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The 9th U.S. Circuit Court of Appeals may reinstate an injunction preventing eviction of Oakland, Calif., Housing Authority tenants for drug activity they couldn’t control, but just how far the court will go toward ending the “one-strike” policy remains to be seen. Several judges on the 11-judge en banc panel buffeted a government lawyer with skeptical questions about a federal housing policy that allows local agencies to evict tenants whose friends or family members participate in illegal drug activity, regardless of whether the tenant had any knowledge of it. “Is there any way a tenant could guard against a violation?” asked Judge Michael Daly Hawkins, sounding incredulous. U.S. District Judge Charles Breyer issued the injunction on behalf of four Oakland Housing Authority tenants, and others similarly situated, after they were served with eviction notices for drug activity they say they were powerless to stop. None has so far been evicted. In February, a split three-judge panel ended Breyer’s injunction, saying the judge could not have allowed for an “innocent tenant” defense and there was therefore no reason to issue an injunction. Judge William Fletcher wrote the dissent, and just last month the court voted to rehear the case. In the courtroom Tuesday, Fletcher and Judge Richard Tallman made highly unusual appearances, standing in the rear of the public area while the panel heard arguments. Things did not start off well for the government lawyers arguing in defense of the so-called one-strike policy. To begin, Howard Sher, a Main Justice lawyer representing the U.S. Department of Housing and Urban Development, saw his briefs slide off the lectern and crash to the floor. Then a judge twice told him he had read the record wrong. Another told him three times that the government was in the business of evicting grandmothers. Sher and his co-counsel representing the Oakland Housing Authority, Gary Lafayette of San Francisco’s Lafayette & Kumagai, fared better when sticking to their guns. In sum, they argued that Congress clearly left discretion of whether to evict a tenant up to the housing agency. “It’s not one strike and you’re out, it’s one strike and you can be out,” Sher said. A law enacted by Congress allowed HUD to evict people for “any” drug-related activity, a point Sher tried to make. “In this case, while it does appear a severe remedy, at least according to the plaintiffs, … the fact of the matter is that Congress recognized that this is an appropriate tool,” Sher said. Lafayette agreed, telling the court to focus on neighbors who want to live in an environment free from criminal activity. But Judge Stephen Reinhardt ridiculed defense arguments more than once, causing the audience to erupt in laughter. For example, government lawyers argued that the eviction law has no geographic limitations. One tenant was served with an eviction notice in part because her son was found in possession of cocaine eight blocks away from the housing property. Reinhardt said surely there must be some geographic limitations. What about a tenant’s friend or relative, he asked, “who goes to New York City and smokes a marijuana cigarette in Yankee Stadium? And you evict her grandmother?” A lawyer for the plaintiffs didn’t fare well, either. Under questioning, Cooley Godward attorney Whitty Somvichian often spoke in halting sentences and at times seemed to misunderstand simple questions. But one defense lawyer did remark at the conclusion of the hearing that the court seemed to be trying to help him. But whether the court goes further than reinstating the injunction remains to be seen. The proceedings in the trial court have been suspended while Breyer’s ruling was on appeal. The court could find that Breyer simply did not abuse his discretion or issue an order allowing for an “innocent tenant” defense against similar evictions issued by the Oakland Housing Authority. Currently, there are no provisions for legal review afforded such tenants. Tenants’ lawyers held a hastily called press conference before Tuesday’s hearing on the steps of the federal courthouse. Present was 77-year-old Herman Walker, a disabled man whose hired caregiver was found with a crack pipe. He, too, was served with an eviction notice even though he eventually fired the caregiver. “Justice, that’s what I want,” Walker said. Housing activists were also in attendance. “It’s not even a crime,” said Joyce Miller from the Coalition on Homelessness. “How can you criminalize who your family members are?” In the end, it seems someone may have tried to evict the judges from their chambers during the argument. A door exiting the bench was locked after the hearing, leaving the panel to mill about as viewers filed out of the courtroom.

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