On June 19, District of Columbia Congresswoman Eleanor Holmes Norton introduced a bill to allow residents living in federally subsidized housing to consume medical cannabis in their homes. For D.C. activists, it was the culmination of years of work trying to bring attention in our nation’s capital to what can often be an invisible loophole in the cannabis debate: for people living in low-income housing, cannabis is illegal in their homes, even if it’s legal in their home state or district.
On a frigid Washington, D.C. morning back in early April, rain sprinkled down on a small group of protesters assembled outside the Department of Housing and Urban Development. They’d brought with them speakers, signs, and a large amount of cannabis.
From the small crowd, RachelRamone Donlan stepped forward to the mic. In her mid-forties, Donlan is petite and frail and speaks with a heavy Boston accent. That day represented a huge risk for Donlan. She was “coming out,” as she called it, as a medical cannabis user and also a Section 8 resident in front of a few local TV cameras and a handful of activists, imploring the government to allow her to alleviate her chronic pain without fear of eviction.
Donlan has spent much of her adult life in Section 8 housing, which is a type of federally subsidized housing for low-income Americans, and known as Section 8 for the part of the housing code it falls under. She was diagnosed with Ehlers-Danlos Syndrome, a rare disorder that affects the skin, joints, and connective tissue, which has made maintaining consistent employment nearly impossible. Donlan’s joints are prone to dislocation. She also experiences severe headaches and digestive pain, more symptoms of her disorder.
“Everything ages faster,” she said.
While it’s unclear whether the protest played a direct role in Norton’s decision to introduce the bill to protect medical cannabis users living in federally subsidized low-income housing, Norton told Cannabis Wire in a statement that “all too often, people who live in federal funded housing and use cannabis to treat a medical conditions live in fear of eviction.”
For much of Donlan’s life, that was certainly true. “I was always worried about it,” she said, saying she felt “ashamed.”
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Donlan is one of many disabled Americans for whom federally subsidized housing is a lifesaver and a necessity. According to the Center on Budget and Policy Priorities, of the nearly five million people in federally subsidized housing, twenty-four percent are disabled. None of these people are allowed to use medical cannabis in their homes.
Over the past decade, states across the country have legalized medical and recreational use cannabis. But this has put state laws and local rules at odds with federal policy that still classifies cannabis as a Schedule 1 drug.
“Federal law has always been clear on this,” Department of Housing and Urban Development (HUD) spokesman Brian Sullivan told Cannabis Wire when asked about the conflict between local and federal cannabis law. “There’s a policy in place and we remind local housing authorities about this. Federally subsidized housing still has to comply with federal law.” A 2011 HUD memo, released to address questions in the states that had by then legalized medical marijuana, explains that Public Housing Authorities (PHAs) are required to “establish occupancy and lease provisions that will allow the PHA to terminate assistance for use of a controlled substance.”
As to how these provisions are executed, the memo leaves that up to the discretion of the local housing authorities and, most often, individual landlords. A 2014 HUD memo specifies that lease termination for use or possession of cannabis (or any Schedule 1 drug) is at the owner’s discretion, but requires that every owner have a policy that allows them to terminate the lease of a cannabis user. The memo goes on to say that even if a landlord wants to establish some kind of policy to allow federally subsidized residents to use medical cannabis in their buildings, they’re not allowed to.
Eviction timelines and processes vary from state to state, but most states allow for evictions within thirty days of a notice, though some allow for even less. What concerns some legal experts and cannabis advocates is that evictions can be based on thin evidence, or no evidence at all.
“I have definitely heard of instances where people will get evicted simply because their landlord thinks they smell cannabis,” said Brian Vicente, a Denver-based cannabis lawyer who was instrumental in drafting Colorado’s adult-use cannabis law. The state has legalized and regulated the sales of both medical and recreational use marijuana. “They will kick them out and put a sign on the door to publicly shame people.”
Last year, law students from the University of the District of Columbia’s legal clinic filed a FOIA request with the District of Columbia Housing Authority for a list of evictions in federally subsidized housing from March 2012 to March 2017. They found that there was no subcategory of data indicating whether a tenant was evicted due to cannabis possession, or the possession of any Schedule 1 drug by the Controlled Substances Act.
D.C. Housing Authority did not return repeated requests for comment. The Denver Housing Authority similarly would not answer questions about whether, and how, they collect data on cannabis evictions and did not return request for further comment. HUD does not collect data on evictions for cannabis use.
Washington, D.C., where Donlan lives, legalized cannabis in 2015, allowing anyone over twenty-one to possess small amounts of cannabis and grow up to six plants in their home. But, under federal law, cannabis is still classified as a Schedule 1 drug, in the same category with heroin. For Donlan, this means she can be evicted if she is caught with cannabis or cannabis products in her home, or if a landlord suspects use. This is true even if she has it for medical reasons, even if it is recommended by a doctor.
“We have no idea of the number of people who are being thrown out,” said Adam Eidinger of DCMJ, a non-profit advocacy group dedicated to changing the District’s cannabis laws. Eidinger worries that cannabis possession or consumption could be used by abusive or unethical landlords to keep residents from complaining about building issues.
