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A federal appeals court has decided to rehear a controversial ruling that allowed local housing authorities to evict tenants for their guests’ and relatives’ drug activity. The 9th U.S. Circuit Court of Appeals agreed to an en banc review of the case, which arises from the Oakland Housing Authority’s implementation of a national rule allowing the evictions, even if the tenant is unaware of the activity. In February, a three-judge panel voted 2-1 to uphold a Department of Housing and Urban Development regulation that applies to more than 3 million low-income tenants nationwide. U.S. District Judge Charles Breyer had barred the Oakland Housing Authority from evicting four tenants in 1998, in one of the first rulings in the nation against the HUD policy. Judge Diarmuid O’Scannlain wrote the majority opinion, saying the policy was meant to ensure that tenants did not turn a blind eye to illegal activity. O’Scannlain also wrote an opinion in a closely watched housing rights case that allowed religious landlords to discriminate in the rental market. Brought by the landlords, the case was later thrown out of court by an en banc panel. Dissenting Judge William Fletcher wrote that the eviction policy “deprives innocent people of property that was not involved in any crime and punishes innocent people for crimes that they did not commit and could not prevent.” The four tenants in the Oakland case, Rucker v. Davis, 98-00781, have been allowed to keep their apartments as the legal wrangling in the case continues. “At this point, we’d like to get clarity from the courts,” said Gary Lafayette, an Oakland Housing Authority lawyer with San Francisco’s Lafayette & Kumagai. The tenants involved in the case are all elderly. One was warned twice about illegal activity.

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