Chronic Nuisance Ordinances, Impossible Choices, and State Constitutions

By Sean Gray*

Essay — Volume 109

June 23, 2023
109 Va. L. Rev. Online 124
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*J.D., University of Virginia School of Law, expected 2024; M.A., Legal History, University of Virginia, expected 2024; B.A., Providence College, 2021. I would like to thank Professors A.E. Dick Howard, Cynthia Nicoletti, and Richard Schragger for their advice on this Essay. I am also grateful to Aquila Maliyekkal for his thoughtful suggestions on an early draft. Thanks as well to the members of the Virginia Law Review, especially Dennis Ting, Heream Yang, and Michael Martinez, for their hard work in bringing the Essay to publication. Finally, special thanks to Briana Barns for her support on this project and all others. Mistakes are my own.Show More

Introduction

When Lakisha Briggs’s partner attacked her in April 2012, her daughter called the police.1 1.Lakisha Briggs, I Was a Domestic Violence Victim. My Town Wanted Me Evicted for Calling 911, Guardian (Sept. 11, 2015, 6:45 PM), https://www.theguardian.com/‌commentisfree/2015/sep/11/domestic-violence-victim-town-wanted-me-evicted-calling-911 [https://perma.cc/7NR4-Z269]; Verified First Amended Complaint at 10, Briggs v. Borough of Norristown, No. 2:13-cv-02191 (E.D. Pa. Apr. 29, 2013). Because Ms. Briggs’s story was well-publicized compared to most evictions resulting from chronic nuisance ordinance (“CNO”) enforcement, other scholarly pieces about chronic nuisance ordinances have also highlighted her endeavor. See, e.g., Salim Katach, Note, A Tenant’s Procedural Due Process Right in Chronic Nuisance Ordinance Jurisdictions, 43 Hofstra L. Rev. 875, 875–78 (2015).Show More Their response ensured that neither Ms. Briggs nor her daughter would ever take that risk again. Once officers arrived at Ms. Briggs’s home, they told her that, even as a victim of domestic violence, she was “on three strikes,” and they were “gonna have [her] landlord evict [her].”2 2.Briggs, supra note 1 (internal quotation marks omitted).Show More Unfortunately, Ms. Briggs lived in Norristown, Pennsylvania, one of hundreds of municipalities across the country with a chronic nuisance ordinance (“CNO”) in effect.3 3.Norristown, Pa., Mun. Code § 245-3 (2012). Norristown repealed this law as part of Briggs’s settlement, but its text remains available in Briggs’s complaint. Verified First Amended Complaint, supra note 1, at 1–2.Show More

Under a CNO, a local government can deem a property a “nuisance” when a certain number of police visits—responding to everything from marijuana use to domestic violence calls—occur at the property.4 4.SeeScout Katovich, NYCLU & ACLU, More Thana Nuisance: The Outsized Consequences of New York’s Nuisance Ordinances 6 (2018) [hereinafter More Than a Nuisance], https://www.nyclu.org/sites/default/files/field_documents/nyclu_nuisancereport_‌20180809.pdf [https://perma.cc/QPG3-L6P2] (explaining how CNOs operate in New York); see also Emily Werth, Sargent Shriver Nat’l Ctr. on Poverty L., The Cost of Being “Crime Free”: Legal and Practical Consequences of Crime Free Rental Housing and Nuisance Property Ordinances 2, 4, 8 (2013) (examining CNOs and other similar crime-free housing provisions in Illinois).Show More If the landlord fails to “abate the nuisance,” often an implicit command to evict the tenant, the locality retains broad discretion to impose heavy fines upon the landlord, revoke their rental license, close the property temporarily, or even seize it.5 5.More Than a Nuisance, supra note 4, at 6, 8; Matthew Desmond & Nicol Valdez, Unpolicing the Urban Poor: Consequences of Third-Party Policing for Inner-City Women, 78 Am. Socio. Rev. 117, 118–20 (2012) (identifying potential punishments).Show More With the threat of eviction looming over her and her children, Ms. Briggs was forced to suffer in silence.

