Detailed Questions & Answers About Criminal Record Bans in Government-Assisted Housing

DO YOU NEED LEGAL HELP?

If you have legal questions, we suggest calling a housing legal aid provider from the list of legal aid providers on PG. 1127, or contact Root & Rebound at 510-279-4662 for further guidance or a referral.

Here we explain the information from the chart above in a question & answer format in much more detail. You will learn about the specifics of each of these criminal record bans in government-assisted housing. Later we explain how to challenge denials due to your criminal record, beginning on PG. 391.

What bans are required in government-assisted housing—for specific types of convictions and specific housing programs?

Here we explain the four bans that are required (“mandatory”) for SOME types of federal government-assisted housing programs, but not ALL. There might be government-assisted programs where these bans DO NOT APPLY. So please read carefully!

BAN 1: Methamphetamine production on federal government-assisted property Lifetime ban from 3 federal housing programs

Under federal law, PHAs and owners of government-assisted housing MUST PERMANENTLY DENY admission to an entire household to three of the federal government-assisted housing programs—(1) Public Housing, (2) the “Section 8” Housing Choice Voucher program, and (3) the Section 8 Moderate Rehabilitation program—if ANY MEMBER of the household has ever been convicted for the manufacture or production of methamphetamine ON THE PREMISES of any type of federal government-assisted housing.^[1231] Because this rule is so specific, the lifetime ban applies to only a very small number of housing applicants.

Let’s break it down further. As you apply to a PHA for government-assisted housing, this lifetime ban only applies to you if someone in your household was:

Convicted (meaning found guilty in a court of law),

Of the manufacture or production of Methamphetamine, AND

The criminal activity took place on the premises (on the property) of any type of federal government-assisted housing.

Lastly, if you are applying to a government-assisted housing program that is not one of the 3 programs that PHAs run (again, those are Public Housing, the “Section 8” Housing Choice Voucher program, and the Section 8 Moderate Rehabilitation program), then this mandatory lifetime ban does NOT apply to you or your household.^[1232] Instead, read about the catch-all ban on PG. 360 that is allowed, but not required.

I was denied by the PHA or the owner of government-assisted housing, but based on the information in this legal guide, I think it was a mistake or the required ban doesn’t apply to me. How do I challenge the denial? If another assisted housing program—not one of the three listed above—tries to impose a lifetime ban on you due to your conviction for the manufacture of production of methamphetamine on the premises of federal government-assisted property, you can challenge the lifetime ban and present mitigating information (meaning facts that are specific to your case and circumstances showing you should not be denied the housing—see PG. 358).

Go to PG. 393 to learn how to challenge a denial by asking the PHA for an informal review hearing.Go to PG. 371 to learn about what kinds of mitigating information you should include with your application, and as proof of mitigating circumstances & rehabilitation with any challenges you bring.If there was a mistake in the information the PHA or owner of the government-assisted property relied upon, you should immediately bring it to their attention.

Mistakes could include:

Errors in your criminal records (see UNDERSTANDING & CLEANING UP YOUR CRIMINAL RECORD CHAPTER, beginning on PG. 931)Even though you were on the premises of the federal government-assisted housing, you did not actually manufacture the drugs, but you were automatically denied housing anyway; OREven though you were involved in the manufacturing of the methamphetamines, you were a victim of domestic violence that led to your involvement, and you shouldn’t be punished by the PHA.

BAN 2: Sex offense convictions requiring lifetime registration Lifetime ban for almost all federal government-assisted housing programs

Under federal law, PHAs and owners of government-assisted housing MUST PERMANENTLY DENY admission to an entire household—to almost all federal government-assisted housing programs—if ANY MEMBER of the applicant household is required to be lifetime registered under any state’s sex offender registration program.^[1233]

THIS REQUIRED BAN DOES NOT APPLY TO YOU if you are required to register as a sex offender for a temporary or limited amount of time. Again, the ban only applies if you are required to register as a sex offender in any state for the rest of your life. Unfortunately, PHAs and owners of government-assisted property will often mistakenly apply the ban to anyone registered as a sex offender.

