Fair Housing and Insanity

If no good deed goes unpunished, imagine what happens when a private citizen answers the government's call for help.  In this instance, the District of Columbia government sought help from a prominent D.C. property owner whose holdings include several apartment buildings.  The owner was asked to lease an apartment to a mentally disturbed individual who was having difficulty finding housing on his own.  Though the owner agreed to do so, only later did he learn that its new tenant, identified herein as "CL," was prone to violence. 

Under both federal and District of Columbia law, the moment CL signed his lease, he was afforded all the protections against unlawful discrimination contained in the Federal Fair Housing Act, the District's Human Rights Act ("the D.C. Act"), and the District's rent control statute, which sharply limits the circumstances under which landlords may evict tenants.  Both the federal statute and the D.C. Act, which to some extent mimics the federal statute, ban discrimination in the sale and leasing of real property based on, inter alia, disability.  Mental illness is included in the definition of "disability."

Although it is the illness itself rather than aberrant behavior or conduct resulting from the illness that qualifies the affected individual for protection, in CL's case the District failed to acknowledge this distinction.  Dr. King, in his "I Have a Dream" speech, proclaimed that one day, people would be judged by the content of their character rather than the color of their skin.  The District officials in charge of CL's case apparently never got the message.

Since the D.C. Act's enactment decades ago, an assortment of protected classes far removed from what Congress and Dr. King had in mind has been added.  In fact, it has become fashionable to regularly add new classes of "victims" to the D.C. Act, to protect whoever the District's City Council decides in its wisdom is the "victim" du jour.  Whenever a liberal interest group lobbies the Council to add a new, protected category, it then plays things up in the press by trotting out a purported "victim," and the Council dutifully responds.  The following excerpt from the D.C. Act highlights this point. 

§ 2-1401.01  Intent of Council.

It is the intent of the Council of the District of Columbia, in the enactment of this chapter, to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, and place of residence or business. 

Even this list is incomplete because, later in the law, discrimination on the basis of sex is defined to include "pregnancy, child birth, related medical conditions, or breastfeeding."  Suffice it to say, this is not your grandfather's civil rights law!

CL's disability, his mental illness, led to occasional fits of violence.  Because of these fits and his threatening behavior, tenants in his building feared for their safety.  Some moved out.  And on two occasions, CL lunged at building personnel.  In the first incident, CL leaped toward the building manager whom he had cornered in her office.  The manager was so intimidated that she requested and received a transfer to another building.  Months later CL attacked a desk clerk with a shard of glass he picked up off the lobby floor.  The shard was from a mirror that broke when he yanked it off a wall in a fit of rage.

In response to the first assault, the owner served CL with a 30-day "notice to cure or vacate."  Such a notice is required under the District's rent control statute, even though how one "cures" an assault is not explained.  In response to that notice CL filed a complaint with the District's Office of Human Rights ("OHR"), which conducted an extensive investigation.  It interviewed and obtained affidavits from building personnel who witnessed the assault.  This was, it seemed, an open and shut case.  But OHR didn't see it that way.  It blew off what these personnel had to say and portrayed their eyewitness testimony as evidence of unwarranted prejudice against a disabled person.  OHR's director signed off on a finding in which he concluded that there was "probable cause" to believe the owner engaged in unlawful discrimination in seeking to evict CL.  In this "PC" finding, the desk manager was held to have improperly perceived CL's leap as a threat.  OHR's official position, then, was that the manager's fear for her safety constituted discriminatory animus based on an unwarranted stereotyping of disabled people. 

Not surprisingly, once probable cause was found, the owner was barred from prosecuting an eviction suit it had already filed.  The court would not allow the case to move forward until the PC finding was fully adjudicated before the District's Commission on Human Rights.  That is the body charged with holding evidentiary hearings when "probable cause" findings are issued.  As of today, nearly five years after CL filed his complaint with OHR, the Commission has yet to schedule a hearing.  Except for an occasional conference call to try to find a way to resolve CL's complaint, the Commission has elected to bury the case.  No doubt, it knows it has a pig in a poke.  Although the owner has asked the Commission on several occasions to simply dismiss the matter, the Commission refuses to do so.

The obvious import of the PC finding was that the owner was ostensibly barred from evicting CL, at least so long as no one was physically harmed.  That other tenants and building personnel reasonably feared for their safety was, in OHR's view, irrelevant.  It should come as no surprise, then, that just 60 days after the issuance of the PC order, CL broke the lobby mirror and attacked the desk clerk.  After all, OHR had ruled in his favor the first time around.  Fortunately, the clerk dodged CL and suffered no harm.  Others were present and pinned CL down until the police arrived.  The police arrested CL and charged him with assault with a deadly weapon.  He was tried, found not guilty by reason of insanity, and confined to a mental institution for a period of years. 

