Doe,

ee a EEE 6c ooh sc ebeksieeneceeneee 7,8

Ressler v. Pierce,

— $s § Ff -. Se we 11

Richmond Tenants Organization v. Kemp,

fe & — |. eee ee 14

Scales v. United States,

a Ch Sn. s os el s-6casen es 04500 wee ws 6

iv

oo

Page

Southwestern Telegraph &

Telephone Co. v. Danaher,

ee eee 7

Speiser v. Randall,

a Fe ae eae eee 23

The Palmyra,

a es ee DOD co cccccccceuseceesnecs 17

Thorpe v. Housing Authority

of City of Durham,

I a ak eo i )

Trimble v. Gordon,

a a ras ed ded ewe edss ous s

United States v. James Daniel

i eek asco ed bne s 14, 21

United States v. Knights,

No. 00-1260, slip op. (Dec. 10, 2001) ............. 23

United States v. Leasehold interest

in 12] Nostrand Avenue,

760 F.Supp. 1015 (E.D.N.Y. 1991) ............... 11

United States v. Robinson,

721 F.Supp. 1541 (D.R.1. 1969) ................. 14

Van Oster v. Kansas,

ee 16

Washington v. Glucksberg,

RSE i ee 6, 24

Weber v. Aetna Casualty and Surety Co.,

EE SC Ne a Ny

Wolff v. McDonnell,

418 U.S. S39, SSB (IDTE) 2... ccc ccc cc vvcvccees 10

Statutes and Regulations

IB UBC. GIBB 2. ccc cccvccccccccccsecees 13

18 UBC. SIGDERTIMA) 2. wc cc cccccccccccccees 13

Bi ree ee ee 5, 12, 13

GUE Be wh vec ccccenctsdocsecesceses 10

42 UBC. GI43TataM I) 2. cece c ccc ccccscvcees 11

GB UBL. SOGBIEED 2. ccc ccs ccccccccccceccces 15

42 UBC. GI4STAINS) 0. cece ccccnscccens 10, 11

4B UBC. SIABIEIIED .n ccc cc ccccccscccvees 2,3

42 U.S.C. GI43HEMIG) .. 2 ccc ccc cccccceces 10

Legislative History

134 Cong. Rec. $17360-02 (Nov. 10, 1988) ......... 12

Other Authorities

Kessler, Steven L., CIVIL AND

CRIMINAL FORFEITURE,

vol.1 (West Group 1999) .... 2... 2... eee eee eens 19

Mock, Nelson H., "Punishing the

Innocent: No-Fault Eviction of

Public Housing Tenants for the

Actions of Third Parties,”

, ® 28 Be! Tere eee 11

Smith, David B., PROSECUTION AND

DEFENSE OF FORFEITURE CASES,

vol. 1 (Matthew Bender 1998) ...........--+455. 19

vi

——_—_— ——

INTEREST OF AMICI '

The American Civil Libegies Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with ap-

proximately 300,000 members dedicated to preserving the

principles of liberty and equality embodied in the Constitu-

tion and this nation’s civil rights laws. The ACLU of

Northern California is one of its regional affiliates. The

issue in this case is whether public housing tenants may

lawfully be evicted from their homes without even any al-

legation by the government that the evicted tenants have en-

gaged in personal wrongdoing or that any illegal activity has

taken place in their homes. For tenants with limited re-

sources and thus a limited capacity to find somewhere else

to live, the consequences of the government’s harsh eviction

policy can often be severe. More broadly, this case raises

fundamental questions about the scope of the government’s

authority to pursue its “war on drugs” without regard to

principles of individual guilt and responsibility that have

always been central to our conception of justice. The

proper resolution of this case is therefore a matter of signifi-

cant concern to the ACLU and its members throughout the

country.

STATEMENT OF THE CASE

This case involves the eviction of three tenants and their

families from public housing in Oakland, California. Re-

spondent Pearlie Rucker is a 63 year-old woman who has

lived in public housing for 13 years. She currently lives

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, coun-

sel for amici states that no counsel for a party authored this brief in

whole or in part and no person, other than amici, its members, or its

counsel made a monetary contribution to the preparation or submissior

of this brief.

with her mentally disabled daughter, her two grandchildren,

and her great-grandchild. Petitioners assert as a ground for

her eviction that Ms. Rucker’s mentally disabled daughter

possessed cocaine three blocks from her apartment. Ms.

Rucker regularly searches her daughter’s room for evidence

of drug activity and has warned her and others that drug ac-

tivity in the apartment could result in their eviction.

Respondent Willie Lee is a 71 year-old man who has

lived in Oakland public housing for 25 years. He currently

lives with his grandson. Petitioners assert as a ground for

his eviction that Mr. Lee’s grandson possessed marijuana in

a parking lot of the housing complex. Petitioners do not al-

lege that Mr. Lee had any knowledge of his grandson’s ma-

rijuana possession.

Respondent Barbara Hill is a 63 year-old woman who

has lived in the same public housing apartment for 30 years.

Like Mr. Lee, she currently lives with her grandson. Peti-

tioners assert as a ground for her eviction that her grandson

possessed marijuana in the parking lot of the housing com-

plex. Appellants do not allege that Ms. Hill had any knowl-

edge of her grandson’s marijuana possession.

Petitioners contend that 42 U.S.C. §1437d(/)(6), part of

the National Housing Act, authorizes eviction of public

housing tenants and their families if any member of the

household or guest engages in any drug-related criminal ac-

tivity (including possession of marijuana) on or off the pub-

lic housing premises, whether or not the tenant had any

knowledge of, or ability to control, the illegal activity.’

? In its current version, §1437d(/)(6) provides:

[A]ny criminal activity that threatens the health, safety, or

right to peaceful enjoyment of the premises by other tenants

or any drug-related criminal activity on or off such premises

(continued...)

Thus, under petitioner’s construction of the statute, an indi-

gent parent or grandparent who has done everything within

her power to discourage drug use is nonetheless subject to

eviction if a child in her care experiments with marijuana,

even once and even outside the home.

