Amicus Curiae Brief — Chong Yim, et al., Petitioners v. City of Seattle, Washington

Supreme Court briefNov 13, 2023

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No. 23-329

IN THE

CHONG YIM, et al.,

Petitioners,

CITY OF SEATTLE, WASHINGTON,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF CITIZEN ACTION DEFENSE FUND AND

WASHINGTON BUSINESS PROPERTIES ASSOCIATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

WILLIAM SHADBOLT

Washington Business

Properties Association

123 Fir Street NE

Olympia, Wash., 98506

william@thewbpa.org

JACKSON MAYNARD

Counsel of Record

SAM SPIEGELMAN

Citizen Action Defense Fund

111 121st Avenue SW, Ste. 13

Olympia, Wash., 98112

850.519.3495

jackson@citizenactiondefense.org

sam@citizenactiondefense.org

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT......................................................... 2

ARGUMENT ............................................................... 5

The “Right to Exclude” Others From One’s

Property Is a Longstanding and Fundamental

Attribute of the Anglo-American Conception of

Ownership......................................................... 5

A. The Right to Exclude Is the Sine Qua Non of

Ownership .................................................. 5

B. The Original Public Meaning of Property ... 7

C. Seattle’s FCHO and Other Violations of the

Right to Exclude Are Subject to a

Heightened Scrutiny, Whether Under the

Takings or Due Process Clause ............... 10

II. Criminal Record Checks Serve a Legitimate

Public Purpose in Several Social and

Economic Contexts ......................................... 14

CONCLUSION .......................................................... 18

TABLE OF AUTHORITIES

Page(s)

Cases

Armstrong v. United States,

364 U.S. 40 (1960) ........................................... 14, 15

Cedar Point Nursery v. Hassid,

141 S.Ct. 2063 (2021) ............................ 2-3, 8, 10-12

Dobbs v. Jackson Women’s Health Org.,

142 S.Ct. 2228 (2022) ............................................. 5

Ewing v. California,

538 U.S. 11 (2003) .................................................. 4

Fuentes v. Shevin,

407 U.S. 67 (1972) ................................................ 12

Kaiser Aetna v. United States,

444 U.S. 164 (1979) ................................................ 9

Kline v. 1500 Mass. Ave. Apt. Corp.,

439 F.2d 477 (D.C. Cir. 1970) .............................. 16

Lloyd Corp., Ltd. v. Tanner,

407 U.S. 551 (1972) ............................................. 12

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ............................................. 10

Minnesota v. Carter,

525 U.S. 83 (1998) ............................................... 16

Moore v. City of E. Cleveland,

431 U.S. 494 (1977) ............................................. 13

iii

Murr v. Wisconsin,

582 U.S. 383 (2017)................................................ 9

Palko v. Connecticut,

302 U.S. 319 (1937) ............................................. 13

Portsmouth Harbor Land & Hotel Co. v. United

States, 260 U.S. 327 (1922) ..................................... 9

Rakas v. Illinois,

439 U.S. 128 (1978) ............................................... 9

United States v. Carlton,

512 U.S. 26 (1994) ................................................ 13

United States v. Causby,

328 U.S. 256 (1946) ................................................ 9

Washington v. Glucksberg,

521 U.S. 702 (1997) .............................................. 13

Yim v. City of Seattle,

63 F.4th 783 (9th Cir. 2023) ............................. 3, 12

Other Authorities

Aristotle, Rhet. (c. 4th cent. BCE) .............................. 6

Arthur E. Petersen, The Landlord’s Liability for

Criminal Injuries—The Duty to Protect,

24 Tulsa L.J. 261 (1988) ........................................ 16

Barred From Working: A Nationwide Study of

Occupational Licensing Barriers for Ex-Offenders,

Inst. for Justice, https://rb.gy/bpszbe

(last visited Nov. 11, 2023).................................... 17

Charles W. Cunningham, Note, The Duty of a

Landlord to Exercise Reasonable Care in the

Selection and Retention of Tenants, 30 Stan. L.

