Statement on behalf of the
American Civil Liberties Union of the District of Columbia
DC Council Committee on Judiciary and Public Safety
Public Hearing on Bill 22-189, the “Drug-Related Nuisance Abatement Act of 2017”
Thursday, January 25, 2018
Nassim Moshiree, Policy Director
Good afternoon, Councilmember Allen and members of the Committee. My name is Nassim Moshiree and I am the Policy Director of the American Civil Liberties Union of the District of Columbia (ACLU-DC). I present the following testimony on behalf of our more than 20,000 members in the District of Columbia.
The ACLU-DC has significant concerns about “The Drug-Related Nuisance Abatement Act of 2017” (Bill 22-189), many of which extend from our policy and constitutional concerns about the current statute and its implementation.
Bill 22-189 expands DC’s existing Drug-Related Nuisance Abatement Act of 1998 (“Nuisance Abatement Law”) to allow for civil actions against commercial and residential tenants on properties alleged to be a drug-, firearm-, or prostitution-related nuisance, and also allows DC Superior Court to impose a civil penalty of up to $10,000 in actions brought by the DC Attorney General or the US Attorney against owners and tenants of commercial and residential properties that are found at fault under the statute.
The proposed amendment will only exacerbate the negative impact to communities of DC’s existing Nuisance Abatement Law, which is problematic in both its scope and enforcement.
Nuisance abatement laws are a national problem. These laws were largely put in place as a zero-tolerance, tough-on-crime response to health and safety issues facing communities during the “war on drugs” era. (1) The District’s law is no exception. Though the stated intent of these laws is to promote neighborhood safety and reduce crime, in practice, the police-centric criminalization approach to enforcement often contributes to the displacement and further marginalization of already vulnerable populations, and has had a disparate impact on victims of domestic violence, those with disabilities, communities of color, LGBTQ+ communities, and immigrant communities. (2)
The current law is quite expansive in what relief a court can order, (3) and what factors the court can consider in making its determination,(4) leaving the targets of these nuisance complaints at a great disadvantage in defending themselves. For example, under the law, a court can issue a preliminary injunction for a tenant or property owner to vacate the property with only a 10-day notice, and with no requirement that the plaintiff show irreparable harm. (5) The law also strips a tenant’s or property owner’s right to demand a jury trial, even when threatened with loss of their right to possession of real property. This provision of the statute is likely unconstitutional. (6)
Additionally, though a nuisance complaint must include a description of the adverse impact of the alleged nuisance, the law defines “adverse impact” broadly. (7) Increased numbers of ambulance or police calls to a property or a “substantial number” of complaints made to law enforcement about alleged illegal activity both qualify as adverse impacts. (8) Penalizing tenants and property owners based on police response to criminal activity occurring on a property can deter crime victims from reporting crimes, can punish those who have mental health crises, and can encourage unnecessary calls to police against targeted neighbors.
These are not hypothetical concerns. A Washington Post investigation (9) in 2016 revealed a troubling pattern of residential tenants, mostly people of color, being targeted by police raids (10) on suspicion that criminal activity had taken place at their homes. Even when no actual evidence of serious criminal activity was found, these residents were threatened with eviction and loss of property after letters were sent to their landlords from the DC Attorney General’s (AG) office designating the properties as “drug-related nuisances.” (11) According to the Post, over a three-year period from 2013-2016, over three dozen residents targeted by these letters faced only misdemeanor marijuana possession or no criminal charges at all. (12) What the Post discovered was that landlords frequently responded to warnings that their property was designated a nuisance by removing the tenants who were the subject of police response because they didn’t want to risk litigation.
The law also encourages profiling of residents that can lead to harmful consequences. For example, when prostitution was added to the Nuisance Abatement law in 2006 (13), it was not done so with the health and safety of sex workers in mind, and its effects were incredibly damaging. Enforcement placed vulnerable DC residents at greater risk of violence, police harassment, and exposure to exploitation. It has contributed to profiling of women of color and of trans women as sex workers, and has exposed them to harassment and discrimination. The ACLU-DC has long opposed the criminalization of consensual sex work and opposes the inclusion of “prostitution” in the Nuisance Abatement law. This is also why we support the Reducing Criminalization to Improve Community Health & Safety Amendment Act of 2017 (Bill 22-516), which would move DC away from the failed approach of criminalization and toward one that supports racial justice, economic justice, and health justice.