The district court issued a preliminary injunction, hold-

ing that petitioners’ refusal to recognize an “innocent

tenant” defense was inconsistent with the statute and con-

gressional intent. Rucker v. Davis, No. 98-00781, 1998 WL

345403 N.D.Ca. June 19, 1998). On appeal, the preliminary

injunction was initially reversed by a divided panel of the

Ninth Circuit, 203 F.3d 627 (9th Cir. 2001). However, the

panel decision was subsequently vacated by the en banc

court, which both reinstated the preliminary injunction and

reaffirmed that petitioners’ unyielding interpretation of the

statutory language would, if adopted, raise serious constitu-

tional issues. 237 F.3d 1113 (9th Cir. 2001).

SUMMARY OF ARGUMENT

Except in narrow circumstances not present here, the

fundamental requirements of due process prohibit the gov-

ernment from taking adverse action against one person based

on the illegal conduct of another person. Yet, that is pre-

cisely what occurred in this case. Each of the respondents

faced eviction from public housing under petitioners’ no-

fault eviction policy, although none of the respondents was

* (...continued)

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 termination of the tenancy.

Among other changes, the 1996 amendments to §1437d(/)(6) eliminated

the requirement that illegal drug activity would trigger an eviction only

if it occurred on or “near” the public housing premises.

3

accused of using illegal drugs, or authorizing the use of il-

legal drugs, either on or off the premises. The fact that re-

spondents are indigent tenants who face dire personal conse-

quences only magnifies the fundamental unfairness of peti-

tioners’ policy. This Court has often stressed that constitu-

tional rights are personal, and so is guilt. What the govern-

ment proposes to do in this case ignores the second principal

and violates the first. There were thus ample grounds for

the court of appeals to invoke the doctrine of constitutional

doubt in concluding that the challenged regulations are in-

consistent with the underlying statute.’

Petitioners would like to divorce this case from its fac-

tval context and argue it in the abstract. The factual context

is critical, however, both in understanding what is at stake

and in determining which legal rules should apply. This

Court has repeatedly stressed, in a variety of contexts, the

importance of protecting the home against arbitrary govern-

ment action. The Court has also consistently emphasized,

especially in its recent jurisprudence, that the government

must respect constitutional limits when it seeks to interfere

with vested property rights. Here, both the terms of the

statute and the terms of the lease give respondents a vested

property right in their homes. In seeking to evict respon-

dents from their homes without any evidence of individual

wrongdoing, respondents are arbitrarily disturbing that

vested property interest in a manner that inevitably produces

the sort of unfair results that the facts of this case highlight.

> Amici support the interpretation of the statute adopted by the lower

courts in this case, largely for the reasons set forth in respondents’ brief.

To avoid repetition, however, this brief focuses exclusively on the merits

of respondents’ substantive due process claim. At the very least, the

constitutional flaws inherent in petitioners’ view of the statute are a rele-

vant consideration under well-settled rules of statutory construction.

E.g., National Labor Relations Board v. Catholic Bishops, 440 U.S. 490

(1979).

Petitioners cite this Court’s forfeiture decisions for the

proposition that the Constitution does not require an “inno-

cent tenant” defense and that the lower courts erred in there-

fore reading one into the statute. But that reliance is mis-

placed for at least two reasons. First, the forfeiture provi-

sions enacted by Congress as part of the same chapter and

subtitle as the original version of the statute at issue in this

case expressly stipulated that a forfeiture claim could not be -

based on acts “committed or omitted without the knowledge

or consent of the [property] owner.” 21 U.S.C. §881(a)(7).

Second, Bennis v. Michigan, 516 U.S. 442 (1996), on which

petitioners’ rely, is not nearly as sweeping as petitioners

contend. Bennis plainly does not reject an “innocent owner”

defense in circumstances where the forfeited property is un-

connected to any crime. That connection was indisputably

present in Bennis; it is just as indisputably absent here.

Petitioners are equally misguided in pointing to the

lease as a justification for these evictions. Given the dis-

parity of bargaining power, the notion that public housing

tenants voluntarily waive their rights by signing a stand-

ardized lease prepared by the public housing authority is

fanciful, at best. To the contrary, the lease provision

authorizing the eviction of innocent tenants represents a

coerced and unconstitutional condition that is just as unen-

forceable as a provision authorizing a tenant’s eviction be-

cause a family member or guest supported an unpopular po-

litical cause. It is true, of course, that the government has

an interest in eliminating illegal drug activity that it does not

have in eliminating political dissent. But the government

cannot pursue even a legitimate goal through unconstitution-

al means, which is what it has done in this case by aban-

doning the principle of individual guilt.

Because that principle represents a fundamental aspect

of substantive due process, this case involves more than a

simple decision about the allocation of scarce government

resources. Accordingly, petitioners: plea for deference and

rational basis review should be rejected. Even under peti-

tioners’ proposed standard, however, a policy that evicts in-

digent tenants from their home cannot be described as a

reasoned response to the problem of illegal drug activity oc-

curring off-premises, and without the tenant’s knowledge or

consent, albeit by members of the tenant’s household. In-

deed, having eliminated the requirement that the illegal drug

activity must occur “near” the public housing site, any

plausible relationship between the challenged policy and the

government’s interest as a landlord in maintaining a drug-

free environment has been strained to the breaking point.

ARGUMENT

I. PETITIONERS’ NO-FAULT EVICTION POLI-

CY VIOLATES SUBSTANTIVE DUE PROC-

ESS BY THREATENING INNOCENT TEN-

ANTS WITH EVICTION FROM THEIR

HOMES

The government in this case seeks to defend its author-

ity to evict indigent and wholly innocent tenants from public

housing -- inevitably driving many to homelessness -- be-

cause other family members or guests have engaged in ille-

gal activity outside the tenant’s home and without the ten-

ant’s knowledge or consent.

This draconian policy violates the substantive due proc-

ess nerm of individual guilt, which is fundamental to our

concept of justice, and deeply embedded in our nation’s his-

tory and traditions. Cf Washington v. Glucksberg, 521 U.S.

702, 720-21 (1997). “In our jurisprudence, guilt is per-

sonal.” Scales v. United States, 367 U.S. 203, 224-25

(1960). This is true in the criminal context, where some

element of scienter is generally required to establish in-

dividual culpability. E.g., Morrisette v. United States, 342

6

—- SS

US. 246, 264-65 (1952). It is also true in civil cases. As

this Court just recently observed in a suit seeking damages

against a media defendant for broadcasting a private conver-

sation that had been illegally intercepted by someone else:

“The normal method of deterring unlawful conduct is to im-

pose an appropriate punishment on the person who engages

in it.” Bartnicki v. Vopper, 532 U.S. 514, ___, 121 S.Ct.

