Drug House: A West Virginia Law Meant to Target Dealers May Punish Those Who Call for Help (Updated)

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Analysis Law and Policy

Drug House: A West Virginia Law Meant to Target Dealers May Punish Those Who Call for Help (Updated)

Nathan Tauger

By passing these kinds of ordinances, cities “concede to the lack of effectiveness of police enforcement and criminal laws against drug crimes.”

UPDATE, September 12, 3:30 p.m.: Huntington City Council unanimously passed the ordinance.

Denny Ford has one of the nicest houses on his street in Martinsburg, West Virginia. It’s the only one with a front lawn, and he mows it, grows potted flowers, and maintains a tasteful lawn set. The 61-year-old openly gay Navy veteran collects antiques. He opens his rented home to other veterans who need a place to stay once finished with treatment at the nearby Veterans Administration Medical Center. “I know these guys. … They’re disabled vets,” Ford said. “Lots of people in the service try to self-medicate when they come back feeling awkward, or out of sorts, or having nightmares.”

Ford befriended one such vet at the VA, “C,” who served in Iraq. On December 30, 2016, while Ford was buying a TV remote at Walmart, C and another veteran friend overdosed at Ford’s house. Ford thought they had left already. He came home, found his friends dying, and called the police. Both received treatment; both lived.

In March 2017, while Ford was away receiving care at the VA, C agreed to watch his house and water his plants. C’s girlfriend visited and brought drugs. Someone called the police about an overdose, and emergency services arrived again at Ford’s house. No one had actually overdosed, but C’s girlfriend was arrested for possession. Ford arrived back at his house in April and told all of his guests to leave. C re-entered treatment at the VA.

Roe is gone. The chaos is just beginning.

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Early in June 2017, the City of Martinsburg ordered Carlos Niederhauser, Ford’s landlord, to evict Ford by July 9. The eviction was part of an abatement order issued through Martinsburg’s “Drug House” ordinance, a type of chronic nuisance law that gives police authority to punish landlords for renting to tenants who cause too many emergency visits. It lets the police chief require landlords to “abate” a nuisance or face financial and legal punishment. Abatement usually means evicting the current tenants.

As local governments in West Virginia struggle with drug-trafficking, addiction, and overdoses in their communities, policies from the “War on Drugs” have found homes in the heart of Appalachia. Parkersburg adopted Martinsburg’s ordinance on August 22; Nitro and other Kanawha Valley municipalities plan to pass similar drug house ordinances in the coming weeks. Huntington’s vote is scheduled for September 11, but questions remain about the effect of these laws on West Virginians’ civil rights and safety.

Niederhauser and Ford were able to stave off the eviction order, but damage was done. The Martinsburg Police Department issued a press release, picked up by the local paper, naming Ford and calling his residence a drug house. “I was getting phone calls from everybody,” said Ford. “I go to a lot of antique shops around here, and it really bothered me because I was walking in and people were like ‘we thought you were in jail.’” Friends posted about it on Facebook. Ford worried he would be kicked out of his home.

Soon after the abatement order, C sought treatment at the VA and a halfway house. He was still using drugs. Ford had told C not to use in his house. C overdosed outside; he died in a nearby backyard.

“Landlords Are Skittish Right Now”

In 2016, Martinsburg passed the Drug House ordinance with encouragement from the city’s Police Chief, Maurice “Maury” Richards. “A lot of heroin is being sold out of residences,” said Richards. “Decent people don’t want to be outside or participate because they’re living in the midst of this.”

Huntington, West Virginia introduced a similar chronic nuisance law years ago, dubbed “the crack house ordinance” by supporters. The city has never used it, said Huntington’s Communications Director Bryan Chambers, but the City Council is now on track to adopt Martinsburg’s ordinance. Noting that there were just a few properties of concern in the city, Chambers said the measure “is an effort to put more of the burden on the landlord.”

Bill St. Clair, a lawyer in Huntington, anticipates legal difficulties with the ordinance. “Most residential leases do not permit or even envision landlords being given the authority to evict tenants based on some violation of the law,” he said. By passing these kinds of ordinances, cities “[concede] to the lack of effectiveness of police enforcement and criminal laws against [drug] crimes,” said Professor Patrick McGinley of West Virginia University’s College of Law.

