ACLU hammers the Madison Police Department for its discriminatory blue-lining practices towards tenants! Wait, what? What does the police department have to do with tenants? Plenty. (More on how police policies impact tenants in my testimony from January 7th this year.)
Brief backstory on this. In 1994? 1995? Mayor Paul Soglin appointed me to a committee on Arrest and Conviction Records. That committee ended up passing an ordinance protecting people based on their arrest and conviction record to some extent. After you were “off paper” landlords couldn’t discriminate against you due to a conviction record after two years – and even when they could it had to be substantially related to housing AND it they had to screen all tenants the same. Our major concerns was that it was difficult to prove that the screening was discriminatory based on race, but we all knew it was and the practice for many landlords was to just screen people of color for criminal activity. The county eventually passed a similar law. In 2011, the state legislature pre-empted the local city and county law and now landlords can discriminate against tenants for a drunk driving 20 years ago – and deny people housing . . . until last month when HUD stepped in.
Also, Tenant Resource Center has for years been systematically prevented from participating in city landlord training. We train police departments and sheriff officers all over the state. In 1995 we did participate in updating the landlord/tenant portion of the police department policies and we were included . . . but over time, they started paying the Apartment Association of South Central Wisconsin, who brought you the law changes in 2011, to do the training. We might not be here at this time if Tenant Resource Center had been able to remain involved or they had been interested in hearing what we had to say.
Anyways, thank you ACLU! I haven’t seen an official police department response yet, except that they are waiting for the city attorney to respond.
Michael C. Koval
Chief of Police
City of Madison Police Department
211 S. Carroll St.
Madison, WI 53703May 16, 2016
Dear Chief Koval:
We write to raise concerns about the policies and practices of the Madison Police Department (“MPD”) with respect to tenants in rental housing. Documents released in response to our recent open records request indicate that several of these policies and practices disproportionately impact tenants of color and tenants living in neighborhoods of color.
The Fair Housing Act (“FHA”) prohibits MPD and landlords from engaging in even facially-neutral practices that have a disproportionately adverse effect on people of color, unless the practice is shown to be necessary to serve a substantial, legitimate, nondiscriminatory interest and that interest could not be served by a different practice with a less discriminatory effect. 24 C.F.R. § 100.500(a)-(b). The FHA also prohibits housing policies that are intentionally discriminatory. 42 U.S.C. § 3604. MPD’s policies for instructing the landlords of potential or declared nuisance properties to use criminal history information in
screening tenants, its practice of seeking from landlords lists of their tenants, and its practice of using trespass law to ban certain guests from visiting tenants raise Fair Housing Act concerns.Criminal History Screening
In creating tenant screening policies, it is critical to recognize that the use of criminal history will have an adverse and disproportionate impact on members of certain racial groups, especially African Americans and Latinos.
