Legal Review: Abatement Act Has Lost Its Original Intent

by Chad McCoy September 21, 2016 at 1:00 pm 0

Legal Review PriceBenowitz

Personal injury attorney Chad McCoy practices law in Kentucky, and focuses on cases ranging from medical malpractice to workers compensation.

It’s called the “Neighborhood and Victims Rights Amendment Act of 2009.” On the surface, this District law sounds like a good thing. However, it is a legal title that is entirely misleading and is an example of a good law run astray. Lately it has been used by the attorney general’s office to evict a grand-mother, a young family with an 8-year-old son and a Ward 5 advisory neighborhood commissioner. Each is among the innocents who have been ensnared by the broad application of the Act without adequate investigation or discretion.

Enacted in 1999 as the “Drug or Prostitution Related Abatement Act” and renewed a decade later, the law advanced the city’s authority to clear out certain houses that were used for illicit activity. Properties taken over by drug dealers and other criminals had become a blight on Washington’s landscape thirty years ago. At the time of its inception, the crack epidemic, guns, and violent crimes were driving down property values, displacing law-abiding residents, and generally costing the city too much in policing expense.

Like many laws, the Abatement Act is one that may have been drafted with a good purpose, but has lost the original intent. When innocent men, women, and children are driven from their homes without any recourse, there has been a systematic government breakdown and a miscarriage of justice. A legal process that was at one time enacted to evict drug dealers is now being applied without regard for basic civil, constitutional, or human rights.

The nuisance abatement law is worded to give authorities wide-latitude to take action in instances of suspected drug activity. It can be applied to any property where a warrant for drugs, weapons, or prostitution may have been served, or a property that has received repeated complaints from neighbors. Once police investigate, a report and the property address are forwarded to the attorney general’s office for additional action. The property owner or landlord receives a formal notice of the alleged nuisance from the attorney general — accompanied in most instances by pamphlets detailing the eviction procedure.

Additionally, the law strips away the right to a jury trial for those facing an allegation of nuisance activity and it does not require authorities to show any irreparable harm to obtain a preliminary injunction. In some cases, residents have ten days or less to vacate homes where they have lived for years. It is these very abuses that prompted the Legal Aid Society of the District of Columbia to speak out against the law on its renewal.

Citing constitutional standards established by Pernell v. Southall Realty, a 1974 United States Supreme Court Case which originated in Washington, D.C. courts, the Legal Aid Society objected to provisions of the law that would leave residents disadvantaged. There are also concerns for displaced tenants who cannot afford counsel and landlords who are pressured by the attorney general’s office to pursue evictions.

While the government highlights the successes of the law — busting major drug operations in the course of evictions — there appear to be unfortunate and unintended collateral consequences. Tenants often do not know they have a right to fight eviction or challenge allegations of nuisance. Misconceptions may be attributable to the Legal Aid Society’s concern about access to legal representation.

In one case, a family’s home was declared a nuisance property because police conducted a raid and discovered three cigarettes containing a “leafy green substance.” No weapons were discovered during the raid and no one was charged with any crime. None-the-less the attorney general’s office decided the house was a “drug-related nuisance” and the family was forced from their home of four years.

The city issues approximately 150 nuisance abatement letters each year. The letters include a nuisance determination at one property where a gram of marijuana was discovered – a legal amount to possess in the city now. In another case, a disabled senior citizen was slated for eviction after his home was targeted because of the smell of marijuana. The city admitted error in that instance, but the damage had been done for the 61-year-old resident who moved of his own accord.

In a city where small amounts of marijuana are now legal, the mere “smell of pot” should not be sufficient to warrant probable cause for raids that can lead to evictions for entire families. It is because of a breakdown in the application of the law that innocent residents are becoming the victims that the 2009 Act is supposed to protect.

Police and prosecutorial resources tax government budgets — especially when laws are applied without discretion and awry of their intended targets. Somewhere between the police investigating an odor and a family being evicted, there needs to be accountability. Not every case of a pill on the floor or a smell under the door warrants one of the attorney general’s form letters with attached eviction instructions as a pressure tactic.

The nuisance law falls under the purview of a group of five lawyers in the attorney general’s Neighborhood and Victim Services Section. Each case is supposed to be reviewed to determine if the nuisance law applies. At some point, cleaning house should not mean evicting a family with an 8-year-old child over a one-time discovery of a “leafy green substance.” Instead it should mean cracking down on government officials who act like they have consumed said substance.

Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.


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