The owner, in response to this second assault, served CL at the institution with a second 30-day notice.  As it turns out, CL was sane enough to file a second complaint with OHR.  Although the owner notified OHR of the second assault shortly after it occurred and asked it to reconsider its earlier PC order, it refused to do so, saying that information about the second incident was not part of the record in the first case and, therefore, it would not reconsider its earlier finding. 

Ultimately, some sanity found its way into this ugly scenario.  While he was confined, CL stopped paying rent and, over the objection of an OHR attorney who had worked on CL's case, the court entered judgment in the owner's favor.  CL's belongings were put on the street.  And CL's second complaint to OHR was promptly dismissed by a new OHR director who, in a sharply worded decision, came down squarely on the owner's side and unequivocally rejected the preposterous reasoning of his predecessor.  Not surprisingly, though, when this dismissal order was furnished to the Commission to evidence the absurdity of the PC finding, its only comment was that it was irrelevant to the case before it.

Modern human rights laws have, at least in some jurisdictions, strayed far from the intent of the nation's original civil rights laws.  CL's case was never about race, skin color, religion, and the like.  In fact, except for CL and the owner, everyone involved was black.  Governments have shown a willingness to create whole new classes of victims on whose behalf it can then exercise its "largess."  As CL's case shows, personnel willing to abandon reason and logic to reach a certain result may be hired to administer these new "protections."  In short, in some parts of the United States, there is now a legislated "class" system, the classes consisting of individuals who the legislature has determined require its protection. 

Had CL not been mentally ill, he could have been evicted far more readily and OHR could not have inserted itself into the process.  In issuing its PC finding OHR was, in effect, affording CL preferential treatment over people not suffering from a mental illness.  So it turns out that justice is not always blind.  Some are to be afforded special treatment when they engage in conduct or behavior that society would not tolerate from others. 

Although this case involves mental illness, why should this same principle not apply to other protected classes?  Certainly, in a rational world, justice can be, and often is, blind.  But in the irrational world of the nation's capital which, as taxpayers, we all pay for, justice is often deaf and dumb as well.

If no good deed goes unpunished, imagine what happens when a private citizen answers the government's call for help.  In this instance, the District of Columbia government sought help from a prominent D.C. property owner whose holdings include several apartment buildings.  The owner was asked to lease an apartment to a mentally disturbed individual who was having difficulty finding housing on his own.  Though the owner agreed to do so, only later did he learn that its new tenant, identified herein as "CL," was prone to violence. 

Under both federal and District of Columbia law, the moment CL signed his lease, he was afforded all the protections against unlawful discrimination contained in the Federal Fair Housing Act, the District's Human Rights Act ("the D.C. Act"), and the District's rent control statute, which sharply limits the circumstances under which landlords may evict tenants.  Both the federal statute and the D.C. Act, which to some extent mimics the federal statute, ban discrimination in the sale and leasing of real property based on, inter alia, disability.  Mental illness is included in the definition of "disability."

Although it is the illness itself rather than aberrant behavior or conduct resulting from the illness that qualifies the affected individual for protection, in CL's case the District failed to acknowledge this distinction.  Dr. King, in his "I Have a Dream" speech, proclaimed that one day, people would be judged by the content of their character rather than the color of their skin.  The District officials in charge of CL's case apparently never got the message.

Since the D.C. Act's enactment decades ago, an assortment of protected classes far removed from what Congress and Dr. King had in mind has been added.  In fact, it has become fashionable to regularly add new classes of "victims" to the D.C. Act, to protect whoever the District's City Council decides in its wisdom is the "victim" du jour.  Whenever a liberal interest group lobbies the Council to add a new, protected category, it then plays things up in the press by trotting out a purported "victim," and the Council dutifully responds.  The following excerpt from the D.C. Act highlights this point. 

§ 2-1401.01  Intent of Council.

It is the intent of the Council of the District of Columbia, in the enactment of this chapter, to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, and place of residence or business. 

Even this list is incomplete because, later in the law, discrimination on the basis of sex is defined to include "pregnancy, child birth, related medical conditions, or breastfeeding."  Suffice it to say, this is not your grandfather's civil rights law!

