Our Analysis of Key Fair Chance Case

Initiatives / August 18, 2023

A Legal Analysis of Yim v. City of Seattle

In March 2023, the Ninth Circuit issued a decision in Yim v. City of Seattle (Yim II), a constitutional challenge to Seattle’s Fair Chance Housing Ordinance. This memo outlines the Ninth Circuit’s analysis; discusses next steps for the parties; and offers suggestions for advocates campaigning for or implementing similar fair chance housing ordinances in their jurisdictions.

At issue were two of the ordinance’s provisions:

the inquiry provision, which prohibits landlords from asking tenants and applicants about past arrest records, conviction records, or conviction history; and
the adverse action provision, which prohibits landlords from taking an adverse action, such as rejecting applicants or evicting tenants, based on a person’s past arrest records, conviction records, or conviction history.

In a victory for advocates, the court upheld the adverse action provision, the core protection of the ordinance. Advocates in other jurisdictions should feel confident to push for legislation that prohibits landlords from taking adverse actions against people with records without narrowing the scope of that prohibition in terms of lookback periods or categories of offenses, at least as a constitutional matter. The ordinance remains the most progressive and protective fair chance housing ordinance in the country.

Significantly, however, the Ninth Circuit struck down the inquiry provision as an unconstitutional restriction of the landlords’ right to free speech under the First Amendment. Removing the inquiry provision complicates enforcement of the adverse action provision. At the same time, the balance of this mixed ruling likely tips in favor of tenants and applicants. A landlord who asks about criminal history and subsequently takes an adverse action should not be able to seriously argue that the adverse action was unrelated to the criminal history that the landlord asked about.

Read the entire memo here.