Ms. Briggs’s troubles reached a new height two months later, when that same ex-partner stabbed her in the neck.6 6.Verified First Amended Complaint, supra note 1, at 15.Show More Despite her pleas not to call 9-1-1, concerned neighbors did so, and she was airlifted to the hospital.7 7.Erik Eckholm, Victims’ Dilemma: 911 Calls Can Bring Eviction, N.Y. Times (Aug. 16, 2013), https://www.nytimes.com/2013/08/17/us/victims-dilemma-911-calls-can-bring-evict‌ion.html [https://perma.cc/QUX7-ZWYG].Show More Her fears were well-founded. When she returned home, her landlord informed her that she had to leave within 14 days: the town’s restrictive nuisance ordinance “gave him no choice but to file a case against [her].”8 8.Briggs, supra note 1.Show More The town had revoked his license three days after Ms. Briggs was hospitalized.9 9.Verified First Amended Complaint, supra note 1, at 16.Show More Even though she subsequently succeeded in eviction court, the city insisted that Ms. Briggs leave.10 10.Briggs, supra note 1.Show More The Norristown ordinance “gave the city the power to condemn the property if [the landlord] did not remove me,” she explained.11 11.Id.Show More

Fortunately, the American Civil Liberties Union (“ACLU”) soon took up Ms. Briggs’s case.12 12.Verified First Amended Complaint, supra note 1, at 38.Show More She reached a settlement with the city that included repealing the CNO.13 13.Briggs, supra note 1; see also Press Release, ACLU, Norristown Will Pay $495,000 to Settle Case on Behalf of Woman Threatened with Eviction for Calling Police (Sept. 8, 2014), https://www.aclu.org/press-releases/pennsylvania-city-agrees-repeal-law-jeopardizes-safety-domestic-violence-survivors [https://perma.cc/GB3P-EV7Y] (stating that Norristown voted to repeal the ordinance as part of the Briggs settlement).Show More Pennsylvania then passed a law prohibiting municipalities from punishing victims for calling emergency services.14 14.53 Pa. Cons. Stat. § 304 (2014).Show More

Although Ms. Briggs and the ACLU succeeded in repealing this CNO, hundreds like it remain in effect throughout the United States—from its largest cities to its smallest towns.15 15.See, e.g., Cincinnati, Ohio, Mun. Code § 761-1-C–N (2013); Sumner, Wash., Mun. Code ch. 9.50 (2022). Over one hundred municipalities in Illinois have enacted CNOs and other harmful types of crime-free ordinances. Werth, supra note 4, at 26–28 app. A. A non-exhaustive study of Ohio CNOs and other crime-free ordinances revealed that at least forty municipalities have enacted them. Joseph Mead et al., Cleveland State Univ., Who Is a Nuisance? Criminal Activity Nuisance Ordinances in Ohio 19–20 app. A (2017). An investigation into New York CNOs revealed that twenty-five of the forty most populated municipalities outside of New York City have enacted them. More Than a Nuisance, supra note 4, at 10.Show More This Essay explores how CNOs harm marginalized groups and how local communities can stop that harm. Part I explains how CNOs typically operate and where they come from. Part II illustrates how CNOs can detrimentally impact communities of color, domestic violence victims, and people with physical and mental disabilities or illnesses. Finally, Part III examines how legal challenges and state-level reform can mitigate the harms of CNOs. This Essay intervenes in the scholarly discussion by arguing that state constitutional amendments—an undervalued instrument of reform—can limit harmful exercises of local power, invalidate CNOs, and strengthen individual rights. To that end, the Essay proposes model language for these amendments.

