ERIE, Pa. (CN) - Housing officials may have created an actionable state-created danger by giving Section 8 status to an apartment that lacked a fire exit, a federal judge ruled.
Qualified immunity moreover cannot protect the two officials accused of allowing the apartment to participate in the subsidy program for years even though the fire-exit problem was never fixed, the court held.
The families of two women killed by a July 2010 fire said that over four years before the inferno erupted, an official with defendant Housing Authority of the City of Erie had refused to allow the property to participate in Section 8 because it lacked a smoke detector or fire exits.
The property owner still had not installed that fire exit a month later, but the same official approved the property nevertheless to enter the Section 8 program, according to an October 2010 lawsuit.
Last week, a federal judge signed off on recommendations to green-light crucial components of the lawsuit.
"The court finds that the contours of plaintiffs' decedents' constitutional rights under the state-created danger theory were sufficiently clear that a reasonable official would understand that qualifying a residence for Section 8 housing despite its non-compliance with HQS [Department of Housing and Urban Development's Housing Quality Standards] would violate a right," U.S. Magistrate Judge Susan Baxter wrote in August.
Her 23-page report recommended that the housing officials, including the agency's executive director, be denied qualified immunity.
Baxter noted that the apartment was allegedly allowed to pass inspection in subsequent years, even though the fire-exit problem was never fixed.
Repeatedly approving the allegedly unfit apartment for the Section 8 program would therefore have "involved deliberation and unhurried judgment," Baxter found, adding that a jury could find such conduct conscious-shocking to the extent necessary for a state-created danger claim.
But Baxter dismissed the families' claim that housing officials violated the Housing Act of 1937 by depriving decedents of their right to a safe, habitable apartment.
That law doesn't afford Section 8 participants the ability to sue a public housing authority over failure to enforce Housing Quality Standards, according to Baxter's report, which Senior U.S. District Judge Maurice Cohill Jr. adopted Wednesday.
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