The 9th Circuit Court of Appeals issued a mixed decision this week, holding that a key portion of a Seattle law impacting landlords is unconstitutional, while upholding other parts of it. At issue in the lawsuit was Seattle’s “Fair Chance Housing” ordinance, which barred most landlords from asking prospective tenants about “any arrest record, conviction record or criminal history” or refusing to rent to tenants because of that history.
Several landlords sued the city in 2018 (one year after the law passed) arguing the law violated free speech and due process rights. In 2021, a U.S. District Court judge upheld the law, finding that it did not “burden substantially more speech than [was] necessary” to achieve the city’s housing goals. The Pacific Legal Foundation, a group representing the landlords, appealed.
In this mixed decision, the court found the prohibition against asking about criminal history overly broad and unconstitutional but upheld the prohibition against taking “adverse action” against a tenant (for example, refusing to rent to them based on their criminal record). Judge Kim McLane Wardlaw wrote that “a complete ban on any discussion of criminal history between the landlords and prospective tenants” was disproportionate to the city’s interest in reducing barriers to housing. The court then sent the case back to the lower court on the issue of severing the other parts of the law.
This ruling provides a narrower interpretation of the housing law. As such, landlords may look into, and ask about, a prospective tenant’s criminal record. However, they still will not be able to use any information found as a basis to refuse to rent to them. Any decisions not to rent to someone and the reasoning behind that decision should be carefully documented.
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