Did you ever imagine that you could be prosecuted for exercising your First Amendment rights? Right here in America?
It has happened before, and the Mental Health Association in Tulsa (MHAT) is threatening to make it happen again. MHAT is telling homeowners that voicing their concerns about a four-story assisted living facility for the chronically homeless and mentally ill and petitioning city government to stop its construction is a violation of Federal fair housing law.
It's a classic example of a SLAPP suit -- strategic litigation against public participation. Regardless of the outcome in the courts, the legal action has the desired effect of deterring dissenters from speaking out for fear of exorbitant legal fees and intrusive personal investigations.
The homeowners' group, Who Owns Tulsa? (WOT) attempted to negotiate with MHAT and the Tulsa Housing Authority (THA) to reduce the size of the 76-unit building at Admiral and Yale, part of the "Building Tulsa, Building Lives" project, to something comparable to much smaller MHAT facilities elsewhere in the city. MHAT and THA refused to budge.
Now the group is pursuing an appeal of the facility's building permit with the City of Tulsa Board of Adjustment (BOA). The hearing is scheduled for the BOA's regular meeting on Tuesday, December 9, at 1:30pm. THA was granted a building permit for an apartment building, which is permitted by right at the location.
WOT contends that the building is a "homeless center, emergency and protective shelter, residential treatment center, and/or a transitional living center," which requires approval by the BOA, under Section 1201(B) of Title 42, the City's zoning code. It's apparent from MHAT's own public statements that the facility belongs in this category, with its 24/7 on-site supervision and the stated goal of using it to help the homeless "reintegrate into the community," a statement with clear transitional import.
The response from the homeless facility's proponents is chilling. Rather than merely seeking to argue its case before the BOA, MHAT is threatening to sic the Federal Government on the neighbors, merely for exercising their First Amendment right to petition the government for redress of grievances.
A November 22 press release from MHAT included this statement from its executive director Michael Brose:
"Past statements of Who Owns Tulsa? and the neighbors who have filed this appeal make clear that this is but one more attempt to block the construction of this building motivated by unreasonable fears of people with mental illness. Such efforts constitute a violation of the federal Fair Housing Act of 1988."
The press release continued: "In similar cases individuals including neighbors have been found to have violated that federal law when they have sought to exclude the people protected by the Fair Housing Act from their neighborhoods. The Mental Health Association will be contacting the federal authorities who enforce those rights as well as looking at its other options under the law."
So, our warm-hearted and compassionate (and liberal-minded, no doubt) social service workers have gone from ignoring the neighbors as they make their plans to threatening them with Federal prosecution.
What Happens When Big Money Wants Its Way, or, Using the Obama-rang Effect
Notice a couple of things about this threat.
First, MHAT's aim is not at anyone with the power to make the final decision in this case. Who Owns Tulsa? is merely appealing an administrative decision of a City of Tulsa employee, which they have every right to do. The homeowners can only present their case; the decision belongs to the BOA. But to MHAT, pursuing legal remedies to a faulty land use decision constitutes illegal housing discrimination, even if the BOA decides against the homeowners.
Second, the homeowners are being accused of a thoughtcrime. It's the homeowners' "unreasonable fears" MHAT asserts that places them in violation of the Fair Housing Act according to MHAT.
Incredibly, this accusation has a basis in Federal law. A page on the Department of Justice website about the Fair Housing Act states:
"[A] local government can violate the Fair Housing Act if it blocks a group home or denies a requested reasonable accommodation in response to neighbors' stereotypical fears or prejudices about persons with disabilities. This is so even if the individual government decision-makers are not themselves personally prejudiced against persons with disabilities. If the evidence shows that the decision-makers were responding to the wishes of their constituents, and that the constituents were motivated in substantial part by discriminatory concerns, that could be enough to prove a violation."
In the early years of the Clinton administration, the Department of Housing and Urban Development (HUD) Office of Fair Housing and Equal Opportunity (FHEO), under its chief, Roberta Achtenberg, brought charges against community activists who protested, petitioned, or pursued legal remedies in any case involving a group home.
The most notable case involved a rundown motel in the flatlands section of Berkeley, CA., documented in the book You Can't Say That, by David E. Bernstein of the libertarian Cato Institute.
A non-profit wanted to convert the motel into the same sort of facility proposed for Admiral and Yale-- housing for the chronically homeless.
Nearby residents Alexandra White, Joseph Deringer and Richard Graham, who came to be known as the Berkeley Three, organized opposition to the facility's request for zoning approval. They argued against approval before city authorities, but the city approved nevertheless. They sued to overturn the zoning approval on technical grounds and lost.
Even though the project was allowed to proceed, a housing advocacy group filed a Fair Housing Act complaint with HUD against the Berkeley Three "because they perceive[d] the primary residents of the facility would be the mentally disabled or the disabled through substance abuse."
HUD issued subpoenas for all of the Three's writings, minutes of their comments at public meetings, and lists of their organization's members. According to Bernstein, "HUD warned the Berkeley Three that failure to cease their activism immediately or to comply with the subpoenas could result in fines of up to $100,000 each and jail sentences of up to one year." HUD also warned them that if they were found guilty, "they would be subject to fines of up to $50,000 each" as well as compensatory and punitive damages.
HUD applied the same sort of pressure to neighborhood associations and community activists nationwide, until backlash from the public, the media, and the new Republican majority in Congress forced them to back down.
Even then, Clinton's Department of Justice continued to pursue these cases, at the direction of Assistant Attorney General Deval Patrick, who stated that "Congress intended the [Fair Housing Act] to proscribe any speech if it leads to discrimination prohibited by the [Act]." In other words, the Fair Housing Act trumps the First Amendment.
While these cases occurred more than a decade ago, Tulsa neighborhood activists shouldn't assume that the chances of a repeat are remote. The officials involved in the mid-'90s legal assault on citizen-activists are coming back into power.
Roberta Achtenberg has been appointed to President-Elect Barack Obama's transition team. Deval Patrick, now Governor of Massachusetts, is a close ally of Obama's who shares a political strategist (David Axelrod) with the incoming president, and has been mentioned as a possibility for a high-level post in the Obama Justice Department.
Former Deputy Attorney General Eric Holder, a possibility for Obama's Attorney General, is on the record advocating for restrictions on free speech on the Internet.
For the homeowners, all this means that MHAT, which was initially indifferent to their concerns and has now become openly hostile, will have powerful allies in Washington to help punish the homeowners for their politically incorrect thinking.
If MHAT is truly concerned to eradicate thoughtcrime against the homeless and mentally ill, they ought to begin by filing a Fair Housing complaint against John Bolton, the BOK Center manager, and Jim Norton, the Downtown Tulsa Unlimited president, who spoke at a BOA hearing in February in opposition the expansion of the downtown shelter of John 3:16 Mission, an organization that helps the homeless transition to productive lives.
Better yet, they need to take aim at their own "Building Tulsa, Building Lives" benefactors for suggesting on their Web site that the very people they propose to house at Admiral and Yale interfere with the "inviting and family-friendly environment" they seek to create downtown.
I'm sympathetic to the homeowners, but they can't win. Even if the BOA rules in their favor, as they should on purely technical grounds, MHAT and THA will appeal the decision in District Court, in addition to pursuing Federal persecution.
No district judge who hopes to stay in office or rise to a seat on a state appeals court or the Federal bench will dare buck the powerful people who fund MHAT and who have influence with local, state, and Federal officials.
The answer to the homeowners' question -- Who Owns Tulsa? -- is "not us."
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