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January–February 2011
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Volume 44, Numbers 9–10
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Clearinghouse REVIEW
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Taking action to end poverty
• In this issue •
Three articles on human rights
as a framework for advocacy
• In the September–October 2011 Special Issue •
All articles on the human rights
prism in poverty law
To share your suggestions for the Special Issue,
e-mail [email protected]
Volume 44, Numbers 9–10 January–February 2011 415–504
Clearinghouse Review
How to Protect Tenants of
Homes
Federal Rights—Any Remedies?
Social Work in Legal Aid Practice
Human Rights Frameworks, Strategies, and Tools
Consumer Law and Criminal Record Barriers
Human Rights Principles in Practice
Litigation to Challenge Systemic Problems
Human Rights Driving Winning Campaigns
Advocacy Notes
Advocacy Notes
Past Arrests May Not Be Sole
Basis for Rejecting Public
Housing Applicants
In Keith Landers v. Chicago Housing Authority, 2010 Ill. App.
LEXIS 1010 (1st Dist. 2010), a homeless man successfully challenged the denial by the Chicago Housing Authority (CHA) of
his public housing application on the basis of his past arrests,
none of which resulted in criminal convictions. In ruling that
criminal arrests alone are not conclusive proof of past criminal
activity, the Illinois Appellate Court laid a critical foundation
for reducing housing barriers for people with arrest records.
Although the Landers court’s analysis depends on its interpretation of the CHA’s admissions and continued occupancy
policy, the court’s position on the limited probative value of
unsubstantiated arrests will be useful in challenges to arrest
record screening under the federal Fair Housing Act as well.
Key Facts
The plaintiff, Keith Landers, first tried to obtain public housing
in early 1995 when he submitted his application to the CHA
and was placed on its wait list. He waited for public housing
for over thirteen years, spending significant periods of time
homeless and living out in the open. His name finally rose to
the top of the wait list toward the end of 2008, and he became eligible for a public housing unit. First, however, he had
to pass a criminal background check (Landers, 2010 Ill. App.
LEXIS 1010, at *1).
The results of the criminal background check that the CHA
initially used to reject Landers did not belong to him. Screening Reports Inc. (the private company that supplied the CHA’s
credit and criminal background checks) added Landers’s twin
brother’s more extensive criminal record to Landers’s criminal
background check (id. at *2–3).
Once stripped of his brother’s criminal history, Landers’s criminal background check revealed a series of arrests that occurred
while he was homeless. Each arrest resulted in dismissed criminal charges, that is, he was never convicted of a criminal offense. His arrests included felonies (possession of controlled
substances, being a fugitive of justice) and misdemeanors (battery, assault, criminal trespass, and possession of drug paraphernalia). He was also arrested for and received a municipal
ordinance violation—not a criminal violation—for the civil offense of drinking on the public way (id.).
Landers requested an informal hearing to dispute the accuracy
of the criminal background check pursuant to the CHA’s administrative hearing process (24 C.F.R. § 960.208). As for the
arrests that did belong to him, Landers explained that they
492
arose not from his participation in any criminal activity but
from living on the streets in the vicinity of criminal activity. In
other words, his homelessness, not any wrongdoing on his
part, was to blame for his past arrests. The CHA did not present any evidence to rebut Landers’s testimony (id. at *3). Nevertheless, the CHA denied Landers’s application on the basis
of “a pattern of arrest and/or conviction for certain criminal
activity” (id. at *4).
Summary of Legal Claims
In challenging the CHA’s denial of Landers’s public housing application, the Legal Assistance Foundation of Metropolitan Chicago relied on two arguments: (1) federal law and the CHA’s
own admissions and continued occupancy policy require proof
of criminal activity, which is not the same as requiring proof of
criminal arrest; (2) the use of arrests to screen public housing
applicants violates the Fair Housing Act because of its unjustified, disparate impact on African Americans in Chicago.
“Criminal Activity” Under Federal Law and the CHA’s Admissions and Continued Occupancy Policy. Public housing
authorities may deny admission to public housing applicants
for specific “criminal activity” that occurred within a reasonable time before a prospective tenant’s application. The criminal activity must be (1) violent; (2) related to drugs; or (3) an
activity that would adversely affect the health, safety, or right
to peaceful enjoyment of the premises by other residents, the
owner, or public housing agency employees (see Quality Housing and Work Responsibility Act of 1998, 42 U.S.C. § 13661(c);
see also 24 C.F.R. § 903(c)(3)).