Though we appreciate that Councilmember McDuffie intends to limit the scope of Bill 22-189 to commercial properties, the ACLU-DC remains concerned about the increased liability and consequences for commercial tenants contained in the bill, for many of the same reasons stated above. We cannot divorce the potential impact of the bill from the significant problems inherent in the current law because they have a direct impact on implementation. For example, if Bill 22-189 is adopted, a business owner could be sued and potentially face a civil penalty of up to $10,000 and loss of her business for alleged drug-related activity occurring on or near her business that she has no control over. The language of the existing statute is broad enough and the history of its enforcement is fraught enough that it easy to anticipate that the law, with the addition of Bill 22-189, could be used to target minority business owners who could then be pushed out of business in quickly gentrifying neighborhoods, either through lawsuits filed against them by “community-based organizations” or through actions brought by the government. The civil penalty provision specifically has heightened concerns that the bill could be used to collect fines from minority businesses that have no ability to pay, effectively putting them out of business.
We know from experience and a wealth of data that both implicit and explicit bias affect the decisions law enforcement make in the District, from who to stop or arrest on suspicion of illegal activity to how aggressively to respond to reports of alleged crimes or nuisances depending on the neighborhood or the color of skin, gender, or the sexual identity of the person who is accused or who calls for help. But we also know what actually makes communities safer and helps them thrive: investments in housing, and access to healthcare, drug treatment, counseling, and employment. And finally, we know that evictions and civil penalties are not sustainable, long-term solutions because they do not address underlying problems. They simply displace these problems to another neighborhood.
Thanks to the efforts of Councilmember McDuffie and others who have pushed for comprehensive reforms like the NEAR Act, the District is moving in the right direction –to use evidenced-based methods such as violence interruption to combat crime, and to prioritize a public health approach to community safety. But we still have a long way to go.
While we do not support Bill 22-189, its introduction provides a fresh opportunity for both lawmakers and the community to reexamine the impact of our existing Nuisance Abatement law on District residents and make changes to address some of the concerns raised today. We may at the end of this, as other jurisdictions have, recognize that DC would be better served by severely limiting or repealing our Drug-, Firearm-, and Prostitution-Related Nuisance Abatement law and instead invest in real solutions to crime in our communities that do not rely on the displacement of residents or businesses. The ACLU-DC is ready to work with the DC Council and all invested stakeholders to develop these solutions.
2. See Silenced: How Nuisance Ordinance Punish Crime Victims in NY, 2015 Report, ACLU https://www.aclu.org/files/field_document/equ15-report-nuisanceord-rel3.pdf
3. In addition to damages, there are seven different reliefs a court can order, including the catch-all, “any other remedy, which the court, in its discretion, deems appropriate.” DC Code 42-3110, 42-311
4. Among the factors courts can consider include the catch-all “any other factor the court deems relevant”
5. DC Code 42-3104
6. The U.S. Supreme Court has held the Seventh Amendment does protect the right to jury trial in such cases. See Pernell v. Southall Reality, 416 U.S. 363 (1974); Tull v. United States, 481 U.S. 412 (1987)
7. DC Code 42-3101(D) and DC Code 42-3101(J)
8. There are eleven different things that can amount to an “adverse impact” of an alleged firearm- drug- or prostitution-related nuisance in the law, including difficult to measure things like “increased fear of residents” and “increased volume of vehicular and pedestrian traffic”, as well as “search warrants served or executed at the property” (whether or not something was found), “an increase in the number of ambulance or police calls to the property”, and “a substantial number of complaints made to law enforcement and other government officials about alleged illegal activity” on the property. DC Code 42-3101(1)
10. One of the most troubling revelations in the 2016 Post report was the lack of transparency and over how MPD determines where and how to raid a property on suspicion of illegal activity. “Police did not provide The Post with any written guidelines or policy for how they flag properties as nuisances. A police spokesman said supervisors select the ones where people “have engaged in drug trafficking, the sale of weapons, or prostitution.” https://www.washingtonpost.com/investigations/forced-out-of-a-home-over-a-marijuana-joint/2016/08/25/b5b26bde-5e4d-11e6-af8e-54aa2e849447_story.html
11. “The attorney general’s office in January sent a nuisance letter to one property over one gram of marijuana, a legal amount of the drug in the District. As a result, the property company forced a grandmother out of her Southwest Washington apartment, records show.”
12. Id. This led to the AG placing a moratorium on issuing nuisance letters to property owners until a review was completed. The ACLU-DC is not aware of the outcome of that review.
13. “The Nuisance Abatement Reform Act of 2006,” available at https://code.dccouncil.us/dc/council/laws/docs/16-81.pdf