Rev. 725 (1978) ..................................................... 4-5

Hugo Grotius, De Jure Belli ac Pacis (1625) ............. 7

Jack N. Rakove, Original Meanings (1996) ............... 8

James Madison, “Property,” in James Madison:

Writings (Jack N. Rakove, ed., 1999) (1792) .......... 7

John Adams, 6 Works of John Adams

(C. Adams ed., 1851)................................................ 9

John Locke, Second Treatise of Government (1689) .. 7

Juan Javier Del Granado, The Genius of Roman Law

from a Law and Economics Perspective,

13 San Diego Int’l L.J. 301 (2011) .......................... 6

Lior Strahilevitz, Information Asymmetries and the

Rights to Exclude,

104 Mich. L. Rev. 1835 (2006)............................... 16

Magna Carta (1215) .................................................... 6

Mariel Alper et al., 2018 Update on Prisoner

Recidivism: A 9-Year Follow-Up Period (20052014), Bur. Jus. Stats. (2018) ............................... 14

Richard A. Epstein, The Classical Liberal

Constitution: The Uncertain Quest for

Limited Government (2014) .................................... 7

Robert C. Ellickson & Charles DiA. Thorland,

Ancient Land Law: Mesopotamia,

Egypt, Israel, 71 Chi.-Kent L. Rev. 321 (1995) ...... 6

Scott M. Reznick, Empiricism and the Principle of

Conditions in the Evolution of the Police Power:

A Model for Definitional Scrutiny,

1978 Wash. U. L.Q. 1 (1978) ................................. 11

Thomas W. Merrill, Property and the Right to

Exclude, 77 Neb. L. Rev. 730 (1998) ....................... 6

William Blackstone, Commentaries on the Laws

of England (1768) .................................................... 8

Regulations

18 U.S.C.A. §1033(e) ................................................. 16

24 C.F.R. § 982.553 ................................................... 15

46 U.S.C. § 70105 ...................................................... 16

49 U.S.C. § 5103a ...................................................... 16

Minn. Stat. § 299C.68 (2023) .................................... 16

Minn. Stat. § 299C.67, subd. 4 (2023) ...................... 16

Rev. Code Wash. 9.96A.020 ...................................... 17

INTEREST OF AMICI CURIAE1

This amicus brief is submitted by the Citizen

Action Defense Fund (“CADF”) and the

Washington Business Properties Association

(“WBPA”). CADF is an independent, nonprofit

organization based in Washington State that supports

and pursues strategic, high-impact litigation in cases

to advance free markets, restrain government

overreach, or defend constitutional rights. As a

government watchdog, CADF files lawsuits,

represents affected parties, intervenes in cases, and

files amicus briefs when the state enacts laws that

violate the state or federal constitutions, when

government officials take actions that infringe upon

the First Amendment or other constitutional rights,

and when agencies promulgate rules in violation of

state law.

WBPA is a member-based non-profit organization

advocating for property owners against burdensome

taxation and encroaching regulation of property. It is

a broad coalition of businesses and professional

associations focused on commercial, residential, and

retail real estate, and property rights in Washington

state. WBPA represents the interests of business

owners to state and local legislative bodies, news

media, and the general public. It is actively involved

in the Legislature and local governments on any

legislation affecting property rights and property

taxation.

1 Pursuant to Rule 37, counsel for amici affirm that no counsel

for any party authored this brief in whole or part, and no person

or entity, other than amici, their members, or counsel, made any

monetary contribution to its preparation or submission. All

parties received timely notice of amici’s intention to file.

Amici have a strong interest in the outcome of this

case as they are committed to the protection of

property rights in Washington State and throughout

the United States. Specifically, amici worry that if the

lower court’s opinion in this case stands, it will

incentivize other state and local governments to

further

erode

the

fundamental

protections

constitutionally afforded to private property.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Seattle’s “Fair Chance Housing Ordinance”

(“FCHO”) prohibits rental owners from inquiring into

the criminal histories of lease applicants, with a few

narrow exceptions. In so doing, the FCHO threatens

more than the physical safety of Seattleites who wish

to engage in the residential leasing business. It is also

a patent violation of their constitutional “right to

exclude” others from their property. This right has

long been a fundamental element of ownership—

dating from the salad days of the Anglo-American

legal tradition, and was, before that, a mainstay of

ancient and medieval Western legal codes. As the

Court recently made clear in Cedar Point Nursery v.

