Filed September 18, 2007

Reversed

Randall, Judge

Dakota County Community Development Agency

Lisa Hollingsworth, Southern Minnesota Regional Legal Services, Inc., 712 Canterbury Road, Shakopee, MN 55379 (for appellant);

Mary G. Dobbins, Mary G. Dobbins & Associates, 7400 Metro Boulevard, Suite 100, Edina, MN 55439 (for respondent).

Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

On appeal in this Section 8 housing dispute, relator argues that his voucher was inappropriately cancelled for violent criminal activity because (a) he was not convicted of a crime; (b) the housing authority failed to identify a crime that he had committed; (c) the record does not support the determination that he participated in violent criminal activity; and (d) the housing authority failed to consider all relevant circumstances in deciding to terminate his voucher. We conclude the hearing officer’s finding of violent criminal activity is not supported by substantial evidence in the record. We reverse.

FACTS

Since 1992, relator has received Section VIII assistance benefits to subsidize the cost of his rental housing. The benefits are administered by respondent Dakota County Community Development Agency (CDA). As a condition of his receipt of benefits, relator is required to comply with the CDA’s administrative plan, which requires, among other things, that relator abstain from engaging in “violent criminal activity.”

In April 2005, relator Karl Meyer allegedly wrote a letter to the Glock Firearm Company (Glock) in Marietta, Georgia, requesting that the company lend him weapons to launch an attack on the Burnsville Police Department. Glock did not respond to relator, but informed the Burnsville police. After an investigation and interview, the matter was turned over to the county attorney. Relator was transferred to a holding facility for a 72-hour period, and a petition for civil commitment was made to the district court. The district court found that relator was not a threat to himself or others, and released relator on his own recognizance.

In March 2006, relator allegedly wrote a similar letter to a woman in Newton Township, Pennsylvania, again “threatening to arm himself and launch an attack on the local police station.” After the woman reported the letter to her local law enforcement, the information was shared with the Burnsville police. Burnsville police questioned relator about the letter, and he admitted to writing it. Ultimately, no charges were filed.

After being notified of the letters, relator’s landlord terminated the lease agreement, and the CDA informed relator that his Section 8 rental assistance would also be terminated because the letters constituted a threat of violent criminal activity in violation of federal regulations. Relator requested and received an informal hearing before a hearing officer to challenge the termination. At the hearing, the CDA offered as evidence the police reports for both incidents and an excerpt from the CDA administrative plan that prohibited program participants from engaging in “violent criminal activity.”

In response to the allegations, relator contended that his conduct did not constitute violent criminal activity, and pointed out that the Burnsville police treated the Glock letter incident as mental-health related. Relator argued that substantial mitigating evidence, including his history of mental health problems, his ability to live in the community, and his
willingness to obtain treatment for mental illness, as demonstrated by his 10-year relationship with a psychiatrist, required leniency. Relator’s psychiatrist did not testify at the hearing, but submitted a letter attesting to the fact that relator kept appointments and took his medication. The psychiatrist also opined that the letter incidents were, in part, a consequence of relator’s mental illness.

After reviewing the testimony and other evidence presented, the hearing officer found that the letters constituted a threat of physical harm to the Burnsville police, and concluded that the CDA acted appropriately in terminating relator’s Section 8 benefits. This certiorari appeal followed.

D E C I S I O N

An agency’s quasi-judicial decision will be upheld unless it is not supported by substantial evidence, based on an erroneous interpretation of the law, outside the agency’s jurisdiction, procedurally defective, or arbitrary and capricious. Carter v. Olmsted County Hous. & Redev. Auth., 574 N.W.2d 725, 729 (Minn. App. 1998). The reviewing court examines the findings to determine if they support the decision, but does not retry facts or challenge the credibility determinations of the agency. Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996). “The decision is to be upheld if the lower tribunal furnished any legal and substantial basis for the action taken.” Id. (citation omitted).

Regulations promulgated by the Department of Housing and Urban Development (HUD) apply to all participants in the Section 8 program. Manor v. Gales, 649 N.W.2d 892, 894 (Minn. App. 2002). The regulations permit the CDA to terminate housing benefits if it determines that a program recipient or household member has engaged in violent criminal activity, regardless of whether the household member has been arrested or convicted of such activity. 24 C.F.R. § 982.553(b)(2), (c) (2004). “Violent criminal activity” is defined as “any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage.” 24 C.F.R. § 5.100 (2004).