EXCEPTION FOR CERTAIN TYPES OF GOVERNMENT-ASSISTED HOUSING PROGRAMS (NO REQUIRED BAN): The other exception is that owners of two government-assisted housing programs—Low-Income Housing Tax Credit (LIHTC) properties and Rural Development (RD) housing—are NOT REQUIRED to deny admission to a lifetime registered sex offender; they have discretion.^[1234]

I was denied by the PHA or the owner of government-assisted housing because I am a registered sex offender, but based on the information in this legal guide, I think it was a mistake or the required ban doesn’t apply to me. How do I challenge the denial?Some PHAs or owners misinterpret the rules that apply to sex offender registrants, and some apply their own criteria—which in the real world means that the PHA or owner will end up automatically banning a person who shouldn’t be automatically banned (an example of this would be if a PHA had a policy that permanently bans all people required to register on a state’s Sex Offender Registry list, even people who don’t have to register for their entire lifetime). If this is your situation, you can challenge the denial by asking the PHA for an informal review hearing (see PG. 393).Only if you meet the legal definition of a lifetime registered sex offender can you be permanently denied federal government-assisted housing without any other consideration of your individual circumstances. Thus, if you do not have a lifetime sex offender registration requirement, the PHA should analyze the time, nature and circumstances of the offense, as appropriate for any other criminal activity (see PG. 352).^[1235] As an applicant, you should also be allowed to show mitigating information and/or proof of your rehabilitation (see PG. 371 for explanations of what counts as mitigating information and proof of rehabilitation). For example, if you do not have to register as a sex offender for the rest of your lifetime, you should be able to establish that the criminal conduct was not violent, did not involve children, happened a long time ago, and that there have been no problems since the conviction.^[1236]

Go to PG. 393 to learn how to challenge a denial by asking the PHA for a review hearing.

Go to PG. 371 to learn about what kinds of mitigating information and proof of rehabilitation you should include with your application, and/or with any challenges you bring.

If there was a MISTAKE in the information the PHA or owner of the government-assisted housing relied upon, you should immediately bring it to their attention. Mistakes could include errors in your criminal records (see the UNDERSTANDING & CLEANING UP YOUR CRIMINAL RECORD CHAPTER, beginning on PG. 931, which discusses how to fix errors in your record).

IMPORTANT: There are other restrictions on where people who must register as sex offenders can live under California state law. It is VERY IMPORTANT to check your state and local laws regarding these requirements to know if they apply to you, and how it will affect where you can live. See PG. 352 of this HOUSING CHAPTER and PG. 163 of the PAROLE & PROBATION CHAPTER to understand additional restrictions on where 290 registrants can live in California.

!

BAN 3: Past Eviction for Drug-Related Activity on Federal Government-Assisted Property Minimum 3-year Ban for Three Federal Government-Assisted Housing Programs

Under federal law, PHAs and owners of government-assisted housing MUST DENY admission to an entire household to three of the government-assisted housing programs—(1) Public Housing, (2) the “Section 8” Housing Choice Voucher program, and (3) the Section 8 Moderate Rehabilitation program—if ANY MEMBER of the household has ever been EVICTED from any federal government-assisted housing program or property because of drug-related criminal activity.^[1237] This ban must last for a minimum of 3 years, starting from the date of eviction, but PHAs and owners can choose to extend it.^[1238]

PLEASE NOTE: This ban only applies to the three types of federal government-assisted housing mentioned above. It does NOT apply to the following types of government-assisted housing programs:

Low-Income Housing Tax Credit (LIHTC) properties and Rural Development (RD) housing;^[1239]

Housing applicants who were evicted for drug-related activity from any other type of housing or program that does not receive federal government money.^[1240]

IMPORTANT EXCEPTION: PHA or owner may admit your household if the person whose drug-related criminal activity led to the eviction later goes on to complete an approved, supervised drug rehabilitation program, OR if your circumstances have changed.^[1241] This is an important exception, because it gives you the power to change your situation!

!

By taking and completing an approved drug rehabilitation program, you could become eligible for housing again, or if your circumstances have changed. “Changed circumstances” could mean:

The household member with the drug-related conviction has died or is in prison, and won’t return to the household.The applicant household has had no contact for a period of time and does not know the whereabouts of the former household member who was evicted for the drug-related activity.There could be other reasons the family should be allowed back into the housing if the person with the conviction is no longer in the picture or has been rehabilitated.^[1242]

My application was denied by the PHA or the owner of government-assisted housing because of a past eviction from federal government-assisted property for drug-related criminal activity, but I think it was a mistake or that the ban is unreasonably long (more than 3 years). How do I challenge the denial?

