The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A Granite City, Illinois family recently filed a lawsuit challenging the constitutionality of an ordinance that mandates the eviction of tenants any time anyone in their "household" has "engaged in criminal activity" within the city, "engage[d] in any act intended to facilitate criminal activity" anywhere in Granite City, or committed a "forcible felony" anywhere at all. In this case, the City is trying to evict Jessica Baron, Kenny Wylie, and their three children because a friend of their teenage son who had been temporarily staying with the family committed a burglary at a nearby restaurant. The Institute for Justice, the libertarian public interest law firm representing the family and their landlord (William Campbell), has more details on the case here. The complaint recently filed in federal district court is available here.
The Granite City ordinance requires eviction of the entire household regardless of whether all the members participated in the crime or even knew about it. It applies regardless of whether the offender is actually a permanent member of the household or merely a temporary one. And eviction is required even if the landlord would like the family to stay. In this case, the landlord wants exactly that, and has even joined the lawsuit challenging the ordinance.
Sadly, Granite City is far from the only jurisdiction that has this kind of "crime-free housing" ordinance. Illinois alone has some 50 other jurisdictions with similar laws. An ACLU report documented some 50 others in the Twin Cities area in Minnesota. There are likely more in other parts of the country. These ordinances were apparently an outgrowth of the wave of "tough on crime" laws of the 1980s and 1990s, though widespread adoption of the more restrictive versions of them only seems to have begun after the Supreme Court upheld similar rules for public housing in 2002.
Punishing entire families for the crimes of one member—or in this case for those of one family friend—is the kind of barbaric policy we normally associate with brutal authoritarian regimes. It's not something that should happen in a nation that aspires to be a free society. In 2016, the Obama Administration Department of Housing and Urban Development issued a guidance warning that such laws can have the perverse effect of mandating eviction of domestic-violence victims who report their abusers. Both victims and abusers are often members of the same household, so the law requires the eviction of all of them!
This kind of law is also blatantly unconstitutional. The lawsuit filed by the Institute for Justice on behalf of the Wylie/Baron family contends that it violates the Due Process Clause of the Fourteenth Amendment and the Takings Clause of the Fifth Amendment. They are right on both counts.
A lease is a type of property right, and long-established precedent indicates that it is covered by the Takings Clause, which bars the government from taking "private property" without paying "just compensation." In this case, the government has forcibly deprived the family of their lease without paying any compensation whatsoever.
The Due Process Clause of the Fourteenth Amendment bars state and local governments from depriving anyone of "life, liberty, or property, without due process of law." Under crime-free housing ordinances, entire families can be deprived of their leasehold property rights without any indication of wrongdoing on their part and without any of the protections normally associated with criminal or civil penalties. Unlike in the case of asset forfeitures (another constitutionally suspect practice), the government need not even prove that the leased property had any connection to the crime in question, which (as in this case) could have been committed elsewhere.
The complaint argues that the Granite City ordinance also violates the Equal Protection Clause of the Fourteenth Amendment. I am much less persuaded by this theory than the other two. But, regardless, the ordinance should be struck down because it is clearly both an uncompensated taking and a deprivation of property rights without due process of law.
In 2002, the Supreme Court upheld a similar compulsory-eviction policy for federal public-housing tenants. But the Court made clear that it did so largely because "[t]he government is not attempting to criminally punish or civilly regulate respondents as members of the general populace. It is instead acting as a landlord of property that it owns, invoking a clause in a lease to which respondents have agreed and which Congress has expressly required." In this case, Granite City clearly is regulating tenants "as members of the general populace" and it mandates eviction even in cases where the tenants have not violated any clause in their lease and the landlord wants them to stay. Landlords and tenants are required to abide by the mandatory-eviction rule regardless of whether they have voluntarily agreed to it or not.
NOTE: I have worked with the Institute for Justice on many other property rights cases, and was a student law clerk there during the summer of 1998. But I have no involvement in the present case.
UPDATE: I have added a clarification to the sentence describing the historical origins of these types of laws, as the original version made it seem like most were enacted earlier than was actually the case. I apologize for any confusion.