Criminal History Is None of a Landlord’s Business: Soon in Seattle

In March of 2016, having recently been let go from the Cleveland Browns due in part to truancy and public drug use, Johnny Manziel applied to live in an apartment. The property manager who processed his application was at first delighted that she would have the opportunity to rent to the Heisman Trophy recipient from Texas A&M. But she was quickly disheartened when she realized that, due to a criminal background screening policy that she had helped create which immediately disqualified applicants who had been arrested for or charged with a crime, she could not rent to Johnny Football.

His criminal background check revealed that he had been arrested for domestic violence three months prior. But since she was a fan, and because it was her personal opinion that he was innocent, she successfully lobbied her building’s ownership to restructure their screening policy to disregard arrests, and only screen for convictions (using the logic that arrests are not proof of wrongdoing).

One can only wonder how many other applicants were denied before this screening policy was changed to accommodate this one individual, but we can imagine that for every Johnny Football who succeeds in finding housing despite their well-documented and widely publicized misdeeds, there are a thousand others whose public fame does not precede them, and whose private shame is exposed during the rental application process, and who fail to secure housing despite their ability to pay rent. All because a landlord chooses to perform a criminal background check. In Seattle, that choice will be off the table very soon.

In a historic move, the Seattle City Council unanimously passed the Fair Chance Housing Ordinance into law on Monday, making it illegal for private landlords to conduct criminal background checks on applicants, effective January of next year. This legislation almost missed its monumental opportunity to eliminate criminal background checks entirely, but during the amendment process a series of changes were introduced to re-fang the law and rid it of certain stakeholder concessions that did not hold up under scrutiny.

The first draft of this legislation simply reduced the amount of years a landlord may look back into an applicant’s criminal history from seven to two. The two years was inserted during stakeholder review as a concession to the housing lobby. The legislation was first publicly discussed on July 13th during a special meeting of the Civil Rights, Utilities, Economic Development and Arts Committee. During panel discussion and public comment, landlords expressed three salient concerns about the legislation.

Concern #1: Safety of Tenants

The first was that landlords had a genuine concern for the safety of their residents. This is an admirable concern. But it is impossible, and by extension perhaps inappropriate, for a landlord to attempt to predict future criminality, however noble their intentions might seem. It also presumes that an apartment community or home in a neighborhood exists in a vacuum, and that by refusing to rent to criminals they simply go away. In the case of Davenport v. DM Rental Properties, a tenant brought suit against his landlord in part because they failed to do a criminal background check on his neighbor, who attacked him with a utility knife while intoxicated. The North Carolina Court of Appeals only heard this case because the claim of negligence was tied into other claims that the landlord may have been liable for. In their dismissal of the claim, they stated that:

A landlord cannot reasonably be expected to control the interpersonal relationships of tenants or predict from a criminal record whether one friend poses a risk to another friend. To impose (such) liability would induce landlords to decline housing to those with a criminal record in the absence of evidence of an actual threat…That would only export the “problem” somewhere else. The resulting unstable living conditions or homelessness may increase the chances of recidivism to the detriment of public safety.

Concern #2: Lawsuits

The second concern raised was lawsuits; landlords desired the City of Seattle to indemnify, or hold them harmless against lawsuits from their tenants should a crime occur on their premises. While this certainly sheds a revealing light on the facially altruistic first concern, it seems also to be an unfounded fear. I reached out to Nick Straley, staff attorney with the Institutions Project with Columbia Legal Services, and panel member at the special meeting mentioned above, to discover whether or not a landlord in Seattle is historically, currently, or potentially exposed to serious litigation of this kind:

The only potential liability that a landlord might encounter for the criminal act of a tenant or any third party would be if the landlord failed to comply with a duty imposed on the landlord by state law. For example, a landlord who does not provide good locks, good lighting or fails to properly repair a premises might be liable for a crime that was caused in part because of the lack of appropriate locks, lighting or negligent repair. No court has ever recognized that a landlord has a duty to protect any third party from the acts of a tenant. The landlord is simply not responsible in any legal sense for the acts of one of its tenants.

Indeed the case law surrounding landlord liability for tenant-to tenant interactions is so slim that in order to find precedent, one needs to leave Washington entirely and head back down south to visit the case of Stephens v. Greensboro Properties. The Georgia Court of Appeals only agreed to hear this case because it involved a maintenance technician who lived on site, and who shot a teenaged neighbor after a night of drinking. This case entered the arena of employment law, under the Doctrine of Respondeat Superior, wherein an employer may be held liable for the actions of its agents or employees. No such relationship exists between a landlord and tenant.