This federal statutory language is reflected in the CHA’s admissions and continued occupancy policy, which authorizes the
CHA to reject applicants with “a criminal history in the past
three years that involves crimes of violence to persons or property as documented by police arrest and/or conviction documentation” (Chicago Housing Authority, Admissions and Continued
Occupancy Policy 12 (Dec. 18, 2007) (on file with Richard M.
Wheelock)). Furthermore, the admissions and continued occupancy policy provides that “[i]f the CHA rejects an applicant
based upon a police arrest report pending case information,
the applicant’s name will remain on the wait list until documentation is presented showing the outcome of the case” (id.).
Since arrests are only allegations of criminal activity, they do not
establish the history of criminal activity required by the plain
language of the federal law, its implementing regulations, and
the CHA’s admissions and continued occupancy policy. The
evidentiary value of an arrest diminishes where the criminal
charge is ultimately dismissed; this was precisely the result in
each of Landers’s arrests (see Schware v. Board of Bar Examiners, 353 U.S. 232, 241 (1957) (“The mere fact that a man has
Clearinghouse REVIEW Journal of Poverty Law and Policy
n
January–February 2011
Advocacy Notes
been arrested has very little, if any, probative value in showing that he engaged in any misconduct.”)). With only a series
of unsubstantiated arrests and no convictions to back up the
CHA’s claims of criminal history, Landers argued, the CHA did
not meet the standard imposed by federal law and the CHA’s
own admissions and continued occupancy policy.
Fair Housing Act. Landers (an African American man) also argued that the CHA’s use of arrest records to screen his application violated the Fair Housing Act. Two distinct provisions of the
Act came into play: (1) its prohibition against housing discrimination on the basis of race (42 U.S.C. § 3604(a)– (b)) and (2) the
duty to affirmatively further fair housing that it confers upon
agencies (such as the CHA) that administer federal housing programs (42 U.S.C. § 3608(e)(5)).
To support Landers’s Fair Housing Act arguments, an amicus
brief was submitted to the appellate court by the Edwin F. Mandel Legal Aid Clinic of the University of Chicago Law School,
Uptown People’s Law Center, Chicago Area Fair Housing Alliance, Chicago Coalition for the Homeless, Legal Action Center,
National Law Center on Homelessness and Poverty, and the Sargent Shriver National Center on Poverty Law.
The Fair Housing Act bars housing providers such as the CHA
from discriminating on the basis of race. Because the Act includes a disparate-impact standard, this bar also applies to facially neutral policies that have an unjustified disparate impact
on racial minorities (see 2922 Sherman Avenue Tenants’ Association v. District of Columbia, 444 F.3d 673, 679 (D.C. Cir. 2006)
(observing that “every one of the eleven circuits to have considered the issue has held that the [Fair Housing Act] … prohibits
not only intentional housing discrimination, but also housing
actions having a disparate impact”)).
Courts usually analyze a disparate-impact claim under a burdenshifting framework. Under this framework, the plaintiff bears
the initial burden of proving his prima facie case. Once he has
demonstrated (usually through statistics) that a challenged policy has a disparate racial impact, the defendant may rebut the
prima facie case by proving that the policy advances a legitimate
interest (see, e.g., Huntington Branch, NAACP v. Huntington,
844 F.2d 926, 936 (2d Cir. 1988)).
The statistics that amici used to establish the disparate racial impact focused on African Americans in Chicago. Although they
composed one-third of the city’s general population, African
Americans were overrepresented in the pool of applicants on
the public housing wait list (60 percent), applicants for Housing Choice Vouchers (80 percent), and arrestees by the Chicago
Police Department (75 percent). These statistics showed both a
great need for federally assisted housing and a great disparity in
criminal justice contact within Chicago’s African American population (Brief of Amici in Support of Plaintiff-Appellee at 7–8,
Landers v. Chicago Housing Authority, 2010 Ill. App. LEXIS 1010
(1st Dist. 2010) (No. 09-1717)).