You can challenge a denial because the ban is unreasonably long or because there was a mistake in the information the PHA or owner of the government-assisted property relied on. Go to PG. 393 to learn how to challenge a denial by asking the PHA for an informal review hearing.Go to PG. 371 to learn about what kinds of mitigating information you should include with your application, and as proof of mitigating circumstances & rehabilitation with any challenges you bring.If there was a mistake in the information the PHA or owner of the government-assisted property relied upon, you should immediately bring it to their attention. Mistakes could include errors in your criminal records (see CLEANING UP YOUR CRIMINAL RECORD CHAPTER, PG. 931).

Helpful HintChallenging Long Bans For Past Drug Activity on Government Housing Property:

If you were convicted of a less serious drug-related crime, such as mere possession, OR you have been rehabilitated (and can show you have changed, done classes, or improved yourself), these are all good reasons to challenge a ban that is significantly longer than 3 years. If you can, talk to a lawyer or advocate!^[1243] See General Guide Appendix A, on PG. 1127 of this guide for a list of legal aid providers in California. A lawyer can explain how to gather proof that shows the housing ban shouldn’t apply to you for more than 3 years. Again, go to PG. 364 to learn about the procedure for challenging a denial, and asking the PHA for an informal review hearing.

BAN 4: Current Illegal Drug Use Required Ban while Illegal Drug Use is “Current”

PHAs and owners of government-assisted housing must deny admission to an entire household if ANY MEMBER of the household is currently using illegal drugs.^[1244]

QUESTIONS RELATED TO CURRENT DRUG USE:

When does drug use or alcohol abuse disqualify me from getting into federal government-assisted housing?

Current drug use on or near the property by any tenant, household member, person under the tenant’s control, or guest will disqualify you.^[1245] “Current” means you used illegal drugs “recently enough to justify a reasonable belief” that you’re still using. In their written policies, PHAs and owners should spell out what they define as “recent,” and must abide by that policy. Read more about “recentness” requirements on PG. 420. To learn about how your past addiction could be a protected disability which allows you to ask for a “reasonable accommodation”—which means you can ask the PHA or owner of government-assisted housing to lift or relax this ban (see Appendix E, PG. 419).

How would PHA or owner find out about my alcohol or drug use?

A PHA or owner could learn about your drug or alcohol use directly from you (in your application) or from access to records about your criminal history or drug treatment. To learn more about how a PHA or owner accesses records related to your alcohol or drug use, read Access to Your Drug/ Alcohol Records for Government-Assisted Housing on PG. 379.

Should I try to hide my current illegal drug use from the PHA or owner of the government-assisted housing?

No, you should be honest on the application. You can be denied the government-assisted housing—or later evicted (kicked out/terminated from the program)—for intentionally lying during the application process.

Do PHAs or owners of government-assisted housing consider whether I have participated in or completed a drug or alcohol rehabilitation program to let me into a housing program?

Generally, they don’t have to, but PHAs and owners may consider that you have participated in or have completed a drug rehabilitation program, and may ask you for documentation that you are not currently using illegal drugs.^[1246] Specifically, you may have to provide documentation of your drug rehabilitation with your application if you want to avoid or reduce the 3+ year ban on admitting people who were previously evicted from federally-assisted housing due to a drug-related crime.^[1247]

Can PHAs or owners of government-assisted housing screen me by using or requiring a medical exam or drug test?

No. PHAs and owners may not require you to undergo any type of physical exam or medical testing in order to admit you to a housing program. This includes testing for HIV/AIDS, Tuberculosis (Tb), pregnancy, and, presumably, drug/alcohol screening.^[1248]

WARNING: if applying to government-assisted housing, it is very important for anyone with a criminal record to read the following section!

!

1. ¹²³¹

   42 U.S.C. § 1437n(f)(1); 24 C.F.R. §§ 882.518(a)(1)(ii) (Section 8 moderate rehabilitation), 960.204(a)(3) (public housing), 982.553(a)(1)(ii)(c) (Section 8 voucher). ↑

2. ¹²³²

   When applying for admission. If an owner, who is not required by statute to impose a lifetime ban, seeks to impose one, an applicant may object to the policy as contrary to congressional intent as it goes beyond the statutory limits. C.F.R. § 3560.154(j). If an owner rejects such an applicant, the applicant should challenge the lifetime ban and present information regarding mitigating circumstances or rehabilitation. Mitigating circumstances might include the fact that the applicant was on the premises but did not manufacture the drugs, or was involved in the manufacturing but was a victim of domestic violence. It may also include the fact that there has been a significant lapse of time between the offense and the application for admission with no other intervening criminal activity. ↑