Donlan began using cannabis to self-medicate when she was a teenager.
“Probably by the time I was seventeen, I was using consciously,” to deal with the pain. She remembers smoking a joint after school to be able to cope with the agony of carrying her heavy book bag home.
By the time she graduated from high school, Donlan had already had back surgery to fix lingering issues from being born with a deformed spine and the increasing pain from her disease. For four years, Donlan’s doctors prescribed her Neurontin for pain management, but her stomach reacted violently to the medication. Cannabis, she said, was one of the only things that helped manage her pain without causing severe stomach pain.
Donlan says that she and other cannabis users in federally subsidized housing are most concerned about the random apartment check-up or surprise repair that could lead building authorities to enter their homes without warning. “I do know people who are worried about asking to get their sink repaired or something like that if they’re using cannabis,” Donlan said.
Donlan says that she knows of landlords who turn a blind eye to tenants they know use cannabis, medically or otherwise. But some are not so lucky.
Take, for instance, Stoneridge apartments, near Fort Circle Park, just east of the Anacostia River.
On April 21, 2017 bright orange signs went up around the Stoneridge Apartment complex located in D.C.’s historically black, historically low-income Anacostia neighborhood. The signs warned tenants that any use of marijuana in or around the property would be considered a violation of the terms of their lease.
While regular tenants caught with cannabis would be given a thirty-day “Cure or Quit” notice, allowing them to either leave the property or “fix the problem,” the same courtesy would not be extended to federally subsidized residents. In all caps, the notice informed federally subsidized residents that they “ARE NOT ENTITLED TO AN OPPORTUNITY TO CURE THIS VIOLATION.” Policies like these are completely legal under current federal law.
“I’ve had other people ask me if they use massage oil with THC if they need to shower before coming home to their apartments,” Donlan said. “People are very worried and they don’t know who they can ask about these things.”
When a Cannabis Wire reporter contacted Stoneridge apartments about how they notify tenants about their building’s cannabis policies, they were told that the company’s policies are reiterated seasonally in the building’s bulletins. The representative said that she did not have any recollection of a specific notice being posted. She said that tenants in the Stoneridge buildings who do have federal subsidies are notified individually that they face a more stringent standard when it comes to cannabis use.
“What we’ve created is a two-tiered legal system when it comes medical cannabis,” said Chris Alexander, a policy coordinator with the Drug Policy Alliance (DPA) New York office. “There’s one set of laws for the poor and another set of laws for everyone else. You can’t be both sick and poor. If you don’t have your own home, you can’t participate.”
Alexander directs the DPA’s efforts to change cannabis policy in New York state. He says that the public housing smoking ban, passed in 2016, added complications for medical cannabis users across the country. Under the ban, intended for tobacco, smoking in the home is a violation like a traffic ticket, but smoking outside the building is permitted. Tenants who don’t want to risk smoking cannabis in their apartments have nowhere else to go; smoking cannabis outside is illegal even in legal jurisdictions like D.C.
“The smoking ban meant a double criminalization,” Alexander said. “The solution is a designated space where people can go and consume.”
But in New York, at least, things are beginning to change. Governor Andrew Cuomo called for a study to assess cannabis legalization in the state, and that report is expected to be released very soon. Enforcement policy around cannabis smoking outside is being relaxed, too. Starting September 1, most people caught smoking marijuana outside will be issued a citation; this is similar to the traffic-ticket style violations for smoking tobacco inside public housing. But this will still leave federally subsidized residents with a choice between eviction or fines for smoking cannabis outside. Possession of small amount of cannabis in New York state can carry a fine of $100 on the first offense.
For Donlan, her safe space to use cannabis has been in the homes of friends and other activists in the D.C. area who do not live in federally subsidized housing.
“I’m careful that, as an activist, I’m not getting up and saying that I am using cannabis in my home,” she said. “I’m exercising my First Amendment rights to say that I believe the system needs to be changed, that I do live in Section 8, and I am a medical cannabis user. But I never say I smoke in my home.”
Though Donlan worries that “coming out” has put a target on her back, she says she felt it was important to set an example for other people in her position. In the weeks since going public, she says she hasn’t faced any issues.
And, at least for now, it seems as if Donlan’s risk may have been worth it.
As she introduced the Marijuana in Federally Assisted Housing Parity Act on June 19, Congresswoman Norton was flanked by DCMJ’s Adam Eidinger and another woman, Sondra Battle, a D.C. resident in federally subsidized housing and medical cannabis user. “Residents like Sondra should not fear eviction from federally-assisted housing simply for using cannabis to treat their medical conditions,” Norton said in a statement. “Our bill recognizes today’s realities and proven needs.”
While the Marijuana in Federally Assisted Housing Parity Act is, like most other cannabis legislation, unlikely to make it too far in Congress, it’s opening up a conversation that Donlan and some activists feel has gone unaddressed for too long.
“If we don’t start talking about it we are always going to be afraid,” she said.
