Federal Law Doesn't Require Evicting D.C. Subsidized Housing Residents for Pleading Guilty to Possessing Unregistered Guns

From today's decision by Judge Corinne Beckwith, joined by Judges Anna Blackburne-Rigsby and Joshua Deahl, in Hattix v. D.C. Housing Authority:

Desean Hattix was convicted of attempted failure to register a firearm after police executed a search warrant at his home and recovered, among other things, two unregistered handguns. Following his conviction, the District of Columbia Housing Authority (DCHA) sued Mr. Hattix to evict him from his federally subsidized housing unit.

DCHA alleged that Mr. Hattix's possession of an unregistered firearm violated the federal "one-strike" provision in his lease, which prohibits tenants from engaging in "[c]riminal activity that threatens the residents' health, safety or right to peaceful enjoyment of the [property]." … [We agree with Mr. Hattix] (1) that possession of an unregistered firearm does not constitute a per se threat to residents' health, safety, or right to peaceful enjoyment of the property, and (2) that DCHA did not present sufficient evidence that Mr. Hattix's conduct posed a threat to residents' health, safety, or right to peaceful enjoyment of the property….

In January 2018, the Metropolitan Police Department (MPD) executed a search warrant at the federally subsidized housing unit where Mr. Hattix lived in Southwest D.C. MPD officers seized several items, including "two handguns, each with ammunition, a spent round of ammunition, a plastic bag containing drug paraphernalia and mail matter in [Mr. Hattix's] name." The firearms were not registered, and Mr. Hattix was not licensed to possess a firearm in the District. Mr. Hattix [pleaded guilty to] two counts of possessing an unregistered firearm and two counts of possessing unregistered ammunition. He subsequently pleaded guilty to attempted possession of an unregistered firearm.

Following his conviction, DCHA served Mr. Hattix with a notice to vacate his home, informing him that he had violated his lease and would be evicted. Specifically, DCHA relied on provision 18.1.4(i) of the lease, which states that lessees "shall not engage in any" "[c]riminal activity that threatens the residents' health, safety or right to peaceful employment of the Development." By law, this language—also called the one-strike provision—appears in all federally subsidized housing leases in every state. It requires no notice to tenants and no opportunity to cure their violation, thus preempting the general requirement under D.C. law that a landlord seeking to evict a tenant provide such notice and opportunity to cure….

The distinction between Dick Heller's possession of an unregistrable firearm [in D.C. v. Heller]—which could not be a reason to evict a tenant—and Mr. Hattix's possession of an unregistered handgun in violation of the District's post-Heller registration scheme is minimal, and not so glaring as to warrant the eviction of Mr. Hattix based on [an earlier precedent's] holding, prior to Heller, that the presence of an illegal firearm is a per se threat to the safety of one's neighbors. We do not dispute DCHA's argument that gun registration "is a useful method to curb illegal gun activity, encourage responsible gun practices and ensure gun owner accountability and help law enforcement solve crimes and disarm criminals." … But the fact that registration may serve as a "mechanism by which [the District] enforces important safety" requirements does not mean that the "mere lack of registration would … ordinarily be viewed as itself causing" harm.

Further, the fact that "the vast majority of states have not traditionally required registration of lawfully possessed guns"—including many states that explicitly prohibit registration requirements—tends to weaken DCHA's characterization of possession of an unregistered handgun as a per se threat to safety. To be sure, different states have different conditions and different legislative priorities, but most people in the United States who live in federally subsidized housing—including people in big cities that are combatting persistent gun violence—are not risking eviction by possessing an unregistered gun in their homes.

That it is not difficult to conjure situations in which the registration status of a gun would not affect the danger it poses to public safety likewise undermines the contention that failure to register a gun presents a per se threat. Mr. Hattix raised one at oral argument: An individual buys a gun and—having demonstrated that he satisfies the District's gun-registration requirements—registers this new gun. He then buys the exact same make and model of the original gun but, due to ignorance or laziness, fails to register the second gun. The registration status of the first gun does not make it any safer than the second gun. Or consider an individual who owns and registers a gun in another state before moving to the District. Upon arriving in the District, he is busy buying furniture and starting a new job, and it takes him a month to finally register his gun. His gun posed no greater threat to public safety before it was locally registered than it did after it was registered.

Contrary to DCHA's argument, this view does not require "a landlord to wait until a tenant uses an unregistered weapon to commit an illegal act against a specific person." DCHA could also have evicted Mr. Hattix under the one-strike requirement by making an individualized showing that his possession of an unregistered firearm endangered the safety of his fellow residents. Evidence that Mr. Hattix failed to register his firearm because, for example, he could not satisfy the registration requirements—perhaps because he had a history of domestic violence—would support DCHA's contention that Mr. Hattix's unregistered firearm threatened the safety of fellow residents.

But DCHA did not demonstrate an individualized threat here. In concluding otherwise, the [trial court] judge relied on the housing manager's testimony that she was generally concerned about gun violence in the community, but general concern about guns tells us nothing about the particular threat posed by an individual. In fact, to the extent the housing manager said anything specific about Mr. Hattix and his gun, her testimony cut the other way: she stated that she had no knowledge that Mr. Hattix had ever been involved in any gun-related activities on the premises, that she had never had a negative interaction with Mr. Hattix, and that he had never acted in a threatening manner towards her. On this record, DCHA has not established that Mr. Hattix's possession of an unregistered gun posed a per se or individualized threat to other residents' health, safety, or right to peaceful enjoyment….

Betsy A. Crumb, Luca Difronzo, Rowdy Kowalik, Lindsay Swinson, Jenifer E. Foster, and James Toliver represented Hattix.