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Criminal Background Checks: Senseless in Seattle

Seattle Fair Housing
March 2019

A ruddy face frames keen blue eyes. Behind the stacks of legal briefs, illuminated by one soft lamp, one could be forgiven for envisioning a medieval duke standing on his battlements. Though John McDermott is fortified in Arlington, as he leans back in his office chair, his mind is thousands of miles away in the mist-wreathed by-ways of Seattle.

As General Counsel and chief legal mind at NAA, McDermott confronts a backward and dangerous policy shift. By way of an Amicus Curiae (Friend of the Court) brief, he explains that not only does this policy do no good, but it threatens great harm to the property owners and the residents of the Emerald City.

The Policy

The policy at issue is the ironically named “Fair Chance Housing Act” (FCHA), an ordinance passed by Seattle’s City Council. In brief, it forbids property owners from checking into rental residents’ criminal history when looking at their lease applications. The ordinance now sits on the docket at the Federal Court of the Western District of Washington.  

“It’s your classic ‘ready, fire, aim’ approach by public officials,” says McDermott.

Seattle officials maintain that the law addresses historical ills, such as the over-policing of certain minorities and the city’s homelessness crisis. While the former may be a panacea for municipal guilt, any illusion that this ordinance affects the latter is just that.

“The advancements that the judicial and legislative systems are making regarding criminal justice reform are very encouraging,” says McDermott, “but this legislation was passed in haste, and then thought-through after the fact.

“In the context of liability law alone, the state of Washington holds property owners liable for the safety of their residents. That goes as far as the amount of street lighting, or the state of untrimmed shrubbery. What is a judge meant to think when a resident brings suit based on criminal activity around their home, putting them in clear danger, when the owner of the property was forbidden from even inquiring about the criminal history of the applicant who is now putting that resident in danger?”

It takes very little imagination to imagine the legal mess in which property owners could find themselves. Responsible for safety but forbidden from taking meaningful action to prevent crime in their communities, owners are simply left at the mercy of criminals AND the courts.

A Matter of Intent

McDermott continues that the law doesn’t materially address the problem of putting deserving applicants into apartments despite the circumstances of a criminal past, because it focuses on background screening and ignores another basic screening factor.

“We can’t make sweeping generalizations about all of the people this ordinance affects,” he says. “I want to make that clear. But in many cases, the same person who may get denied based on criminal history also suffers from bad credit. A property owner can and would screen for this, and, understandably, reject such an application on those grounds. This law forbids the criminal screening but leaves that criterion unchanged. So, it does no functional good, however good the intentions behind it were originally. Understanding that core tenet is absolutely key to this case. In addition to doing significant harm to the safety of the people who live in apartments, by forbidding owners to make informed decisions, this ordinance does not even partially accomplish its very honorable intent.”

Conventional wisdom holds that the best indicator of future behavior is past behavior. By hamstringing property owners’ ability to make informed choices about their businesses, and for the good of their residents, the Seattle City Council is materially making apartment communities less safe, while simultaneously spinning their wheels regarding the ordinance’s intent.

‘Ready, Fire, Aim’

While property owners must always balance risk with their bottom lines, removing the ability to screen for one of their most primary responsibilities – the safety of residents – does a tremendous amount of harm while doing no measurable good. That is one reason why even public housing authorities (PHA’s), ostensibly entrusted with providing housing for those most in need in our communities, not only can but are required by federal law to screen any and all applicants’ criminal histories.

It is fair to wonder whether Seattle’s City Council had really considered the totality of the issues that face their city, or whether they were looking for a quick PR boost. If so, their current circumstances must be puzzling to them. It does, however, provide a clear example for why public officials may want to eschew ‘ready, fire, aim’ approach to governance.

Do you have questions regarding this lawsuit? Do you face a similar situation in your locality? NAA is standing by as a resource for you on this subject and many more. Please do not hesitate to reach out to our dedicated policy staff with any questions or matters with which we can be of assistance.