Landlords May Ask for Criminal Histories of Tenants

The following summary of a recent ruling from United States Court of Appeals for the Ninth Circuit is not a criminal case.  However, it involves how a person’s criminal history may affect one’s ability to rent a home, apartment or condominium.

We also should mention that the facts involve the City of Seattle and nothing in California directly.  However, a U.S. Ninth Circuit Court of Appeals ruling does establish the law for the Ninth Circuit, which includes California.

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

At the time, the City of Seattle was struggling with an unprecedented homeless crisis and found that people with criminal histories face a very tough time renting.  Studies showed that approximately 90% of private landlords conduct criminal background checks on prospective tenants, and nearly half of the private landlords in Seattle stated they reject an application with a criminal history.

One can imagine how a landlord would feel uncomfortable renting to a person with a criminal history for manufacturing drugs, check fraud, vandalism or a history of gang participation.

Such studies concluded that as a result, formerly incarcerated persons are nearly ten times as likely as the general population to experience homelessness or housing insecurity and one in five people who leave prison become homeless shortly thereafter (often called the “prison to homelessness pipeline”).  Such people without housing are significantly more likely to recidivate, with one study estimating that people without stable housing were up to seven times more likely to re-offend.

The studies further showed that people of color are significantly more likely to have a criminal history than their white counterparts.  In 2014, for example, African Americans comprised 14% of the total population, but 36% of the total prison population.  As of 2018, one in nine Black men ages 20 to 34 was incarcerated and one in three Black men had spent time in prison over the course of his lifetime.

The City of Seattle thus passed the Fair Chance Housing Ordinance to help alleviate their homeless crisis.

Shortly thereafter, several landlords with small rental properties and a landlord trade association that provides background screening services filed a civil case, Chong Yim, et al., v. City of Seattle, against the City of Seattle alleging violation of their federal and state rights of free speech and substantive due process.

The U.S. District Court for the action upheld the ordinance as constitutional and so the plaintiffs appealed this ruling to the U.S. Court of Appeal for the Ninth Circuit.

The plaintiffs argued that their inquiry about criminal history should be deemed non-commercial speech and thus the Fair Chance Housing Ordinance should be subject to constitutional strict scrutiny analysis, which the ordinance cannot survive, or alternatively, if deemed commercial speech, subject to intermediate scrutiny, the ordinance fails constitutional analysis as not being narrowly tailored to the government’s stated purpose.

The plaintiff’s also alleged that the provision of the ordinance prohibiting them from excluding certain people from their property infringed upon their fundamental rights to own and control their own property and thus the ordinance is subject to strict scrutiny.

The Ninth Circuit concluded that the ordinance’s inquiry provision did impinge upon the First Amendment rights of landlords, as it was a regulation of commercial speech that did not survive intermediate scrutiny.  So, landlords could inquire into the criminal histories of tenants and prospective tenants.

However, the Ninth Circuit held that the adverse action provision of the ordinance (prohibiting landlords from denying tenancy) did not violate the landlord’s substantive due process rights.  Put another way, the landlords did not have a fundamental right to exclude tenants based on their criminal history.

We suspect that, in the future, landlords will continue to exclude tenants and potential tenants with criminal histories, but the landlords will not explain that they are doing so based on criminal history, although that is exactly the reason.

We bring this summary to the reader’s attention to show how important it is to push hard for a dismissal in California under Penal Code § 1385 (“in the interest of justice”) to allow sealing of a criminal record to remove or delete the criminal history of that case from one’s criminal history.