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FHA-HUD Anti-Harassment

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4-15 COMPLAINTS ALLEGING VIOLATIONS OF SECTION 901

 

Section 901 of the Act prohibits any person, “whether or not acting under color of law” from using or attempting to use “force, or threat of force for the purpose of intentionally injuring, intimidating, or interfering with any person because of his race, color, religion, sex, handicap, familial status, or national origin in the exercise of rights protected under the Act.” Section 901 is intended to prohibit housing-related acts of violence directed against all persons covered under the Act, as well as their real or personal property. It imposes criminal penalties against any person convicted of such conduct, regardless of whether the alleged offender is or was involved in a housing-related transaction with the aggrieved person at the time of the alleged injury. In general, Section 901 contains prohibitions similar to those set forth in Section 818, the civil anti-harassment provision of the Act. Both sections prohibit threats, intimidation and interference with the rights of an aggrieved person; therefore, a respondent might engage in conduct prohibited under both sections of the Act.

 

The Department of Justice (DOJ) is responsible for investigating potential violations of Section 901. HUD, however, maintains jurisdiction over any violations of Section 818. The 1990 Memorandum of Understanding (MOU) between DOJ and HUD outlines how such complaints should be processed. As per the MOU, FHEO Regional Offices refer all potential Section 901 complaints directly to DOJ. Further, HUD holds its investigation of the complaint in abeyance until DOJ determines whether criminal prosecution is warranted. In 1998, the MOU was modified to provide for closer cooperation and coordination between the two agencies. The modification provides that DOJ, upon receipt of a referral, will notify HUD whether an investigation of the referral has already been initiated, and if no such investigation is underway, notify HUD within two (2) weeks whether or not it will conduct a criminal investigation of the referral. DOJ will also inform HUD of the closing of a criminal investigation of a complaint, or the completion of a criminal prosecution, whether successful or not. Pending notification that DOJ will not initiate an investigation or of the closing or completion of an investigation or prosecution, HUD will hold in abeyance any contact with any of the parties involved or the initiation of any investigation. In situations where some contact is necessary to perfect the filing of a complaint, such contact shall be by telephone and shall be conducted by staff at FHEO Headquarters.

 

The following are examples of Section 901 complaints:

 

  1. Evidence of infliction of physical injuries, serious threats of bodily injury, intimidation, or other violent interference directed against persons who have engaged in a protected activity (i.e., exercised their right to rent or purchase a dwelling), and which appears to be motivated by a prohibited basis. Examples of such activities include: violent physical assaults; home invasions; rock-throwing; pursuits on foot or in vehicles; threatening with deadly weapons; generating excessive noise, light or offensive odors; obscene or threatening phone calls or other violent conduct intended to deny, prevent, disrupt or terminate an aggrieved person’s use and enjoyment of a dwelling.

 

  1. Damage to the dwelling and/or property connected to the dwelling of a person, that is motivated by that person’s protected class status or by other discriminatory bases covered under the Act. Examples of such conduct include: criminal trespass (unlawful entry); cross-burnings or effigy-hangings conducted on the aggrieved person’s property; fire-bombing or other vandalism of vehicles; telephone calls featuring “hate” messages combined with threats of injury; arson or attempted arson; poisoning of pets; defacing property by spray-painting offensive insignia or epithets; posting signs and other displays containing offensive epithets on the dwelling; or other forms of serious and extensive deliberate damage to exteriors or interiors of dwellings.

 

  1. Factors to be Considered when Reviewing a Complaint for a Possible Section 901 Violation

 

The EOS is often responsible for making an initial assessment as to whether the allegations in a Title VIII complaint constitute a violation of Section 901. Such an assessment should include, but need not be limited to, consideration of the following factors:

 

  1. The degree of intentional violent conduct involved or threatened (e.g., evidence of firearms and other instruments of potentially deadly force, including fire);

 

  1. The intensity or the persistence of the alleged conduct (e.g., evidence of police reports of previous incidents, discounted warnings to housing providers, evidence of escalation of numbers of persons involved, recurring incidents and heightened levels of violence);

