Seattle landlords can ask about criminal records, court rules

A key portion of a Seattle law meant to guard against housing discrimination is unconstitutional, the 9th U.S. Circuit Court of Appeals ruled Tuesday, but it upheld other parts of the law.

The lawsuit took aim at Seattle's "Fair Chance Housing" ordinance, passed in 2017, 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.

The law was meant to help people with criminal records access housing and to protect against policies that can disproportionately harm renters of color because of disparities in the legal system. It included several exemptions, including allowing landlords to refuse a tenant based on sex offender status.

Several landlords and a trade group sued the city in 2018, arguing the law violated their free-speech and due-process rights.

The 9th Circuit issued a mixed decision on those claims Tuesday.

The court found the prohibition against asking about criminal history overly broad and unconstitutional. However, the three-judge panel upheld the prohibition on taking "adverse action" against a tenant, like refusing to rent to them based on their record.

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.

The decision sends the case back to a lower court to determine whether different parts of the law can be severed from each other.

In their initial lawsuit, landlords argued 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.

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