1753, 1764 (2001); see also Federal Election Commission v.

Colorado Republican Federal Campaign Committee, 533

US. 431, __, 121 S.Ct. 2351, 2380 (2001)(Thomas, J., dis-

senting)(same observation).

The Court’s adherence to these principles has never

turned on the formality of whether the government sanction

represents a penalty or punishment in the sense necessary to

invoke the Eighth Amendment or Double Jeopardy Clause.°

Rather, the Court has taken a much more practical approach.

For example, the issue in Plyler v. Doe, 457 US. 202

(1982), was whether Texas could exclude undocumented im-

migrant children from its public schools. Although the

Court relied on equal protection rather that due process, its

holding was written in language that broadly embraces both

concepts. Thus, the Court explained in one particularly

pivotal passage, “[e]ven if the State found it expedient to

control the conduct of adults by acting against their chil-

dren, legislation directing the onus of a parent’s misconduct

against its children does not comport with fundamental con-

ceptions of justice.” Id. at 220 (emphasis added).

* See Southwestern Telegraph & Telephone Co. v. Danaher, 238 US

482, 490-91 (1915){invalidating civil penalty under Due Process Clause

for conduct that involved “no intentional wrongdoing, no departure from

any prescribed or known standard of action, and no reckless conduct”).

. Even in those terms, there is a significant Eighth Amendment claim in

Ng under the Excessive Fines Clause, which respondents have

efed.

For similar reasons, the Court has repeatedly rejected as

unconstitutional efforts to deny government benefits to chil-

dren born out of wedlock. The rationale of those decisions

was succinctly expressed in Weber v. Aetna Casualty and

Surety Co., 406 U.S. 164, 175 (1972)(emphasis added):

“(V]isiting . . . condemnation on the head of an infant is il-

logical and unjust. Moreover, imposing disabilities on the

_.. Child is contrary to the basic concept of our system that

legal burdens should bear some relationship to individual

responsibility or wrongdoing. Obviously, no child is re-

sponsible for his birth and penalizing the . . . child is an in-

effectual -- as well as unjust -- way of deterring the parent.”

In Plyler and the illegitimacy cases, the Court’s concern

was that the government had misdirected its attention against

innocent children who “can affect neither their parents’ con-

duct nor their own status.” Trimble v. Gordon, 430 U.S.

762, 770 (1977). Petitioners’ actions in this case suffer

from the same logical fallacy and the same constitutional in-

firmity. The indigent tenants who brought this action did

not engage in any illegal drug activity and the government

has not even claimed that they had any ability to control

those who did engage in such activity outside the home.

Yet, through no fault of their own, respondents are now

faced with the loss of a significant property interest and the

right to continue living in their own homes. At a minimum,

those deprivations are surely comparable to tis losses suf-

fered in other cases where this Court has insisted, under

both equal protection and substantive due process, that the

government must present at least some evidence linking the

person or property to the harm the government seeks to

avoid. Here, the challenged policy does not require any

such link and, so far as the record reveals, there is abso-

lutely none.

| ——

a ee I EP RI Mee Te”

A. By Evicting Respondents From Their

Homes, Petitioners’ Policy Abridges Sub-

stantial Property And Liberty Interests

Although the Court has never squarely held that public

housing tenants have a property interest in their leasehold, in

Greene v. Lindsey, 456 U.S. 444 (1982), the Court struck

down an Oregon forcible entry and detainer statute that

failed to provide public housing tenants with notice. In

finding that the Fourteenth Amendment was violated, the

Court’s discussion proceeds from the assumption that public

housing tenants have “a significant interest in property,

indeed of the nght to continued residence in their homes.”

Id. at 451. See also Thorpe v. Housing Authority of City of

Durham, 393 U.S. 268, 283-84 (1969). The existence of a

property interest in public housing tenancies is consistent

with this Court’s decisions in other contexts. See Goldberg

v. Kelly, 397 U.S. 254 (1970)(welfare recipients have prop-

erty interest); Perry v. Sinderman,408 U.S. 593 (1977)(col-

lege professor who had understanding that he would not be

fired, arising from de facto tenure policy, has property inter-

est); Cleveland Board of Education v. Loudermill, 470 U.S.

532 (1985)(government employee who could not be fired

except for cause has a protected property interest). See also

Board of Regents v. Roth, 408 U.S. 564, 577 (1972)(proper-

ty under the due process clause is an interest to which gov-

ernment has given someone an entitlement). These cases all

recognize that the property protected by the constitutional

right to due process is not limited by traditional notions of

real or chattel property. The term also includes certain en-

titlements, benefits, and expectations that are statutorily or

contractually created. Jd. In this case the property interest

in public housing derives from both sources.°

* Amici recognize that these cases define the procedural protections that

(continued...)

Specifically, the property interest at stake in this case is

very plainly established by statute and by the terms of the

lease itself. The federal public housing program was estab-

lished in 1937 in response to an acute shortage of “decent

and safe dwellings for low income families.” 42 U.S.C.

§1437. Understanding that these low income tenants face

grave adversity, Congress pui a number of protections in

place that limit the ability of local public housing authorities

(PHAs) to evict. In §1437(d)(/)(2) itself, the local PHAs are

prohibited from using leases with unreasonable terms and

conditions. Another subsection also provides that the leases

must not permit the PHA to terminate tenancies except for

“serious or repeated violation of the terms or conditions of

the lease or for other good cause.” §1437d(/)(5). Read to-

gether, these provisions of subsection (d) are sufficient to

create a property interest for purposes of the Due Process

Clause.’

® (...continued) |

flow from the Due Process Clause. Those protections would be ren-

dered meaningless, however, if the property interests it protects could be

terminated for arbitrary reasons unrelated to individual guilt. This Court

has emphasized time and again that “[t]he touchstone of due process is

protection of the individual against arbitrary action of government,

Wolff v. McDonnell, 418 U.S. 539, 558 (1974), whether the fault hes in

a denial of fundamental procedural fairness, see, e.g., Fuentes v. Shevin,

407 U.S. 67, 82 (1972)(the procedural due — guarantee os

against “arbi takings”), or in the exercise of power wi

pvc sillieiiien in the service of a legitimate governmental ob-

jective, see, e.g., Daniels v. Williams, 474 U.S. 327, 331 (1986) the a

stantive due ess guarantee protects against government power ar-

bitranly and -mncana rh exercised). See also County of Sacramento v.

