Lawyers for New York City and New York State have lined up behind a ruling by the U.S. Court of Appeals for the Second Circuit, which last December held that landlords could face liability for ignoring instances of racial discrimination instigated by tenants against other building residents.

The recent flurry of amicus briefs came as a full panel of the Manhattan-based appeals court is set to rehear arguments in the case, in a rare move for a circuit court that is well known for its hesitance  to grant en banc rehearings.

A split panel of the appeals court had ruled in favor of Donahue Francis, a longtime resident of an apartment complex owned by Kings Park Manor Inc. in Suffolk County. Francis for months had been the target of racial slurs and threats by a neighbor who later pleaded guilty to harassment and was slapped with an order of protection barring him from having any further contact with Francis.

Francis sued KPM and the building's manager, Corrine Downing, for discrimination under the Fair Housing Act and the Civil Rights Act, arguing that both should be held liable for allowing a "racially hostile housing environment" to exist between tenants.

The majority had previously deferred to a proposed rule by the U.S. Department of Housing and Urban Development, which would impose liability under the FHA for landlords who fail to act in the face of racial harassment, but last year withdrew its original opinion "by collegial agreement." The new ruling, published Dec. 6, still revived Francis' claims under the FHA, but no longer relied on HUD's interpretation of the statute.

The opinion said that, while the FHA had not explicitly endorsed landlord liability over tenant‐on‐tenant harassment, they could still be held responsible under the law for failing to take "reasonable steps" to resolve disputes premised on a renter's race.

"In this case, the landlord allegedly refused to take any action to address what it knew to be a racially hostile housing environment created by one tenant targeting another, even though the landlord had acted against other tenants to redress prior, non‐race related issues," Second Circuit Judge Raymond J. Lohier wrote for the majority.

"In holding that a landlord may be liable in those limited circumstances, we adhere to the FHA's broad language and remedial scope," he said.

The ruling came over the strong dissent of Judge Debra Ann Livingston, who said that the opinion jettisoned the majority's original rationale for a new theory that "steers our FHA jurisprudence into 'uncharted territory,'" where "courts improbably discover new causes of action in half‐century‐old provisions, heedless of the deleterious consequences for parties, courts, and the housing market."

The FHA, Livingston wrote, "cannot bear the interpretation imposed on them today, which has no support in the FHA's text, our precedent, or the background tort principles that informed Congress at the time the FHA was enacted."

The Second Circuit granted KPM's motion for en banc rehearing in February, and invited and has since set argument for Sept. 24.

Attorneys for both the city and state separately filed amicus briefs this month, citing deep government interest in protecting tenants from housing discrimination.

The New York State Attorney's General Office said in a May 7 filing that both the FHA and New York's Human Rights Law allow for landlords to be held liable for "selectively failing to address" known instances of tenant-on-tenant harassment, when other disturbances between renters are typically dealt with.

"Landlords' selective inaction in the face of racial tenant-on-tenant harassment causes substantial harms not only to the victims of such harassment, but also to the State, by perpetuating the segregation and housing instability that federal and state antidiscrimination laws were designed to eradicate," Assistant Solicitor General Caroline Olsen argued in the state's brief.

Attorneys from the New York City Law Department, meanwhile, said the ruling "appropriately" balanced tenants' rights with landlords' concerns about unwarranted liability for misconduct beyond their control.

"Holding landlords responsible for deliberate indifference to discriminatory harassment committed in their buildings recognizes the considerable power that landlords possess under leases and state law," Assistant Corporation Counsel Daniel Matza-Brown wrote in a brief, filed Friday.

"The FHA leaves landlords with discretion to choose appropriate means of responding to tenant complaints," he said. "What landlords cannot do, however, is look the other way when faced with complaints that tenants are suffering severe discriminatory harassment at the hands of their neighbors."

The American Civil Liberties Union, the New York Civil Liberties Union and the National Women's Law Center, as well as HUD have also submitted briefs urging that the Second Circuit's ruling be upheld.

The New Civil Liberties Alliance, a nonprofit civil rights group dedicated to fighting overreaches by the "administrative state," has not taken a position supporting either party to the litigation, but urged the court in a May 7 brief to eschew Chevron deference for HUD's interpretation of the statute, arguing that reliance on the agency's rule-making raised "glaring questions of federalism" and threaten judicial independence.

Attorneys for the parties were not immediately available to comment.

The case is captioned Francis v. Kings Park Manor.

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