Relator makes several arguments in support of his claim that he did not engage in violent criminal activity. First, relator argues that his benefits cannot be terminated because he was not charged with a crime. However, termination of benefits may be premised on criminal activity for which the recipient has not been arrested or charged. 24 C.F.R. § 982.553(c). Relator also maintains that, in order to terminate Section 8 housing benefits for violent criminal activity, the CDA must identify a specific crime within the criminal code that he has committed. Although we believe the identification of a crime would be beneficial, requiring a hearing officer to maintain a working knowledge of the criminal code would place an onerous burden on the informal hearing process. Moreover, HUD regulations do not mandate that a hearing officer consider whether a participant’s conduct satisfies the elements of a crime. For purposes of determining eligibility for Section 8 benefits, the hearing officer need only decide whether a participant’s actions meet the definition of “violent criminal activity” provided in 24 C.F.R. § 5.100.

Relator further contends that a threat must be communicated directly to the targeted party, and because the alleged letters were not sent to the Burnsville Police Department, he did not “threaten” physical force as required by HUD regulations. We disagree. “A threat is a declaration of an intention to injure another or his property by some unlawful act.” State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975). The language of the regulation does not require that relator’s intentions be communicated directly to the object of the threat, and similar criminal conduct, including terroristic threats, does not hinge on direct transmission to targeted parties. See id. at 400-01, 237 N.W.2d at 614 (finding that a conviction for terroristic threats only necessitates that the actor know or have reason to know that the threat would be communicated to the targeted party). So long as relator declared an intention to injure a person or property of the Burnsville Police Department, either directly or indirectly, and knew or had reason to know that the threat would be communicated to the police, his conduct constitutes a threat for purposes of terminating Section 8 housing benefits for violent criminal activity.

Importantly, relator asserts that termination of his benefits was improper because the hearing officer’s decision was not supported by substantial evidence. HUD regulations require that the CDA prove by a preponderance of the evidence that relator engaged in violent criminal activity. 24 C.F.R. § 982.553(c). Upon review of the record, we conclude that there is insufficient evidence, as a matter of law, to satisfy that burden.

At the termination hearing, the CDA did not produce the alleged letters or any witnesses. The CDA rested its case solely on two police reports of the incidents. Each report contains only a few sentences, and they both provide, in perfunctory fashion, that relator threatened to “launch an attack” on the Burnsville Police Department. We agree that such a statement, if true, is a threat. But, to constitute “violent criminal activity,” it must appear reasonably likely that the threatened action will be consummated, or at least that it was reasonably capable of being carried out. See Schweppe, 306 Minn. at 399, 237 N.W.2d at 613. To effectively judge whether a reasonable person would have believed that the purported criminal act would be carried out, it is necessary to view the alleged threat in the context it was presented:

The test of whether words or phrases are harmless or threatening is the context in which they are used. Thus the question of whether a given statement is a threat turns on whether the communication” in its context would have a reasonable tendency to create apprehension that its originator will act according to its tenor.

Id. (emphasis added) (citations and quotation omitted). Here, it is unclear whether either letter reasonably appeared to be a bona fide threat of serious bodily injury or property damage. Without an original or copy of the letters, or testimony from witnesses with
personal knowledge, we fail to see how the hearing officer could discern that the letters constituted credible threats.

The evidence that was available tends to indicate that any alleged threats were not credible. No criminal charges were filed against relator for either incident. The district court found that relator did not constitute a threat to others or himself. Relator testified that he did not intend to harm the police, and the record is silent as to whether Glock or the unidentified woman who received the letters believed that relator would follow through with the threats. We acknowledge that this is a close case. But even assuming relator sent both letters, the CDA did not produce any evidence that the threat of harm was communicated in a manner that would cause a reasonable person to fear that relator would launch an attack[1] on the police. We reverse the termination of relator’s Section 8 benefits.

Because we have determined that the evidence in the record is insufficient to terminate relator’s benefits, we do not reach relator’s alternative arguments.

Reversed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] At a football game, when the Vikings blow a lead and the referee, by crowd consensus, is “found guilty” of a bad call, the stands closest to the beer garden reverberate with mention of bodily harm to blind people who wear black and white stripes. That language “could,” but not likely, carry the day as a threat of “violent criminal activity” that a reasonable person would take serious. Context and timing do matter.