San Francisco Chronicle

Landlords can ask applicants about criminal history, court rules

- By Bob Egelko Reach Bob Egelko: begelko@sfchronicl­; Twitter: @BobEgelko

Cities can’t completely prohibit rental property owners from asking prospectiv­e tenants about their criminal history, although they can prohibit owners from excluding all tenants who have criminal records, a divided federal appeals court ruled Tuesday.

The 2-1 ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco struck down part of an ordinance in Seattle and also will affect laws in Oakland and Berkeley that ban nearly all questionin­g about an applicant’s criminal record. But the court approvingl­y cited a 2014 San Francisco ordinance that lets owners of affordable housing consider a would-be renter’s conviction­s from the previous seven years.

That ordinance, the Fair Chance law, allows an owner to reject an applicant whose record raises serious concerns about safety, as long as the renter has a chance to present evidence of rehabilita­tion and recommenda­tions from others.

While San Francisco argued in a court filing that cities should be allowed to go further and ban nearly all inquiries about tenants’ criminal records, the court said the Fair Chance law showed that a local government could protect prospectiv­e renters from discrimina­tion while remaining “significan­tly less burdensome on speech” by the property owners.

On the other hand, Judge Kim Wardlaw said in the majority opinion, owners have no right to automatica­lly exclude all tenants with past criminal conviction­s. Laws in Seattle and other cities against such prohibitio­ns serve the legitimate purposes of “reducing barriers to housing faced by persons with criminal records and lessening the use of criminal history as a proxy to discrimina­te on the basis of race,” Wardlaw wrote.

She said formerly incarcerat­ed people are nearly 10 times as likely as the general population to experience homelessne­ss or housing insecurity, and the disparitie­s were far more likely to affect racial minorities than whites.

The court set aside a federal judge’s 2021 ruling upholding the entire Seattle ordinance and told the judge to decide whether the city’s ban on excluding all applicants with criminal records could stand on its own.

Wardlaw’s decision drew partial dissents from the other members of the panel. Judge Mark Bennett said a property owner “who prioritize­s the safety of other tenants” should be allowed to reject any applicant with a criminal record. But Judge Ronald Gould said cities that seek to protect tenants against discrimina­tion should be able to bar all questionin­g about criminal history.

Property owners could still get pertinent informatio­n about an applicant’s “rental history, income history, character references, job history,” and could ask for references from others who have rented to the prospectiv­e tenant, Gould said.

The federal government, under Presidents Barack Obama and Biden, has issued “guidance” statements saying property owners nationwide should consider ending all questionin­g about prospectiv­e tenants’ past conviction­s. “Criminal history is not a good predictor of housing success” and its use can result in discrimina­tion, the Department of Housing and Urban Developmen­t said in a report last June.

Tuesday’s ruling was praised by the Pacific Legal Foundation, a nonprofit property-rights supporter representi­ng owners who challenged the Seattle ordinance.

“The Ninth Circuit’s decision recognizes that the First Amendment protects the right to ask questions and receive informatio­n relevant to our livelihood­s,” said Ethan Blevins, the foundation’s lawyer in the case.

Despite the court’s favorable reference to San Francisco’s approach, Jen Kwart, spokespers­on for City Attorney David Chiu, said the city would have preferred a ruling that barred all inquiries into rental applicants’ criminal records.

“We are disappoint­ed the court struck down this portion of Seattle’s ordinance because we believe strongly in reducing barriers to formerly incarcerat­ed people,” Kwart said.

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