Hassid, 141 S.Ct. 2063 (2021), the Constitution

continues to robustly protect the right:

The right to exclude is “one of the most treasured”

rights of property ownership. According to

Blackstone, the very idea of property entails “that

sole and despotic dominion which one man claims

and exercises over the external things of the

world, in total exclusion of the right of any other

individual in the universe.” In less exuberant

terms, we have stated that the right to exclude is

“universally held to be a fundamental element of

the property right,” and is “one of the most

essential sticks in the bundle of rights that are

commonly characterized as property.”

Id. at 2072 (internal citations omitted).

Here, however, the Ninth Circuit used the fact

that Petitioners brought their claims under the Due

Process Clause of the Fourteenth Amendment to

distinguish it from Cedar Point, which involved a

takings claim instead: “[T]he Supreme Court has

never recognized the right to exclude as a

‘fundamental’ right in the context of the Due Process

Clause.” Yim v. City of Seattle, 63 F.4th 783, 787 (9th

Cir. 2023). This is only true in the pedantic sense that

the Court has never written: “The right to exclude is

a fundamental element of property under both the

Takings and Due Process Clauses.” It hasn’t said so

because there should be no reason to. No other

constitutional right is subject to that sort of

distinction. Nor should any property right be. There is

zero historical or precedential evidence to suggest that

the right to exclude was, or should now be, treated

differently based upon the cause of action under which

a claimed violation thereof is brought (especially when

no other constitutional right faces this threshold test).

Quite the opposite. The Court has time and again

recognized the right as “fundamental” because it is

essential to preserve the substance of property, not

because the Takings Clause specifically protects it.

The right has the protection of the entire

Constitution, a fact that amici urges the Court to

make explicit. Not because it is necessary, but so that

lower courts, like the Ninth Circuit has here, cannot

engage in clausal hair-splitting to minimize the force

of that right.

For Petitioners—average residents of Seattle who

wish simply to rent out units within their homes—this

is more than a mere intellectual exercise in

constitutional interpretation. The Yims own a triplex

where they live in one unit and rent the other two

units. On many occasions, the rental units are shared

by roommates. The tenants often ask the Yims to run

a background check on potential roommates. The

building has a common garden shared by all the

renters and the Yim family. Kelly Lyles is an artist

who relies on the income from her single Seattle

rental property to make ends meet. She carefully

screened rental applications for indicia of reliability

because she could not afford the costs and delays

created by a tenant who fails to timely pay rent. As a

survivor of a violent crime and a single woman who is

frequently onsite, Lyles highly values her safety and

the that of her two tenants who share the home’s

common areas, including the kitchen and laundry

room. Scott and Renee Davis, who own and manage

Eileen, LLC, also hold the security of their tenants in

the highest regard when evaluating new tenants for

their seven-unit building, which has a common

storage and laundry area in the basement.

Like many private landlords, the Yims, Lyles, and

Davises are willing to rent to individuals with minor

or nonviolent criminal histories but would exclude

applicants whose serious criminal histories create an

unreasonable safety risk to their tenants, families,

properties, and themselves. This is a commonsense

response because “[r]ecidivism is a serious public

safety concern … throughout the Nation,” Ewing v.

California, 538 U.S. 11, 26 (2003), and “residential

proximity to a dangerous person generally increases

the risk of being victimized by that person.” Charles

W. Cunningham, Note, The Duty of a Landlord to

Exercise Reasonable Care in the Selection and

Retention of Tenants, 30 Stan. L. Rev. 725, 737 n.40

(1978) (citing federal government and other studies).

In this brief, amici provide a history of the right

to exclude. This history demonstrates that the right

long predates the Constitution, and has been within

the pantheon of Anglo-American law since at least

1215. The Court regularly—and properly—relies upon

legal history and tradition to site fundamental rights,

even those not explicitly included in the Constitution’s

text (cf., the right to free speech). Dobbs v. Jackson

Women’s Health Org., 142 S.Ct. 2228, 2246–48 (2022).

