Amicus Brief: Lucinda v. Jay Som

The Fourth Circuit is reviewing the denial of a preliminary injunction to enjoin enforcement of the “source of funds” provision of the Virginia Fair Housing Law. The source of funds provision prohibits housing discrimination based on a prospective renter’s lawful source of funds, including government subsidies. Accordingly, Virginia landlords cannot decline to accept Section 8 vouchers, and they are put to the impermissible choice of either coerced consent to warrantless searches or the threat of investigation by state agencies.

This case arose when a small landlord was approached by a “tester” from an activist organization who posed as a potential renter and inquired whether an available apartment accepted Section 8 housing vouchers. When the landlord declined to accept the voucher, the tester filed a complaint for source-of-funds discrimination. They sued in federal court to enjoin enforcement of the source-of-funds provision on the grounds that it violates the Fourth Amendment’s prohibition on unlawful searches and seizures. The district court dismissed the claims as "unripe" because sufficient damages had not yet occurred.

The Manhattan Institute has joined with the Liberty Justice Center on a brief in support of the landlords. We argue the source-of-funds enforcement machinery inflicts concrete, irreparable hardship on landlords. The ongoing state investigation itself constitutes the hardship that the ripeness doctrine is designed to address.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.