May 1, 2002
Zero tolerance has become ridiculous when applied to little boys
playing cops and robbers or drawing pictures of guns, but it's sound
and sensible when applied to illegal drugs. It's one of the ways
Congress chose to address the persistent problem of illegal drugs in
People who live in public housing are entitled to expect a drug-
free environment, but the police can't monitor every unit. We need the
affirmative assistance of all law-abiding tenants to achieve zero
Since the heroes on United flight 93 said "let's roll," Americans
have a new respect for citizens who act affirmatively to defend public
safety when law enforcement is out of sight. And that includes the
grandparents who live in public housing.
The Department of Housing and Urban Development (HUD) evicted two
grandparents from public housing units based on the apprehension of
their two grandsons for smoking marijuana in the parking lot. HUD also
evicted another tenant in whose apartment a caregiver and two others
were found with cocaine.
The tenants argued that they should not be evicted because of drug
use by others without their knowledge or control. HUD's argument was
based on the Anti-Drug Abuse Act of 1988, which provides for eviction
of public housing tenants if there is "any drug-related criminal
activity on or off such premises, engaged in by ... any member of the
tenant's household, or any guest or other person under the tenant's
The district court agreed with the tenants. In a decision written
by the brother of Supreme Court Justice Breyer, the court forbade
eviction "for drug-related criminal activity that does not occur within
the tenant's apartment unit when the tenant did not know of, and had no
reason to know of, the drug-related criminal activity."
HUD appealed to the Ninth Circuit and won the right to evict a
tenant for drug use by any member of his household or guests. Then, in
a rare move, the Ninth Circuit reheard the case in an en banc session
and reinstated the original district court judgment denying HUD the
authority to evict.
By a hefty 7-4 margin, the en banc Court ruled that Congress did
not intend to throw people out on the street without a showing of
knowledge of wrongdoing. The Court described HUD's action as a "One
Strike and You're Out" policy and invalidated it.
Then, the U.S. Supreme Court unanimously reversed in March,
upholding the eviction in HUD v. Rucker. The Ninth Circuit is the most
reversed of all the federal Circuits, but an 8-0 Supreme Court decision
overturning a 7-4 Circuit Court decision is remarkable.
In holding for HUD, the Supreme Court emphasized that a "strict
liability" approach to drugs "maximizes deterrence and eases
enforcement difficulties." The Court found that neither Congress nor
the Constitution requires a showing of knowledge of criminal wrongdoing
prior to ousting a tenant who harbors drug abusers or dealers.
Although criminal convictions cannot be based on guilt by
association, loss of government benefits can be, if so legislated by
Congress. Even though AARP, the powerful seniors group, filed an
amicus brief on the side of the tenants, not a single Supreme Court
Justice agreed with them.
It is possible that HUD won because the case reached the High
Court in the post 9/11 political climate. It meshes perfectly with
what might be called the new Bush Law: "Everyone must choose. You're
either with the civilized world or you're with the terrorists."
So grandparents, now hear this: the rule applies to you, too,
because we need you to help us reduce illegal drug use. You must
decide which side you are on, and if you're not going to be on our
side, don't expect the taxpayers to subsidize your rent.
In another post-9/11 anti-drug decision overruling the Court of
Appeals for the Ninth Circuit, the Supreme Court upheld an
investigatory stop of a suspicious minivan in Arizona close to the
Mexican border. Relying only on hunches and intuition, the border
patrol officer stopped the car, and his assessment proved correct.
The Ninth Circuit parsed each of the factors the officer relied on
(e.g., the unusual route taken by an unrecognizable minivan driving
about the time of the changing of border patrol shifts), and dismissed
them as inadequate. In remarkable unanimity in United States v.
Arvizu, the Supreme Court reversed, holding that facts, even if
innocuous in isolation, may in the aggregate rise to the level of
Common sense tells us this is true. Another example would be four
young male non-citizens paying cash for one-way plane tickets and then
boarding as a group.
Unfortunately, the biggest news in the war on drugs is that
Afghanistan's 2002 opium crop is going to market this spring and will
help finance international terrorism. Afghanistan has been providing
70 percent of global illicit opium production.