POP Center Responses Using Civil Actions Against Property Page 3

Planning for the Use of Civil Remedies

Developing a comprehensive plan for the use of civil remedies to address local crime problems might begin as a by-product of a specific problem-oriented policing project, or a wider police- or prosecution-management initiative. No matter which way the initiative develops within your area, you will need to have both the organizational capacity to deal with the various tasks required to address each problem and the problem-solving expertise for figuring out what responses will work for each problem and who needs to carry them out. Because different types of skills, knowledge, and expertise exist within different parts of your jurisdiction, you should expect to work in partnership with other governmental agencies and members of your local community.

Building Civil Remedies Capacity within Local Government and in the Community

Many of the studies reviewed for this publication either had conditions that demonstrated that the crime enforcement measures being used were not adequate for solving the crime or disorder problem,62 or had some type of community crisis that focused attention on the need for a crime prevention intervention.63 If your community or department has not had a major event that focused attention on the need for civil remedies, then there are several types of things that you will probably need to do to facilitate their successful use.

A 1994 review64 of civil remedy use in crime prevention set out five recommendations for the effective use of civil remedies: 1) find appropriate legislation, 2) secure competent staff, 3) develop close police-prosecutor collaboration, 4) involve other public agencies, and 5) involve the community. These recommendations are discussed here in terms of including needed collaborators, developing staff expertise, and enacting appropriate legislation.

While this discussion assumes that the police will take the lead in these initiatives, this will not always be true. Local prosecutors can also lead the problem-solving process through a community prosecution unit. For example, a 2003 study examined 36 community prosecution programs operating in the United States between 1985 and 2000 and nearly half of them used some type of nuisance abatement, eviction, or trespass program to address “quality of life” offenses, nuisances, or drug-related crimes.65

Including Needed Collaborators

Three types of collaborations will be required, depending on the type of civil remedy used: government attorneys, other agency staff (such as housing, fire, building, and zoning), and the local community.

Collaborators need to make sure that all parties understand the legal and organizational limits to their own and the other parties’ powers. If you know what different agencies are allowed to do, and what triggers action by them, you can begin to develop plans for dealing with common crime and disorder problems. This should also allow you to make joint decisions about how the civil remedies can or must be implemented.

The inclusion of the local community can be essential in planning as well as inspection and enforcement. This should include listening to community complaints about particular problems; bringing the community on board at the planning stage to help prevent later opposition; gaining community assistance in identifying, documenting and preventing crime incidents; and monitoring the initiative’s progress.66

Crimes, crime patterns, and communities do change. Employees leave their jobs. Therefore, reviews of these partnerships should be seen as part of the collaborative process and should be revamped, as needed. For example, in Seattle, four assistant city attorneys were deployed among Seattle’s five police precincts to strengthen the city’s efforts at managing increasingly problematic public safety and regulatory issues in a program that was a redesigned extension of a previous program.67

Developing Staff Expertise

Look for high-quality staff (police personnel, prosecutors, and government regulating agency staff) that can be trained to do the job, and will stay for a suitable period to prevent having to train new staff continuously. Staff attorneys involved in community prosecution partnerships need to have a community-oriented approach, according to recent research, not just traditional prosecutorial skills.68 An example of specialized staff assignments in police departments occurred in Phoenix, Arizona, where two officers were reassigned from their regular duties to focus their efforts solely on crime abatement of nuisance properties. One officer trained managers and owners about landlord-tenant law and responsible property-management practices and recommended property-security improvements, while the other identified nuisance properties and took enforcement action where necessary.69 Similarly, policing staff in Indio, California, had to become experts in the California law of foreclosure to carry out its foreclosure registration program to address blighted and nuisance property.70

Securing competent staff with the needed expertise does not necessarily mean that programs will be able to hire additional staff. A 1998 study reported that most abatement programs were run by government attorneys and police departments, which operated without special funding.71

Finding and Enacting Appropriate Legislation

Once you and your partners understand the general powers of each group, you will be better able to identify whether existing legislation will enable you to apply sufficient pressure on property owners or tenants to modify conditions closely associated with crime and disorder. You may need to amend existing legislation or pass new legislation if the current remedies are not flexible enough to address your problems. You may also find other more appropriate legislation being used elsewhere that you think should be available in your jurisdiction.

