One strike and out, in public housing

The brief continues: "Reallocating their units to equally deserving, needy but drug-free households will improve the habitability of the developments just as much as replacing those who violate drug laws personally."

Lawyers for the tenants say such public housing laws are unfair to the people housing authorities are supposed to be helping.

"It is a sentence of homelessness," says Ms. Omura. "For someone who is disabled and getting $700 a month, how do you find a place to live when you lose your subsidized housing?"

Of the four tenants, both Barbara Hill and Willie Lee, 71, were ordered evicted because their grandsons were caught smoking marijuana in the parking lot.

Herman Walker, a 75-year-old disabled man with a live-in caregiver, received his eviction notice because his caregiver and her guests were found with cocaine. Pearlie Rucker, 63, who has lived in public housing for 17 years, was ordered out because her daughter was found with cocaine three blocks from the housing complex.

Lawyers for the tenants fought the evictions in federal court, arguing that the agency was applying the law in an unfair and unconstitutional manner.

A federal judge agreed, but was reversed by a divided federal appeals court panel. That panel was then reversed when the full Ninth US Circuit Court of Appeals in San Francisco heard the case.

The Ninth Circuit ruled 7 to 4 that the law doesn't apply to tenants who have no prior knowledge of the illicit drug activity. The judges said even though the law doesn't specifically outline a requirement of knowledge, the same "innocent owner" provisions that Congress enacted to protect unknowing property owners from government attempts to claim their property also applies to public housing lease holders.

Critics of this decision say it is an example of unelected appeals court judges replacing congressional policy judgments with their own. "Our system of checks and balances isn't meant to have judges second-guess the fairness of laws passed by Congress," says H. Joseph Escher III, a San Francisco lawyer who filed a friend-of-the-court brief for the Center for the Community Interest, supporting the housing authority.

In November, the Eleventh US Circuit Court of Appeals in Atlanta took up a similar case involving a single mother being evicted from a Tampa housing complex because her son was involved in a drug transaction. That court ruled that a tenant's lack of knowledge of her son's drug activity was not a defense to an eviction notice.

The US Supreme Court will resolve this split between the two appeals court circuits. The case, Housing and Urban Development v. Rucker, is expected to be decided by late June.

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