In This Issue

• Termination of Section 8 Assistance.
  • A tenant cannot sue for a premature subsidy termination on the basis of the federal housing regulations.
  • A Section 8 tenant's assistance may be terminated by a PHA for failure to cooperate with housing inspections.
• Does a Criminal Attack Violate a Tenant's Civil Rights?
• Does the PHA Tenant Have a Constitutional Right to Bear Arms?

Termination of Section 8 Assistance

Lawrence F.
Feheley

Public Housing Authorities (PHAs) are frequently sued because they terminate a Section 8 tenant's assistance. Two recent decisions held that PHAs have some formidable defenses to these claims.

A tenant cannot sue for a premature subsidy termination on the basis of the federal housing regulations.

Claims against PHAs are commonly based on 42 U.S.C. §1983, a federal statute that allows recovery for violations of federal rights that are committed "under color of state law." Since a PHA is generally a state agency, most assume that its acts qualify as "state action."

In Caswell v. City of Detroit Housing Commission, 418 F.3d 615 (6th Cir. 2005), the landlord initiated eviction proceedings against a Section 8 voucher tenant because of the tenant's failure to maintain the premises. When the landlord notified the PHA of the eviction proceedings the PHA terminated the tenant's assistance. However, a federal regulation, 24 C.F.R. §982.311(b), requires a PHA to continue assistance payments until the tenant is either evicted or vacates the unit. The PHA claimed that it stopped the assistance payments because it did not know that the tenant remained in the premises while the eviction action was proceeding. On this basis, the tenant claimed that he could sue the PHA under Section 1983 for violating the federal regulation.

The Sixth Circuit Court of Appeals, which governs Ohio, ruled that the tenant could not sue. The Court ruled that claims can be made for violations of federal regulations only when the federal statute that authorizes the regulation shows an intent to allow the claim. In this case, the Court found nothing in the Housing Act itself that gives a tenant a right to continue to receive assistance after eviction proceedings had begun. Since the statute did not create the right, and the claim arose only on the basis of the implementing regulations, the tenant could not sue under Section 1983 for the alleged violation of the regulations.

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A Section 8 tenant's assistance may be terminated by a PHA for failure to cooperate with housing inspections.

The federal housing regulations, at 24 C.F.R. §982.551(d), require a Section 8 tenant to allow the PHA to inspect the housing unit at reasonable times, upon reasonable notice. In Grantham v. San Diego Housing Authority, 2005 Cal. App. Lexis 9253 (Cal. App. 2005), a California appellate court held that a PHA can properly terminate a tenant's assistance if they fail or refuse to cooperate with the inspections.

In this case, the PHA gave notice of an inspection, but when they arrived the tenant was not present. However, the inspectors observed excessive debris and water accumulation in the yard. The PHA sent another notice a week later, telling the tenant to correct the deficiencies and arrange for a reinspection visit. The inspectors returned a month and a half later but, again, the tenant was not present. The PHA terminated the tenant's Section 8 participation for refusing to allow the inspections and for failure to meet HQS requirements.

The appellate court agreed with the PHA and allowed the termination of the tenant's assistance. The court ruled that the tenant's failure to be present for the scheduled inspections, and her failure to correct the noted HQS violations, justified the termination.

[Source: Housing & Development Law Reporter; Oct. 24, 2005, p. 699]

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Does a Criminal Attack Violate a Tenant's Civil Rights?

A PHA tenant was raped in her apartment unit. The tenant claimed that the assailant gained entry because (a) he had a master key, which he obtained because of the PHAs inadequate security policies for keys, (b) the PHA removed her deadbolt lock as directed by HUD, and (c) the PHA failed to replace a chain on her door. Hence, the tenant claimed, the PHA was liable for a violation of her federal civil rights. Bullard v. Inkster Housing and Redevelopment Commission, 126 Fed. Appx. 718 (6th Cir. 2005).

The Court of Appeals ruled that the tenant had no right to sue for a violation of her federal rights under 42 U.S.C. §1983. These types of suits require "state action," in that the state must affirmatively create or increase the risk of violence by an outsider, or the state must act with "deliberate indifference" to a known risk. In this case, that meant that the tenant had to prove that the PHA knew that its actions exposed her to danger, and that it acted without regard to her health and safety. Since there had been no other assaults in the building, and since the deadbolt was removed in compliance with a HUD directive to aid assistance to the elderly in case of an emergency, the tenant's claim failed.

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Does the PHA Tenant Have a Constitutional Right to Bear Arms?

The Second Amendment to the U.S. Constitution guarantees the right to "bear arms." In Michigan, a PHA evicted a LRPH tenant because she had a handgun in her car. The tenant argued that her eviction violated her constitutional right to keep and bear arms. Lincoln Park Housing Commission v. Andrew, 2004 Mich. App. Lexis 792 (Mich. App. 2004).

The court disagreed and allowed the eviction. The court ruled that the Second Amendment allows a collective group to possess weapons, such as a regulated militia, but that it is not an individual right. In addition, the right to bear arms is subject to reasonable restrictions. In this situation, the legitimate state interest in protecting the safety and welfare of residents is such a reasonable restriction.

[Source: Housing & Development Law Reporter; April 12, 2004, p. 250]

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