3. ¹²³³

   42 U.S.C. § 13663(a); 24 C.F.R. §§ 5.100 (definition of federally assisted housing), 5.856 (federally assisted housing in general), 882.518(a)(2) (Section 8 moderate rehabilitation), 960.204(a)(4) (public housing), 982.553(a)(2)(I) (voucher) (2007); Screening and Eviction for Drug Abuse and Other Criminal Activity–Final Rule, H 2002-22 (Oct. 29, 2002), ¶ VI. ↑

4. ¹²³⁴

   See 7 C.F.R. § 3560.154(j) (2007) (RD housing). There are no regulations for LIHTC properties requiring the denial of admission of a registered sex offender. ↑

5. ¹²³⁵

   One could argue that the federal statute barring lifetime registered sex offenders preempts an expansion of that bar to other sex offenders. There are three general types of situations in which preemption may be established. One of the situations is that preemption may be in inferred where the scheme of the federal legislation is so comprehensive that it creates the inference that Congress “left no room” for local regulation in that area. Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 281 (1987). Applying that standard, the area in question is eligibility for federally assisted housing and Congress has fully defined eligibility for federally assisted housing. Imposing an absolute lifetime bar when none is required is determining eligibility in an area that Congress has not left any room for local regulation. Success on such a claim may be complicated as the party seeking preemption has the burden of proof and the presumption is against preemption. Cipollone v. Ligget Group, 505 U.S. 504, 518 (1992). ↑

6. ¹²³⁶

   Corinne A. Carey, No Second Chance: People with Criminal Records Denied Access to Public Housing, 36 U. Tol. Rev. 545, 579 (2005) (article also lists reasons why an individual might be on a lifetime registration list, including consensual relationship with partners who are a few years younger, indecent exposure or lewd displays often related to substance abuse, mental health diagnosis, homelessness, and women who are convicted of conspiracy to commit sexual abuse for failing to protect a child from such abuse); see also Housing Rights Watch, No Easy Answers: Sex Offender Laws In The US (2007). ↑

7. ¹²³⁷

   42 U.S.C. § 13661(a). ↑

8. ¹²³⁸

   4 C.F.R. §§ 5.852(d) (federally assisted housing), 960.203(c)(3)(ii), 966.4(1)(5)(vii)(E) (public housing). HUD apparently believes that the statute sets a floor of three years, and that PHAs and owners are not violating the statute if they expand the time period. The HUD explanation in the regulations is that “[s]ince the intent of the statute was to strengthen protections against admitting persons whose presence in assisted housing might be deleterious, HUD does not interpret this new provision as a constraint on the screening authority that owners and PHAs already had.” Screening and Eviction for Drug Abuse and Other Criminal Activity; Final Rule, 66 Fed. Reg. 28,776, 28,779 (May 24, 2001). ↑

9. ¹²³⁹

   4 C.F.R. §§ 5.850(a) (excludes rural development housing), 5.854(a) (federally assisted housing in general), 882.518(a)(1)(I) (Section 8 moderate rehabilitation), 960.204(a)(1) (public housing), 982.553(a)(1)(I) (voucher); Screening and Eviction for Drug Abuse and Other Criminal Activity–Final Rule, H 2002-22 (Oct. 29, 2002) ¶ VI (HUD Notice applicable to HUD-assisted project-based housing, excluding Section 8 moderate rehabilitation housing and project-based vouchers or certificates). The rule is also not applicable to housing assisted with S+C, SHP or HOPWA funding. ↑

10. ¹²⁴⁰

    4 C.F.R. §§ 5.850(a) (excludes rural development housing), 5.854(a) (federally assisted housing in general), 882.518(a)(1)(I) (Section 8 moderate rehabilitation), 960.204(a)(1) (public housing), 982.553(a)(1)(I) (voucher); Screening and Eviction for Drug Abuse and Other Criminal Activity–Final Rule, H 2002-22 (Oct. 29, 2002) ¶ VI (HUD Notice applicable to HUD-assisted project-based housing, excluding Section 8 moderate rehabilitation housing and project-based vouchers or certificates). The rule is also not applicable to housing assisted with S+C, SHP, or HOPWA funding. ↑

