Special PW update: North Carolina sheriffs are continuing to carry out evictions during pandemic

Should North Carolina sheriffs be evicting people during the COVID-19 pandemic and thereby further jeopardizing  the public health? That question is front and center in the state public policy debate this weekend.

Advocates say that people evicted from their homes could end up on the street, doubling or tripling up in crowded houses with family or friends, or congregating at packed homeless shelters. It doesn’t bode well, they point out, for the larger social distancing directive and other recommendations from the Centers for Disease Control and Prevention (CDC) to protect the public from the disease caused by the new coronavirus.

North Carolina Supreme Court Chief Justice Cheri Beasley has ordered that eviction and foreclosure hearings be postponed 30 days until April 17, but some sheriffs across the state are using what they say is their discretion to continue enforcing eviction orders.

Notably, Durham County is one of the areas forging ahead.

“We’re legally required to do that,” said AnnMarie Breen, spokesperson for the Durham County Sheriff’s Office. “If we don’t serve them, there’s a legal consequence.”

She added Friday that the office “wants to do the right thing,” but that it is still trying to get clarification on how Beasley’s order applies to sheriffs. By statute, sheriffs have five days to carry out an eviction, also known as a “writ of possession,” from the court.

Breen said until the office gets further clarification, Sheriff Clarence Birkhead is reviewing each writ before any action is taken to make sure there isn’t anything out of the ordinary. It’s a case-by-case situation.

Durham County Clerk of Court Monica Richardson said Friday that her office is still processing eviction paperwork that was filed before Beasley’s most recent order, which was sent Thursday.

She added that her office hadn’t received clear guidance on how the order applies.

The Administrative Office of the Courts did not respond to an email asking whether clear guidance had been sent to clerks’ offices or whether Beasley’s order extended to sheriffs enforcing writs of possession.

Spokesperson Sharon Gladwell only forwarded a copy of the Thursday order, which is not written in layman’s terms but essentially postpones civil actions, criminal actions, estates and special proceedings until April 17. Evictions are considered to be civil actions.

Every hour in Durham, at least one renter is threatened with losing their home, according to a 2019 report from Duke University. About 1,000 eviction cases were filed per month against tenants between 2010 and 2017. That’s roughly one for every 280 residents in Durham, where the per capita eviction rate is one of the highest in the state and double the national average, the report states.

A Legal Aid of North Carolina client, who asked not to be named out of concern for privacy, was threatened two weeks ago to be evicted from his Durham home near downtown. He remains in his home for now, but he said he doesn’t know what will happen next.

“These people are being greedy, they don’t have mercy for others,” he said in a telephone interview Friday night.

He explained that he has a health condition that can cause seizures when he is under a lot of stress. His housing situation is out of his control, he said, but he is trying to do the best he can.

He added that he knows the city is doing what it has to, but wondered why during a pandemic, officials are willing to put workers’ and renters’ health at risk to continue evictions as opposed to looking for resources to give people more time to figure out their situation.

The renter, who is in his 40’s, said 30 days is not enough time for people who are losing their jobs to get back on their feet.

“They’re lives are in jeopardy, and it’s wrong,” he said.

The North Carolina Sheriffs’ Association sent out a memo with guidance to its members Friday evening.

The issue, the document states, is about whether a sheriff can voluntarily decide to not comply with the general statute that requires they execute a writ within five days of being issued by the court.

“While everyone recognizes the predicament likely faced by tenants being evicted during the coronavirus pandemic, the landlord has followed proper legal process and has obtained from the court a Writ for Possession of Property,” the memo states.

The memo states that the Sheriffs’ Association is not aware of any other statute or case law that allows a sheriff to fail to follow the five-day rule; the person who can stop an eviction process is the landlord who requested it. It also states that the Association is not aware of any authority the governor would have to order sheriffs to stop following the statute.

Sheriff Memo 3 20 (PDF)

Sheriff Memo 3 20 (Text)

The memo offers two interpretations for how sheriffs can proceed under Beasley’s order.

The first states that if Beasley’s order extends acts involving evictions, it must also extend other acts with similar deadlines such as mandatory domestic violence arrests and first appearances before magistrates. Though it should be noted, Beasley addressed domestic violence situations and first appearances specifically in her first order: They are to proceed.

