Notes on a Theory…

Thoughts on politics, law, & social science

Domestic Violence and Evictions: a Literal Denial of Equal Protection

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A bit late to this, but How Domestic Violence Survivors Get Evicted From Their Homes After Calling the Police, from Annamarya Scaccia, is just as horrifying as you would imagine from the title.

As outlined in the federal lawsuit filed April 24 on behalf of Briggs by the American Civil Liberties Union (ACLU), the ACLU of Pennsylvania (ACLU-PA), and Philadelphia law firm Pepper Hamilton LLP, Briggs had already been given three strikes under Norristown’s discretionary Rental License Ordinance. The ordinance gives the Montgomery County municipality the right to countermand a landlord’s rental license and provoke a tenant’s eviction if police respond to three “disorderly behavior” calls in four months, including domestic disturbances in which a mandatory arrest in not required.

The strikes Briggs received were the result of police calls made in April and May of last year—two of which were due to acts of domestic violence committed against her. In May, the borough began proceedings to revoke her landlord Darren Sudman’s rental license, but granted the property—and by extension Briggs—a 30-day probationary period after a late May hearing. Any violation during that period would have resulted in rescindment and eviction, claims the lawsuit.

That’s right – the County basically punishes the landlord for failing to punish a woman who’s experiencing domestic violence by evicting her.

While the ACLU claims nuisance ordinances are deleterious to all tenants, there’s special concern for how they may disparately impact domestic violence survivors. As seen with Briggs, survivors may be less likely to call police, fearing their need for protection will be labeled “disorderly behavior” and count as a strike toward eviction—and, subsequently, homelessness.

In numbers, this translates to 20 percent of homeless women citing domestic violence as the primary reason for homelessness, according to the National Law Center on Homelessness and Poverty. Studies show that women of color, like Briggs, face “particularly high eviction rates,” while women in lower-income households and neighborhoods experience repeated or severe domestic violence the most—a rate twice that of women in higher-income neighborhoods.

“[Housing] is one of the biggest barriers to getting and staying safe,” Baughman told RH Reality Check.

I believe that everyone deserves housing, by virtue of being a human being. I’m so old I remember how we were all upset when Romney criticized people for thinking that “they are entitled to health care, to food, to housing.”  But I appreciate that many Republicans don’t believe that, and at least some Democrats didn’t remember they believed that once the campaign ended. But here you have the government forcing a requirement on landlords that puts women out of their homes and therefore puts their lives in jeopardy.

This is precisely the opposite of what government’s duty is.  In fact, this is what the Equal Protection Clause of the 14th Amendment is all about. While the Supreme Court undermined it almost immediately, when it was revived it was largely as a generic equality provision. Initially understood to demand anti-subordination,  in time it was translated into a anti-classification provision – one that forbid the explicit use of race (in most, but not all areas) of government decision-making, along with small number of other characteristics, but required nothing more. Efforts to revive the older view, like Congress’s attempt to justify the Violence Against Women Act on equal protection in addition to interstate commerce, have been rejected by the Court.

But as a number of scholars have pointed out, the Court’s present position doesn’t fit with the actual words of the clause, which doesn’t mention race or classification.  Equal protection of law is a positive duty, for the government to use law to protect everyone equally. Protect from what? Private deprivations, primarily. (This is why the talk of the Equal Protection Clause not applying to private action is mistaken – it is only true to the extent it doesn’t require private actors to protect us).

Government has a positive duty to protect women from intimate partner violence. Failing to do so is a literal denial of equal protection.  Actively punishing people when government has failed to protect them is even worse. Courts aren’t going to enforce this.  Only the people can.

On a related note, as Bryce Covert points out, In All But Six States, You Can Be Fired For Being A Victim of Domestic Violence.

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Written by David Kaib

June 21, 2013 at 9:19 am

One Response

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  1. […] of the Constitution, something we have made great progress on in the interim despite how much work  remains to be […]


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