Legal Analysis of H.R. 1429, the One Strike and Youre Out! Act of 2003
CRS Report for Congress
Received through the CRS W eb
Legal Analysis o f H.R. 1429, the “One Strike
and You’re Out! Act o f 2003”
American Law Division
H.R. 1429 would create an ex ception for victims of domestic violence from current
federal l aw and policy m andating z ero t oleran ce for criminal activity in federally
assisted housing. Under HUD’s “One S trike P o licy, ” t enants may b e h eld s trictly liable
and evicted by public housing authorities for criminal behavior by “a t e n a n t , any
member of a t enant’s household, a guest or another p erson under t he tenant’s control.”
Rep o r t e d l y, the policy h as been applied t o evict public housing t enants who were
victims of domestic violence at the hands of their own household m em b e r s or guests.
The bill rewrites federal no-fault eviction rules to avoid s uch application t o domes tic
violence victims. In effect, i t would erect an “innocent t enant d efense” for victims of
domestic or dating violence, w h ere t he target of the criminal act is either the t enant
hersel f or an immediat e family member. P erso n s guilty of physical act s of violence
agai nst family members or others – whet her committed on t he premises or el sewhere
– would not enjoy immunity, but could be evicted by public housing authorities under
current HUD rules. In addition, by placing “paramount importance” on the s afety and
“continued m ai ntenance” of domes tic violence victims, t he bill could be i nterpret ed to
create a heightened duty o f care o n t he part of public housing authorities t owards the
t enant i n such ci rcum st ances.
In 1988, Congress amended t he United S tates Housing Act of 1937 by enacting t he
Anti-Drug Abuse Act, which required pub lic housing authorities (PHAs) t o i nclude
cl auses i n all thei r l eas es allowing evictio n o f t enants for criminal or drug-related
activities. Motivating t he am endment were congressional concerns that “ram pant drug-
related o r v iolent crime” was imposing a “rei gn of terror” on public housing t enants; t hat
these conditions led t o even m ore serio u s cri minal activity and a deterioration of t he
public housing environment; and t hat t he federal government had a duty t o p rovide public
housing t hat i s “decent, safe, a n d free from illegal d rugs .”1 Two years l at er, C ongress
revisited t he problem o f criminal and d rug-related activity in public housing when i t
1 42 U.S.C. § 11901.
Congressional Research Service ˜ The Library of Congress
enacted the C ranston-Gonz alez National A ffordable Housing Act of 1990. It ex panded
the bas es for eviction t o i nclude “any criminal activity that threat ens t he health, s afet y, or
ri gh t t o p eaceful enj o ym ent . ” 2 T h e C ranston-Gonz ales Act required m ore s tringent
language to appear in all public housing l eases, p roviding that:
[A]ny crimi nal activity that threatens t he health, s afety, or right t o peaceful enj oyment
of the premi ses by other tenants or any drug-r elated criminal activity on or near such
premises, engaged in by a public housing t enant, any memb e r o f t he tenant’s
household, or any guest or other person under t he tenant’s control, shall be cause for3
termination of t enancy.
Congress further bolstered the C ranston-Gonz alez Act b y enacting t he Housing
Opportunity Program Ex t ension Act o f 1996.4 This amendment gave P HAs nationwide
access t o criminal background information s creening for public housing applicants,5
called for admissions procedures to screen out drug users and alcohol abusers l i k e l y t o
harm others, 6 and further broadened t h e scope of the l ease p rovision by allowing the
termination of t enancy for criminal activ i t y “on or off” the premises instead of “on or
near” t he prem i s es.7 Thereafter, the P resident s i gned the Quality Housing and Work
Respo n s ibility Act o f 1998. In part, t he new l aw clarified t hat t he U.S. Department of
H o u s i n g and Urban Development (HUD) could i ssue due process d etermination for
eviction p roceedings based o n “violent” as well as “drug-related” criminal activity, and
that such activity could o ccur “on or off s uch [ public housing] premises.”8
HUD has i n t erpret ed the s tatute to authorize a “One S trike P olicy,” permitting
eviction b y P HAs whether o r not the t enant knew, should h ave known, or tried t o p revent
the criminal activity.9 Thus, t enants may be hel d s trictly liable for criminal behavior by
“a tenant, any member of a t enant’s house hold, a guest or another p erson under t he
2 42 U.S.C. § 1437d (l)(6).