In addition to these steps, it is also important for government agencies to be able to find out who is responsible for the property by consulting either an existing registry of property owners in this jurisdiction that can be used for notification purposes, or—on foreclosed properties—a listing of all of the parties who have an interest in that property.72 Jurisdictions may need to develop these registries if they do not exist, since it may be difficult to serve notice on parties and gain any type of voluntary cooperation without them.

While some of these recommendations, such as involving the community, apply even when the initiative does not involve a civil remedy, most of these are specifically applicable to the use of civil remedies.

Constraints on and Considerations about the Scope of Civil Remedies Use

General constraints are discussed in this section, as are crime- and place-specific considerations that are more directly related to particular types of crime or places.

Protected Rights

Civil remedies must be framed in a way that does not infringe on a fundamental right of the targeted person(s) or groups, such as the right to due process, just compensation, free speech, and free association. Civil remedies can be controversial if they are not framed to address only crimes or disorderly behavior, or behaviors that are clearly linked to criminal actions or safety hazards.

Non-offending Parties

Some of the enforcement consequences of civil remedy use may fall to non-offending parties, such as families with children who were living in apartment complexes that have been closed down. Intervention planners should look at their initiatives and have additional information and resources available to address these potential unintended enforcement consequences. For example, are there enough properties for those eligible for subsidized housing to move into? This was a problem for the Chicago Housing Authority’s Anti-Drug Initiative that used HOPE VI federal grants.73

Notice

Most civil legal provisions will contain a requirement for the party seeking redress to provide notice of the action to the other party or parties, but these requirements may be limited with certain types of proceedings (as with some temporary injunctions). Even if this results in the owners eventually getting their day in court, however, not all of the parties with interests in the outcome (e.g., tenants in the building) may know what is going on.

If the notice requirement is not particularly strict (e.g., notices published in a newspaper), then you should consider adopting a stricter standard (e.g., certified letter sent to a registered address, or personal service, in addition to posting the notice on the property itself).74 Inadequate notice could potentially trigger legal challenges as well as engender opposition from groups within the community whose support is needed for the measure to be a success.

Level of Proof

In addition to the variety of actions that are available as civil remedies, the lower level of proof required for civil actions (in comparison to the proof beyond a reasonable doubt required for criminal prosecutions) makes them an attractive regulatory mechanism for policing agencies to use.

Furthermore, the standards are not necessarily identical at all stages within a civil action. As with criminal prosecutions, the level of proof needed to initiate an action tends to be lower than that required by the court before issuing a civil penalty. For example, Arizona’s crime abatement statutes (described earlier as the “Anti-Slum Packet”) require only a “reason to believe that a nuisance described…exists” (A.R.S. §12-991 B.) for the action to be brought, but later provisions require that the court assess a civil penalty only where the person against whom the penalty is assessed “knew or had reason to know of the criminal activity” (A.R.S. §12-991 C.).

In addition, these “knowledge” requirements often refer to the knowledge of an existing physical disorder problem or of the complaints about drug crimes occurring on the premises. They do not focus on establishing that an illegal activity has occurred.75

Understanding these distinctions is an important part of the staff preparation needed for using civil remedies for crime prevention purposes.

Partnerships

Successful implementation of these types of remedies depends on police developing good working relationships with inspectors, community groups, business owners, and other city employees. From the planning stage through to the response and evaluation stages, police need to maximize the potential for positive outcomes—and minimize adverse side-effects—by ensuring they both understand and manage the burdens and consequences for their partners. Giving consideration as to how the partnership might best deliver equitable and fair crime control responses requires police to cast objectives in a broad and positive manner. An initial mutual agreement of the objectives will minimize the potential for conflict, avoid exacerbation of long-standing divisions, and ensure that divergent interests don’t undermine the capacity for fair, legitimate, and acceptable crime control outcomes.76

Regulatory Standards

Historically, the level of enforcement of housing codes has been found to vary because, among other things, codes are complex, staffing levels are often inadequate, inspectors have a large amount of discretion, and the resources of many owners are inadequate to bring the conditions up to the code’s standards—and inspectors are aware of this.77 You need to understand as much as you can about the culture of each department’s code enforcement in their municipality so that you can assess whether the department will be able to meet the standards required for the successful application of the planned civil remedies, should the possibility of their use alone be insufficient to change the crime-opportunity structure of the targeted places.

