Oakland’s Nuisance Eviction Ordinance (NEO) may be unlawful

Oakland’s Nuisance Eviction Ordinance (NEO) may be unlawful

By Lynda Carson - September 4, 2024

During February 2004, Oakland became the first city in Northern California to adopt what was then called the Nuisance Eviction Ordinance (NEO). Despite many community members, organizers and activists including myself opposing the NEO because it would be used to evict longtime tenants to replace them with yuppies willing to pay higher rents, it was adopted by the City Council. NEO - https://oakland.legistar.com/LegislationDetail.aspx?ID=740196&GUID=C1223612-CA76-4675-A19B-1AF544469665&Options=&Search= .

Reportedly, “Tenants evicted under the law cannot rent from that landlord again for at least three years. Landlords who refuse to evict the problem tenants can be fined as much as $1,000 a day. Property owners who fear for their safety can ask the city attorney's office to conduct the eviction.”

Additionally, in Oakland, the renters being targeted by the nuisance eviction program, need not be arrested, cited, or convicted of the conduct to justify removing the renters from any of the properties. Tenants may be arrested anywhere or not at all to face a nuisance eviction. Here-say may be used against the targeted renters, and the City is not required to reveal the names of any police informants or witnesses that may want to remain anonymous. More about the NEO may be found by clicking here.

Since 2004, the NEO has been expanded to go after even more tenants, and has been renamed in the process. It is now known as the “Eviction for nuisance and illegal activity ordinance.”

In 2014, the NEO was expanded to target sex workers and pimps. Reportedly, “On October 21, the Oakland City Council unanimously voted to expand an existing law that allows the city to evict private property tenants who have become a “nuisance” to their communities. The original “nuisance eviction ordinance,” which the council adopted in 2004, permits city-led evictions of both residential and commercial tenants who have been involved in illegal drug activities or violence on their properties.

The revised policy, proposed by City Attorney Barbara Parker, added a number of other “nuisance activities” to the law — the most controversial being “pimping, prostitution, pandering, and solicitation.” The council approved the additions with little fanfare or debate, and sex worker rights advocates only learned about the ordinance after it was too late to oppose its passage. Now, sex workers, civil rights activists, and tenant advocacy groups are arguing that the addition of prostitution to this law is deeply problematic and could carry a number of troubling consequences for Oakland renters.”

It just may be that Oakland’s “eviction for nuisance and illegal activity ordinance,” may be unlawful, according to the Justice Department (DOJ).

Oakland’s eviction for nuisance and illegal activity ordinance may be unlawful because it may violate federal housing protections.

Recently on August 15, 2024, the Justice Department announced, “The Justice Department announced today that it issued a letter to state and local police departments and governments about programs that may violate federal housing protections. The letter describes common features of these widespread programs, sometimes known as “crime-free” or “nuisance” programs, and cautions that they may be unlawful when they unfairly penalize communities of color, individuals with disabilities or survivors of domestic violence.”

According to the August 15, 2024, letter from the DOJ, “Programs or ordinances referred to as “crime-free” or “nuisance” programs may intentionally discriminate against protected groups, which violates the FHA. They may also have a disproportionate effect on certain groups overrepresented in the criminal legal system and rental housing market, such as Black and Hispanic individuals or individuals with disabilities— which may violate the FHA.

They may also negatively impact domestic violence survivors, who are disproportionately women, by punishing them for seeking emergency or law enforcement assistance—which may also violate the FHA.

As reflected in HUD’s guidance and the Department’s recent enforcement actions, programs that may raise questions under the FHA include ones: with criminal history-based restrictions, based only on an arrest record, based only on a call for emergency or law enforcement assistance, that fail to provide for an individualized determination of purported safety concerns, including for individuals with convictions, that impose adverse housing consequences on an entire household, that provide substantial enforcement discretion that is then used to target certain people protected under federal law, and that were adopted with discriminatory intent (e.g., limiting the Black or Hispanic population), which may be evidenced by the historical backdrop, including growing diversity or racial tension.”

Reportedly, those who have violated federal law with their “nuisance eviction ordinances (NEO)” have had to pay the price.

“Recent settlements have required law enforcement agencies and local governments to pay millions of dollars in monetary relief and to repeal or rehaul their programs. As explained in further detail in Sections II and III, these include: • Hesperia, California: nearly $1 million in monetary relief and program repeal, • Anoka, Minnesota: $175,000 monetary award and substantial program amendments, • Hemet, California: a $200,000 remediation fund and program repeal, • Bedford, Ohio: a $350,000 monetary award and program repeal, and • Faribault, Minnesota: a nearly $700,000 monetary award and prohibitions on the types of criminal history that may be considered by private landlords when screening tenants.”

Scathing Report About The Use Of The NEO in Oakland:

Reportedly, in a report of the Hastings Journal of Crime and Punishment, according to Ethan Silverstein, “In February of 2017, following rumors in the tenants’ rights community concerning abuse of Oakland’s Nuisance Eviction Ordinance, I filed a public records request with Oakland’s City Administrator and City Attorney. This request sought documentation concerning all nuisance eviction orders issued from the beginning of 2008 through the end of 2016.

Through the City Attorney’s office, The City Administrator’s office produced roughly 800 pages of eviction orders, addressed to tenants and landlords. All of these eviction orders were for drug or weapon related crimes. According to these records, seventy-nine sets of notices were served on tenants and landlords in the years of 2008, 2009, 2011, 2015, and 2016.

The City contends that no nuisance eviction notices were served in 2010, 2012, and 2013. This report is limited to examining the seventy-nine drug and gun-related eviction orders that occurred between 2008 and 2016. While the City only produced records of gun and drug-related eviction orders, Oakland’s use of evictions as a nuisance abatement tool is more widespread and involves more than drug and gun crimes. However, it appears that when non-weapon or drug-related issues arose between 2008 and 2016, more generalized nuisance abatement notices were served. These notices, which are referred to as “notices to abate” did not explicitly demand eviction, only the abatement of nuisance. When asked about the lack of nuisance eviction notices in 2010, 2012, and 2013, an assistant to the City Administrator conceded that notices to abate served during these years may have ultimately required or resulted in tenants being evicted. This tactic is authorized by Oakland’s Nuisance Eviction Ordinance. An internal nuisance abatement spreadsheet from the Nuisance Abatement Division confirms that tenants are sometimes evicted in response to notices to abate.

Following my public records request to the City Attorney and City Administrator, I sent a second public records request to the Oakland Police. Through this request, I sought every police report corresponding with the addresses and dates of the alleged nuisances cited in the Nuisance Abatement Division’s eviction orders. After failing to produce these documents for over a year, the Oakland Police produced roughly 900 pages of records. Any statistics cited refer only to the seventy-nine drug and weapon related nuisance eviction orders produced by the nuisance abatement division. This report does not analyze any nuisance abatement orders that did not explicitly demand eviction in the initial notice. This report is not a professional statistical analysis and should not be relied upon as such. I have chosen to not release any personally identifiable information concerning tenants without first receiving explicit consent. My hope is that these initial findings will lead to a more comprehensive review of how the city of Oakland, as well as other California cities, are utilizing their nuisance eviction powers.”

That’s right, according to the DOJ, it just may be that Oakland’s “eviction for nuisance and illegal activity ordinance,” or Nuisance Eviction Ordinance (NEO) may be unlawful.

Lynda Carson may be reached at newzland2 [at] gmail.com

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