3 P.L. 101-625, § 504, 104 Stat. 4181 (1990 )(codified at 42 U.S.C. 1437d (l)(6)).
4 P.L. 104-120, § 9(a)(1), 110 Stat. 834 (1996).
5 42 U.S.C. § 1437d(q).
6 Id. a t § 1437n(e).
7 Id. at § 1437(d)(1)(6).
8 Id. a t § 1437d(k) .
9 See HUD v. Rucker, 535 U.S. 125 (2002). T he st atute w a s a l s o relied upon by President
Clinton when, in his 1996 State of t he Union Address, he announced a “ one strike and you’re
out policy” to govern evictio n s f r o m p u b lic housing f or alleged crimi nal activities. Several
months later, President Clinton e laborated: “ If you break the l aw, you no longer have a home i n
public housing, one strike and you’re out. T hat s hould be t he law everywhere i n America.” T he
President directed the HUD Secretary t o “ issue guidel i n e s to public housing and law
enforcement officials t o spell out with unmistakable clarity how t o e n force [ the policy] .”
Remarks announcing t he “One Strike a n d You’re Out” Initiative i n Public Housing,” i n 32
Weekly Comp. Pres. Doc. 582, 584 (April 1, 1996). HUD initially published t he guidelines for
the one-s trike i nitiative i n April of 1996. PIH 96-16. T hough t he initiative was presented as new
policy, it relied on existing l egislation and regulations. As President Clinton noted, “Believe it
or not, t he Federal l aw has actually authorized ‘one strike’ evi ction s ince 1988.”
tenant’s control.”10 Fo r evictions based o n t he acts o f t enants’ household m embers and
gu ests, allowing access t o t he premises e s tab lishes t he tenant’s responsibility, and the
state o f t enant’s knowledge, if any, is not an issue. Bu t for “o t h e r p e r s ons” d egree o f
contact with the t enant or family members det ermines whet her s uffici ent “legal control”
ex ists to hold t he tenant responsible for t hat p erson’s criminal conduct. Fo r ex ample, t he
tenant’s legal control over “commercial visitors” – solicitors, delivery persons, etc – or
other nonguest invitees on the p remises only s poradically or for b rief periods “necessarily
would be limited by t he brevity of the visit and would not extend to activity off public
housing p remises.”11 In addition to terminating a tenancy, the HUD regulations allow
PHAs discretion t o continue tenancies, provided t hat any cu lpable household m ember i s
ex cluded, 12 and t o consider rehabilitation when deci di n g whet her or not to terminat e a
Appli c a t i o n o f t he federal z ero t oleran ce statute and regu lations, and corollary
provisions in the l aws o f s everal stat e s , h ave b een the s ubject of various legal
chal l enges. 14 In t h e l eadi n g case, HUD v. Rucker , t he U.S. Supreme C ourt h eld t hat §
1437d(l)(6) o f t he federal l aw was unambiguous and p ermitted eviction o f t enants for t he
actions of third p arties regardless o f t heir knowledge o f d rug o r criminal acti v ity. It
further affirmed that “contro l” meant only “that the t enant h a[ d] permitted access t o t he
premises,” and t hat t he statute “entrusted” the l ocal PHAs to make the deci sion whet her
to evict t he tenan t f o r a v i o l a tion. A controversy t hat h as emerged i n Rucker ’s wake
concerns reports of public housing t enants wh o h a v e b een evicted after complaining o f
domestic violence perpetrated upon them by their o wn household m embers or gu ests. 15
H.R. 1429 appears i ntended t o rewrite federal no-fault eviction rules to avoid s uch
application t o domestic violence victims. T hus, t he bill would amend the public housing
and§8rentalassistanceprograms byaddition of t he following proviso:
except t hat s uch crimi nal activity, engaged in by a member of a tenant’s household or
any guest or other person under t he tenant’s control, shall not be cause for t ermi nation
of tenancy of t he tenant if the t enant or i mmediate member of t he tenant’s family is
a victim of domestic vi olence or dating violence and, as a r esult, could not control or
prevent t he criminal activity relating t o domestic vi olence or dating violence; and
except t hat nothing in this paragr aph s hall be construed t o limit the a u t h o r ity of a
public housing agency t o evi ct indivi duals who engage in criminal acts of physical
vi olence against f amily members or others, and i n all cases, a public housing agency
shall consider the s afety, security and continued maintenance of vi ctims of domestic
vi olence to be of paramount importance.