After contextualizing the right to exclude within our

long legal history, amici will then discuss how the

trampling of that right in this case opens all housing

providers in Seattle to dangers no individual under

constitutional protection should have to abide. As

such, it is an ideal vehicle through which the Court

can make it clear to the Ninth and other circuits that

fundamental rights are fundamental no matter the

manner in which they have been violated.

ARGUMENT

The “Right to Exclude” Others From One’s

Property

Longstanding

and

Fundamental Attribute of the AngloAmerican Conception of Ownership

A. The Right to Exclude Is the Sine Qua Non of

Ownership

In a celebrated article, Professor Thomas Merrill

once called the “right to exclude” “more than just ‘one

of the most essential’ constituents of property—it is

[its] sine qua non”—i.e., ownership could not exist

without it. Thomas W. Merrill, Property and the Right

to Exclude, 77 Neb. L. Rev. 730, 730–31 (1998). This

is especially so in the Anglo-American conception of

property, though the right has been a mainstay of

most legal and cultural frameworks since the dawn of

civilization. See Robert C. Ellickson & Charles DiA.

Thorland, Ancient Land Law: Mesopotamia, Egypt,

Israel, 71 Chi.-Kent L. Rev. 321, 341 (1995) (“The

foundational norm of private property” being “the

right to control entry. On this legal issue there is

much textual evidence from Mesopotamia and Israel,

the two civilizations for which law codes have been

found.”). The right to exclude as the sine qua non of

ownership has been central to Western legal theory

since at least the Greek Golden Age and the Pax

Romana. See Aristotle, Rhet., 1361a (c. 4th cent. BCE)

(writing that a thing “is our own if it is in our power

to dispose of it or not”); Juan Javier Del Granado, The

Genius of Roman Law from a Law and Economics

Perspective, 13 San Diego Int’l L.J. 301, 316 (2011)

(“Roman property law typically gives a single property

holder a bundle of rights with respect to everything in

his domain, to the exclusion of the rest of the world.”).

In light of what had already been its long history,

it is no surprise that the “right to exclude” was among

the core freedoms English King John’s rebellious

barons demanded from him in the Magna Carta

(1215)—the “Great Charter” that put a (granted,

temporary) stop to their uprising. Specifically, the

Great Charter includes that “[n]o free man shall be

seized or imprisoned, or stripped of his rights or

possessions . . . except by the lawful judgments of his

equals or by the law of the land.” Magna Carta art. 39

(cleaned up) (emphasis added).

By the 1600s, after centuries of violent struggle

between kings, nobles, and crowds for overall political

hegemony

across

European

nations,

many

“Enlightenment” thinkers began gravitating towards

the most rights-based theories of government

theretofore conceived. Most prominent among those

spearheading this welcome shift was English

philosopher John Locke, who soon after the Glorious

Revolution of 1688 declared that the “great and chief

end” for which men “unite into commonwealths” is to

ensure the “preservation of their property.” John

Locke, Second Treatise of Government, IX § 123 (1689)

(cleaned up). Locke himself found inspiration in the

writings of Dutchman Hugo Grotius, who earlier

offered that “no man could justly take from another,

what he had thus first taken to himself.” Hugo

Grotius, De Jure Belli ac Pacis § II.II.II (1625)

Shortly after ratification, Madison professed his

full endorsement of his intellectual forebears’

understanding of property, declaring “[t]his being the

end of government, that alone is a just government,

which impartially secures to every man, whatever is

his own.” James Madison, “Property,” in James

Madison: Writings 515 (Jack N. Rakove, ed., 1999)

(1792). And in this he was hardly alone.

B. The Original Public Meaning of Property

Summarizing the classical-liberal contours of

public authority, preeminent legal scholar Richard

Epstein declared that “the proper ends under the

police power are those of the private law of nuisance,

no more and no less.” Richard A. Epstein, The

Classical Liberal Constitution: The Uncertain Quest

for Limited Government 353 (2014). Epstein did not

devise this approach in a vacuum. Rather, it reflects

the consensus understanding of government—and the

limitations thereon, especially with respect to

property rights—shared between the Constitution’s

Framers and among late-eighteenth and early-to-midnineteenth centuries American courts tasked with

interpreting their words. Together, their conception of

the Takings Clause and property in general comprise

the former’s original public meaning, a theory of

interpretation that, with some ebbs and flows, has

proven the most durable means of constitutional

interpretation. Precisely because it asks what the

document was popularly understood to mean at

ratification. See Jack N. Rakove, Original Meanings

339–68 (1996).