Lewis, 523 U.S. 833, 845-46 (1998)(making the foregoing observation

about the procedural and substantive protections of the Due Process \

Clause).

7 ie wi this point in the lower courts. See Esca-

There is wide agreement on point peer

10

—~— -

The case for recognition of a protectable property inter-

est for public housing tenants is even stronger than in the

cases involving entitlement programs or employment. The

parties have entered into a lease agreement that defines the

terms and conditions of the tenancy. Public housing tenants

are required to contribute up to 30 percent of their adjusted

monthly income as rent. 42 U.S.C. §1437a(a)(1). Pursuant

to §1437d(/)\(5), the lease specifically provides that an evic-

tion must be based on repeated violations of the lease terms

or “good cause.” These regulatory safeguards create an ex-

pectation that the law acknowledges and protects. “The ex-

pectation of uninterrupted occupation and privacy exist

whether the home is held in fee or by lease. A leasehold is

subject to constitutional protections against arbitrary forfei-

tures by government.” United States v. Leasehold Interest

in 121 Nostrand Avenue, 760 F.Supp. 1015, 1027 (E.D.N.Y.

1991), citing Alamo Land and Cattle Co. v. Arizona, 424

U.S. 295, 303 (1976)(leasehold interest is a form of proper-

ty protected by the Fifth Amendment against uncompensated

taking).

This conclusion is reinforced by examination of the leg-

” (...continued)

lera v. New York City Housing Authority, 425 F2d 853, 861 (2nd Cir.

1970); Davis v. Mansfield Metropolitan Housing Authority, 751 F.2d

180 (6th Cir. 1984); Jeffries v. Georgia Residential Financial Authority,

678 F.2d 919 (' 1th Cir. 1982); see also Holbrook v. Pitt, 643 F.2d 1261

(7th Cir. 1981)(tenants have property interests in subsidized housing

payments if mandated by law); Ressler v. Pierce 692 F.2d 1212 (9th Cir.

1982)(section 8 applicants have protected property interest).

*In discussing due process protections of public housing tenants, it

should not be forgotten that, by definition, these low income tenants wil!

have very limited resources to contest an eviction, and no right to a gov-

ermment appointed lawyer. Nelson H. Mock, “Punishing the Innocent:

No-Fault Eviction of Public Housing Tenants for the Actions of Third

Parties,” 76 Tex.L.Rev. 1495, 1505-06 (1998).

ll

islative history that led to the adoption of the statute at issue

in “his case. In the same chapter and subtitle of the Anti-

Drug Abuse Act of 1988, Congress passed both the original

version of subsection (6) and also amended a pre-existing

civil forfeiture provision of the Controlled Substances Act,

21 U.S.C. §881(a)(7). The two statutes at issue were

enacted together as parts of a single legislative scheme to

combat drug abuse in public housing. The legislative his-

tory indicates how Congress envisioned the statutes working

together:

Chapter 1 of this subtitle codifies current HUD

guidelines granting public housing agencies au-

thority to evict tenants if they, their families or

their guests engage in drug-related criminal ac-

tivity. It also allows the federal government to

seize housing units from tenants who violate

drug laws by clarifying that public housing

leases are considered property with respect to

civil forfeiture laws.

134 Cong. Rec. $17360-02 (Nov. 10, 1998).

The forfeiture provision was amended by inserting the

phrase “(including any leasehold interest)” into the text of

the pre-existing statute. The amended statute then read in

relevant part:

The following shall be subject to forfeiture to

the United States...

(7) All real property, including any

right, title and interest (including any

leasehold interest) in the whole of any

lot or tract of land and any appurte-

nances or improvements, which is

used, or intended to be used, in any

manner or part, to commit, or to facil-

itate the commission of, a violation of

12

——

——-— - —_—

—

|

this subchapter ... except that no

property shall be forfeited under this

paragraph, to the extent of an interest

of an owner, by reason of any act or

omission established by that owner to

have been committed or omitted with-

out the knowledge or consent of that

owner.

21 U.S.C. §881(a)(7) (emphasis added).’ Although the

court below clearly understood the statutes to be “different

animals,” it concluded that Congress meant them to be read

consistently since they govern the same subject matter and

were enacted at the same time. 237 F.3d at 1121-22. More

importantly, by including public housing leaseholders in its

definition of property that may be subject to forfeiture, Con-

gress clearly expressed its intention to treat those leaseholds

as property interests indistinguishable from any cther prop-

erty interest.

Finally, the property interest at stake here is reinforced

by an undeniable liberty interest because it involves respon-

dents’ homes. “{S]afeguarding of the home does not follow

merely from the sanctity of property rights. The home de-

rives its preeminence as the seat of family life. And the in-

tegrity of that life is something so fundamental that it has

been found to draw to its protection the principles of more

than one explicitly granted constitutional right.” Hodgson v.

* The “innocent owner” defense which then appeared in 21 U.S.C.

§881(a\(7) is now codified at 18 U.S.C. §983(d) as part of the general

rules for civil forfeiture procedures. In enacting §983(d), Congress clar-

ified that an “innocent owner” is one who “(i) did not know of the con-

duct giving rise to forfeiture; or (ii) upon learning of the conduct giving

rise to the forfeiture, did all that reasonably could be expected under the

circumstances to terminate such use of the property.” 18 U.S.C.

§983(d)(2)(A).

13

Minnesota, 497 U.S. 417, 448 n.33 (1990). Thus, an “over-

riding respect for the sanctity of the home . . . has been em-

bedded in our traditions since the origins of the Republic.”

Payton v. New York, 445 U.S. 573, 601 (1980). See also

United States v. James Daniel Good Real Property, 510

U.S. 43, 53-54 (1993)(“Good’s right to maintain control

over his home, and to be free from governmental interfer-

ence, is a private interest of historic and continuing impor-

tance”).

