How Medical Marijuana Can Threaten Access To Public Housing

By Emma Cueto | November 17, 2019, 8:02 PM EST

Despite the fact that marijuana has been legalized in some form in 22 states, the fact that it remains illegal at the federal level means that marijuana users can lose their place in public housing because of it, forcing some medical marijuana users to choose between their home and their medical treatment.

Currently, a California woman, who was evicted from her subsidized housing because the company feared it would lose funding from the U.S. Department of Housing and Urban Development, is challenging this policy in court.

Emma Nation and her daughter were evicted in 2018 after her landlord learned she was in possession of marijuana, which she planned to use to make edibles. She was told by a federal court in July that her case against HUD could not move forward because she had not first petitioned the U.S. Drug Enforcement Administration to change its classification of marijuana, a decision she is now challenging on appeal.

“This has turned HUD’s purpose on its head,” said Frederic Fletcher, an attorney for Nation in her appeal to the Ninth Circuit. “They’re supposed to be providing housing for low-income tenants, not forcing their eviction.”

Nation is far from the only person, however, to be affected by this issue.

While more and more states have legalized either recreational or medical cannabis use, the federal government has not changed its classification of the drug, or its policies around things like marijuana use by public housing residents.

In 2011, after more than a dozen states legalized medical marijuana, HUD’s general counsel wrote a memo saying that public housing agencies could not permit medical marijuana use in their units, including in cases in which residents requested to be allowed to use medical marijuana as a disability accommodation.

A 2014 policy memo indicated that agencies should also deny housing to applicants who used medical marijuana.

“Regardless of the purpose for which [it was] legalized under state law, the use of marijuana in any form is illegal under the [Controlled Substances Act],” the 2014 memo said, adding that this made it an illegal substance under public housing laws.

Both memos, however, did indicate that the decision whether or not to evict existing tenants for medical marijuana use should be left up to the discretion of the local housing provider, and HUD has maintained that its policies do not require marijuana users to be evicted in states where the drug is legal.

According to Nation, though, local providers that allow medical marijuana patients to stay in their units run the risk of losing their HUD grants and subsidies.

A representative for Housing Humboldt, the local provider in Humboldt County that evicted Nation, testified at the eviction trial that current federal regulations effectively require providers to terminate residency for anyone found to be using marijuana for any reason, even if they were acting legally under state law.

In effect, Nation said, this policy locked her into a state of “perpetual homelessness.” She and her daughter not only lost their home, but Nation is unable to apply for another subsidized housing unit because she is a medical marijuana patient, the suit alleges.

Fletcher, Nation’s attorney, said that they have tried to keep the case focused on the narrow legal question of people’s right to low income housing, not the scientific properties of marijuana or U.S. drug policy more generally.

That view is part of why the team is opposing the trial court’s ruling that Nation should have exhausted what are referred to as administrative remedies by first petitioning to the DEA to change its own classification of marijuana. Doing so, Fletcher said, made the case about the merits and dangers of marijuana as a substance, not about Nation and her daughter’s right to have housing.

HUD did not respond to a request for comment. In the suit, the department mainly objected to Nation’s claims by saying she did not have jurisdiction to sue, but it also argued that her rights were not violated because “there is no fundamental right to use medical marijuana.”

“Marijuana remains in Schedule I under the [Controlled Substances Act], and numerous conceivable facts continue to provide a rational basis for this classification,” the government said in December as it fought to have the case dismissed.

Elsewhere, the nonvoting congresswoman for the District of Columbia, Rep. Eleanor Holmes Norton, has proposed a bill that would explicitly permit the use of marijuana in public housing in states where the drug is legal, though no action has been taken on the bill since it was introduced in April.

“Individuals living in federally funded housing should not fear eviction simply for treating their medical conditions or for seeking a substance legal in their state,” Norton said in a statement when the bill was introduced. “Increasingly, Americans are changing their views on marijuana, state by state, and it is time that Congress caught up with its own constituents.”

The bill’s supporters include the Marijuana Policy Project, which has pushed to legalize the use of marijuana for medical and recreational purposes.

Violet Cavendish, the group’s communications coordinator, said she was unaware of examples of housing providers losing HUD funding over marijuana, but highlighted the confusion created by the disconnect between state and federal marijuana rules in many places.

“Ultimately, the goal is to end federal prohibition [which] would eliminate the problem,” she said.

For now, Nation and her attorneys will continue to try to change HUD policy through the courts, with Fletcher saying that they are prepared to petition the U.S. Supreme Court if the appeal doesn’t go their way.

Legally speaking, there wasn’t much case law to guide courts in how to deal with federal and state laws that are so diametrically opposed, making it a tricky issue to navigate.

“We’re in uncharted waters,” he said.

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--Editing by Katherine Rautenberg.