The Department of Housing and Urban Development recently issued guidance (“HUD Guidance”) that synthesizes existing law to make clear that the Fair Housing Act and its disparate impact standard apply to the use of criminal history information by providers or operators of housing. (1) HUD notes that recent nationwide data show African Americans are arrested at a rate more than double their proportion of the general population and imprisoned at a rate about three times higher than their proportion of the general population; Hispanic individuals are also more likely to be incarcerated than their share of the population suggests. HUD Guidance 3 (citations omitted). Disproportion in Wisconsin is as severe or worse. African Americans comprised about 6% of Wisconsin’s population, but accounted for 24% of arrests in Wisconsin in 2012. See Wisc. Statistical Analysis Ctr., Wisc. Dep’t of Justice, Arrests in Wisconsin 2012 6, Sept. 2013 (2) U.S. Census Bureau, 2008-2012 American Community Survey (“ACS”) 5-Year Estimates, Wisconsin Total Population (Hispanic or Latino Origin by Race): 2012, Table B03002. (3) These problems are pervasive in Madison, where African Americans are more than 10 times as likely to be arrested as whites, and Latinos are also more likely than whites to be arrested. Nico Savage, Analysis: Blacks in Madison arrested at more than 10 times rate of whites, Wisc. State J., Aug. 31, 2015. (4)
Accordingly, the use of criminal history in tenant screening will disproportionately impact members of these groups, and exclusions based on such history must be justified by a substantial, legitimate, nondiscriminatory interest. HUD Guidance 4. The Guidance states that a policy of excluding potential tenants based on arrest records can never be necessary to achieve such an interest, since arrest records do not constitute proof of unlawful conduct. Id. at 5. The Guidance goes on to explain that blanket bans on individuals with prior convictions also cannot be found necessary to achieve a legitimate, non-discriminatory interest. Id. at 6. Instead, policies regarding prior convictions must be tailored so that they take into account, for example, “the nature and severity of an individual’s conviction” and “the amount of time that has passed since the criminal conduct occurred.” Id. at 7. Moreover, limiting the use of criminal history information in housing decisions in this manner makes good sense. Because “many formerly incarcerated individuals, as well as individuals who were convicted but not incarcerated, encounter significant barriers to securing housing,” such policies are necessary to reduce homelessness and facilitate reentry. Id. at 1.
Nonetheless, MPD appears to routinely instruct owners and managers of properties that face nuisance property proceedings to screen potential tenants based on criminal history, without providing any indication that such screening must be carefully designed to limit its racial adverse impact. Threatened with legal action that can result in thousands of dollars in penalties, and even the closure and sale of the property, landlords are likely to be particularly susceptible to MPD’s suggested course of action. It is therefore especially crucial that MPD incorporate fair housing concerns into its recommendations.
Several examples of this instruction to landlords exist. First, in a form “Notice of Public Nuisance” that MPD sends to property owners and operators facing proceedings under Wis. § 823.113, MPD recommends, among other “nuisance abatement methods,” that landlords “conduct[ ] background checks on all prospective adult tenants and residents.” See, e.g., Letter from Capt. Joe Balles 2, Nov. 12, 2015 (Ex. A). Second, in a form letter MPD sends to landlords of properties with a “pattern of calls for police service,” MPD states that it has identified “certain strategies—such as the thorough screening of potential tenants—that can help residential property owners/managers appropriately manage their properties.” See, e.g., Letter from Lt. Mike Hanson, Oct. 30, 2015 (Ex. B). The letter cites Wis. § 823.113 and Madison Gen. Ord. § 29.05, providing for legal action against “owners of properties that constitute a public nuisance” and then suggests that its recipient “work with” MPD so that MPD does not have to “initiate any legal action.” Id. Neither of these letters suggests that the FHA prohibits landlords from engaging in certain forms of criminal history screening.
Finally, and perhaps most concerningly, on at least one occasion, MPD met with a landlord “regarding nuisance-type activities” on her property. That landlord reported that she knew all her tenants and thus did not need to screen tenants, and, in a follow-up letter, MPD “encouraged” her to “take advantage of police knowledge and use Officer Taylor as a resource to supplement any screening process you do engage in.” Letter from Jennifer Zilavy, Nov. 18, 2015 (Ex. C). The letter continued, “[t]he police department will never tell you who to rent to or who to not rent to; but they can frequently provide you with information on a prospective tenant that will assist you in making a good decision regarding tenancy.” Id. We are concerned about the fair housing implications of incorporating “information” in the possession of police but not otherwise publically available into housing decisions.
We are aware that MPD issues another form letter, captioned “Notice of Declaration of Chronic Nuisance Premises” and citing Madison Gen. Ord. §25.09, which both mentions fair housing concerns and omits the instruction to conduct background checks of tenants, telling landlords instead to meet with MPD in order to discuss a nuisance abatement plan. See, e.g., Letter from Chief Koval to John W. Corey, May 15, 2015 (Ex. D). While we are pleased that MPD is aware of the fair housing implications of its nuisance property actions, it is not clear why that concern is absent in the other form letters discussed above.
