Amicus Brief: Yim v. City of Seattle

Seattle’s “Fair Chance Housing Ordinance” prohibits landlords from asking about prospective tenants’ criminal records. At the time of its enactment in 2017, Chong and Marilyn Yim lived with their three children in one unit of a Seattle triplex and rented out the other two units. The three units share a yard, a common porch, mailboxes, and a utility room. When considering potential tenants, the Yims looked to the applicant’s criminal history to ensure the safety of their children and other tenants. The Yims also own a duplex where they rent rooms to individual tenants, sometimes creating new roommate relationships. When doing so, the Yims would always check the criminal background of new applicants to protect their current tenants. Several other small landlords have similar reasonable safety concerns, so they joined the Yims to challenge the ordinance as unconstitutionally denying them the right to exclude dangerous ex-convicts from occupying their homes and sharing their intimate spaces.

Like most rental owners, the challengers are willing to rent to individuals with minor or nonviolent criminal histories but would exclude applicants whose serious criminal histories pose an unreasonable risk. This is a commonsense response because “[r]ecidivism is a serious public safety concern … throughout the [n]ation,” Ewing v. California (2003). By challenging Seattle’s law, they seek to exercise the right to protect one’s home, joined with the right to exclude others from one’s property. When evaluating such a claim under the “substantive due process” doctrine, a court must first determine whether a right is fundamental within the meaning of the Fourteenth Amendment, relying on the text of the Constitution and the asserted right’s status within the Anglo-American historical and legal tradition.

After years of litigation, the Ninth Circuit ruled that a property owner’s right to exclude is nonfundamental and thus the ordinance doesn’t violate substantive due process, rejecting the challenge under an exceptionally lax level of judicial scrutiny.

The Yims have now asked the Supreme Court to take the case, and the Manhattan Institute has filed a brief supporting that petition. We argue that the right to exclude people from one’s property is a fundamental right, that substantive due process bars arbitrary exercises of state power, and that Seattle’s ordinance is arbitrary and violates landlords’ fundamental rights.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

Photo: George Dodd/iStock