Courts and the Equal Employment Opportunity Commission
(EEOC) have relied on similar statistical disparities to establish
the racial impact of relying on arrests alone in the employment
context (EEOC Policy Guidance on the Consideration of Arrest
Records in Employment Decisions Under Title VII of the Civil
Rights Act of 1964 (1982) (citing Gregory v. Litton Systems, 316
F. Supp. 401 (C.D. Cal. 1970), http://bit.ly/dIALRC). Because of
Clearinghouse REVIEW Journal of Poverty Law and Policy
n
this disparate racial impact, the EEOC has advised employers
against arrest record screening because it likely violates Title VII
of the Civil Rights Act of 1964. Title VII and the Fair Housing Act
use identical language to outlaw race discrimination, and courts
often rely on Title VII jurisprudence when interpreting provisions
under the Act. Arrest record screening must be suspect therefore under not only Title VII but also the Act.
To show that the CHA could not justify the racial disparities, amici next demonstrated the attenuated link between arrest record
screening and the CHA’s goal of providing a safe public housing
community. Courts have long recognized the limited probative
value of an arrest, especially one that did not result in a conviction. Amici also identified the public housing authorities of New
York City, Los Angeles, and Baltimore, none of which considers
arrests when screening public housing applicants. Moreover, the
ability of these public housing authorities to control crime in
their public housing communities has not suffered under this
policy (see Human Rights Watch, No Second Chance: People with
Criminal Records Denied Access to Public Housing 37 (2004), http://
bit.ly/hDIppw), thus undermining the CHA’s argument that arrest record screening advances public safety.
Landers and amici raised a second claim under the Fair Housing
Act: the CHA’s failure to carry out its duty to affirmatively further fair housing. For agencies that administer federal housing
programs such as the CHA, the Act imposes more than just an
obligation to refrain from discriminating. These agencies must
also assess whether their proposed housing policies impede the
fair housing choice of racial minorities and take active steps to
overcome in a reasonable fashion the impediments that they
identify (see 42 U.S.C. § 3608(e)(5); see also Langlois v. Abington Housing Authority, 234 F. Supp. 2d 33, 73 (D. Mass. 2002)).
Throughout its reply brief, the CHA strenuously denied that its
use of arrest records in Landers’s case constituted unlawful discrimination under the Fair Housing Act. It did not discuss its
efforts, if any, to affirmatively further fair housing. Rather, the
CHA simply stated that Section 3608(e)(5) did not provide a private right of action. Given the tenor of its argument, the CHA
very unlikely evaluated its screening policy for possible impediments to fair housing choice for racial minorities or considered
how it could modify its screening policy to reduce the disparate
racial impact. Failure to perform these analyses and actions violates the CHA’s duty to affirmatively further fair housing under
the Act.
Illinois Appellate Court Analysis
Ultimately ruling against the CHA, the Illinois Appellate Court
found no evidence to justify rejecting Landers’s public housing
application. Contrary to the CHA’s position, the court held that
Landers would not be a threat to the health, safety, and welfare
of the public housing community he sought to join. In reaching
this decision, the court relied on its interpretation of the CHA’s
admissions and continued occupancy policy and did not address the Fair Housing Act arguments. Nevertheless, the court’s
recognition of the limited probative value of Landers’s arrest
record will be instrumental in future Fair Housing Act–based
challenges to the use of arrest records to screen tenants.
The court began its analysis by examining the admissions and
continued occupancy policy. Generally, the court observed, the
January–February 2011
493
Advocacy Notes
CHA rejects applicants with “a criminal history in the past three
years that involves crimes of violence to persons or property
as documented by police arrest and/or conviction documentation.” The court, however, identified a limitation to the CHA’s
ability to reject applications on the basis of arrests. Specifically
the admissions and continued occupancy policy provides that
“[i]f the CHA rejects an applicant based upon a police arrest report pending case information, the applicant’s name will remain
on the wait list until documentation is presented showing the
outcome of the case” (Chicago Housing Authority, Admissions and
Continued Occupancy Policy 13). Taken together, these admissions
and continued occupancy policy provisions restricted the CHA
to using arrests only if they were verifiable, according to the
court (Landers, 2010 Ill. App. LEXIS 1010, *9–10).
The court next explained that none of Landers’s arrests met this
standard because none was verifiable. One key factor in the
court’s analysis was the outcome of the arrests: dismissals across
the board without one criminal conviction. Note that the court
adhered to the language of the admissions and continued occupancy policy referring to “criminal history in the past three
years” and, unlike the CHA, limited its analysis to the arrests
that took place in the three years before Landers became eligible for public housing in 2008 (id. at *11).
Another factor was Landers’s unrebutted testimony denying involvement in the criminal activity for which he was arrested.
