Saturday, October 19, 2013

Wendy McElroy: Challenging the 911 Landlord Law

  On September 19, a federal court in Philadelphia ruled on a challenge to the 911 Landlord Law in Norristown, Pennsylvania. The lawsuit had been brought by the American Civil Liberties Union (ACLU) and a local law firm on behalf of Lakisha Briggs. The ruling? A full trial on the challenge to the law can proceed.

  Such "911 Landlord Laws" are also known as "nuisance" or "crime-free housing" ordinances. The ordinances vary from city to city, but certain elements are common: to keep their rental licenses, landlords are encouraged or required to perform criminal background checks on rental applicants; they are encouraged or required to use a "crime-free lease," by which any crime on the premises breaks the contract — even if the tenant was a victim and did nothing more than call the police; furthermore, the police can demand eviction of a "nuisance" tenant, and landlords who do not comply can be repeatedly fined or worse. In some cities, landlords can also be forced to pay the cost of police visits.

  A controversial aspect of some 911 laws is the provision by which a landlord is fined or otherwise punished if a tenant calls the police more than a certain number of times during a given period. Tenants who do so may face forced eviction. In short, landlords are penalized for not "keeping the peace," and tenants are penalized for requesting police assistance.

  The laws are becoming popular in American cities, partly because they allow the police to outsource a messy part of their jobs at no taxpayer expense. The responsibility to handle domestic crime and to ration scarce police "services" is passed along to landlords and tenants; police functions are outsourced to the private sector. If the landlords and tenants fail to keep the peace, then they are punished in various ways, including by forced evictions, revocation of rental licenses, fines and possible imprisonment.

  There is another reason nuisance ordinances are a growing trend. They provide a direct means by which cities can address "problem" people or property use. The Milwaukee ordinance includes prostitution, littering, drug activity, gambling, trespassing, excessive noise, loitering, truancy, and public drinking as "nuisance" activities.

  Statutes and constitutional protections can make it difficult to ban businesses like massage parlors or biker clubs. City ordinances become a way to sidestep these legal barriers — as well as to enrich city coffers through fines. The ordinances can be used against "undesirables" in the same manner as zoning laws have been used against adult bookstores.

  There is no central database of how many cities have adopted such laws; whatever records exist are on the local level. Pennsylvania offers an indication, however. According to former county prosecutor Todd Stephens, there are at least 20 municipalities in Pennsylvania with such ordinances.

  Wherever the laws exist, they constitute an attack on the rights of tenants and landlords, and a threat to victims of domestic violence. They also constitute an expansion of police authority coupled with an abdication of police responsibility. The ordinances move the police further away from protecting people and toward enforcing government intrusion into the private sphere.

Norristown shines a light on 911 Landlord Laws

  The case in Norristown illustrates how the ordinances encourage crime and punish victims, especially victims of domestic violence. Under the Norristown ordinance, landlords are "encouraged" by authorities to evict any tenant if the police are called three times within four months to the tenant’s home to handle "disorderly behavior."

  Lakisha Briggs ran up against this law. Briggs had a violent ex-boyfriend whose actions prompted several calls to the police. At least one of the incidents caused police to register the call as a first offense for her under the three-strike law. The next offense was on April 15, 2012, when a neighbor phoned in a complaint over a fight that occurred during a barbecue at Briggs’s residence. The ACLU suit observes, "None of the individuals from Ms. Briggs’s home called the police for fear of incurring a second strike" (PDF). The police did not inform Briggs of the second strike, but her landlord received a notification. Her property was placed on probation.

  Fearing that she and her infant daughter could be evicted if the police visited her home one more time, Briggs resolved to not pick up the phone. This resolution could have cost her life. In June, the ex-boyfriend was released from jail, where he had been imprisoned on domestic-violence charges. He arrived on her doorstep and refused to leave. The lawsuit explains, "Ms. Briggs could not physically force him by herself to leave and knew that she could not call on the police to remove him without violating the probationary period and facing eviction." The ex-boyfriend broke a glass ashtray over Briggs’s head and stabbed her in the neck with one of the shards; Briggs was airlifted to a hospital for emergency treatment. Again, neighbors called the police, but the source of the complaint didn’t matter. The police had been called to the same resident three times within four months. After they arrested the boyfriend, they told Briggs, "You are on three strikes. We’re gonna have your landlord evict you."