The Framers, following in Locke’s footsteps,

understood the necessity for robust constitutional

protection of property. James Madison, the chief

author of the Constitution (including of the Takings

Clause), already enamored of Locke and Grotius

(among others), relied upon eminent English jurist

William Blackstone’s definition of property—viz.,

“that sole and despotic dominion which one man

claims and exercises over the external things of the

world, in total exclusion of the right of any other

individual in the universe.” W. Blackstone,

Commentaries on the Laws of England *2 (1768);

Madison, supra, at 515 (“This term in its particular

application means ‘that dominion which one man

claims and exercises over the external things of the

world, in exclusion of every other individual.”).

The Court has wholeheartedly endorsed the

Blackstonean definition of property as essentially the

right to exclude, most recently in Cedar Point. 141

S.Ct. at 2072. Chief Justice Roberts eloquently wrote:

“"The Founders recognized that the protection of

private property is indispensable to the promotion of

individual freedom. As John Adams tersely put it,

“[p]roperty must be secured, or liberty cannot exist.”

“Discourses on Davila,” in 6 Works of John Adams (C.

Adams ed., 1851). This Court agrees, having noted

that protection of property rights is “necessary to

preserve freedom” and “empowers persons to shape

and to plan their own destiny in a world where

governments are always eager to do so for them.”

Murr v. Wisconsin, 582 U.S. 383, 394 (2017).

Four decades earlier, a majority of the justices

acknowledged, “in less exuberant terms,” id., that the

right to exclude is “universally held to be a

fundamental element of the property right” that is

“one of the most essential sticks in the bundle of rights

that are commonly characterized as property.” Kaiser

Aetna v. United States, 444 U.S. 164, 176 (1979)

(emphasis added). See also Rakas v. Illinois, 439 U.S.

128, 144 n.12 (1978) (“One of the main rights

attaching to property is the right to exclude

others . . .”); United States v. Causby, 328 U.S. 256

(1946) (agreeing that military flyovers into skies

about private farmland, without compensating the

owner, is a takings violation); Portsmouth Harbor

Land & Hotel Co. v. United States, 260 U.S. 327 (1922)

(similar to Causby, but involving the military’s firing

cannons over private airspace).

C. Seattle’s FCHO and Other Violations of the

Right to Exclude Are Subject to a Heightened

Scrutiny, Whether Under the Takings or Due

Process Clause

Given the central role property rights have played

in the Anglo-American legal tradition (from at least

1215 on), together with the original public meaning of

the Takings and Due Process Clauses as robustly

protecting the right to exclude, it makes sense that

claimed violations thereof deserve a heightened

scrutiny relative to abridgments of freedoms not

explicitly recognized in the Constitution, or those

nonfundamental to the classical-liberal sense of

government—e.g., entitlements. In Loretto v.

Teleprompter Manhattan CATV Corp., the Court

implicitly adopted a per se rule on physical

occupations, noting that its previous “cases uniformly

have found a taking to the extent of the occupation,

without regard to whether the action achieves an

important public benefit or has only minimal

economic impact on the owner.” 458 U.S. 419, 435

(1982). But it was not until Cedar Point that the rule

was made explicit: “Whenever a regulation results in

a physical appropriation of property, a per se taking

has occurred”—i.e., it is a taking no matter what is the

“character of the government action,” be it big or

small, purposeful or pointless. 141 S.Ct. at 2072.

The majority in Cedar Point crucially

distinguished between the “physical appropriation of

property” ala Loretto (which involved the running of

television cable on top of private apartments), and

governmental trespasses or occupations that are

conditions for “the grant of a benefit such as a permit,

license, or registration.” The latter will often involve

state actions designed specifically to prevent or

minimize the nuisant use of one’s property, which has

never been within the common-law ambit of

ownership. See Scott M. Reznick, Empiricism and the

Principle of Conditions in the Evolution of the Police

Power: A Model for Definitional Scrutiny, 1978 Wash.

