May 8, 2020: Our homes are our castles — the spaces where we can unwind, be ourselves, and have safety and comfort. But because of our country’s long history of oppression, the home can sometimes be a site of discrimination, harassment, and terror. If your neighbor or fellow tenant constantly harassed you, would you expect your landlord to do something?
This is precisely the question before the U.S. Court of Appeals for the Second Circuit in Francis v. Kings Park Manor, Inc. The Public Justice Center and the Paralyzed Veterans of America recently filed an amicus brief in the case, addressing the impact that landlord liability for tenant-on-tenant harassment would have on people with disabilities, including veterans.
Donahue Francis (a Black man) was terrorized by his white neighbor and fellow tenant, Raymond Endres, for eight months. Mr. Endres would stand outside Mr. Francis’ door and call him a “n*gger,” threaten to kill him, and engage in other strange and abusive behaviors, like photographing Mr. Francis’ apartment. Mr. Francis repeatedly reported the harassment to the landlord, Kings Park Manor (KPM), which failed to take action. Mr. Francis also called 911, fearing for his life. Still, KPM did nothing. KPM did not attempt to diffuse the conflict between Mr. Francis and Mr. Endres. KPM did not inform Mr. Endres that his behavior violated his lease agreement. When a KPM employee received a letter from Mr. Francis and asked leadership for guidance, they told her not to get involved. Eventually, Mr. Endres was arrested and charged with aggravated harassment.
Mr. Francis sued under the Fair Housing Act (FHA), alleging that KPM and Mr. Endres violated the FHA. The District Court dismissed Mr. Francis’s FHA claims against the landlord, finding that he failed to allege that KPM was responsible for Mr. Endres’ conduct or that they failed to intervene in Mr. Endres’ behavior because of racial animus towards Mr. Francis. However, it found that KPM breached the warranty of habitability they owed to Mr. Francis under his lease and New York law. The warrant of habitability requires landlords to keep the home safe and in good condition and includes protection from abusive treatment.
Mr. Francis appealed his case to the Second Circuit. The Court issued a decision holding that a landlord with sufficient control to do so must remedy a hostile housing environment created by tenant-on-tenant harassment. Judge Debra Ann Livingston dissented, arguing that landlords typically do not have the necessary power to remedy hostile housing environments.
Now, the case is again before the Second Circuit on en banc review (i.e., before all the judges of the Court). That’s where the Public Justice Center comes in. We teamed up with the Paralyzed Veterans of America (a nonprofit that represents veterans with spinal cord injuries) to author an amicus brief addressing the impact that landlord liability for tenant-on-tenant harassment would have on people with disabilities, including veterans.
Written by Murnaghan Appellate Advocacy Fellow Dena Robinson, the brief began by outlining the history of the FHA and other anti-discrimination laws. It then detailed the “lengthy and tragic history”* of people with disabilities in this country and addressed how tenant-on-tenant harassment impacts people and veterans with disabilities. The brief also addressed the intersectional nature of tenant-on-tenant harassment, detailing its impact on people with disabilities who have intersectional identities, such as Black and Indigenous People of Color (BIPOC), LGBTQ people, people with mental illnesses, and gender identity or expression. The brief also rebutted the defendants’ argument that tenants should just call the police when they are harassed, as the police disproportionately kill people with disabilities. Last, the brief addressed Judge Livingston’s dissent that the panel’s holding would be burdensome and unreasonable for landlords.
We hope that the Court will recognize tenants’ right to live in a home free of harassment from neighbors and landlords’ responsibility to create a hospitable environment.
* Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 462 (1985) (Marshall, J., dissenting).