HUD officials ruled personally liable in free speech case

Washington, D.C. – In a decision that significantly reinforces First Amendment protections for citizens who challenge government actions, U.S. District Court Judge Marilyn Hall Patel ruled on Friday (December 18) that HUD officials are liable in their personal capacity for investigating three Berkeley area residents who opposed the location of a federally subsidized housing project for the mentally ill in their neighborhood.

The case, White v. Julian, grew out of a 1993 HUD investigation of the actions of three Berkeley residents who had written articles, circulated a newsletter, written to public officials, spoken at public forums and zoning board meetings, and filed a lawsuit against the planned project. HUD made a preliminary finding that the “Berkeley Three,” as they became known, had violated the Fair Housing Act and subjected them to a lengthy and extensive investigation and threatened them with a fine of up to $100,000. After consulting with the complainant, a fair-housing advocacy group, HUD offered to terminate its investigation only on condition that the three residents cease all litigation and publication of articles and fliers against the project.

In 1995, CIR agreed to represent the three residents in an action against numerous HUD officials in their official capacities and several San Francisco regional HUD officials in both their official and personal capacities. In ruling against HUD officials in their personal capacities, Judge Patel concluded that any reasonable official in their position “would have recognized the constitutional impropriety of investigating purely expressive activity which did not incite immment lawlessness or convey an intent to intimidate.” She rejected the officials’ argument that the legality of such investigations was unsettled both within and without HUD, concluding that federal officials are “at no time relieved from their duty to recognize and avoid any violation of the First Amendment.”

Judge Patel’s ruling that HUD officials may be liable as individuals for violating First Amendment rights imposes a significant, new restraints on HUD’s ability to investigate lawful protests of public housing projects. Although HUD issued internal guidelines in September, 1994, that were intended to avoid flagrant violations of the First Amendment, commentators have noted that HUD officials retain discretion to investigate protests under a variety of circumstances. Judge Patel’s decision makes clear that HUD officials are liable for First Amendment violations regardless whether or not their investigations are authorized by the HUD guidelines.