Selective Enforcement Claims

Those targeted by civil remedies may claim in court that they have been unfairly singled out for special enforcement actions. Documenting your actions should help you address these types of claims. For example, you may be able to show: (a) the number and types of complaints by members of the local community, (b) comparison data about calls for service and arrests for this location and other similar locations, and (c) information about notice given to the complaining party and his or her failure(s) to comply.

Compliance

Part of providing notice that civil remedies may be used in a particular situation can also involve creating incentives for property owners to clean up their homes, tenancies, or businesses. You should determine if there is landlord support for the anti-crime initiatives78 and assess the likelihood that they will be able to make the types of changes needed if they do not get some type of financial assistance. The possibility that the repairs cannot be made economically by any party should be considered prior to enforcement activities since condemnation and demolition of the property would then need to be added to the group of potential responses.

Initiatives such as landlord training and financial support for rehabilitating code violation properties may enhance the chances of long-term success for place-oriented crime-control strategies. Phoenix police offered training to “slumlords” in the Crime Free Multi-Housing Program. If this training was refused, enforcement action was taken through the nuisance abatement statute or the use of zoning ordinances. Owners could be criminally charged with a felony of “failing to abate a crime.” Results indicated that crime was reduced by almost one-third in targeted neighborhoods.79 Similarly, the Bureau of Justice Assistance developed a training manual designed for police to use in their development of a 6–8 hour training package for property owners, which covered issues such as: keeping neighborhoods healthy, Crime Prevention through Environmental Design (CPTED) principles, screening applicants, rental agreements and eviction, property management, warning signs of drug
activity, and working with the police (among other things).80

Determining Problem-Specific Civil Remedies

In addition to developing an overall capacity in your community to use civil remedies, you will need to develop a process for determining what particular remedies are most appropriate to address specific crime and disorder problems. Problem-oriented policing provides you with a general framework for analyzing problems in ways that will help you understand whether a civil remedy is likely to be an effective response to the problem, and if so, which remedy or combination of remedies. Understanding step by step how particular crimes are committed will assist you in identifying situational crime prevention (SCP) measures that can be implemented to block each step or make it more difficult for an offender to complete it.81 One useful technique for analyzing how crime and disorder problems occur is the “crime script.” Appendix A describes in detail how to use the crime-script technique in the context of civil remedies.

Displacement and Diffusion of Benefits

When planning any prevention initiative, the potential for crime displacement and diffusion of crime-prevention benefits needs to be addressed in a systematic manner.† When considering the use of place-focused civil remedies to disrupt opportunity-related conditions for crime, you should be particularly attuned to place-related aspects of both displacement and diffusion.

In practice, in terms of displacement, this means that you need to consider whether the reach of the proposed initiative will likely be great enough to prevent the successful movement of crime commission to another location. If there is some displacement, how does it compare to any change in crime at the targeted locations? Although displacement tends to be limited, it was found to be a problem in one study in relation to the securing of abandoned property.82

Similarly, in terms of diffusion of crime-prevention benefits, you need to consider whether the effects of potentially using a civil remedy will be spread to other places not directly targeted by the initiative. If a diffusion of benefits is expected with these remedies, is there any way to increase the likelihood of this happening, such as through the use of publicity?‡

Four other types of displacement are possible: Will offenders be able to change the manner in which they commit the crime? Would changing the time of the crime commission be possible? Is there another victim (or target) who could be attacked (or targeted)? Might the offender be likely to switch to the commission of another crime? Again, similarly, there are four corresponding types of diffusion of crime-control benefits that can occur.

These questions should be asked in relation to each crime script likely to be carried out in the place where the initiative will be targeted. If these crimes are readily displaced in one of these ways, then you need to take this into account prior to start up. Moreover, if you developed crime scripts, you may also find it easier to consider whether other crimes besides the targeted crime are likely to be occurring at the targeted locations because of the opportunities presented there. If these other crimes are likely to be affected by the potential use of civil remedies, then this would be considered a diffusion of crime-control benefits. Maximizing this diffusion effect should become part of the planned initiative, if resources to do so are available.

Finally, while it may not be possible to measure all of the potential displacement or diffusion effects, this is not a good reason for failing to analyze at least some of the most likely displacement or diffusion possibilities related to your responses.

† See Problem-Solving Tools Guide No. 10, Analyzing Crime Displacement and Diffusion for more on this topic.

‡ For more on the use of publicity in crime prevention, see Response Guide No. 5, Crime Prevention Publicity Campaigns.