Ninth Circuit Strikes Down Ban on Landlords' Inquiring About Prospective Tenants' Criminal History, But … EUGENE VOLOKH | 3.21.2023 3:49 PM

From today's Ninth Circuit decision in Yim v. City of Seattle, written by Judge Kim McLane Wardlaw, joined in part by Judges Ronald M. Gould and Mark J. Bennett:

In 2017, the City of Seattle enacted the Fair Chance Housing Ordinance. The Ordinance prohibits landlords from inquiring about the criminal history of current or potential tenants, and from taking adverse action, such as denying tenancy, against them based on that information….

We conclude that the Ordinance's inquiry provision impinges upon the First Amendment rights of the landlords, as it is a regulation of speech that does not survive intermediate scrutiny. However, we reject the landlords' claim that the adverse action provision of the Ordinance violates their substantive due process rights. The landlords do not have a fundamental right to exclude, and the adverse action provision survives rational basis review….

clean slate is scary for sure. They are wanting to "clear the record" for any felony after 6 (or 7) years AFTER THEY WERE CONVICTED and I think 3 years for Misdemeanors.

"AFTER THEY WERE CONVICTED" is a HUGE concern... that means that if they went to jail for say 8 years (for a felony) they would come out with no criminal history. Really? That's a good idea?

For those who can't read very well, this is NOT an anti-landlord decision. It is really a pro-First Amendment decision that happens to benefit landlords.

But not a single poster seems to understand that.

Here is the whole story:

reason.com/volokh/2023/03/21/ninth-circuit-strikes-down-ban-on-landlords-inquiring-about-prospective-tenants-criminal-history-but/

It happens that I am personally acquainted with Eugene Volokh and have disagreed with him often, particularly on the subject of Israel and Zionism. His story is a straightforward discussion about this decision plus the legal definitions surrounding application of the First Amendment.

Just for those who REALLY can't read and understand even not-so-complex material, the decision says:

1. We conclude that the Ordinance's inquiry provision impinges upon the First Amendment rights of the landlords, as it is a regulation of speech that does not survive intermediate scrutiny.

and

2.It is undisputed that the Ordinance does not prohibit misleading speech. Rather, it prohibits inquiring about information that is of record, and most likely accurate. While criminal records may be "associated with unlawful activity," reviewing and obtaining criminal records is generally a legal activity. A prohibition on reviewing criminal records therefore is not speech that "proposes an illegal transaction" and does not escape First Amendment scrutiny under Central Hudson.

and

3. However, we reject the landlords' claim that the adverse action provision of the Ordinance violates their substantive due process rights. The landlords do not have a fundamental right to exclude, and the adverse action provision survives rational basis review….

Would this apply to everyone else, such as employers, military, police, insurers, loan underwriters, etc?

W:

Don't be silly; The Court DID NOT SAY THAT AT ALL.

READ what they said (and think about it). What will you suppose to be the next step?

Ken if I was really wealthy I would do that. Buy next door to people who vote for this nonsense and start a half way house or rent to our local drug dealers.

I wonder if all these restrictions could be bypassed by a third party evaluator. If the third party looked at all the records and assigned a recommend or not recommend rating, but without explanation, the landlord could blame that score alone as the reason for denial. If all you had to tell was that this unknown person was not recommended by third-party, and that was the reason, could they sue the landlord or third-party? Maybe have the third-party be an offshore company to evade jurisdiction. It would be like the BBB of tenants.

Good question LLOTF.

Temporary win? I don't think so. A new bill would have to be written, thus requiring additional discussion and objection. The new bill would have to survive committee recommendation plus approval from Seattle City Council. So objecting parties get a whole new chance to sit down at table to negotiate. But of course, landlord community isn't organized to do that. Everyone waits for someone else to do it for them, and they all want ALL or NOTHING.

"what good would it do to pull a criminal history report if you could not use the information?"

The converse statement is more important for landlords: If you can't use the information, what good does it do to pull a criminal history report? Of course, it doesn't.

The problem faced by a potential bill-writer would be to outlaw rejection without proof of tenant undesirability. I don't know what the City Council person might come up with. "unlawful to discriminate"? How would tenant know that you discriminated? Can you turn down an applicant who is black unless there is some evidence of undesirability other than his skin color?

LL may have to defend his rejection of a convicted felon, but there is tremendous advantage to defending as opposed to being the plaintiff. Ask a lawyer about a landlord who runs a criminal history report, discovers a past conviction, denies the applicant and then says, "I didn't use the criminal history report".

What Moshe said. The court said that LLs have a right to ask about criminal records under the 1st Am., BUT the city COULD prohibit the landlords from acting on that info to the applicants' disadvantage. Since the law included part that was prohibited under the 1st Am., the whole law was struck down under the Overbreadth Doctrine (I assume.) The 1st Am. is extra special in that if any part of a law violates it the whole laws falls.