Concern #3: Moral Overreach

The third concern was that it should not be the duty of property owners to cure the ills of society. That it is the criminal justice system that needs to be fixed. Perhaps here we can find the main thrust of the opposition to this legislation. There exists a bedrock antagonism between private industry and the public machinery that regulates their duties and obligations. Whether it is a developer silently cursing a mandatory façade setback or height restriction as he works to place a permanent architectural feature on all future postcards from Seattle, an investor lamenting the relatively high property tax associated with doing business in Seattle, or a landlord wondering aloud why she should be told that she can’t dig in to an applicant’s criminal history in order to secure what is known in the industry as a “quality tenant”, there is a distaste for being told what one can and cannot do.

But telling people what they can and cannot do is one of the jobs of government. Another is investigating transgressions and issuing punishment. When someone is found guilty of a crime, they are handed a sentence and asked to carry it out as a duty to the state. It is the state that issues the punishment, and it is to the state that an individual is then held accountable. The Mayor’s office, by introducing this legislation, asks whether or not the people who are in the process of carrying out their sentence, or have long since satisfied the terms of their sentence, need extrajudicial punishment at the hands of housing providers. Seattle City Council, in passing this legislation, sent a resounding no to that question. In doing so, and in a rare instance of serendipitous irony, all of the aforementioned landlord concerns are addressed.

Their tenants will be safer. By increasing the amount of people who have access to stable housing in any given neighborhood, one can reasonably expect to see a decrease in the amount of violent crimes committed in that neighborhood.

Their liability for harm arising from tenant to tenant interactions goes from insignificant to non-existent. In fact, under the new legislation, landlords are required to inform prospective tenants that they are legally prohibited from performing criminal background checks.

And as far as wanting to not be held responsible for curing the ills of society, it seems that has gone away as well. Punitive action against criminals is returned to the state and no further action or participation is required on the part of landlords.

The property manager who accepted Johnny Manziel’s application after completely retooling her Resident Screening Criteria, it can be argued, had her heart in the right place. Though her motivations are suspect, it is true that an arrest is not proof of wrongdoing. But why not take it a step further? Is a conviction proof of wrongdoing? According to the Bureau of Justice Assistance, 95% of all convictions in the United States are the result of a plea bargain and never go to trial, so the prosecution never has an opportunity to present evidence to build proof of guilt, and the defendant never has an opportunity to defend him or herself against this evidence.

A conviction, like an arrest, is not necessarily proof of guilt. It may just be that a defendant lacks the resources to retain high-dollar specialist counsel. Or perhaps a public defender has advised their client to enter a guilty plea due to the perceived likelihood of prevailing during a trial. The criminal justice system is complicated, and people go to school for years to obtain the appropriate licensure and knowledge to be able to interpret it. Property managers are not equipped to interpret the circumstances behind any given judicial finding, as required by the United States Department of Housing and Urban Development.

And if you’re interested in what else happened to Johnny Manziel in 2016, he had his domestic violence charges conditionally dismissed in December with the requirement that he attend anger management classes. This does not mean that he did or did not hit his girlfriend. It may mean that he had the resources to retain high-dollar specialist counsel. He also rented a weekend house in Los Angeles with his friends for two nights, just a month after being accepted to that apartment, and managed to do $32,185 worth of damage.

In any event, past criminality is not an accurate indicator of successful tenancy. Landlords should really be out of the business of making qualitative judgments about people based on complex data that holds no empirical causal value, especially when the stakes are so high for so many. And in the City of Seattle, starting next year, they will be. Not everybody is Johnny Football (thankfully), and to many the ability to find housing isn’t simply a minor inconvenience, it’s the difference between exiting the criminal justice system entirely or remaining there in perpetuity. It will be fascinating to see how this all works out once implemented, and other growing cities with homelessness crises of their own should be watching Seattle carefully in the coming years.

Title image courtesy of Lynn Friedman on Flickr.

Curtis Little is a freelance editor, translator, and writer who lives and operates in the University District of Seattle. A northwest native, he hails from Anacortes, Washington. He also works in the property management industry and maintains a deep and abiding respect for each person he is lucky enough to encounter during the sometimes daunting performance of renting an apartment in the city of Seattle.

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