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ACLU sues to limit ‘bar orders’
(Published January 14, 2002)
By JOHN DeVAULT
The Washington-area chapter of the American Civil Liberties Union has filed suit seeking to halt the use of a controversial disciplinary procedure employed against public housing residents and their guests.
The lawsuit in U.S. District Court asks Judge Thomas Penfield Jackson to suspend use of "barring notices" by the D.C. Housing Authority. Barring notices, which DCHA police officers or property managers may issue summarily, indefinitely forbid an individual to enter a DCHA property.
According to a DCHA official, barring notices may be issued for a broad range of offenses, including loitering, bothering DCHA tenants or conducting such illegal activities as selling drugs.
The suit alleges that barring notices violate federal housing law, as well as tenants’ constitutional guarantees of due process, and asks that their use be prohibited "until such time as procedures for imposing and lifting such barring actions are established through a rulemaking" in accord with law.
"The bill of rights protects everyone against losing important rights without due process," said Fritz Mulhauser, the ACLU attorney in the suit.
As The Common Denominator reported last year in two articles that ACLU officials said helped prompt the current lawsuit, DCHA also has ordered barring notices against tenants in their own buildings.
In the suit, the ACLU is representing John F. Fletcher, 62, a medically disabled public housing resident. The suit says Fletcher lost the assistance of a needed helper and companion when DCHA barred from his building Linda Ward, a friend and distant relative. Fletcher, a resident at Judiciary House, a DCHA-run apartment building at 461 H St. NW, is totally blind and suffers from the effects of several strokes. In addition, he was recently diagnosed with a brain tumor.
Ward, the suit says, frequently visited Fletcher and helped him with household tasks such as cooking and shopping, and provided companionship. She was barred from Judiciary House in July 2001 after she and Fletcher engaged in a loud late-night argument in the hallway outside his apartment.
The suit says that after Fletcher lost Ward’s help and companionship, he became lonely, depressed and even suicidal.
"In my situation, when they put her out of here, I felt I’d rather die than live alone, without a friend," Fletcher said last week. "To have somebody to sit down and talk to, who knows my condition, and to be able to laugh and have a good time – that meant the world to me."
Mulhauser said Fletcher "has rights from federal housing law, from his lease and from the Constitution, and to bar his guests from his home with the kind of slim procedures they have here is a clear violation of all of them."
"They should restore Mr. Fletcher’s guest pronto, and reform their procedures as well," he said.
The suit also asks that unspecified compensatory and punitive damages be awarded to Fletcher by DCHA.
DCHA spokesman Leo Alexander said the agency would have no comment on Fletcher’s lawsuit while it was before the court.
But he defended DCHA’s right to ban problem visitors. "If we have a guest that’s doing something that affects the quality of life of other tenants, we have to act," he said.
"If you had a next-door neighbor who’d kept you up all night, wouldn’t you expect us to do something about it permanently?" he asked. "I think you would, and furthermore, it would be the right thing to do."
He said that the filing of the suit would have no effect on DCHA’s policy on barring notices.
"We’ll keep issuing barring notices until a court tells us to stop," he said.
According to DCHA figures, the agency has generally issued between 600 and 700 barring notices per year. During the last six months of 2001, DCHA issued barring notices 323 times.
DCHA operates 49 residential facilities throughout the District, serving 7,094 tenants.
Mulhauser said DCHA barring notices violate the right spelled out in both federal housing law and in Fletcher’s lease for a public housing resident to entertain guests in his own home.
Fletcher’s lease states that his "right to the exclusive use and occupancy of the leased premises" includes "reasonable accommodation of the Tenant’s guests or visitors."
"A permanent bar on his guests is clearly unreasonable," said Mulhauser. "It violates federal public housing law, and even if there were no federal law, it violates the terms of his lease."
"DCHA has unbridled discretion to play nanny here," he said, "and to decide who can and can’t be his guest, in a way that violates his rights."
Mulhauser also charged that DCHA does not provide an established procedure for a tenant or guest to appeal a barring notice, or even to learn exactly why a person was barred from a property.