 

  1. The impact of the alleged activity upon the aggrieved person’s ability to use and enjoy the property (e.g., physical, psychological and financial impact, including possibility of loss of the dwelling due to damage, destruction or forced abandonment of the residence, including “constructive eviction” tactics); and

 

  1. The apparent ability of the respondent to engage in the behavior.

 

  1. Intake Procedures for Processing Section 901 Complaints

 

  1. Previously filed complaints. If the aggrieved person’s information relates to a complaint that was previously filed, the EOS should alert the Intake supervisor to the situation. Discuss with the supervisor whether circumstances warrant the filing of a new complaint or amendment of the previous complaint. Ascertain whether the previous complaint is still open, or has been conciliated, withdrawn or resolved through a determination. If the previous complaint has not yet been assigned for investigation, discuss with the supervisor whether the matter warrants referral to DOJ.

 

  1. New complaints. Upon receipt of a new complaint that appears to allege a violation of Section 901, the EOS should take the following actions:

 

  1. Contact the aggrieved person.

b.     Ascertain whether State or local law enforcement authorities have been informed of the activities complained of and, if so, whether they are currently investigating the matter. If the aggrieved person has reported the activity to State or local police, request names and phone numbers of any law enforcement representatives who have contacted the aggrieved person regarding their investigation. If the aggrieved person does not have copies of police reports relating to the alleged criminal activities, contact the State or local authorities to request copies.

c.     Advise the aggrieved person to immediately report any recurrence of the criminal activity to State or local law enforcement authorities.

    1. Advise the aggrieved person to preserve any physical evidence relating to the alleged activities (including photographs of personal injury or property damage, audiotapes of “hate” calls, etc.)

e.     Verify the location of the dwelling involved in the complaint;

    1. Obtain as much information as possible relating to the identities and whereabouts of any unnamed respondents whose conduct is described in the complaint. Ask whether the aggrieved person/witness was able to identify such characteristics as sex, race, accent, approximate clothing and method of travel (on foot, bike, auto, van, truck).       This information should be memorialized in a statement attached to the Housing Discrimination Complaint Form, and should be signed by the person providing the information.
    2. Prepare the complaint, (complaints cannot be forwarded to DOJ without a Title VIII number) and have the aggrieved person sign the Housing Discrimination Complaint Form.

 

  1. Referral Procedures for Section 901 Complaints

 

Referrals of Section 901 complaints to DOJ will be made directly from the originating FHEO Regional Office. Referrals should include the name of a HUD contact person who will be responsible for dealing with DOJ on issues related to the referral. In complaints involving life-threatening situations, HUD’s recommendation of urgency will be supported with as much documentation and identifying data as is available pursuant to the MOU. As new information becomes available after the initial referral, HUD must immediately provide updates to DOJ via facsimile transmittal. The FHEO Regional Director also will promptly notify FHEO Headquarters of the referral, and will promptly fax copies of the materials sent to DOJ.

 

During DOJ’s review of a 901-complaint referral or criminal investigation, HUD will hold in abeyance the issuance of any notice letters (ten (10) day notice – 100-day notice) to either the complainant or respondent.

 

Upon receipt of a referral, DOJ will advise whether the complaint allegations are already under investigation and whether the allegations warrant a criminal investigation. In the event that DOJ decides not to commence a criminal investigation of a complaint, DOJ will notify HUD of that decision within two weeks of its receipt of the complaint. If DOJ decides not to investigate, HUD may contact any individual involved and, as it deems appropriate, initiate and proceed with the processing and investigation of the complaint.

 

In the event that DOJ fails to notify HUD of the status of a complaint referred under Section 901, FHEO Regional Office supervisory staff may initiate contact with DOJ to ascertain the status of the referral.

 

If it appears that a delay in commencing or completing a criminal investigation may jeopardize an aggrieved person’s safety and/or rights, FHEO Regional Offices will immediately contact FHEO Headquarters. Headquarters will consult with the Deputy Chief of DOJ’s Housing and Civil Enforcement Section.