“There are numerous other general statutes with similar deadlines,” the document states. “It seems unlikely that the Chief Justice’s order would be intended to or be found to extend all of the above deadlines and all other deadlines in the general statutes to April 17, 2020. And, if the Chief Justice’s order was intended to do so, undoubtedly the order could have precisely said so and left nothing to interpretation or speculation.”

The second interpretation states that Beasley’s order is not a mandate but rather gives sheriffs the discretion to postpone carrying out the evictions.

“At this point, without any further orders from the Chief Justice, it appears that April 17 is a hard deadline,” it states. “This may mean that if a sheriff were to delay service based on this order, writs for possession of property may need to begin being served in advance of the April 17 deadline to avoid having to serve a great number on one day.”

Several counties are using the interpreted discretion to temporarily stop carrying out evictions. They include Lenoir, Robeson, Wake, Mecklenburg, Forsyth, Guilford, Harnett, Cumberland, Scotland and Buncombe, according to Legal Aid.

As of Friday morning, the Mecklenburg County Sheriff’s Office had initially planned to continue issuing the writs – Public Information Officer Dejah Gilliam said they were supposed to finish 109 by Monday morning ­– but by midday, the office decided to postpone per Beasley’s order.

“Removing people from their homes during this crisis is simply not in the best interest of our community or public safety,” said Sheriff Garry McFadden in a news release. “I hope that this temporary delay of evictions will provide some relief to those facing hardships as we weather this pandemic.”

Similarly, the Buncombe County Sheriff’s Office postponed evictions processed after Beasley’s order, but as of Friday morning, were set to issue the ones that predated it. They also changed course midday after the clerk of court there recalled all writs, according to Public Information Officer Aaron Sarver.

Gov. Roy Cooper, court officials and sheriffs who aren’t using their discretion to halt evictions are facing mounting public pressure to change course as the number of COVID-19 cases continues to increase in North Carolina. As of Saturday afternoon, there were about 250 reported cases statewide. Mecklenburg and Durham counties reported the most cases.

The North Carolina Justice Center (which is NC Policy Watch’s parent organization) sent an action alert Friday urging members of the public to ask Cooper to stop evictions in the state.

“We agree that extraordinary efforts need to be made to help people pay their rent and to make sure landlords get their payment, because everyone is going to be struggling right now,” said Bill Rowe, General Counsel and Deputy Director of Advocacy at the Justice Center. “[Evictions] are just not going to work with what we have going right now.”

Several organizations, including the Justice Center, Legal Aid and Disability Rights North Carolina, sent a letter Friday to sheriffs across the state to ask them to halt evictions.

They pointed out in the letter that President Donald Trump has recommended that there be no gatherings of more than 10 people, that Cooper has shut down all public restaurants and bars and that the CDC has advised people to remain a minimum distance of 6 feet apart at all times.

“Executing writs of possession and locking tenants out of their homes would work against all of these recommendations, forcing more people into homeless shelters or into the over-crowded homes of their relatives and friends,” the letter states. “It is profoundly wrong and terribly inconsistent with those various public safety orders and directives requiring people to shelter in place and to stay home for Sheriffs to continue to remove families from their homes. This is an unprecedented time in which we find ourselves and our nation. We hope that some way can be found to avoid making more people homeless and at risk during this extraordinary time.”

Cooper has yet to issue any guidance about evictions, and his office points to Beasley’s order as the current solution.

“As the state considers the right actions to address the rapidly changing situation related to coronavirus, we know people are struggling with significant challenges including housing,” said spokesperson Megan Thorpe. “Regarding evictions, the Chief Justice ordered eviction proceedings postponed for 30 days. If orders have already been entered, it is up to the judge who entered that order whether the eviction will proceed or not.”

Similarly, Dr. Elizabeth Cuervo Tilson, state health director and chief medical officer for the North Carolina Department of Health and Human Services, said during a press call Friday that they didn’t have any specific guidance with regards to evictions. She encouraged residents who need help to call 2-1-1 for information and resources.

“That is on our radar as something we need to be thinking about,” she added.

Sheriff Memo 3 20 (PDF)

Sheriff Memo 3 20 (Text)