Scott Forsyth, BridgeTower Media Newswires
Four years ago I wrote a column titled “Public nuisance laws are an unconstitutional nuisance.” It described the plight of Lakisha Briggs, a poor, single mother living in an apartment in Norristown, a suburb of Philadelphia. Her boyfriend physically abused her at least eight times.
Briggs complained to the police, with limited success. What did the borough do? It invoked its public nuisance law and advised the landlord to evict her. If he didn’t, the borough would revoke his license because he had permitted three instances of “disorderly behavior” to occur at the property. Learning of the threat, Briggs stopped complaining to the police. The abuse continued.
The ACLU intervened and sued the borough on behalf of Briggs. Among other claims it alleged the law violated her right to petition government for redress of grievances.
The parties settled. In September 2014 the borough repealed its nuisance law and paid Briggs and the ACLU $495,000.
The experience of Norristown did not stop the village of Groton in Tompkins County. In April 2014 it adopted a “Property and Building Nuisance Law.” It wanted to add to its tools for combating crime.
The village would assess points against properties for various types of proscribed conduct occurring on them, from the minor, such as the police being called to mediate a dispute, to the major, such as a violation of the Penal Law.
Twelve or more points within six months or 18 or more points in a year would cause the village to send the property owner a notice, demanding he abate the nuisance. If he rented out the property, he could show compliance by evicting any “problem” tenant. If the owner did not comply, the village could revoke a property’s certificate of occupancy or simply close up a property.
It did not matter how the village learned of the conduct. A call by a tenant, owner, or neighbor could all lead to points being assessed and in fact did.
A landlord sued the village, arguing the law was overbroad, chilling tenants’ exercise of the First Amendment right to petition government. A New York appellate court agreed, enjoining the enforcement of the law. Bd. of Trs. of the Vill. of Groton v. Pirro, 2017 WL 2587813 (3rd Dept. June 15, 2017).
The right to petition the government for redress of grievances is “one of the most precious liberties safeguarded by the Bill of Rights.” BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002). While a petition is usually thought of as having a political or social purpose, it can be as basic as a plea for emergency assistance from law enforcement or a report of criminal activity. Meyer v. Bd. of Cty. Comm’rs of Harper Cty., Okla., 482 F.3d 1232 (10th Cir. 2007).
Groton’s law applied to all properties in the village. It did not distinguish “between crimes committed by tenants and those committed against tenants.” Thus, it permitted “a determination that a property is a public nuisance solely because a tenant is a victim of a crime.”
“Suffering or permitting the premises to be disorderly” and activity having “an adverse impact” on a neighborhood were vague grounds for the assessment of points. A prosecution or a conviction need not occur. The law expressly permitted owners to include the eviction of tenants in a plan of abatement.
Citing the above and other text, the court held that Groton’s law “on its face prohibits a real and substantial amount of constitutionally protected conduct,” the test in an overbreadth challenge.
Outside the courtroom, studies show domestic violence incidents generate a disproportionate number of points assessed under public nuisance laws. For example, in Binghamton calls to police involving domestic violence generated the most points—38%.
When the property was a rental, the most common response of the landlord was to remove the tenant, regardless of her or his role in the call.
Contrary to proponents, public nuisance laws are used infrequently against their targeted activities, such as drugs, property damage and weapons. On a more fundamental level, as the Norristown and Groton cases illustrate, the laws decrease safety. Victims of crime, particularly persons in abusive relationships, are disinclined to seek assistance for fear of losing their housing.
The last paragraph should be the conclusion of this column. But, no, we have another municipality, in our backyard, wanting to adopt a public nuisance law: Brockport.
Brockport’s proposed law is narrower than Groton’s. It only assesses points for drug activity and assorted violations of the Village Code. The latter includes noise, zoning, and housing standards.
Unfortunately, the narrowness does not save the proposed law. Like Groton’s, it applies to all properties in the village. It assesses points regardless of the source of the information about the violation. It does not distinguish between violations committed by tenants and those committed against tenants. It contains the same enforcement powers, including closure. It will deter persons from contacting the village government. Thus, if enacted, the law will violate the right to petition government.
Brockport wants “to enhance (its) quality of life” “by holding property owners accountable for various unlawful activities or conditions which are found to exist on a property.” This goal is laudable, even substantial, but must be achieved by a means other than the proposed law.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at 585-262-3400 or scott@ forsythlawfirm.com.