The rationale for providing heightened protections

against governmental actions against the home is especially

compelling in the case of public housing tenants:

For the poor, the shortage of livable low-priced

housing is especially acute. Tenants -- and es-

pecially their minor children --, who are evicted

are likely to become homeless, with whatever

stability their lives afforded seriously jeop-

ardized.

United States v. The Leasehold Interest in 121 Nostrand

Avenue, 760 F.Supp. at 1018; see also United States v. Rob-

inson, 721 F.Supp. 1541, 1544 (D.R.I. 1989)(“an order of

forfeiture here would be, in effect, a sentence of homeless-

ness for the defendants and her three young children”);

Richmond Tenants Organization v. Kemp, 956 F.2d 1300,

1306 (4th Cir. 1992)(“the summary eviction of tenants from

a public housing project is hardly comparable to the seizure

of a yacht”). In addition to the possibility of being turned

out into the street with nowhere to go, an eviction may re-

sult in the breakup and scattering of the family. It may also

result in the loss of an individual’s furniture, clothing, per-

sonal effects and important papers if they are unable to find

a new home or place to store those items in the interim.

Simply put, public housing is the refuge of last resort for

the individual respondents in this case and many other elder-

ly and low-income residents.

14

B. By Disregarding The Principle Of Individual

Guilt, Petitioners’ Policy Violates Core No-

tions Of Fundamental Fairness

Under the circumstances of this case, petitioners’ con-

tention that an otherwise unconstitutional government policy

should be sustained because it is included in a lease imposed

on indigent tenants seeking public housing is both self-

serving and wrong. As a matter of fact, it ignores the obvi-

ous reality that public housing leases are not negotiated

agreements and the parties Jo not possess anything remotely

resembling equivalent bargaining strength. As a matter of

positive law, it misrepresents the statutory scheme estab-

lished by Congress, which prohibits petitioners from coerc-

ing compliance with unreasonable lease terms and condi-

tions. 42 U.S.C. §1437d(/). And, as a matter of constitu-

tional doctrine, it disregards the fundamental principle that

any waiver of constitutional rights must be knowing and

voluntary. See, e.g., Johnson v. Zerbst, 304 U.S. 458

(1938).

Indeed, were petitioners correct, a public housing tenant

could just as easily be evicted for violating a lease provision

requiring a tenant to vote for designated political candidates.

Even petitioners would presumably not defend the constitu-

tionality of such a provision. Petitioners’ reliance on the

lease therefore begs the question. If a lease condition is

constitutional, it can certainly be enforced. If it is an un-

constitutional condition, then the fact that respondents

signed the lease is immaterial

To the extent that they respond to the due process argu-

ment at all, petitioners point to the forfeiture cases as sup-

port for their position. Just the oppesite is true. In recent

years, virtually every member of this Court has expressed

disapproval of forfeitures where, as here, the property itself

has not been used for crime and where the individual prop-

15

erty owner is not guilty of any wrongdoing. See Calero-

Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689-90

(1974)(observing that serious constitutional questions would

be raised by the forfeiture of property by an owner who

“was uninvolved in and unaware of illegal activity” and who

“had done all that could be reasonably expected to prevent

the proscribed use of his property”); Austin v. United States,

509 U.S. 602 (1993)(placing limits on the government’s

ability to define property as an instrumentality of the crime);

id. at 627-628 (Scalia, J., concurring in part, concurring in

judgment)(same); Bennis v. Michigan, 516 U.S. at 466-467

(Stevens, Souter, Breyer, JJ., dissenting)(recognizing inno-

cent owner defense); id. at 472-473 (Kennedy, J., dissenting)

(same); id. at 458 (Ginsburg, J., concurring)(the government

“has not embarked on an experiment to punish third parties

... Nor do we condone any such experiment”); id. at 456

(Thomas, J., concurring)(limiting forfeiture to cases where

property is misused).

Bennis is the Court’s most recent decision on point. It

involved the seizure of an automobile owned jointly by a

Michigan husband and wife. Contrary to petitioners’ view,

however, Bennis, does not support their position on the con-

stitutional issues presented by this case. If anything, it re-

futes it. The car in Bennis was forfeited under Michigan’s

abatement statute because it was used by the husband to

solicit a prostitute. The wife, who had obviously not ap-

proved the arrangement, alleged that the statutory abate-

ment scheme deprived her of due process in violation of the

Fourteenth Amendment. In a straightforward application of

its forfeiture cases dating back to the early nineteenth cen-

tury, a nevertheless sharply divided Court held in a 5-4 de-

cision that property entrusted to another is subject to for-

feiture if it is used for illegal activity. 516 U.S. at 449. See

also, Calero-Toledo, 416 U.S. 663 (yacht rental); Van Oster

v. Kansas, 272 U.S. 465 (1926)(automobile on loan); J. W.

16

ee ee

Goldsmith, Jr.- Grant Co. v. United States, 254 U.S. 505

(1921)(automobile sale where the dealer held title as securi-

ty on note); Dobbins v. Distillery, 96 U.S. 395 (1877)(prop-

erty used by lessee); Harmony v. United States, 43 U.S. (2

How.) 210 (1844)(vessel); The Palmyra, 25 U.S. (12 Wheat)

1 (1827) vessel).

In these cases, forfeiture has been justified on two theo-

ries -- that the property itself is “guilty” of the offense, and

that the owner may be held accountable for the wrongs of

others to whom he entrusts his property. Both theories rest,

at bottom, on the notion that the owner has been negligent

in allowing his property to be misused and can be properly

punished for that negligence. See Austin, 509 U.S. at

614."°

Based on that understanding, this Court’s cases that

have rejected an “innocent owner” defense have been care-

fully limited to situations where the property has been mis-

used by a third person to whom the property was entrusted.

In one of its earliest decisions, involving the cargo of a

seized vessel, the Court speaking through Chief Justice Mar-

shall recognized as “unquestionably a correct legal princi-

ple” that “a forfeiture can only be applied to those cases in

which the means that are prescribed for the prevention of a

forfeiture may be employed.” Peisch v. Ware, 8 U.S. (4

Cranch) 347, 364-65 (1808). This Court held in Peisch that

the owners of the vessel could not be made to suffer for ac-

tions taken by the salvors, persons over whom the owners

'° In Austin v. United States, 509 U.S. 602 (1993), the Court reviewed

Calero-Toledo and earlier in rem forfeiture cases and found that they

were based on “the notion that the owner has been negligent in allowing

his property to be misused and that he is properly punished for his negli-

gence,” 509 U.S.at 615, and that none of these cases upheld forfeiture

“when the owner had done all that reasonab!y could be expected to pre-

vent the unlawful use of his property.” /d. at 616.