10 24 C.F.R. § 966.4(l)(5)(i)(B) ( 2003).
11 66 Fed. Reg. 28,782 (2001).
12 Id. at § 966.4(l)(5)(vii)(C).
13 Id. at § 966.4(l)(5)(vii)(D).
14 See RS21199, “No-fault Evi ction of P u b l i c Hous ing T enants for Illegal Drug Use: A Legal
Analys is of Departme nt of Housing a nd Urban Development v. Rucke r.” ( CRS 4-15-2002).
15 See Lapidus, L.M, “ Doubly V ictimized: Housing Discrimination Against V i ctims of Domestic
V i olence,” 11 Am. U.J . Gender Soc. Pol’y & L 377 (2003).
In effect , t he bi l l woul d erect an “i nnocent t enant d efense” – rej ect ed by t h e Rucker Court
- for victims of domes tic or dating violence, where t he target of the criminal act is either
the t enant her s e l f o r an immediat e family member. P ersons guilty of physical act s of
violence agai nst family members or others – whet her commit t e d o n t he premises or
elsewhere – would not enjoy immunity, but could b e evicted by public housing authorities
under current HUD rules. In addition, by placi ng “paramount importance” on the s afety
and “continued m ai ntenance” of domes tic violence victims, t he bill could be i nterpret ed
to create a heightened duty o f care o n t he part of P H A s t o wards t he tenant in such
circumstances. The bill is largely s ilent on what specific m e a s u r e s , i f any, might be
required. The annual repor ting requirement imposed by § 4 o f t he bill relative t o t he
numbers of evictions for domestic or dating v iolence m ay provide one ex ample.
However, in the absence of further l egislativ e guidance, the p recise contours o f any such
duty, or any obligations it may imply, would rem ai n a matter for judici al determination.
Fi nally, note t hat other possible rem edies for domestic violence victims may ex i st
under current federal l aw. T he Court did not address t he potential f or gender
discrimination i n P HA eviction policies i n Rucker . But the Fair Hou s i n g A ct 16 may
provide an avenue for challenging t he eviction of domes tic v i o l ence victims for t he
viol e n t act of their abusers. Because women are disproporti onately the victims of
domestic violence, it could b e argued, application of t he current One S trike policy has a
di sparat e i m p act on wom en. Di sparat e i m p act cl ai m s ari s e w here a group prot ect ed by
the Fair Housing Act is adversely affected disp roportionately by a faci ally neutral policy.
In the p ast, the t heory h as been invoked b y r acial minorities o r t he disabled when denied
housing access as a consequence o f policies not overtly discriminatory o n t heir face.17 In
a case s ettled b y consent d ecree in November of 2001, claims of gender d iscrimination
under t he Fair Housing Act were predicated on the evi ction o f a low-income housing
tenant as the result o f a domestic violence incident. 18
16 42 U.S.C. §§ 3601 et seq.
17 See V illage of Ar lingt on Heights v. M etropolitan Housing Development Corporation ,429 U.S.
18 U.S. v. C.B.M. Group, Inc., Consent Decree 01-8 5 7 P A (D. Or. 11-05-2001), a t
[http://archive.aclu.org/ court/alveraconsentdecree.pdf]. HUD brought an action i n f ed e r a l d i s t r i c t
court on behalf of M s Alvera, who i nterve ned a s of r ight pursuant t o 42 U.S.C. § 3612(o)(2).