  Three days later, the landlord’s rental license was revoked and Briggs was given ten days to leave. The landlord was assured that a new license could be issued after Briggs vacated. He reluctantly commenced eviction proceedings, even though he vouched for Briggs as a good tenant who paid the rent on time. The eviction process dragged on through continuances until a district court judge blocked it. If Briggs paid rent and her landlord’s legal fees, the district judge maintained, then she could stay in her home.

  Nevertheless, the city continued independently to apply the three-strikes rule. The eviction process wound on until September 2012, when Briggs’s legal representation wrote to city officials and pointed out the unconstitutionality of the ordinance. The law was abruptly scrapped. Two weeks later it was quietly replaced by a nearly identical one. The ACLU lawsuit explains, "The New Ordinance is substantially similar to the Old Ordinance." Specifically, "The New Ordinance permits Defendants [city officials] to assess a series of escalating criminal fines against landlords of any property at which, within a four-month period, the police have responded to three instances of ‘disorderly behavior’, including instances of domestic violence."

  In a few places, ordinances specifically exempt domestic-violence calls. Nevertheless, it is common for "domestic disturbances" to be included as disorderly behavior. A January 2013 study of Milwaukee found that domestic violence incidents were the third most common reason for the police to cite people under the nuisance ordinance. Entitled "Unpolicing the Urban Poor," the study found that most property owners "abated this ‘nuisance’ [domestic violence calls] by evicting battered women. Landlords also took steps to discourage tenants from calling 911."

The illegality of the ordinances

  Many legal objections to the ordinances exist. Some have to do with pernicious technicalities. For example, the three-strike law places domestic violence victims in a legal catch-22. A victim could have a protective order issued against an attacker and then be unable to enforce the order — that is, unable to call the police — without becoming homeless. The ACLU reports on another case,

       We represented a domestic violence victim in Illinois, who after years of experiencing abuse, decided to reach out to the police for the first time. The police charged her husband with domestic battery and resisting arrest. Yet only a few days later, the police department sent her landlord a notice, instructing the landlord to evict the victim under the local ordinance based on the arrest. The message was clear: calling the police leads to homelessness.

  Fundamental legal objections also exist. For example, the ordinances violate a tenant’s First Amendment right "to petition the Government for a redress of grievances" as provided by the First Amendment. The ACLU argues that "the right to present a criminal complaint … is a form of the right to petition for redress of grievances." This right requires access to police services.

  The ordinances also violate the due-process rights of landlords and tenants, which are guaranteed under the Fourth and Fourteenth Amendments. The police and city officials can strip property rights from landlords and saddle three-strike tenants with a crippling eviction record without a fair hearing or any meaningful right of redress. For example, there was no hearing before the revocation of the landlord’s rental license after the incident in which Briggs was almost killed. The authorities simply assumed the legal standing to impose their policies upon a housing situation with which the landlord and tenant had no complaint.


  Under whatever name they occur, nuisance laws are an assault upon the property rights of landlords, who are being criminalized for the actions of their tenants. In effect, landlords are being penalized if they do not assume the police duties of restraining violence and keeping the peace.

  Crime victims are also abused by the ordinances, which deny them protection from violence. By deterring tenants from calling for assistance, the police help crime to go unchecked and crime rates to increase. By enforcing evictions, city officials contribute to homelessness and poverty among the most vulnerable of their residents.

  Lakisha Briggs v. Borough of Norristown is a case to watch, because it constitutes a powerful challenge to the petty tyranny of local governments who attempt to wield ordinances with constitutional impunity.

  About the author: Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).

This article was published by The Future of Freedom Foundation.

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