CL's disability, his mental illness, led to occasional fits of violence.  Because of these fits and his threatening behavior, tenants in his building feared for their safety.  Some moved out.  And on two occasions, CL lunged at building personnel.  In the first incident, CL leaped toward the building manager whom he had cornered in her office.  The manager was so intimidated that she requested and received a transfer to another building.  Months later CL attacked a desk clerk with a shard of glass he picked up off the lobby floor.  The shard was from a mirror that broke when he yanked it off a wall in a fit of rage.

In response to the first assault, the owner served CL with a 30-day "notice to cure or vacate."  Such a notice is required under the District's rent control statute, even though how one "cures" an assault is not explained.  In response to that notice CL filed a complaint with the District's Office of Human Rights ("OHR"), which conducted an extensive investigation.  It interviewed and obtained affidavits from building personnel who witnessed the assault.  This was, it seemed, an open and shut case.  But OHR didn't see it that way.  It blew off what these personnel had to say and portrayed their eyewitness testimony as evidence of unwarranted prejudice against a disabled person.  OHR's director signed off on a finding in which he concluded that there was "probable cause" to believe the owner engaged in unlawful discrimination in seeking to evict CL.  In this "PC" finding, the desk manager was held to have improperly perceived CL's leap as a threat.  OHR's official position, then, was that the manager's fear for her safety constituted discriminatory animus based on an unwarranted stereotyping of disabled people. 

Not surprisingly, once probable cause was found, the owner was barred from prosecuting an eviction suit it had already filed.  The court would not allow the case to move forward until the PC finding was fully adjudicated before the District's Commission on Human Rights.  That is the body charged with holding evidentiary hearings when "probable cause" findings are issued.  As of today, nearly five years after CL filed his complaint with OHR, the Commission has yet to schedule a hearing.  Except for an occasional conference call to try to find a way to resolve CL's complaint, the Commission has elected to bury the case.  No doubt, it knows it has a pig in a poke.  Although the owner has asked the Commission on several occasions to simply dismiss the matter, the Commission refuses to do so.

The obvious import of the PC finding was that the owner was ostensibly barred from evicting CL, at least so long as no one was physically harmed.  That other tenants and building personnel reasonably feared for their safety was, in OHR's view, irrelevant.  It should come as no surprise, then, that just 60 days after the issuance of the PC order, CL broke the lobby mirror and attacked the desk clerk.  After all, OHR had ruled in his favor the first time around.  Fortunately, the clerk dodged CL and suffered no harm.  Others were present and pinned CL down until the police arrived.  The police arrested CL and charged him with assault with a deadly weapon.  He was tried, found not guilty by reason of insanity, and confined to a mental institution for a period of years. 

The owner, in response to this second assault, served CL at the institution with a second 30-day notice.  As it turns out, CL was sane enough to file a second complaint with OHR.  Although the owner notified OHR of the second assault shortly after it occurred and asked it to reconsider its earlier PC order, it refused to do so, saying that information about the second incident was not part of the record in the first case and, therefore, it would not reconsider its earlier finding. 

Ultimately, some sanity found its way into this ugly scenario.  While he was confined, CL stopped paying rent and, over the objection of an OHR attorney who had worked on CL's case, the court entered judgment in the owner's favor.  CL's belongings were put on the street.  And CL's second complaint to OHR was promptly dismissed by a new OHR director who, in a sharply worded decision, came down squarely on the owner's side and unequivocally rejected the preposterous reasoning of his predecessor.  Not surprisingly, though, when this dismissal order was furnished to the Commission to evidence the absurdity of the PC finding, its only comment was that it was irrelevant to the case before it.

Modern human rights laws have, at least in some jurisdictions, strayed far from the intent of the nation's original civil rights laws.  CL's case was never about race, skin color, religion, and the like.  In fact, except for CL and the owner, everyone involved was black.  Governments have shown a willingness to create whole new classes of victims on whose behalf it can then exercise its "largess."  As CL's case shows, personnel willing to abandon reason and logic to reach a certain result may be hired to administer these new "protections."  In short, in some parts of the United States, there is now a legislated "class" system, the classes consisting of individuals who the legislature has determined require its protection. 

Had CL not been mentally ill, he could have been evicted far more readily and OHR could not have inserted itself into the process.  In issuing its PC finding OHR was, in effect, affording CL preferential treatment over people not suffering from a mental illness.  So it turns out that justice is not always blind.  Some are to be afforded special treatment when they engage in conduct or behavior that society would not tolerate from others. 

Although this case involves mental illness, why should this same principle not apply to other protected classes?  Certainly, in a rational world, justice can be, and often is, blind.  But in the irrational world of the nation's capital which, as taxpayers, we all pay for, justice is often deaf and dumb as well.