I. Introduction

The BHA is committed to providing a safe environment for our residents and employees, and this often requires dealing with nonresidents.  Sections 9 and 10 demonstrate two tools that may effectively assist Managers in successfully keeping nonresidents who are dangerous or interfere with the quiet enjoyment of BHA residents out of BHA developments.  One tool is to serve a No Trespass Notice (Form TP-01), and the second is a 121B preliminary injunction.  Each method has its own unique requirements and effects.  This section discusses the necessary steps to successfully secure a 121B preliminary injunction. 

II. 121B Preliminary Injunction    

A 121B Preliminary Injunction requests from the Housing Court an order forbidding a nonresident from coming onto BHA property.  The court order can either last for one year or  permanently ban the individual from BHA property.  The duration of the court order depends on the seriousness and the number of criminal acts committed on BHA property.  Additionally, to obtain an order for more than one year requires a trial.  Therefore it is important to consult with your Regional Counsel to determine which length of time would be appropriate, and the likelihood of success.  If the Court Order is for a limited time, and the Manager determines that the individual still poses a danger at the end of the time period, the Manager can request that the Legal Department ask Housing Court to extend its order.  The Manager must give the Legal Department ample time before the order expires (approximately a month) to seek the extension from the court.  A violation of the court order is a criminal act and can subject the individual to incarceration for a period of up to two years.  

A. Obtaining a 121B Preliminary Injunction

To obtain the preliminary injunction the individual must commit a criminal act on BHA property.  The criminal acts necessary to obtain a preliminary injunction against the perpetrator are as follows:
 
(a) the individual has unlawfully caused serious physical harm to a member of a BHA resident's household or an employee of the BHA.
 
(b) the individual has intentionally, willfully and repeatedly destroyed, vandalized, or stolen property of a member of a BHA resident's household or of the BHA.
 
(c) the individual has intentionally and willfully destroyed, vandalized, or stolen property of a member of a BHA resident's household or of the BHA and attempted to seriously physically harm a member of a BHA resident's household or an employee of the BHA.
 
(d) the individual has possessed or carried a weapon in violation of M.G.L. ch. 269, § 10 or § 69 or possessed or used an explosive or infernal machine, as such is defined in M.G.L. ch. 266, § 102A, (with the exception of firecrackers), or violated any other provision of M.G.L. ch. 266, §§ 101, 102, 102A, 102B.
 
(e) the individual has unlawfully sold or possessed with intent to distribute a controlled substance defined as Classes A, B, or C substance in M.G.L. ch. 94C, § 31 (serious drugs such as heroin, cocaine, or amphetamines).
 
(Note: To verify if a particular act by the perpetrator falls under any of the above statutes, please consult with your Regional Counsel)
 
(f) the individual has committed or repeatedly threatened to commit a battery upon a person or damaged or repeatedly threatened to commit damage to the property of another for the purpose of intimidation because of said person's race, color, religion, or national origin or on account of said person's participation in an eviction proceeding.
 
When any of the above crimes has been committed, a police report should be generated, and the Manager should obtain a copy of the police report.  If the incident involved a BHA employee, a BHA incident report must also be generated and forwarded to the proper department.  Since a preliminary injunction can be obtained quickly, it is crucial that the names of all the witnesses and their addresses be verified.  It is also necessary to have the address of the nonresident, since we must make sure he/she is properly served with the court documentation.  

B. Requesting that Legal Department file a 121B Complaint

Once the Manager has obtained the police report and/or the incident report, the Manager should fill out the Manager's Request for a 121B, § 32C, Preliminary Injunction (Form PI-01).  It is important to list any and all witnesses to the incident.  This is more crucial if the police report leaves out the names of witnesses.  Since the 121B, § 32C, Complaint must be a verified complaint, the complaint must be signed by a witness to the incident.  A witness that can verify the facts in the complaint can either be the victim or anyone who saw the crime, or a police officer if he/she witnessed the crime.  Without an appropriate signature on the complaint the BHA will not be able to file for a preliminary injunction. 
 
Once a proper complaint is filed by the Legal Department, there will be a hearing within ten (10) days from the date the complaint has been filed in the Housing Court.  The Housing Court will issue an Order of Notice, which is a court order requiring an individual to appear before the court to answer a complaint.  If there are incorrect addresses or incorrect names on the Order of Notice, it will effect the BHA's ability to obtain the restraining order.  

C. Hearing Before the Housing Court

At the court hearing, the BHA must prove that the individual is a nonresident and that he/she has violated one of the crimes listed in the statute.  If the nonresident does not appear, the BHA will still have to present its case to the Housing Court to request the order banning the individual.  This means that all witnesses will have to be present at the Housing Court to testify.  Depending on the evidence presented, the Housing Court may or may not grant the order.  If an order is granted, then the Legal Department will have it served on the nonresident and provide the Manager, the BHA Public Safety Department, the local police station, and the Community Disorders Unit (if applicable) with copies.  Until the order is served in hand to the nonresident, there can be no violation of the order. 

D. Violation of the 121B Court Order

If the individual is seen on BHA property after he/she has been served with the court order, he/she can be subject to arrest.  It is not a defense to a violation of the order that a resident has invited the individual onto the property.  The individual must go to the Housing Court to request a modification of the order to visit a BHA resident.  If the individual has been seen on the property, the Manager should contact BHA Public Safety Department and the local City of Boston police station immediately and advise them that the individual has violated a court issued retraining order.  The Manager should inquire as to whether the Police Department has a copy of the court order.  If it does not, the Manager should provide the Police Department with a copy.
 
There are several potential outcomes once the police are called.  If the police come onto to the scene and the individual is on the property, the police may arrest him/her immediately.  The police may also ask the individual to leave the area and serve him/her with a  summons to appear in Housing Court in the future. Regardless of the action taken by the police, the Legal Department should be notified (Form PI-02).  

E. 121B Criminal Complaint

Once the Legal Department receives the Form PI-02, a criminal complaint will be filed with the Housing Court.   After the complaint is filed, there will be a Show Cause hearing to determine if there is sufficient evidence to allow a criminal complaint to issue.  The Legal Department will have to show that a court order was issued by the Housing Court, and the individual received, in hand, a copy of the order.  Furthermore, it must be demonstrated that the individual has violated the court order by coming onto BHA property.  If the Judge or Clerk Magistrate believes that there is probable cause to believe a violation of the court order has occurred, a criminal complaint will be issued by the Housing Court.  An arraignment date will then be scheduled.
 
Prosecuting a 121B, §32C, restraining order is a criminal matter, and would be handled by the local District Attorney's office.  The Legal Department will assist the District Attorney's office.  The Legal Department will coordinate with the Manager to secure witnesses.  If the case is successful, the Housing Court may incarcerate the individual for up to two years and may give the BHA a permanent restraining order if it has not already done so.