  1.  Lakisha Briggs, I Was a Domestic Violence Victim. My Town Wanted Me Evicted for Calling 911, Guardian (Sept. 11, 2015, 6:45 PM), https://www.theguardian.com/‌commentisfree/2015/sep/11/domestic-violence-victim-town-wanted-me-evicted-calling-911 [https://perma.cc/7NR4-Z269]; Verified First Amended Complaint at 10, Briggs v. Borough of Norristown, No. 2:13-cv-02191 (E.D. Pa. Apr. 29, 2013). Because Ms. Briggs’s story was well-publicized compared to most evictions resulting from chronic nuisance ordinance (“CNO”) enforcement, other scholarly pieces about chronic nuisance ordinances have also highlighted her endeavor. See, e.g., Salim Katach, Note, A Tenant’s Procedural Due Process Right in Chronic Nuisance Ordinance Jurisdictions,
    43 H

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    875, 875–78 (2015). ↑

  2.  Briggs, supra note 1 (internal quotation marks omitted). ↑
  3. N

    orristown

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    ode § 245-3 (2012). Norristown repealed this law as part of Briggs’s settlement, but its text remains available in Briggs’s complaint. Verified First Amended Complaint, supra note 1, at 1–2. ↑

  4.  See Scout Katovich,
    NYCLU & ACLU, M

    ore

    T

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    a Nuisance: The Outsized Consequences of New York’s Nuisance Ordinances 6 (2018) [hereinafter More Than a Nuisance], https://www.nyclu.org/sites/default/files/field_documents/nyclu_nuisancereport_‌20180809.pdf [https://perma.cc/QPG3-L6P2] (explaining how CNOs operate in New York); see also Emily Werth, Sargent Shriver Nat’l Ctr. on Poverty L., The Cost of Being “Crime Free”: Legal and Practical Consequences of Crime Free Rental Housing and Nuisance Property Ordinances 2, 4, 8 (2013) (examining CNOs and other similar crime-free housing provisions in Illinois). ↑

  5.  More Than a Nuisance, supra note 4, at 6, 8; Matthew Desmond & Nicol Valdez, Unpolicing the Urban Poor: Consequences of Third-Party Policing for Inner-City Women, 78 Am. Socio. Rev. 117, 118–20 (2012) (identifying potential punishments). ↑
  6.  Verified First Amended Complaint, supra note 1, at 15. ↑
  7.  Erik Eckholm, Victims’ Dilemma: 911 Calls Can Bring Eviction, N.Y. Times (Aug. 16, 2013), https://www.nytimes.com/2013/08/17/us/victims-dilemma-911-calls-can-bring-evict‌ion.html [https://perma.cc/QUX7-ZWYG]. ↑
  8.  Briggs, supra note 1. ↑
  9.  Verified First Amended Complaint, supra note 1, at 16. ↑
  10.  Briggs, supra note 1. ↑
  11.  Id. ↑
  12.  Verified First Amended Complaint, supra note 1, at 38. ↑
  13.  Briggs, supra note 1; see also Press Release, ACLU, Norristown Will Pay $495,000 to Settle Case on Behalf of Woman Threatened with Eviction for Calling Police (Sept. 8, 2014), https://www.aclu.org/press-releases/pennsylvania-city-agrees-repeal-law-jeopardizes-safety-domestic-violence-survivors [https://perma.cc/GB3P-EV7Y] (stating that Norristown voted to repeal the ordinance as part of the Briggs settlement). ↑
  14.  53 Pa. Cons. Stat.
    § 304 (2014).

    ↑

  15.  See, e.g., Cincinnati, Ohio, Mun. Code § 761-1-C–N (2013); Sumner, Wash., Mun. Code ch. 9.50 (2022). Over one hundred municipalities in Illinois have enacted CNOs and other harmful types of crime-free ordinances. Werth, supra note 4, at 26–28 app. A. A non-exhaustive study of Ohio CNOs and other crime-free ordinances revealed that at least forty municipalities have enacted them. Joseph Mead et al., Cleveland State Univ., Who Is a Nuisance? Criminal Activity Nuisance Ordinances in Ohio 19–20 app. A (2017). An investigation into New York CNOs revealed that twenty-five of the forty most populated municipalities outside of New York City have enacted them. More Than a Nuisance, supra note 4, at 10. ↑

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