Mass incarceration in the United States has been driven by the surveillance and policing of low-income communities of color.[1] A critical site of police intrusion takes place in the context of public housing. Weak Fourth Amendment protections for public housing residents, combined with draconian Department of Housing and Urban Development (HUD) policies, fuels the criminalization of low-income individuals and communities and imposes barriers to re-entry for those with criminal records.

 

The Fourth Amendment offers few safeguards if you are a public housing resident. The protections typically attached to the home[2] are generally limited in the context of apartment buildings – courts have typically held that there is no reasonable expectation of privacy under United States v. Katz[3] in the common spaces of apartment complexes.[4] For public housing occupants in particular, these protections are further limited based on the constitutionally permissible targeting of public housing residents under Fourth Amendment doctrine.

 

Under Terry v. Ohio, an individual may be stopped if there is reasonable suspicion, based on articulable facts, that an individual is involved in criminal activity.[5] This standard has been interpreted to allow for a range of factors to contribute to the reasonable suspicion analysis, including whether the stop takes place in a “high crime area.”[6] What constitutes a “high crime area,” however, is self-fulfilling. Crime data does not necessarily reflect the accurate rate of crime, but how police respond to crime and enforce criminal laws.[7] Furthermore, the definition of “high crime area” relies heavily on officer testimony as to how that officer making the stop qualifies the term.[8] This means that when police choose to surveil public housing – a decision correlated with perceptions of race and class and its connection to criminality[9] – and therefore inevitably arrest people in that area, it may now be properly categorized as a “high crime area” justifying virtually unfettered stops under the Fourth Amendment.[10]

 

The weak Fourth Amendment protections are compounded by harsh public housing policies further criminalizing public housing residents. An extension of broken windows policing, HUD banishment policies allow Public Housing Authorities (PHAs) to evict and ban residents for any criminal activity connected with the apartment and arrest banned individuals for trespassing. [11] PHAs are given discretion to specify the criteria for banning residents, which are often articulated in vague or broad terms.[12] Though the Fourth Amendment standard is already limited, these policies allow the police to circumvent what constraints on police stops do exist, as police may make pretextual stops under the guise of determining whether someone is violating a no-trespass policy.[13] HUD’s strict liability interpretation of 42 U.S.C. § 1437d(l)(6), under which tenants may be evicted if their guests or relatives are caught using or in possession of drugs on the premises, was upheld by the Supreme Court in HUD v. Rucker.[14] This institutionalized another avenue by which public housing residents may be criminalized and pushed out of affordable housing options. Those with prior criminal records are also screened out of public housing, thereby restricting successful reentry of the formerly incarcerated and perpetuating the harm done to those caught in the criminal justice system.[15]

 

The over-policing of public housing residents locates public housing as a site of control rather than of support and opportunity for those living in poverty and is ineffective as a crime reduction mechanism. One study has shown that these policies have only a modest impact on property crime and no significant impact on violent crime, yet increase incarceration rates of low-income communities of color.[16] These policies should be challenged as a matter of poor public policy and in the courts. One avenue through which advocates are seeking to challenge these practices is by bringing disparate impact discrimination claims under Title VIII of the Fair Housing Act.[17] HUD banishment and screening policies have a disproportionate effect on people of color and therefore produce a disparate impact on minority groups.[18] This is one legal tool that should continue to be pursued. However, a broader political discussion needs to be had addressing the limited utility of HUD policies and policing practices as compared to the substantial harm that it causes to public housing residents and low-income communities of color.

 

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[1] See Michelle Alexander, The New Jim Crow 130-37 (The New Press 2012).

[2] See Jones v. United States, 357 U.S. 493 (1958).

[3] 389 U.S. 347 (1968) (holding that application of the Fourth Amendment depends on whether the individual has a legitimate expectation of privacy, determined by whether the individual exhibited a subjective expectation of privacy that society is prepared to recognize as “reasonable”).

[4] See Alexis Karteron, When Stop and Frisk Comes Home: Policing Public and Patrolled Housing, 69 Case w. Res. L. Rev. 669, 693 (2019).

[5] 392 U.S. 1, 21 (1968).

[6] See Illinois v. Wardlow, 528 U.S. 119 (2000).

[7] See Logan Koepke, Predictive Policing Isn’t About The Future, Slate Magazine (Nov. 5, 2016).

[8] See Karteron, supra note 4, at 700.

[9] See Deborah Archer, Exile from Main Street, Harv. C.R.-C.L. L. Rev., at 37 (forthcoming).

[10] See Karteron, supra note 4, at 701.

[11] 42 U.S.C. § 1437d(l)(6)-(9); Elena Goldstein, Kept Out: Responding to Public Housing No-Trespass Policies, 38 Harv. C.R.-C.L. L. Rev. 215, 216 (2003).

[12] Torres, et al., Banishment in Public Housing: Testing an Evolution of Broken Windows, 5 MDPI Soc. Sci., at 3 (2016).

[13] Goldstein, supra note 11, at 217.

[14] 535 U.S. 125 (2002).

[15] Jess Kropf, Keeping Them Out: Criminal Record Screening, Public Housing, and the Fight against Racial Caste, 4 Geo. J. L. & Mod. Critical Race Persp. 72, 79 (2012).

[16] Torres, et al., supra note 12, at 19.

[17] Kropf, supra note 15, at 92.

[18] Id.