Ninth Circuit recognizes “prison to homelessness pipeline, ” upholds (in part) Seattle ordinance forbidding landlords from adverse action based on criminal history.

This spring, the Ninth Circuit decided Yim v. City of Seattle, 63 F.4th 783, 787 (9th Cir. 2023), which despite being a Section 1983 case brought by landlords against the City of Seattle, is a refreshing acknowledgment of the devastating impact that even a single criminal conviction can have on a person’s ability to find housing for themselves and for their families.

The opinion starts with some sobering statistics:

  • “formerly incarcerated persons are nearly 10 times as likely as the general population to experience homelessness or housing insecurity,” and;
  • 1 in 5 people who leave prison become homeless shortly thereafter.

Yim, 63 F.4th at 787.

As Yim acknowledges, “this ‘prison to homelessness pipeline’ has a host of negative effects on communities. Persons without stable housing are significantly more likely to recidivate, with one study estimating that people with unstable housing were up to seven times more likely to re-offend. They are less likely to be able to find stable employment and access critical physical and mental healthcare. ” Id.

And these consequences are not borne equally by all community members:

  • “Data from the Seattle Police Department show that Black persons are stopped at a rate that is 4.1 times that of non-Hispanic white persons and Indigenous persons are stopped a rate that is 5.8 times that of non-Hispanic white persons.”
  • “While the overall population in King County, home to Seattle, is just 6.8% Black, the population of the King County jail is 36.6% Black.”
  • Despite being approximately 7% of the population, Seattle’s unhoused community is 25% Black.

Yim, 63 F.4th at 788.

So the City of Seattle passed an ordinance prohibiting landlords for asking about criminal history for new or current tenants. It also prevented landlords from taking adverse action based on that information. Id. at 789.

The Ninth Circuit held that the while the ordinance violated the First Amendment in that it was not “narrowly tailored ” enough to survive constitutional scrutiny, Id. at 796-97, that landlords did not violate any “fundamental ” Due Process right held by the landlords. Id. at 798-99. Because the ordinance had a severability clause, the rest of the statute was presumptively constitutional, and the matter was remanded to the district court for further proceedings. Id. at 799.