11. ¹²⁴¹

    2 U.S.C. § 13661(a); 24 C.F.R. § 5.854(a)(2). The rehabilitation should not be limited to supervised rehabilitation programs but also ought to recognize self-help programs such as Alcoholics Anonymous. See, e.g., Rules & Regulations, Dep’t of Hous. & Urban Dev., 66 Fed. Reg. 28,776, 28,785 (May 24, 2001) (codified at 24 C.F.R. § 5.852(c)(1)). ↑

12. ¹²⁴²

    1842 U.S.C. § 13661(a); 24 C.F.R. § 5.854(a)(2). The rehabilitation should not be limited to supervised rehabilitation programs but also ought to recognize self-help programs such as Alcoholics Anonymous. See, e.g., Rules & Regulations, Dep’t of Hous. & Urban Dev., 66 Fed. Reg. 28,776, 28,785 (May 24, 2001) (codified at 24 C.F.R. § 5.852(c)(1)). ↑

13. ¹²⁴³

    Preemption may be in inferred where the scheme of the federal legislation is so comprehensive that it creates the inference that Congress “left no room” for local regulation in that area. Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 281 (1987). Applying that standard, Congress has fully defined eligibility for federally assisted housing. Imposing an absolute lifetime bar when none is required is determining eligibility in an area that Congress has not left any room for local regulation. Cipollone v. Ligget Group, 505 U.S. 504, 518 (1992). ↑

14. ¹²⁴⁴

    24 C.F.R. § 960.204. ↑

15. ¹²⁴⁵

    24 C.F.R. § 960.204. ↑

16. ¹²⁴⁶

    24 C.F.R. § 982.553 ↑

17. ¹²⁴⁷

    See PG. 374 for information about federally-assisted housing programs that have a 3-year ban on someone who was evicted from housing for a drug-related offense. In sum: For certain federally-assisted housing programs, including (1) public housing, (2) the voucher program, and (3) project-based Section 8 housing, there is a mandatory 3-year ban on admission for families, if any member of the applicant’s household has ever been evicted from “federally assisted housing” for drug-related criminal activity. 42 U.S.C. § 13661(a). However, this ban does not apply to LIHTC and RD housing. See PG. 374. This rule also does not apply to applicants who were evicted for drug-related activity from non-federally assisted housing. See PG. 374. ↑

18. ¹²⁴⁸

    See HUD, Occupancy Requirements Of Subsidized Multifamily Housing Programs ¶ 4-8(B)(1) (rev. November 2013) (Prohibited Screening Criteria). Typically this provision is used to prohibit owners from inquiring into an applicant’s medical/physical condition, such as pregnancy, AIDS or TB. But it also could be used to argue that an owner may not request drug testing. ↑

What bans are allowed, but not legally required in government-assisted housing—the “catch-all” category of bans that apply to *all people with criminal records*?

For the many of you who do not fall into one of the required (“mandatory”) bans discussed above, it’s more likely you could get denied government-assisted housing because the Public Housing Authority (PHA) or the owner of the government-assisted housing has decided based on your criminal record that you currently “pose a risk to the health, safety, or right to peaceful enjoyment of the property by other residents, the owner, or the PHA staff or agents/contractors.”^[1249]

This is a “catch-all” category and allows the PHA or owner of government-assisted property to deny applicants with criminal histories more generally. They are allowed to consider a lot of information, including past convictions (even convictions you had expunged); arrests (even those that never led to a conviction); and in some cases your drug treatment records. See PG. 379 for detailed information about what criminal records a Public Housing Authority (PHA) or owner of government-assisted property can access about you.

1. ¹²⁴⁹

   24 C.F.R. § 982.553 ↑

How can I find out the criminal record policies of my local Public Housing Authority (PHA) or of the owner of government-assisted housing?

REMEMBER THAT THESE “CATCH-ALL” BANS ARE NOT REQUIRED: This “catch-all” category is NOT a required ban. The PHA or owner is allowed to exclude you only if they can show that your criminal history poses a current threat to the health, safety, or peace of other residents, the owner, or PHA staff or agents/contractors. It’s recommended that they consider mitigating information and proof of your rehabilitation—and in the case of the Public Housing program, the PHA must consider this extra information!