17

had no control. Jd. at 364-65. The more recent cases have

expressly reserved the question whether the “guilty proper-

ty” fiction could be employed to forfeit the property of a

truly innocent owner. Austin, 509 U.S. at 614-15;

Goldsmith-Grant Co., 254 U.S. at 512. In Calero-Toledo,

416 U.S. 663, the Court explained this reservation by noting

that forfeiture of a truly innocent owner’s property would

raise “serious constitutional questions.” Drawing an analogy

to the situation in Peisch where the owner of the vessel had

no control over the actions of the salvors, Justice Brennan’s

opinion for the Court explained:

[T]he same might be said of an owner who

proved not only that he was uninvolved in and

unaware of the wrongful activity, but also that

he had done all that reasonably could be ex-

pected to prevent the proscribed use of his

property; for, in that circumstance, it would be

difficult to conclude that forfeiture served legit-

imate purposes and was not unduly oppressive.

416 U.S. at 689-690.

The four dissenting justices in Bennis would have

adopted Justice Brennan’s formulation in Calero-Toledo, and

recognized an “innocent owner” exception for truly blame-

less individuals who establish that they took all reasonable

steps to prevent illegal use of the property. Bennis, 516

U.S. at 466-67 (Stevens, Souter, Breyer, JJ. dissenting), id.

at 472-73 (Kennedy, J., dissenting). To be sure, the majori-

ty opinion does not endorse that view but it also does not

reject it. It concludes, instead, that the “innocent owner

defense is inapplicable. Each of the three opinions by the

five Justices in the majority relied heavily on the particular

facts and circumstances of the case, and both singly and

18

ee a ee

_

cumulatively they are inconsistent with the expansive read-

ing of the decision urged by petitioners.'!

Chief Justice Rehnquist’s opinion for the Court ac-

knowledged that the argument that the forfeiture of the

property of innocent owners is unfair “has considerable ap-

peal.” Jd. at 453.2 However, the “force” of this claim of

unfairness was “reduced” in the Bennis case because of a

number of factors. Jd. First, in Bennis the automobile “was

used in criminal activity” by its joint owner, the husband.

Id. This placed the case within “a long and unbroken line

of cases [which] hold that an owner’s interest in property

may be forfeited by reason of the use to which the property

is put even though the owner did not know that it was to be

put to such use.” Jd. at 446. (emphasis added)."

Furthermore, both Justice Rehnquist and Justice Gins-

burg stressed that the car could be forfeited to the state be-

cause the husband was the joint owner, and thus the inno-

cent spouse’s claim was solely for an offset interest in the

proceeds. Jd. at 453, 457 (Ginsburg, J. concurring). In fact,

as Justices Rehnquist, Thomas and Ginsburg all noted, the

proceeds from the sale of the car (purchased for $600) did

'' The narrowness of the Bennis decision has been noted in both the

leading treatises in the field. David B. Smith, PROSECUTION AND DE-

FENSE OF FORFEITURE CASES, vol. 1, §12.04, pp.12-62 (Matthew Bender

1998)(“The Court’s opinion, per Chief Justice Rehnquist, should be read

as resting on narrow grounds peculiar to the Bennis case. . . . Thus, this

decision is not going to be the Court’s final word on the subject”);

Steven L. Kessler, CIVIL AND CRIMINAL FORFEITURE, vol.1, §3.01(3][a],

pp.3-180 (West Group 1999).

? Justice Thomas went further in his concurring opinion by char-

acterizing such a result as “intensely undesirable.” 516 U.S. at 454.

'? In his concurrence, Justice Thomas characterized Bennis as a case in

which “the property sought to be forfeited has been entrusted by its

owner to one who uses it for crime... .” 516 U.S. at 456.

19

not exceed the cost of the sale so there was “practically

nothing left” for Ms. Bennis’ offset. Jd. at 445, 456, 458.

The Court also stressed that the nuisance proceeding was an

equitable action, and that the state courts retained remedial

discretion to prevent unjust results, id. at 444-45, 453, or, in

Justice Ginsburg’s words, “to police exorbitant applications

of the statute.” Jd. at 457. In exercising that discretion, the

state court took special note of the fact that the Bennises

had another automobile. Jd. at 445.

The importance of these particular facts to the result

reached by the Court is clear from the emphasis placed on

them by all of the Justices in the majority; in fact, Justice

Ginsburg made it explicit that these facts were “key to my

judgment.” Jd. at 457. Based on these limiting factors,

Justice Ginsburg concluded that “Michigan, in short, has not

embarked on an experiment to punish innocent third parties.

Nor do we condone any such experiment.” Jd. at 458 (cita-

tion omitted). | However, the no-fault eviction policy

adopted by petitioners in this case is exactly that -- “an

experiment to punish innocent third parties.”

Justice Thomas wrote a separate concurring opinion in

Bennis explaining his own concerns with the law of forfei-

ture. While acknowledging that the Constitution may permit

forfeiture without providing an “innocent owner” defense,

he cautioned that such forfeiture must be limited to circum-

stances in which the property serves as an instrument of the

crime.

The limits on what property can be forfeited as

a result of what wrongdoing -- for example,

what it means to “use” property in crime for

purposes of forfeiture law -- are not clear to

me. See United States v. James Daniel Good

Real Property, 510 U.S. 43, 81, 83, 114 S.Ct.

492, 515, 516, 126 L.Ed.2d 490 (1993)

20

(THOMAS, J., concurring in part and dissent-

ing in part). Those limits whatever they may

be, become especially significant when they are

the sole restrictions on the state’s ability to

take property from those it merely suspects, or

does not even suspect, of colluding in crime.

