As many of my readers are aware, the City of Seattle enacted an ordinance in 2017 prohibiting landlords from inquiring about the criminal history information of tenants (or prospective tenants) or from taking any sort of adverse action against them for having criminal history. Only registered sex offenders were exempted from this protection. Even then, the landlord had to prove a “legitimate business reason” for refusing to lease to a sex offender.
As you might expect, landlords sued the City of Seattle, contending this ordinance violated their First Amendment right to inquire about criminal history and their Fourteenth Amendment right to exclude people from their property. The landlords lost at the trial court level, and so they appealed to the Ninth Circuit Court of Appeals. This week, the Ninth Circuit ruled on that appeal. In short, the federal appellate court said that landlords could indeed ask about criminal history information, but they still could not take any adverse action. Yim v. City of Seattle, 2023 WL 2519179 (9th Cir. March 21, 2023).
In concluding that the First Amendment protected the right of landlords to inquire about convictions and to obtain criminal background check reports, the court observed that a number of other cities in the nation have enacted Fair Chance Housing ordinances which achieved the goal of reducing discrimination in housing while at the same time permitting landlords to learn about (and act upon) the criminal history of their tenants. (It was here that the Professional Background Screening Association received an honorable mention, the Court citing to its “friend of the court” brief in which the Association observed that landlords use criminal background checks in order to discover violent offenses in criminal conviction history, including such details as the type of crime and the length of time since the crime was committed.)
This is a hollow victory for the landlords, considering that the appeals court nonetheless decided that the City of Seattle had a legitimate reason for an absolute ban on consideration of criminal history: the desire to reduce the barriers to housing faced by persons with criminal records and to lessen the use of criminal history as a proxy for discriminating on the basis of race. This component of the decision was based upon the Court’s rather cursory conclusion that the right to exclude someone from one’s property is not a fundamental right under the Anglo-American legal tradition – at least not under the Due Process Clause. (Other judges may disagree.)
One of the Ninth Circuit Judges – in a concurring opinion – observed that Seattle’s ordinance has the curious result of extending protections to murderers but not to sex offenders. Indeed, this author would observe that the absolute ban on taking adverse action against existing tenants – if taken to its logical conclusion – would mean that a landlord could not even evict a tenant for being convicted of murder, aggravated armed robbery, or kidnapping.
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