Due Process Key in Eviction Law

Buena Park has become the first city in Orange County to enact a law aimed at landlords who refuse to evict tenants involved in drugs or gangs. The motivation for the law is easily understood, but the ordinance tips too far away from due process.

Police and landlords say it is relatively easy to evict tenants on a month-to-month lease without specifying a reason. So the new law that allows for eviction of a tenant suspected of drug or gang activity in or around an apartment is unlikely to provide much extra assistance for a landlord.

But a landlord who refuses to evict someone the police has tabbed for illegal activity, even if that person has not been convicted, now can be fined for not complying with the city’s orders to evict the suspect. A landlord who runs afoul of the law four times in a year can be jailed.

Courts generally have upheld laws requiring a forfeiture of property of an alleged drug dealer or other reputed criminal even without a conviction. To convict someone of a crime, with the possible deprivation of liberty and time in prison, requires a jury to be convinced of the defendant’s guilt beyond a reasonable doubt.

But a civil action asking the forfeiture of a car or money that is supposedly the result of a drug transaction requires only a preponderance of the evidence, even if the defendant is acquitted on criminal charges. Los Angeles two years ago enacted a law that serves as a model for the Buena Park ordinance. Los Angeles city attorneys say the measure has not been challenged in court.

Buena Park police say their ordinance was a response to residents’ needs and desires. A neighborhood improvement task force reported occasions when a landlord lagged in evicting a problem tenant, which meant problems for other residents frightened by the illegal activity.

That’s understandable. Residents should be able to live in an apartment complex free from drugs and gangs. Police say they will try to use the law only after a tenant has been convicted. But they said if it appears a trial is delayed and narcotics or gang activity is continuing, they may tell the landlord to evict the tenant immediately.

Police said the city does not have a big drug or gang problem. Crime has decreased dramatically in recent years in Buena Park as it has in most other jurisdictions in Orange County.

The ordinance allows for eviction of everyone in an apartment where one tenant is the target, but police said in instances where the problem was solved by moving one person out--say by sending a parolee back to prison--innocent tenants could remain.

That’s a welcome and reasonable interpretation of the law, but it still increases the burden on police to decide who deserves to stay and who should move. It would be better to wait for someone to be convicted of drug or gang activity, not merely arrested or accused, before prosecuting the landlord for failure to evict.