A final reason for concern about the racial impact of these policies: the MPD records disclosed in response to our request suggest that MPD public nuisance enforcement disproportionately affects neighborhoods where people of color live. MPD disclosed records showing 34 properties that faced nuisance property proceedings for which the census tract was identifiable. These properties were located in census tracts with, on average, Black populations of 12% and Latino populations of 14%, although Madison’s population as a whole is just 7% Black and 7% Latino. U.S. Census Bureau, 2010-2014 ACS 5-Year Estimates, Madison Total Population (Hispanic or Latino Origin by Race): 2014, Table B03002. Pressing landlords in neighborhoods of color, in particular, to screen tenants based on criminal history can only exacerbate the racially adverse impact of these policies. (5)
Solicitation of Tenant Lists
MPD records also indicate that MPD routinely asks landlords to provide lists of tenants living in rental housing, and that it seeks these lists from affordable housing providers in general, as well as from landlords with alleged nuisance properties.People of color in Madison are far more likely to reside in rental housing, and are therefore more likely to be subjected to these MPD practices, than white residents. While only 46% of white householders live in rental housing, 81% of Black householders and 71% of Latino householders in Madison are renters. U.S. Census Bureau, 2010-2014 ACS 5-Year Estimates, Madison Occupied Housing Units (White Alone, Not Hispanic or Latino) (Black or African American Alone) (Hispanic or Latino): 2014, Tables B25003H, B25003B, B25003I. Black residents are also disproportionately represented in the public housing population—37% of Madison public housing residents are Black. Dep’t of Housing and Urban Dev., Resident Characteristics Report, Apr. 30, 2016 (rpt. for WI1475 – Madison City). (6) And, per capita, white residents of Madison earned $36,194 in 2014, more than twice as much as Black residents, who earned $16,179, and Latino residents, who earned $15,631, meaning that people of color are more likely to occupy affordable housing. U.S. Census Bureau, 2010-2014 ACS 5-Year Estimates, Madison Per Capita Income in the Past 12 Months (White Alone, Not Hispanic or Latino)(Black or African American Alone) (Hispanic or Latino): 2014, Tables B19301H, B19301B, B19301I.
MPD records contain lists of names and addresses for public housing residents living at the Gay Braxton, Brittingham, Karabis, and Parkside developments. Records also indicate that MPD sought this information for tenants of the privately-managed Bayview Townhouses. Moreover, among other nuisance abatement measures in the Notice of Public Nuisance that MPD sends to property owners and operators facing proceedings under Wis. § 823.113, MPD recommends “[p]roviding the local Madison Police District with updated and current tenant lists.” Ex. A, at 3; see also Ex. C, at 1[MPD 4] (“It would be helpful if you provide a current tenant list to Officer Taylor so she knows who is legitimately living at the property and update that list as necessary.”). Given the disproportionate concentration of nuisance property proceedings in neighborhoods where people of color live, this MPD policy raises additional fair housing concerns.
To the extent that MPD seeks tenant lists from housing providers whose tenants are disproportionately people of color—as appears to be the case in public housing and affordable housing and in the nuisance property context—that practice may lead to FHA violations by having landlords disclose private tenant information to law enforcement and thus imposing additional (and concerning) terms or conditions of rental. 42 U.S.C. § 3604(b).
