On May 1, a group of American property owners combined forces with the Pacific Legal Foundation to reclaim their right to check criminal backgrounds of prospective renters.
Let that paragraph sink in. People suing to exercise the inherent right to control their own property and accept tenants on their own terms, suing to find out what risk potential renters might pose to them, their other tenants, and their property.
But not if one has spent any time in or near Seattle, Washington, a hotbed of statism where political notions of “social justice” dictate that individual rights should be crushed like grapes beneath the feet of power-drunk giants.
The argument on the side of Seattle's euphemistically titled "Fair Chance Housing Ordinance" of 2017 is simple and infuriatingly typical. You’ve played this chess game a thousand times, and you already know the childish moves:
We, the state, say that checking criminal backgrounds of potential tenants is racist and discriminatory. It impedes the ability of certain minorities to acquire affordable accommodations. It’s evil, wicked, and bad mojo, man, and the law, which is always right, cannot allow it.
As Christian Britschgi explains for Reason, Seattle’s law prohibits landlords from asking potential tenants about any criminal convictions at all, including violent crime:
The only exception is for registered sex offenders. Even here, however, a landlord would have to show a "legitimate business reason" to refuse to rent to the applicant, such as the severity of the crime and the time elapsed since it occurred. Concern for the landlord's personal safety is not considered a legitimate reason, and neither is the safety of other tenants.
And should property owners run afoul of the law:
Violators would be required to go through a "conciliation" process where they might be required to pay damages, provide rent credits, or reinstate tenancy. They would also have to attend training courses designed to reduce their "racial bias and biases against other protected classes in tenant selection."
Perhaps those “courses” will be conducted in Room 101 of the Ministry of Love, per the designs of Orwell’s “1984”, because, of course, landlords who don’t comply will be guilty of Thoughcrime. We can’t possibly have people thinking in unapproved ways or handling their property as they see fit.
And if the landlords don’t go to the mind-correction classes and pay damages, etc.?
Landlords who fail to accept these sanctions would be subject to civil penalties starting at $11,000 for a first offense, $27,500 for two within a five-year period, and $55,000 for more than two violations within seven years.
All of which would be money the government will use so much more productively than people in the market, ‘cause, shoot, politicians know best.
And, as Britschgi notes, this places landlords in a bind, because numerous court cases have ruled that landlords also have to take “reasonable steps to protect tenants from foreseeable criminal conduct of third parties on the premises."
And lest one think this is just a problem in socialist Seattle, we should note that the Seattle law is added to a foundation of federal statute, statute that is patently unconstitutional, and radically unethical.
As of 2016, the Department of Housing and Urban Development (HUD) requires that landlords perform "individual assessments" of rental applicants, meaning they cannot categorically exclude applicants for past arrests or convictions.
Which brings us to the lesson, the most important point about the lawsuit. It’s not that the Seattle law puts landlords on the horns of a dilemma, or that the pertinent US code has no bearing in the Constitution, or that this form of so-called “regulation” is actually fascism, allowing property owners to retain their stuff only if they operate it as state agents see fit. It’s about something even more fundamental: the rights of property ownership and voluntary market exchange between willing participants.
Wrapped in this totalitarian mess is a slew of rationalizations meant to excuse the fact that a gang of politicians want to tell other people how to run their property. As professor Richard Epstein has noted, this is a “regulatory taking,” literally using private property the way a gang of politicians want it used. And if the real owners do not comply, they will be punished.
Where will this stop? Without the principle of private property, human life itself becomes a "regulated" asset of the state.
Collectivists get away with this breach of ethics by using class envy, that perennial “David vs. Goliath” motif wherein the potential tenant is the “David” going up against the mighty landlord, or “Goliath.”
But the government, with all its taxes and statutes and police, is Goliath, and the market dictates that those offering products or services to others must compete peacefully for consumer interest. They have to please the consumer, not the other way around. By applying all these dictates on landlords and on those thinking of opening rental properties, the politicians actually retard the competitive process and stifle the growth in rental properties. Who would want to get into that market knowing he had all those government-induced liabilities hanging over his head?
People often decry the lack of “affordable housing.” In fact, in Seattle, politicians just proposed a new business tax to create more government-run housing units. Why can’t these folks see that they are making matters worse? Now they want to tax businesses, lowering job creation, increasing consumer costs, and stifling wage growth, all of which could serve to help people afford places to live, even as they smother the real housing market by imposing unworkable controls over whether landlords can check the criminal records of potential tenants.
The politicians are creating a shortage, even as they tax business to "alleviate" that shortage.
As the character Taylor said in “Planet of the Apes:” “It’s a madhouse! A madhouse!”
Words many property owners might repeat when they see how government is stifling their ability to control their own dang property.