Each local PHA and owner of government-assisted housing will have different rules about what criminal history information they will ignore and what they will consider. By law, the PHAs and owners of government-assisted housing MUST put their policies in writing and make them available to applicants.^[1250]

The rules and policies of each local PHA and owner of government-assisted housing MUST not violate the legal protections discussed on PG. 379. Furthermore, the PHA must follow its own rules and policies.

You may want to consider talking to an advocate/lawyer about whether or not a particular PHA’s policies to exclude people with certain criminal records could be violating the law. (See PG. 1127 for a list of legal aid providers across California).

IMPORTANT: Want to learn how to challenge a denial from a PHA or owner of government-assisted housing? Go to PG. 364 to learn more!

!

1. ¹²⁵⁰

   24 C.F.R. § 960.202. ↑

Under the “catch-all” ban, can a Public Housing Authority (PHA) or owner of government-assisted housing deny me for a conviction that I had “expunged”?

Yes.^[1251] A PHA or owner of government-assisted housing may consider expunged convictions in deciding whether to admit you into a government-assisted housing program or unit.^[1252]

This also means that, for this application, when you are asked about any past convictions, you should list even those that have been expunged.^[1253] If you lie or don’t include them, the PHA or owner can reject you during the housing application process just for lying OR the PHA or owner could evict you later if it finds out that you intentionally lied during the application.^[1254]

Remember, The PHA’s or owner’s right to reject you based on your criminal record (including expunged convictions) is limited by federal^[1255] and state law.^[1256] Go to PG. 364 to learn more about these protections and limitations on the kinds of denials that PHAs and owners can make.

For more information on getting a conviction expunged, see the CLEANING UP YOUR CRIMINAL RECORD CHAPTER, PG. 931.

1. ¹²⁵¹

   24 C.F.R. § 982.553. This statute is section 8 specific, says generally, can deny admission for other criminal activity that “may threaten the health, safety, or peaceful enjoyment.” ↑

2. ¹²⁵²

   24 C.F.R. § 960.203; 42 U.S.C. § 13661; 24 C.F.R. § 5.903 (authorizing PHA to obtain law enforcement criminal records for use in applicant screening, lease enforcement, and evictions. Owners are not authorized to review records, but can request a determination by PHA as to whether record can be basis for applicant screening, lease enforcement, or eviction.) ↑

3. ¹²⁵³

   “Expungement” is a way to clean up your record so that your convictions have less of a negative impact on your life. When a conviction is expunged, the judge reopens your case and changes your “guilty” plea or verdict to “not guilty,” and then dismisses the case. The case does not disappear from your record, but it shows up as a dismissal instead of a conviction. Only certain convictions qualify for expungement. Cal. Penal Code §§ 1203.4, 1203.4a, 1203.41. ↑

4. ¹²⁵⁴

   National Housing Law Project, How Does a Criminal Record Affect Your Housing Rights? http://www.nhlp.org/files/Fact sheet for potential tenants - AC%28final%29.pdf. ↑

5. ¹²⁵⁵

   42 U.S.C. § 13661(a). ↑

6. ¹²⁵⁶

   Fair Employment & Housing Act, Cal. Gov’t Code § 12955 et seq.; Unruh Civil Rights Act, Cal. Civ. Code § 51. Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721 (1982) (Unruh Civil Rights Act prohibits all “arbitrary” discrimination, regardless of protected class status; landlord’s blanket exclusion of an entire class of people (children) based on a generalized prediction that the class, “as a whole,” is more likely to commit misconduct than some other classes of public” violates the Act.) ↑

Under the “catch-all” ban, can a Public Housing Authority (PHA) or owner deny me from government-assisted housing for arrests that did not result in a conviction?

No.^[1257] A PHA or owner of government-assisted housing CANNOT deny, end assistance, or evict you based on arrest records alone.^[1258] Some PHAs or owners of government-assisted housing might ask about arrests, and some might not. But whatever the policy, the PHA or owner MUST be able to show that’s it is more probable than not that the conduct underlying the arrest occurred and that such conduct could threaten the health, safety, or right to peaceful enjoyment of the building by other residents, the owner, or PHA staff or its agents/contractors. This means the PHA or owner of government-assisted housing will need other forms of proof (beyond just the arrest record) that the conduct underlying the arrest occurred, because of course, an arrest is NOT legal proof that you actually committed a crime (unlike a conviction, which shows guilt).^[1259]

If you were denied government-assisted housing based on arrest records alone (without more proof), you can challenge the denial, as this practice likely violates fair housing and anti-discrimination laws and/or your right to due process.^[1260] We suggest that you contact a housing attorney or legal aid organization that can help you (see the list of legal aid providers on PG. 1127). Whether or not you can find a lawyer to help you, you should try to get familiar with the procedure for challenging a PHA’s or government-assisted owner’s decision to deny you. For details on this process, see PG. 364.