Trespass Enforcement and Visitor Bans
Finally, we are concerned about the implications of recommending trespass enforcement, a nuisance abatement suggestion listed in Ex. A: “Instituting a standing complaint with the local Madison Police District that would allow the Police Department to remove any individuals trespassing on the property.” This kind of trespass enforcement authority allows MPD to declare any non-resident on the property to be a trespasser. Persons banned from the premises through these policies may be MPD suspects or associates of MPD suspects, but tenant advocates report that they often have not engaged in any criminal activity related to the property in question (or been convicted of criminal activity at all). As a result of these bans, family members—even those who may be providing critical support, such as child care—cannot visit tenants. Limiting a tenant’s right to have guests without far more specific cause, such as the individual having been convicted of perpetrating criminal activity at the property in question, raises serious concerns. Without additional safeguards, a tenant can be punished for a lease violation and even evicted based on a mere suspicion. Visitor bans disproportionately impact communities of color due to their disproportionate contact with law enforcement in Madison.* * *
In light of the requirements of the Fair Housing Act, we urge you to take the following actions:
– Ensure that landlords throughout the city are educated about, and comply with, the requirements of the FHA, including the prohibition on excluding persons based on arrest records and on blanket exclusions of persons with convictions;
– Cease criminal history screening of tenants;
– Cease routine solicitation and collection of tenant lists, and instead obtain tenant identifying information only for use in investigation of specific crimes;
– Include suggestions for alternatives to eviction, such as excluding a culpable household member, entering into a probation tenancy agreement (contingent on no future nuisance activity), or participating in a treatment/rehabilitation program. Alternatives to eviction that are focused on ceasing the problem activity, rather than just moving some involved individuals around, also protect innocent family members, many of whom are children;
– Ensure that nuisance ordinances are not enforced against crime victims, including against victims of domestic violence who call the police for assistance, or against persons with disabilities, where the calls relate to a manifestation of the disability; and
– Cease recommending individuals be banned from properties absent sufficient proof of criminal activity on or near the premises that poses a threat to the residents.
We appreciate your attention to these concerns.
Sincerely,
Rachel Goodman
Staff Attorney
ACLU Racial Justice Program
rgoodman@aclu.orgKaryn Rotker
Senior Staff Attorney
ACLU of Wisconsin
krotker@aclu-wi.orgElectronic copy:
Michael May, Madison City Attorney (mmay@cityofmadison.com)
Madison Police Department Policy & Procedure Review Ad Hoc Committee:
Anthony Cooper, Sr. (acooper@nehemiah.org)
Christian A. Albouras (christian.albouras@gmail.com)
Jacquelyn Hunt (jackie.hunt@journeymhc.org)
Jerry B. Vang (jvang@wisbar.org)
Keith A. Findley (keith.findley@wisc.edu)
Kim M. Jorgensen (kim.jorgensen@unitypoint.org)
Linda J. Ketcham (ketchfish@aol.com)
Luis R. Yudice (lyudice@madison.k12.wi.us)
Mario Garcia Sierra (marios.sierra@gmail.com)
Matthew W. Braunginn (mbraunginn@cdo.wisc.edu)
Sean A. Saiz (sasaiz@uwalumni.com)
Sue K. Petkovsek (suekp93@charter.net)
Veronica Lazo (veronical@unidosagainstdv.org)————–
1 – U.S. Dep’t of Housing and Urban Dev., Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real-Estate Related Transactions, Apr. 4, 2016, https://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf.2 – https://wilenet.org/html/justice-programs/programs/justice-stats/library/crime-and-
arrest/2012-arrests-in-wisconsin.pdf3 – http://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml
4 – http://host.madison.com/wsj/news/local/crime-and-courts/analysis-blacks-in-madison-
arrested-at-more-than-times-rate/article_fd52f630-9647-5541-8114-a2541b8a8924.html5 – We are also concerned about any effort to enforce the nuisance ordinance on the basis of domestic–violence-related calls for police service. The documents we received encourage landlords to use leases that include provisions “relating to …. Illegal activity,” Ex. A, at 3, without noting the requirement that leases provide notice of the rights of victims of domestic violence pursuant to Wis. Stat 704.14. Moreover, permitting eviction of victims of domestic violence—predominantly women—based on related calls to police would also violate the gender non-discrimination protections of the Fair Housing Act.
6 – https://pic.hud.gov/pic/RCRPublic/rcrmain.asp