When Landers attributed his arrests to his homelessness and
specifically his susceptibility to police contact while he was living
on the streets, the CHA did not offer any evidence to rebut his
defense. Nor did the CHA submit any documentation, such as
police reports, that would put the arrests in any further context
(id. at *11–13).
According to the Landers court, this lack of documentation differentiated this case from Perry v. City of Milwaukee Housing
Authority, No. 06-C-0101, 2007 U.S. Dist. Lexis 29009 (E.D.
Wis. April 18, 2007), a case that in the CHA’s argument supported its use of arrests that did not result in convictions. The
Perry court upheld the housing authority’s decision to deny the
plaintiff’s Section 8 application on the basis of two prior arrests
for domestic battery (id. at *23–24). Unlike the CHA, the housing authority in Perry supplied additional documentation, namely, the criminal complaint and the police reports (id. at *24).
Unlike Landers, the plaintiff in Perry did not deny engaging in
the criminal activity for which he was arrested (Landers, 2010 Ill.
App. LEXIS at *14).
The court also distinguished Talley v. Lane, 13 F.3d 1031 (7th
Cir. 1994), another case that the CHA tried to use to support its
decision. Although the plaintiff in Talley was also denied housing benefits because of his criminal record, that criminal record
contained not only arrests but convictions for serious criminal
offenses (Talley, 13 F.3d at 1032 n.2). Since Landers’s criminal
record consisted mainly of arrests for nonserious offenses, the
outcome in Talley had no real bearing on his case (Landers,
2010 Ill. App. LEXIS, *16–17).
Implications for Future Claims
The Landers opinion may be most useful to advocates for its
proposition that unsubstantiated and unverifiable arrests do not
constitute a history of criminal activity.
494
The term “criminal activity” comes from the federal statute that
outlines authorized screening criteria for federally assisted housing as well as the HUD regulations that implement the federal
statute. Furthermore, to be consistent with federal law, most
public housing authorities incorporate the same language into
the screening criteria set forth in their admissions and continued occupancy policies. Screening criteria for federally assisted
housing programs other than public housing, such as Housing
Choice Vouchers and project-based Section 8, also likely refer to
“criminal activity.” By differentiating between criminal arrests
on the one hand and criminal activity on the other, the Landers opinion undermines a housing provider’s ability to conflate
these distinct requirements. Attorneys representing people with
arrest records therefore can use Landers to push back against
public housing authorities and landlords that consider unsubstantiated criminal arrests as proof of criminal activity for admission to any federal subsidy housing program.
The Landers opinion can bolster future challenges to arrest record screening under the Fair Housing Act, particularly at the
stage when the plaintiff shows that the use of arrests alone
does not further the defendant’s legitimate interest. In a majority of cases, a defendant housing provider defines its interest in
terms of the safety of other residents and the public housing
community as a whole. The CHA, for example, highlighted its
responsibility to provide safe housing under the U.S. Housing
Act.
Although this interest in public safety is not in dispute, Landers does call into question whether the use of unsubstantiated
arrests as a screening device actually furthers that interest. According to the Landers court, because “the outcome of [Landers’s] arrests was the consistent dismissal of the charges,” there
was “no evidence whatsoever that [he] engaged in criminal activity” and “no evidence that [he] was a potential threat to the
health, safety, and welfare of the public housing community”
(id. at *17–18). To support its position on the limited value of arrests without convictions, the Landers court highlighted limitations on the use of unsubstantiated arrests in criminal proceedings, where the interest in public safety is presumably stronger.
Past arrests are off-limits, for example, in impeaching a witness
during a criminal trial or in justifying a harsher sentence unless
those arrests are both relevant and reliable. Because the Landers court held that screening on the basis of mere arrests does
not necessarily promote public safety, housing providers will be
hard-pressed to justify the disparate racial impact of arrest record screening.
Marie Claire Tran-Leung
Staff Attorney/Soros Justice Fellow
Katherine E. Walz
Senior Staff Attorney
Sargent Shriver National Center
on Poverty Law
50 E. Washington St. Suite 500
Chicago, IL 60602
312.368.3308
[email protected]
312.368.2679
[email protected]
Richard M. Wheelock
Supervisory Attorney
of the Housing Law Project
Legal Assistance Foundation of
Metropolitan Chicago
111 W. Jackson Blvd. Suite 300
Chicago, IL 60604
312.347.8389
[email protected]
Clearinghouse REVIEW Journal of Poverty Law and Policy
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January–February 2011
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