1. ¹²⁵⁷

   42 U.S.C. § 13661(c); Fair Employment & Housing Act, Cal. Gov’t Code § 12955 et seq.; Unruh Civil Rights Act, Cal. Civ. Code § 51; Marina Point, Ltd. v. Wolfson, 30 Cal.3d 721 (1982) (Unruh Civil Rights Act prohibits all “arbitrary” discrimination, regardless of protected class status; landlord’s blanket exclusion of an entire class of people (children) based on a generalized prediction that the class, “as a whole,” is more likely to commit misconduct than some other classes of public” violates the Act.) ↑

2. ¹²⁵⁸

   U.S. Dep’t Hous. & Urban Dev., PIH 2015-19, Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions (2015). See also Landers v. Chicago Hous. Auth., 404 Ill. App. 3d 568 (2010). ↑

3. ¹²⁵⁹

   HUD, Notice PIH 2015-19, “Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions (2015); Landers v. Chicago Hous. Auth., 404 Ill. App. 3d 568 (2010). ↑

4. ¹²⁶⁰

   See HUD, Notice PIH 2015-19, “Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions (2015); Landers v. Chicago Hous. Auth., 404 Ill. App. 3d 568 (2010). ↑

Under the “catch-all” ban, will my participation in a pre-trial intervention or diversion program matter?

If the program shows up on your background check as a conviction, then the PHA or owner of the government-assisted housing can consider it, and possibly deny you.^[1261] SO it depends on how it comes up on your background check.

If you are placed into a pre-trial intervention program and you do NOT have to plead guilty in order to participate, then a background check report will probably show the filing of a case, but no conviction while you are participating in the program.^[1262] If you successfully complete the program, then your case will be dismissed without a conviction ever having been recorded. Therefore, it CANNOT show up as a conviction in a background check, because it never was one.^[1263] If there are errors in your background check, the PHA or owner must give you an opportunity to correct them.^[1264]

If instead you are placed in a pre-trial intervention program that requires you to plead guilty, then this guilty plea will probably appear as a conviction on a background check report while you are still participating in the program. If you successfully complete the program, your guilty plea should be automatically withdrawn and those records sealed, after which a private background check company CANNOT report this as a conviction.^[1265] If there are errors in your background check, the PHA or owner must give you an opportunity to correct them.^[1266]

To learn more about how private background checks work, see PG. 377.

1. ¹²⁶¹

   42 U.C.S. § 13661(c); 24 C.F.R. § 5.903. ↑

2. ¹²⁶²

   Cal. Penal Code § 1000.5. ↑

3. ¹²⁶³

   Cal. Penal Code § 1000.4. ↑

4. ¹²⁶⁴

   24 C.F.R. §§ 5.903, 960.204. ↑

5. ¹²⁶⁵

   Cal. Civ. Code § 1786.18. ↑

6. ¹²⁶⁶

   24 C.F.R. §§ 5.903, 960.204. ↑

Under the “catch-all” ban, can a Public Housing Authority (PHA) or owner of government-assisted housing deny my application because of the convictions of family members who live with me?

Yes. You can be excluded from federal government-assisted housing for the convictions of family members who are part of the current household.^[1267]

If the person no longer lives with you, you should NOT be denied because of their convictions, but you may have to prove that he or she is not part of the household anymore.^[1268]

What does “CURRENTLY POSING A THREAT” mean?

If you are denied government-assisted housing by a PHA or owner because of criminal activity that DOES NOT threaten anyone’s health, safety, peace, or property, then you have a strong argument to challenge the denial. Go to PG. 364 of this chapter to learn how. Many advocates argue that certain crimes—like prostitution, DUIs, & shoplifting—should not disqualify you because they do not pose any threat to others. The PHA or owner must base his/her decision to deny you on a “reasonable belief” that the criminal activity would threaten the health, safety, or right to peaceful enjoyment of others.

1. ¹²⁶⁷

   24 C.F.R. § 960.203. ↑

2. ¹²⁶⁸

   24 C.F.R. §§ 982.553, § 5.854. ↑