Landlords represented by the Pacific Legal Foundation are once again suing over a law in Seattle protecting renters.
The Rental Housing Association of Washington, which represents landlords, and PLF today announced a suit challenging Seattle's Fair Chance Housing law, claiming it violates the state and federal Constitutions.
The law, which the city council passed unanimously in August, bars landlords from refusing to rent to tenants because of their criminal records in most cases. Landlords cannot reject tenants based on their criminal record except in cases where a tenant is on a sex offender registry for a conviction as an adult and the landlord can show a "legitimate business reason" for the refusal.
The law also prevents landlords from asking about criminal records, instituting blanket bans on renting to anyone with a criminal record, or using language like "no felons allowed" in advertisements. The law does not apply to single family houses if the owner lives on site. Landlords who violate the law can be subject to fines ranging from $11,000 for first-time offenders to $55,000 for repeat violations.
In making the case for the law, council members and advocates cited racial disparities in the criminal justice system and the difficulty in finding housing for people with criminal records, which can worsen recidivism. Among the "whereas" clauses at the start of the ordinance, the council wrote, "there is no sociological research establishing a relationship between a criminal record and an unsuccessful tenancy."
In guidance issued in 2016, the U.S. Department of Housing and Urban Development wrote that refusing to rent to tenants with criminal records is "likely to have a disproportionate impact on minority home seekers." The Washington State Attorney General's Office has also cracked down on landlords with "no felons allowed" policies, arguing those policies disproportionately affect African American renters.
PLF's complaint takes issue with the city council's chosen statistics, claiming the council misrepresented the links between housing and criminal background. Among other things, PLF argues the council "grossly generalize[d]" some studies, "making it appear that access to the private housing market is necessary for successful reintegration into society." Instead, the complaint argues, public housing is the more viable option for people who've been formerly incarcerated. Nick Straley, a staff attorney at Columbia Legal Services, which supported the law, said the ordinance is “well supported by the facts and by the research.”
“The ability of landlords to do [criminal background checks] is only a function of modern big data,” Straley said. “Twenty years ago, landlords would not have been able to do a criminal record screening [because there was less mass access to county court records] and we did not have a rash of tenant-on-tenant violence. The fear and paranoia that supports this attack is simply not justified by the facts.”
In the complaint, PLF attorney Ethan Blevins claims the law violates landlords' free speech rights because it prohibits asking about criminal background during the rental process but not during other purposes and violates landlords' due process rights because there are "less oppressive ways" for the city to achieve the same goal. The complaint says the city could bar only the consideration of arrest or charges that did not result in a conviction, rather than all criminal records. Blevins writes that landlords look at criminal backgrounds because they "must protect their tenants against foreseeable criminal acts of third parties." He cites a "tragic example" in which an Illinois woman was raped and murdered in her apartment and her family is suing the apartment management company for renting to the alleged killer.
Straley says Washington law protects landlords against most liability for tenants’ criminal conduct. “They have one single anecdote here,” Straley says. “If there was a legitimate basis, they would be able to supply more than one single case from the Midwest.”
The three plaintiff landlords in the case were all also plaintiffs in PLF's so far successful challenge to Seattle's "first in time" law. One family, which rents two units in a triplex and lives in the third, "will have to raise rents in order to build up a larger cushion of reserves to absorb the risks they face under the new law," Blevins writes.
The complaint also touches on a business interest of the Rental Housing Association. The group provides screening reports for its landlord members. The group will no longer be able to do that "as a direct consequence of the Fair Chance Housing Ordinance," the complaint says.
In a press conference announcing the lawsuit today, RHAWA Board President William Shadbolt said the City of Seattle has undertaken a "barrage of legislative attacks on our industry." Shadbolt claimed small landlords are leaving Seattle, sometimes selling their buildings to larger companies that will increase the rent, because of "overregulation and demonization."
"If the City of Seattle is serious about reforming the criminal justice system it should focus on reforming the criminal justice system," Shadbolt said.
In a statement, a spokesperson for the Seattle City Attorney's Office said the office is "currently reviewing the complaint, which we’ve just received. We believe the ordinance is constitutional and plan to defend it."