This law sounds likely to be unconstitutional and/or invalid because it is pre-empted by state or federal laws.
Among other things it probably violates the First Amendment right to petition the government, and the Fourteenth Amendment right to equal protection of the laws (by depriving people who have had previous police calls of the right to call the police without penalty) and due process (by imposing a penalty based upon a call, without a presumption of innocence, rather than a finding of wrongdoing that overcomes a presumption of innocence). It could also implicate a tenant's right as a Fourth Amendment seizure without probable cause, or a Fifth Amendment taking of property without just compensation.
It is probably also pre-empted by state law which establishes the grounds for which someone may be lawfully evicted, which almost certainly do not include this condition. Likewise, the conditions under which liability for police injuries is imposed are also probably pre-empted by state law.
California has an express statutory prohibition on this kind of rule at Cal.Civ.Code § 1946.8(c) which provides that:
A landlord cannot punish, or threaten to punish, you or another
resident for exercising your right to request law enforcement or
emergency assistance on behalf of a:
- victim of abuse;
- victim of crime; or
- person in an emergency.
Your landlord also cannot put any penalties in place if a person who
is not a resident or tenant calls law enforcement or emergency
assistance to your residence.
To be protected under this law, the person who calls the police must
believe that law enforcement or emergency assistance is needed to
prevent or deal with an act of abuse, or the heightening or worsening
of an act of abuse, a crime, or an emergency.
The American Civil Liberties Union is currently actively attempting to identify cases where these laws (often called nuisance laws) are being used in this manner for the purposes of bringing litigation to invalidate the laws or restrain their use. Litigation is in process in Seattle, Washington and East Rochester, New York. The ACLU also notes that:
In situations where an alleged "nuisance" offense is related to an
incident of domestic violence, landlords may choose to evict all the
residents to avoid future incidents or police calls that could result
in a fine. Yet, these evictions violate federal law. The U.S.
Department of Housing and Urban Development (HUD) has made it clear
that tenants who are denied or evicted from housing because they have
suffered domestic violence can file sex discrimination complaints with
HUD under the federal Fair Housing Act.
Thus, there would often be pre-emption of the local law by federal law as well. An op-ed piece in the New York Times reviews similar issues in Lakewood, Ohio and Milwaukee, Wisconsin, pointing out that the U.S. Constitution and federal housing laws are likely to be violated by these statutes.
In at least two instances, one included in an edited question in Norristown, Pennsylvania, and one mentioned in another answer, the case of Somai v. City of Bedford in Bedford, Ohio, the ACLU has concluded favorable settlements after litigation to have these ordinances repealed and to win compensation for aggrieved parties, although, because they are settlements, neither case establishes a binding appellate precedent.
We don't intend to challenge the laws at this time - they make it
easier for us to evict problem tenants whose visitors damage our
property - but were wondering if there are examples of similar laws
that have either gone unchallenged for a long period of time or that
have been challenged and judged to be legal.
As landlords, you are in a difficult position. These laws have not gone unchallenged for a long period of time nor have they been challenged and judged to be legal. Instead, in all likelihood, a legal challenge to these newly enacted laws is likely to be imminent.
And, while you face violations of local laws in these cases by not taking action, you may face federal housing law liability if you do utilize these laws and these laws are found to be invalid.
