Like many others, we were intrigued to learn about a case that will assuredly impact cities that have blanket “ban the box”-type laws prohibiting housing providers from inquiring about a rental applicant’s criminal history.

Bornstein Law has always maintained that while people deserve a second chance, landlords should have the opportunity to evaluate the character of rental applicants in order to ensure a safe community for everyone.

Does a prospective tenant pose a threat to neighboring residents and staff?

In order to determine this, landlords and their agents should have access to information to make an informed decision taking into account the unique circumstances of the applicant’s criminal history and signs of rehabilitation. Yet we always have to comply with the law.

In light of the Ninth Circuit ruling, many questions remain and they will have to be answered in the courts.

Until this is resolved, local ordinances like those in Oakland and Berkeley must be followed.

To put this all in perspective, we turn to Daniela Cronembold, an attorney we work with under contract and our go-to researcher to take on difficult legal quandaries.

Can Berkeley Landlords now inquire into a tenant’s criminal background after the recent Decision by the Ninth Circuit Court ?

Berkeley Landlords who are wondering whether they can now inquire into any criminal history of a tenant following the United States Court of Appeals for the Ninth Circuit ruling on Seattle’s “Fair Chance Ordinance,” should probably hold off on that thought.

On March 21, 2023, the Ninth Circuit partially revived a suit brought about by several landlords challenging a 2017 Seattle law that bars landlords from looking into a tenant’s criminal records and from taking adverse action, such as denying tenancy, against them based on that information.

Although other cities have enacted similar ordinances to achieve the same goals of reducing barriers to housing and racial discrimination as Seattle, none of them foreclose all inquiry into criminal history by landlords, as does Seattle’s blanket ban on any criminal history inquiry.

The Court ruled that the inquiry provision of the Seattle’s Fair Chance Ordinance “impinges” the landlords’ First Amendment rights but that its adverse action provision does not violate their substantive due process rights.

The court noted that although the Seattle ordinance violates the constitution, the Ordinance’s severability clause creates a presumption that if one section is found unconstitutional, the rest of the statute remains valid unless landlords can rebut the presumption of severability in the district court. One could think of the Ordinance as having had a finger chopped off.

For now, this means that Landlords in Seattle are allowed to inquire into any criminal history of a tenant, just not act on it. But how would that even be enforced? That was Judge Wardlaw’s concern when he opined:

---

“If landlords are allowed to access criminal history, just not act on it, it makes the Ordinance extremely difficult to enforce, and makes it more likely that unconscious bias will impact the leasing process.”

---

It’s looking more like the ordinance is missing an indispensable limb.

To address this issue, Seattle’s “Fair Chance Ordinance” will likely have to be revised. Seattle will need a more “narrowly tailored” version of its Ordinance that could achieve the desired objective of reducing racial barriers in housing while being significantly less burdensome on speech. Seattle will likely find inspiration from the vast majority of jurisdictions that have adopted ordinances permitting landlords to consider at least some of a prospective tenant’s criminal history.

It probably won’t be taking its inspiration from Berkeley’s Fair Chance Ordinance since it is similarly restrictive as Seattle’s Ordinance.

The Berkeley Fair Chance Housing Ordinance prohibits landlords from conducting criminal background checks on prospective tenants and bans the box by prohibiting landlords from asking about applicant criminal history on rental applications.

Berkeley Landlords wondering about how the Ninth Circuit Court’s decision applies to Berkeley’s Fair Chance Ordinance should keep in mind that the Ninth Circuit only held Seattle’s Fair Chance Ordinance unconstitutional. This decision does not automatically render similar “Fair Chance” Ordinances in California unconstitutional. Landlords will still have to challenge their local ordinances in Court and go through the legal process before they are declared invalid and unenforceable.

If the United States District Court for the Northern District of California applies the intermediate scrutiny test for commercial speech as the Ninth Circuit did to determine the constitutionality of the Seattle Fair Chance Ordinance, it might instead find that the Berkeley Ordinance does survive the intermediate scrutiny standard of review. Each case is decided on its own facts and circumstances, and the constitutionality of the Berkeley Ordinance and whether it passes the intermediate scrutiny test will depend on the specific language and provisions of the ordinance.

For Landlords thinking of challenging the Berkeley Fair Chance Ordinance, they should keep in mind that the Berkeley Fair Chance Ordinance inquiry provision is similar but not identical to Seattle’s inquiry provision. It does not ban any inquiry into a tenant’s criminal history.  Berkeley landlords may review the California sex offender registry when screening applicants.

Additionally, the Berkeley Fair Chance Housing Ordinance permits certain landlords to conduct criminal background checks to comply with federal or state laws.

For example, public housing landlords may inquire into an Applicant’s conviction history as required by the Ineligibility of Dangerous Sex Offenders for Admission to Public Housing law and the Ineligibility of Individuals Convicted for Manufacturing Methamphetamine on Premises of Federally Assisted Housing for Admission to Public Housing and Housing Choice Voucher Programs law.

The District Court might find that this limited restriction on inquiries is less excessive than the Seattle ordinance’s inquiry provision, which completely bans any discussion of criminal history between the landlords and prospective tenants.  It might find that the Berkeley inquiry provision was “narrowly drawn” to achieve the City’s goals related to housing access and racial discrimination and uphold its constitutionality.