These ordinances may also discourage police contact in emergency situations. Martinsburg City Council Member Jason Baker was the lone vote against the Drug House ordinance in 2016. “Not the most politically correct vote I’ve ever taken,” he recalled. Baker worried that landlords who find tenants overdosing, or tenants who find guests overdosing, will be forced to choose between a nuisance designation and attempting to fix the situation themselves. “I don’t want anyone to ever be scared to call our police department for help,” he said.

Reflecting on the drug house label, Ford said, “it’s like telling a girl beaten up by her husband don’t call us because we’re tired of coming here.”

Drug House ordinances may also have unforeseen consequences for those seeking housing while in recovery. “If someone gets one of these abatements and that ends up in an eviction,” said Baker, “[the person evicted] is going to get blackballed from finding another unit in Martinsburg.” Niederhauser’s abatement order required that he perform checks on prospective tenants to ensure they are free from convictions for illegal possession of controlled substances, among other crimes.

Supporters of the ordinance say the law busts drug dealers, but whether the ordinance protects those who only use, while targeting those who deal, is unclear. Police Chief Richards said that though “the ordinance is pretty broad,” his department is “primarily concerned about the distribution of drugs.” In Ford’s case,“[C] overdosed. There wasn’t any drug selling,” said Niederhauser, the property owner; Ford said the same.

“Landlords are skittish right now, because they don’t want to get their name plastered in the paper,” Councilman Baker said. Baker now supports the ordinance, but hopes to fine-tune it over the next few years.  

“I’m a Positive Thing for Martinsburg”

Advocates across the state worry that these ordinances could send a damaging message to people in vulnerable situations. This is especially true for children and partners experiencing abuse, who may avoid contact with police, partially due to policies that tether them to their abuser.

Katie Spriggs, executive director of the Shenandoah Women’s Center in Martinsburg, worried that the town’s ordinance could threaten the housing stability of those experiencing domestic violence “[i]f a victim or survivor is living in a home where [drug or gang] activity is taking place, even against their will.” Often, such people face barriers to housing already. Councilman Baker stated that in Martinsburg he knows of “at least five or six landlords that will not rent to a man or a woman who has had domestic violence issues: police calls, arrests, a family protection order.”

How Martinsburg’s drug house ordinance specifically affects survivors of domestic violence remains to be seen. Asked by Rewire if there is any concern, Chief Richards stated, “Our ordinance doesn’t pertain to situations like that.”

But others speculate that it might. “People who are in relationships characterized by domestic violence are scared to call the police in the beginning, because it’s dangerous,” said Margaret Von Dolteren, a sexual assault prevention educator in Morgantown, West Virginia. “You start with someone who’s scared to call the police; you make it known they might lose their house if they ask for help, and it makes it even less likely for them to call the police.” This problem has been well-documented in other states.

“When their offender is creating a nuisance, as described in these policies, then the option for the landlord is often to evict the entire household,” said Joyce Yedlosky, co-director of the West Virginia Coalition Against Domestic Violence. “This means the victim is now without housing as well, which certainly jeopardizes their safety and moves them out into an even further unsafe space, possibly still with the offender who’s being abusive to them.”

According to a survey taken by Yedlosky in 2016, thirty-nine of sixty domestic violence advocates —that’s 65 percent—across the state had “occasionally” or “often” worked with clients who were evicted after the police were called to a rental residence.“ It is happening across the state and it is contributing to the instability that victims of [domestic violence] find themselves in,” she said.

In Martinsburg, Ford has worked to put the drug house label behind him. He still finds the city charming. “The neighbors like me. Carlos wants me to stay. I think I’m a positive thing for Martinsburg.”

West Virginia cities like Martinsburg face more difficult policy questions as overdose and addiction continue to inflict trauma. The state’s heroin problem, a consequence of rampant over-prescription of opioids, has led to the highest rate of overdose deaths in the country.

On September 11, Huntington, a state leader in rehabilitative and harm-reduction efforts, will be the next West Virginia municipality to decide on drug houses. Von Dolteren encouraged municipalities considering nuisance ordinances “to look into whether they might be evicting survivors of domestic violence or victims of crime in any sense.” Yedlosky advised that people with expertise about domestic violence get a seat at the policymaking table: “When we connect survivors to advocates, and when policymakers talk to advocates, that’s when we have the best available outcome.”