1.7.3 Criminal Activity

PHAs have been directed by Congress to use leases that allow for “one-strike” evictions for criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants, violent or drug-related criminal activity on or off the premises, and criminal activity resulting in a felony conviction.1  To be grounds for eviction, criminal activity must threaten other tenants’ wellbeing, but drug-related criminal activity does not have to do so. The criminal or drug-related activity must have been engaged in by the “public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control.”2  If the PHA has decided to exclude “one strike” criminal activity from the grievance process, tenants are not entitled to use that process to contest such evictions.3  Advocates should be aware that public housing providers often try to fit allegations that do not qualify under the specific criteria laid out above into the “one strike” grievance exception.

PHAs must also provide in their leases that tenancies can be terminated if a member of the household is fleeing from a felony prosecution or conviction or is violating probation or parole.4  However, a tenant cannot be evicted for a guest’s criminal activity if it occurred prior to the tenant’s current lease term5  or if the alleged criminal activity constitutes domestic violence and the tenant was the victim.6

LSC-funded attorneys may not represent in a public housing eviction a person convicted of or charged with certain drug crimes if the criminal activity threatens the health or safety of public housing residents or employees.7  However, such attorneys may represent an individual facing eviction because a family member was convicted of or charged with a drug crime.

To evict on grounds of criminal activity, the PHA must prove that the activity occurred. Although a conviction is not required, if the PHA seeks to prove the criminal activity with evidence of a conviction, the PHA must provide the tenant with a copy of the criminal record in advance of the grievance hearing or court trial.8  An arrest is not itself evidence of criminal activity,9  but evidence that led to the arrest may be used to establish that criminal conduct occurred. Some courts have even granted one-strike evictions when there was no arrest. However, a police report alone does not satisfy the PHA’s evidentiary burden.10

HUD regulations include as good cause for eviction criminal or other activity that threatens the health or safety of people who reside in the immediate vicinity of the premises, even those who are not public housing residents.11  This appears contrary to the controlling statutory language, except with respect to drug-related criminal activity. Under the statute, criminal activity is grounds for eviction only if it threatens the “health, safety or right to peaceful enjoyment of the premises by other tenants.”12  Given this language, it does not appear that Congress intended to protect non-public housing residents residing in the immediate vicinity of the premises.

Drug or alcohol use even in the absence of criminal activity may also be grounds for eviction. PHA leases must provide that the tenancy may be terminated for any household with a member who is illegally using a controlled substance or whose illegal use of a controlled substance or abuse of alcohol interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents.13  If the household member is no longer engaging in the illegal use of a controlled substance or abuse of alcohol, the PHA may factor into its decision the household member’s participation in or completion of a supervised drug- or alcohol-rehabilitation program or other evidence of rehabilitation.14  Past use of drugs and alcohol may be considered a disability under fair housing laws.

The United States Supreme Court has ruled that lease provisions allowing eviction for criminal activity are constitutional and that there is no requirement that a tenant have knowledge of the alleged activity for it to be a lease violation.15  Nevertheless, the Court did not hold that eviction is mandatory in this situation. After this ruling, HUD issued two letters to all PHAs informing them that PHAs are not required to evict in these circumstances. According to HUD, “such evictions often do more harm than good,” and “eviction should be a last resort.”16  HUD’s regulation provides:

In a manner consistent with such policies, procedures, and practices, the PHA may consider all circumstances relevant to a particular case such as the seriousness of the offending action, the extent of participation by the leaseholder in the offending action, the effects that the eviction would have on family members not involved in the offending activity, and the extent to which the leaseholder has shown personal responsibility and has taken all reasonable steps to prevent or mitigate the offending action. The PHA may require a tenant to exclude a household member in order to continue to reside in the unit where that household member has participated in or been culpable for action or failure to act that warrants termination.17

This equitable approach is supported by the legislative history of the 1990 amendments to this statute in the Cranston-Gonzales Affordable Housing Act. For example, the accompanying Senate Report specified that criminal activity is grounds for eviction of public housing residents only if eviction is appropriate in light of all the facts and circumstances. The report states that each case should be judged on its merits, with the exercise of wise and humane judgment by the PHA and the eviction court. The report gives as an example of an inappropriate eviction one in which the tenant had no knowledge of guests’ criminal activity or had taken reasonable steps to prevent it.18

• 142 U.S.C. § 1437d(k).
• 242 U.S.C. § 1437d(l)(6); see Hous. Auth. of New Orleans v. Green, 94-CV-1650 (La. App. 4th Cir. 1995), 657 So. 2d 552.
• 324 C.F.R. § 966.51(2)(a).
• 442 U.S.C. § 1437d(l)(9); 24 C.F.R. § 966.4(l)(5)(ii)(B).
• 5Wellston Hous. Auth. v. Murphy, No. ED 83156, 2004 WL 555610 (Mo. Ct. App. Mar. 23, 2004); see also Boston Hous. Auth. v. Bruno, 790 N.E.2d 1121 (Mass. Ct. App. 2003) (holding that a PHA cannot shift on appeal to a theory that the offender was a guest after losing on its claim that the offender was a member of the household).
• 6La. R.S. 40:506(D); see also 34 U.S.C. § 12491(b)(3).
• 745 C.F.R. § 1633.
• 824 C.F.R. § 966.4(l)(5)(iv).
• 9United States v. Johnson, 648 F.3d 273 (5th Cir. 2011); United States v. Labarbera, 581 F.2d 107 (5th Cir. 1978); Landers v. Chi. Hous. Auth., 936 N.E.2d 735 (Ill. App. Ct. 2010); Bratcher v. Hous. Auth. of City of Milwaukee, 787 N.W.2d 418 (Wis. Ct. App. 2010); Pratt v. Hous. Auth. for City of Camden, No. 05-0544(NLH), 2006 WL 2792784 (D.N.J. Sept. 27, 2006).
• 10La. C.E. art. 803(8)(b)(i), (iv) (police reports inadmissible); Hous. Auth. of New Orleans v. King, 2012-1372, p. 5 (La. App. 4 Cir. 06/12/13), 119 So. 3d 839, 842 (eviction that relied on inadmissible police report was reversed); State v. Robinson, 02-1253 (La. App. 5 Cir. 4/8/03), 846 So. 2d 76, 84; Deville v. Aetna Ins. Co., 191 So. 2d 324, 328 (La. App. 3 Cir. 1966); see also State v. Cockerham, 522 So. 2d 1245, 1247 (La. App. 4 Cir. 1988).
• 1124 C.F.R. § 966.4(l)(2)(iii)(A).
• 1242 U.S.C. § 1437d(l)(6) (emphasis added).
• 13See 42 U.S.C. § 13662; 24 C.F.R. § 966.4(l)(5)(vi).
• 1424 C.F.R. § 966.4(l)(5)(vi).
• 15U.S. Dep’t of Hous. & Urb. Dev. v. Rucker, 535 U.S. 125 (2002).
• 16Letter from Mel Martinez, Sec’y of U.S. Dep’t of Hou. & Urb. Dev., to Pub. Hous. Dirs. (April 16, 2002), https://www.nhlp.org/wp-content/uploads/Ltr-from-Mel-Martinez-HUD-Secy-to-Pub-Hous-Dirs-Apr.-16-2002-1.pdf; see also Letter from Micheal M. Liu, Assistant Sec’y of U.S. Dep’t of Hous. & Urb. Dev., to Pub. Hous. Dirs. (June 6, 2002).
• 1724 C.F.R. § 966.4(l)(5)(vii)(B).
• 18S. Rep. No. 101-316 (1990).