Conflict Preemption: A Remedy for the Disparate Impact of Crime-Free Nuisance Ordinances

Thousands of municipalities across the country have adopted crime-free nuisance ordinances—laws that sanction landlords for their tenants’ behaviors, coercing them to evict tenants for actions as innocuous as calling 9-1-1 in an emergency. These facially neutral ordinances give wide discretion to municipal officials, leading to discriminatory enforcement of evictions. As a result, these ordinances have a devastating impact on victims of domestic violence and are used as a tool to inhibit integration in majority-white municipalities. Many plaintiffs have brought lawsuits alleging violations of the U.S. Constitution and the Fair Housing Act. However, bringing lawsuits under various antidiscrimination protections presents many challenges. Less than five percent of all discrimination plaintiffs will achieve relief, and eighty-six percent of discrimination claims end in dismissals. 1 Professor Katie Eyer, an antidiscrimination legal scholar, has advocated for increasing the use of “extradiscrimination remedies,” litigation-based approaches that are not rooted in antidiscrimination laws. 2 This Note explores one potential extra-discrimination remedy that could be used to challenge crime-free nuisance ordinances: conflict preemption. Crime-free nuisance ordinances that are not tailored to state landlordtenant laws’ grounds for eviction may be in conflict with, and preempted by, state law. This Note also recommends that fair housing advocates collaborate with landlord associations when challenging crime-free nuisance ordinances. Although the interests of landlords and tenants often conflict, both groups are harmed by municipalities that enact crime-free nuisance ordinances.