A 6-year-old Seattle law that barred most landlords from asking prospective tenants about their criminal records is overly broad and unconstitutional, a 9th U.S. Circuit Court of Appeals panel has ruled. The city's Fair Chance Housing ordinance was meant to help people with criminal histories overcome the barriers they often face to obtain housing, the Seattle Times reports. A portion of the law that allows landlords to refuse to rent to tenants because of that history was allowed to stand. The decision sends the case back to a lower court to determine whether various parts of the law can be severed from each other.
Judge Kim McLane Wardlaw wrote that “there is no dispute” about the problem the city was trying to address, “a crisis of homelessness among the formerly incarcerated and landlords’ use of criminal history as a proxy for race.” But “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, Wardlaw wrote. Several landlords and a trade group sued the city in 2018, arguing that the law violated their free-speech rights by preventing them from “accessing and sharing truthful information” and violated their due-process rights by limiting their ability to exclude tenants from their property. In 2021, a U.S. District Court judge disagreed and 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 conservative group representing the landlords, appealed the decision. The appellate ruling likely means landlords can immediately ask about prospective tenants’ criminal records as long as they don’t use that information to take “adverse action” against the tenant, said Nick Straley, litigation director at Columbia Legal Services, which advocated for the law. But the decision “didn’t explain [whether] the landlord is entitled to all the information, some of the information, whether the information can be limited in some way. Those are all open questions,” Straley said.