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Past Arrests May Not Be Sole Basis for Rejecting Public Housing Applicants

By Marie Claire Tran-Leung, Katherine Walz, and Richard Wheelock

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 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 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 burden-shifting 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)). Because of 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)), 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 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.

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.

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