Rucker

Opinion by Judge MICHAEL DALY HAWKINS; Dissent by Judge SNEED.

Many of our nation’s poor live in public housing projects that, by many accounts, are little more than illegal drug markets and war zones. Innocent tenants live barricaded behind doors, in fear for their safety and the safety of their children. What these tenants may not realize is that, under existing policies of the Department of Housing and Urban Development (“HUD”), they should add another fear to their list: becoming homeless if a household member or guest engages in criminal drug activity on or off the tenant’s property, even if the tenant did not know of or have any reason to know of such activity or took all reasonable steps to prevent the *1116 activity from occurring (“innocent tenants”). Today we examine the statutory basis behind HUD’s “One Strike and You’re Out” policy, and hold that Congress did not intend to authorize the eviction of innocent tenants.

I. BACKGROUND

It is undisputed that serious criminal activity, especially drug-related activity, has created a dangerous environment in many public housing projects. Officially recognizing that “public and other federally assisted low-income housing in…

join, dissenting:

In 1988, faced with a devastating and worsening epidemic of drug related crime and violence in public housing, Congress granted to local public housing authorities (“PHAs”) a new tool in the struggle to provide decent and safe low income housing. 42 U.S.C. § 1437d(i)(6) mandated that every lease entered into by a PHA include a provision permitting termination of tenancy when “a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control” engaged in “drug-related criminal activity on or near public housing premises.”

In mandating this lease provision and thereby granting additional discretion to local housing authorities, Congress used unmistakably clear statutory language based on reasonable findings that such legislation was necessary and would be effective. The majority’s decision reads into this statute a defense that the legislative branch rejected. Nothing in the Constitution prohibits the government from entering into reasonable lease provisions necessary to maintain the safety and structural soundness of its property. “The increase in drug-related crime not only leads to murders, muggings, and…