Criminal activity nuisance ordinances (CANOs) are local laws that penalize tenants for recurring criminal activity that has taken place at their home—activity these individuals are often victims of. When someone calls the police because, for example, she is being assaulted in her home, CANOs allow the city to send her landlord a letter declaring the home a nuisance which the landlord must abate or face a civil or criminal penalty. In this common situation, nuisance abatement means eviction of the tenant. But tenants do not receive notice of the nuisance designation, and have no opportunity to cure the “nuisance” before facing eviction.
Bedford, Ohio has one of the most facially problematic and aggressively enforced CANOs in Ohio. In addition to deterring people from calling the police for help, which can trigger eviction, several years of investigation suggest that Bedford disproportionately uses its law to target women, residents of color, and residents with disabilities.
Beverly Somai is a Woman of Color who rents an apartment in Bedford, where she lives with her disabled son. Ms. Somai called the police to help her with a noise complaint against a neighboring tenant, after her landlord refused to mediate. When the neighbor refused to stop making noise and began harassing her, Ms. Somai repeatedly called for police help. In response, the City sent Ms. Somai’s landlord a nuisance letter, and the landlord filed an eviction based on the law.
In cooperation with the Legal Aid Society of Cleveland, we have filed a complaint on behalf of Ms. Somai in federal district court against the City of Bedford, challenging the constitutionality of the CANO.
Legal Theory
Our Complaint asserts a facial and as-applied challenge to Bedford’s CANO. The law violates the First Amendment right of plaintiff and others to petition the government by penalizing them for calling the police. It violates their Procedural Due Process rights by denying them notice and an opportunity to contest the penalties flowing from the law. And it was enacted and enforced to discriminate, and has the impact of discriminating, against women, people of color, and people with disabilities in violation of the Equal Protection Clause and the Federal Fair Housing Act.
Status Update
Ms. Somai’s eviction hearing was set for February 22, 2019, and we filed our Complaint in U.S. District Court for the Northern District of Ohio on February 20. The state court voluntarily stayed the eviction proceedings. Ms. Somai remains in her home, but also remains subject to the nuisance law. We amended our Complaint on April 18, adding the Fair Housing Center for Rights & Research as an organizational plaintiff suing under the same causes of action. Defendant filed its Answer on May 16. On June 18, 2019, we filed a Motion for Preliminary Injunction asking the Court to enjoin the CANO based on our likelihood of success on the First Amendment and Due Process claims. On June 25, the parties consented to the jurisdiction of Magistrate Judge Burke, who now presides over the case.
On July 22, the parties stipulated to a preliminary injunction, temporarily halting enforcement of the CANO against anyone. On August 6 Judge Burke held a case management conference, setting a very short pre-trial schedule. On September 9 she conducted a telephonic status conference and ordered the parties to engage in settlement negotiations.
The Judge held another status conference on October 25 and indicated the case would be referred for mediation at the end of discovery.
Based on information uncovered in discovery, we moved to file a Second Amended Complaint on January 30, 2020. Defendants filed their opposition on February 13. On February 20 we requested leave to Reply. The Court granted leave to reply and subsequently granted our motion to amend in part, allowing us to file an amended complaint that advances a disability rights claim under the Fair Housing Act.
We worked with three expert witnesses and submitted their reports on June 18. Defendant declined to submit rebuttal expert reports or to conduct expert discovery, and the period closed on August 19. The Court ordered the parties to mediate with an ADR panel mediator, and the mediations were set for August 31 and September 2 (if needed.) The Court ordered that if the parties could not resolve the case at mediation, the dispositive motions deadline was October 19.
After a two-day settlement conference, we reached an agreement resolving the case on September 14, 2020. On September 17, we filed our settlement agreement with a joint stipulation requesting Judge Burke maintain jurisdiction for a period of three years. On September 23 the judge entered a marginal order continuing her jurisdiction over the settlement.
Under the settlement, the City of Bedford immediately repealed its CANO and agreed to pay $350,000 in damages, fees, and costs. The City further agreed to undertake a public education campaign as well as training its City staff and police on the subjects of the CANO, fair housing law, and bias. Finally, the City agreed that if it replaces its CANO with some measure to address its stated interests in lessening neighborhood conflicts, it would work with the ACLU to design a program based on restorative justice.
We continue to ensure the City complies with all steps required by the settlement agreement. We are moving on to other advocacy in other local jurisdictions with unlawful CANOs.