It thus seems appropriate, where a constitution-

al challenge by an innocent owner is con-

cerned, to apply those limits rather strictly,

adhering to historical standards for determining

whether specific property is an “instrumentali-

ty” of crime. Cf. J.W. Goldsmith, Jr.,-Grant

Co., supra, at 512, 41 S.Ct., at 191 (describing

more extreme hypothetical applications of a

forfeiture law and reserving decision on the

permissibility of such applications).

516 U.S. at 455 (Thomas, J., concurring).'4

'* In recent years, a majority of the members of this Court has agreed

that the concept of an instrumentality subject to forfeiture -- also ex-

pressed as the idea of “tainted” items -- must have an outer limit. In

Austin, the Court rejected the argument that a mobile home and auto

bedy shop where an illegal drug transaction occurred were forfeitable as

“instruments” of the drug trade. 509 U.S. at 621. Justice Scalia agreed

that a building in which an isolated drug sale happens to take place also

cannot be regarded as an instrumentality of that offense. Jd. at 627-28

(Scalia, J., concurring in part and concurring in judgment). Justice

Thomas, too, has stated that it is difficult to see how real property bear-

ing no connection to crime other than serving as the location for a drug

transaction is in any way “guilty” of an offense. See United States v.

James Daniel Good Real Property, 510 U.S. at 81-82 (Thomas, J., con-

curring in part and dissenting in part). .

Austin was decided under the Eighth Amendments Excessive Fines

Clause. Although some members of the Court have drawn a distinction

between the considerations that are relevant to a claim brought under the

Excessive Fines Clause and the Due Process Clause, the principles at is-

(continued...)

21

The contrast between the facts of Bennis and the instant

case is clear. In the instant case, the property in question

was not “used in criminal activity;” in fact the illegal activi-

ty took place off the premises, and the district »ourt made it

clear that its preliminary injunction did not apply if the il-

legal activity took place inside the apartment. Additionally,

respondents have alleged, and petitioners have not contested,

that they had neither knowledge of nor control over the ille-

gal activity. The factors present in Bennis are thus not at

work here. The respondents are blameless and the property

was not an instrumentality of the crime.

Additionally, the prosecutorial discretion vested in

PHAs to decide whether to institute an eviction proceeding

is not the same as the equitable judicial discretion noted by

the Court in Bennis. Finally, what is at stake in this case is

not a negligible financial interest in a family’s second car,

but rather their entire property interest in their home. The

eviction of these low-income tenants, regardless of their be-

ing innocent of any wrongdoing or negligence, is a perfect

example of, in Justice Ginsburg’s phrase, an “exorbitant ap-

plication” of a forfeiture statue. 516 U.S. at 457.

None of the Court’s decisions upholding forfeiture in-

volve an analogous situation where there is no allegation

that any unlawful activity occurred on the leasehold prem-

ises. Indeed, there is no allegation that any of the respon-

dents did anything unlawful whatsoever. The forfeiture

cases cited by petitioners do not allow the government to

impute knowledge or responsibility to the respondents based

on the unlawful activities of their children and grandchil-

'* (...continued)

sue are plainly related. Both constitutional clauses are designed to cabin

the authority of government officials to seize private property which is

not fairly characterized as an instrumentality of a crime, or where the

owner is strictly blameless.

22

a

dren, especially when those activities did not even occur on

the property at issue.

Finally, petitioners are no more free to enforce a lease

condition that violates substantive due process than they

would be free to violate respondents’ rights directly. Amici

recognize that most of this Court’s unconstitutional condi-

tion cases have involved free speech claims. See, e.g.,

Speiser v. Randall, 357 U.S. 513 (1958); Legal Services

Corporation v. Velazquez, 531 U.S. 533 (2001). But the

government itself has recently acknowledged that the doc-

trine is not limited to that context. See United States v.

Knights, No. 00-1260, slip op. at 5 n.4 (Dec. 10, 2001).

More significantly, the action challenged here violates

the principles involved in the unconstitutional conditions

cases in a way that may be different in kind but no less

damaging in impact. The imposition of a no-fault standard

elevates form over substance by sidestepping the substantial

protections of the Fifth and Fourteenth Amendments. In

particular, the leasehold is conditional on respondents’ ac-

ceptance of lease terms that erase the requirement of indi-

vidual guilt, although that requirement is fundamental to the

validity of government-imposed deprivations under the Due

Process Clause. That result is unconstitutional whether the

government accomplishes it directly, through forfeiture, or

indirectly, as here, by including it as a condition of the

tenancy.

II. PETITIONERS’ NO-FAULT EVICTION POL-

ICY IS NOT PROPERLY SUBJECT TO MINI-

MUM SCRUTINY, WHICH IT CANNOT SUR-

VIVE IN ANY EVENT

Petitioners do not seriously contend that their chal-

lenged policy can survive any form of meaningful scrutiny

under the Constitution. Instead, they argue that government

23

decisions about the allocation of scarce benefits are entitled

to deference, and that those cases applying a deferential

standard of review, primarily in the welfare context, are

controlling here. See, e.g., Dandridge v Williams, 397 U.S,

471 (1970).'° Petitioners’ contention might have more

force under existing law if respondents were arguing that

there is a constitutional right to public housing. Cf Lindsey

vy. Normet, 405 U.S. 56 (1972). But that is not the argument

that is being made. Respondents are no! asserting @ claim to

scarce benefits that have in fact been allotted to somebody

else. They are challenging the goverament’s authority to

evict them from their homes absent any evidence of person-

al wrongdoing or misuse of the property. That is not a

quarrel about resources. It is a dispute over the govern-

ment’s obligation to act on the basis of individual guilt and

accountability -- a principle that this Court has described, in

other contexts, as fundamental to our conception of justice.

See pp.6-7, supra. Our conception of justice also demands

that intrusions on fundamental rights be subject to more than

the cursory review that respondents allege is appropriate

here. At this Court has noted, the substantive component of

the Due Process Clause “provides heightened protection

against government interference with certa’n fundamental

rights and interests.” Washington v. Glucksberg, 521 U.S.

at 720.

On that basis, this case is easily distinguishable from

Ohio Bureau of Employment Services v. Hodory, 431 US.

471 (1977), and Lyng v. United Auto Workers, 485 U.S. 360

(1988), two deference cases that petitioners cite. As a

threshold matter, neither Lyng nor Hodory involved the ter-

mination or denial of government benefits based on the con-

duct of the recipient’s children or grandchildren. Addition-

'S Petitioners make this argument primarily by reference to Judge

Sneed’s dissent from the en banc decision below.