"There’s no written-down procedure governing this interference in (Fletcher’s) life," he said. "To ban Mr. Fletcher’s guests from his home with the kind of slim procedures they have here is a clear violation."
Ward was barred last year after a July 4 gathering at Fletcher’s apartment. At the gathering, Ward and her boyfriend began to argue, Fletcher said last week. After he asked them to leave, Ward and Fletcher got into a loud argument in the hallway outside his apartment. Neighbors complained, and building manager Livia Hall responded by issuing a barring notice to Ward.
"We had got our drunk on," Fletcher acknowledged last week. He also admitted that Ward had been noisy on previous occasions.
However, he said, Ward called Hall later to apologize for her conduct, and Fletcher also apologized to Hall and explained that Ward was important to him as a helper and friend.
He said she refused to remove the order barring Ward. "She said, ‘I’m the property manager, and I don’t have any intention of lifting the barring notice.’"
Fletcher said he does not have many friends or family who visit regularly.
He said he has the help of a publicly provided helper during weekdays, but evenings and weekends he is largely on his own. He said Ward cooked meals for him, helped him do laundry and helped with other household chores.
But as important, he said, was her companionship and help in maintaining his mobility. "Her getting out and walking with me, or getting on a bus and going someplace with me, that was important to me," Fletcher said. "Now I have to sit inside and do nothing."
(Fletcher lost his eyesight in 1994, after he was shot by a D.C. police officer. Fletcher had robbed a liquor store on Pennsylvania Avenue SE of $200, and in a civil legal action unrelated to the ACLU suit has charged that after the pursuing D.C. police officers shot him twice in the back, three other late-arriving D.C. officers shot him several times as he lay unmoving on the ground. One of those shots blinded him permanently in both eyes. D.C. authorities are contesting Fletcher’s suit, saying the officers’ actions were justified.)
According to Mulhauser, after Fletcher’s and Ward’s appeals to property manager Hall failed, the ACLU’s appeals to other housing officials were similarly unsuccessful.
At a hearing last month to consider the ACLU’s request for a temporary restraining order against Ward’s banishment, Mulhauser said he was surprised to hear a DCHA lawyer tell Judge Jackson that Fletcher had access to an established grievance procedure.
"That was news to us," said Mulhauser.
Mulhauser said that DCHA’s published regulations for bar notices make no mention of a grievance procedure, and that no DCHA official had ever told Fletcher or any ACLU official that Fletcher had recourse to a grievance procedure before they filed suit in mid-December.
"When Fletcher and Ward went to Hall, she never mentioned a grievance process," Mulhauser said.
On Sept. 26, he said, the ACLU wrote a letter on Ward’s behalf to the head of the DCHA police force. (DCHA regulations say that "Barring Notices…may only be rescinded in writing by the Chief of (DCHA) police, or his designee.")
But Chief Madison Jenkins Jr. never replied to the letter, "and the police chief never mentioned any grievance process to us," Mulhauser said.
Instead, Chief Jenkins referred the matter to the DCHA general counsel’s office, Mulhauser said. "And we then had several conversations with that office, and none of their attorneys ever mentioned the existence of this grievance procedure."
Indeed, Mulhauser said, a check of final decisions on grievances of all kinds from DCHA’s Office of Fair Hearings from 1999 through 2001 showed that "not a single case involved the appeal of a barring notice."
The Office of Fair Hearings did not respond to a voicemail message left last week.
"That suggests, at least, that people don’t know (the grievance process) is available," Mulhauser said.
DCHA spokesman Alexander responded, "Well, if they took their requests from the property manager to the police chief to the general counsel’s office, it sounds like they exhausted their avenues for due process."
Judge Jackson denied Fletcher’s request for a temporary restraining order and ordered Jenkins and Ward to make use of the grievance system DCHA announced in court.
"We’ll give it a try and report back to the judge on how it goes," Mulhauser said.
Mulhauser said that whatever the outcome of the grievance hearing, Fletcher and the ACLU would push on with their suit.
"The lawsuit is just as pending as it ever was," he said. "A big part of the relief Fletcher is asking for is to tell DCHA to put in place a process that will stop others from having to go through the ordeal that he did."
Copyright 2002, The Common Denominator