24

nie Oe FER ba REY a

ally, neither case involved the loss of the family domicile.

Moreover, none of the government interests at stake in

Hodory and Lyng are present in this case. For instance,

Lyng stands for the proposition that the Federal Food Stamp

program need not increase benefits to supplement the loss of

income of the head of the household who decides to go on

strike. Applying minimal scrutiny under the Equal Protec-

tion Clause, the Court upheld the distinction between per-

sons who go out on strike voluntarily and those who lose

their jobs involuntarily. In the Court’s view, it was not

unlike the decision by most state agencies to deny unem-

ployment benefits to those who quit their jobs voluntarily or

are fired for cause. In addition, there was at least an ele-

ment of personal accountability in Lyng that is totally

missing here. While the striker’s family would undoubtedly

suffer from his decision, the striker controls the destiny of

his own family. Finally, unlike Lyng, the respondents in

this case are not asking the government to subsidize the

exercise of their constitutional rights, they are merely asking

the government to refrain from abridging them.

The essential facts in Hodory are different from Lyng

only to the extent that the unemployment statute in Hodory

did not draw any distinction between individuals who volun-

tarily went out on strike and those who were temporarily

furloughed because of a plant closing. In this sense, the

furloughed worker in Hodory was blameless. Any similarity

between Hodory and this case ends there, however. As in

Lyng, there was no property interest at stake. Furthermore,

the steelworker plaintiff in Hodory was laid off as a result

of a strike at one of the employer’s coal mines. Under these

circumstances, the Court reasoned that the denial of benefits

was rationally related to the goal of maintaining governmen-

tal neutrality in labor disputes. The Court recognized that

“[t}he employer’s costs go up with every laid-off worker

who is qualified to collect unemployment. The only way

25

for the employer to stop these rising costs is to settle the

strike so as to return the employees to work. Qualification

for unemployment compensation thus acts as a lever increas-

ing the pressures on an employer to settle a strike.

Hodory, 431 U.S. at 492. Because the distinction in Hodory

did not involve a suspect class, the denial of benefits was

upheld. But being denied benefits under the circumstances

present in Hodory is very different from being turned out of

your home when an individual possesses a lease agreement.

Respondents’ complaint in this case has less to do with dis-

parate treatment than with treatment that is fundamentally

unfair. Thus, there is no occasion to apply rational basis

analysis or to dispense with the due process analysis we

have argued throughout.

Even if the Court’s equal protection or due process de-

cisions involving economic regulation are applicable, the in-

terests identified by the petitioners and referenced by the

dissent in the en banc decision below are not advanced by

the no-fault eviction policy. The policy is premised on the

empowerment of public housing residents to assist in the

fight against crime and violence. It is the intent of housing

officials that the policy will “provide a credible deterrent

against criminal activity and facilitate the eviction of truly

culpable tenants.” Rucker, 237 F.3d at 1139-40. It is also

hypothesized that the policy will “create incentives for all

tenants to report drug related activity.” Id. The court of ap-

peals reiscted this far reaching argument for the very basic

reson that “{I]mposing the threat of eviction on an innocent

tenant who has already taken all reasonable steps to prevent

third-party drug activity could not have a deterrent effect

because the tenant would have already done all that tenant

could do to prevent the third-party drug activity.” Jd. at

1121. Likewise, when applied against elderly, low-income

residents for the conduct of their adult children and grand-

children, there is no basis to conclude that the government's

26

interests will be rationally advanced.'"© The individuals

evicted are innocent of any wrongdoing and culpable of

nothing. “Evicting the innocent tenant will not significantly

reduce drug-related criminal activity in public housing, since

the tenant has not engaged in any such activity personally or

knowingly allowed such activity to occur.” Jd. All the pol-

icy accomplishes is the removal of these otherwise law-

abiding individuals. Under this Court’s cases requiring per-

sonal guilt, the means chosen by the petitioners cannot justi-

fy the ends.

The court of appeals’ analysis rejecting the interests of

petitioners is unquestionably correct. Indeed, this Court’s

forfeiture decisions can be understood to reach the very

same conclusion when applied to the facts of this case.

Austin, 509 U.S. 602, stands for the proposition that forfei-

ture of property that is not an instrumentality of the crime

does not rationally advance the government’s interest in de-

terring misuse of the property. The government’s rationale

is even more attenuated here because there is no allegation

of misuse. Moreover, if Bennis, 516 U.S. 442, is under-

stood as a case involving ownership or negligent entrustment

'* Admittedly, the policy might have some rational basis if it were

targeted at the children and grandchildren who are allegedly engaged

illegal activity, but this cannot provide the justification for evicting the

parents or grandparents -- especially where as here the conduct did not

occur in the leasehold premises and was beyond the power of

leaseholder to prevent or control. What makes petitioners’ position so

untenable is that if they are aware of illegal activity by the leaseholder

or of illegal activity occurring on the leaseholder’s premises, they have

abundant authority under the policy to evict the tenant on this basis.

Similarly, if petitioners are aware that the leaseholder’s children,

grandchildren or other household members or guests are engaging in

illegal activity on or off the premises, they can intercede or seek the

assistance of local law enforcement authorities. Petitioners’ enforcement

of the no-fault policy would allow irrational evictions of innocent

tenants.

27

of the car, and not as a case categorically rejecting an in- CONCLUSION

nocent owner defense where the property owner is strictly For the reasons stated above, the judgment of the

blameless, then the government’s interests in deterring or United States Court of Appeals for the Ninth Circuit should

punishing drug use by the tenant or tenant’s household be affirmed.

members are not rationally advanced, just as they wouldn't

be rationally advanced if the government forfeited the prop- Respectfully submitted,

erty of individuals who could not foresee or contro! the mis-

use of their property. Under these circumstances, it is “dif-

ficult to conclude that forfeiture served legitimate purposes Mark J

and was not unduly oppressive.” Calero-Toledo, 416 U.S. ems of R

—- Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2560

Alan L. Schlosser

ACLU Foundation of

| Northern California

1663 Mission Street

San Francisco, California 94103

- (415) 621-2488

Dated: December 20, 2001

28 3 29