U. L.Q. 1, 10 (1978) (“Sic utere [tuo alienum non

laedas]”—roughly, ‘do not use your land so as to injure

others’—is the fountainhead maxim from which both

the common law of nuisance and the police power

arose. As originally applied, sic utere ‘operated to

protect real property from what the courts thought

were injuries resulting from the use of another of his

real property.’ That is, the courts used sic utere

principles to resolve cost spillover conflicts between

the existing uses of neighboring landowners. This

relationship in tort between property owners

originally caused the maxim and the emerging police

power to be defined in terms of the prevention of

harms.”).

The distinction between takings and anti-nuisance

or benefit-conditional “government health and safety

inspection regimes” is simple enough, and certainly

does not complicate the high standard of review that

the per se rule imposes on physical occupations. While

the application of the rule to Seattle’s FCHO is

reserved for the merits, at this stage amici urge the

Court to consider the importance of reviewing an

appeals-court ruling that, post-Cedar Point, ignores

heightened scrutiny wholesale, instead subjecting a

claimed (and in our view, clear) violation of a

fundamental right to an uber-lenient rational-basis

review.

The Ninth Circuit held that the “landlords do not

have a fundamental right to exclude,” Yim, 63 F.4th

at 787, on the grounds that “the Supreme Court has

never recognized the right as a ‘fundamental’ right in

the context of the Due Process Clause.” Id. at 798

(emphasis added). To reach this conclusion, the

majority there focused on the precise cause of action

under which Petitioners brought their claims, entirely

discounting the substantive question of whether the

right to exclude, as one that long predates the

Constitution, has its comprehensive protection. This

precisely ignores Cedar Point’s third sentence, which

plainly states that “[t]he question presented is

whether the access regulation constitutes a per se

physical taking under the Fifth and Fourteenth

Amendments.” 141 S.Ct. at 2069.

It also ignores the deep-rooted place the right to

exclude occupies in the pantheon of Anglo-American

common-law tradition, and the breadth of

constitutional protections this status affords. See

Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 570 (1972)

(“We do say that the Fifth and Fourteenth Amendment

rights of private property owners, as well as the First

Amendment rights of all citizens, must be respected

and protected. The Framers of the Constitution

certainly did not think these fundamental rights of a

free society are incompatible with each other.”)

(emphasis added).

Seattle’s FCHO clearly runs afoul of these

factors—whether claims against it are brought under

takings or due-process actions. See Fuentes v. Shevin,

407 U.S. 67, 86 (1972) (holding that the Fourteenth

Amendment—including the Due Process Clause—

“has been read broadly to extend protection to any

significant property interest”); United States v.

Carlton, 512 U.S. 26, 41–42 (1994) (Scalia, J.,

concurring) (noting that “the Due Process Clause

explicitly applies to ‘property’”). And whether brought

under the Takings or Due Process Clause, claims

involving fundamental rights must be reviewed using

a heightened standard of scrutiny. Washington v.

Glucksberg, 521 U.S. 702, 720 (1997) (holding that the

Due Process Clause “provides heightened protection

against government interference with certain

fundamental rights and liberty interests”). Especially

those, like property and its essential right to exclude,

that are “deeply rooted in the traditions and

conscience of our people as to be ranked as

fundamental,” Moore v. City of East Cleveland, 431

U.S. 494, 503 (1977), and are ”implicit in the concept

of ordered liberty” such that “neither liberty nor

justice would exist if they were sacrificed.” Palko v.

Connecticut, 302 U.S. 319, 325–26 (1937).

On that last point it is useful to quote Madison

once more:

If the United States means to obtain or deserve the

full praise due to wise and just governments, they

will equally respect the rights of property, and the

property in rights: they will rival the government

that most sacredly guards the former; and by

repelling its example in violating the latter, will

make themselves a pattern to that and all other

governments.

Madison, supra, at 517.

The FCHO offers rental owners a Hobson’s choice

between their freedom to choose (in this case, to

engage in a particular type of commercial transaction)

on the one hand, and their personal safety (and

potential liability as landlords) on the other (see

infra))—to seek to help achieve a public-policy

outcome that the Court’s “Armstrong principle”

rightly demands be equitably distributed across the

public writ-large. Armstrong v. United States, 364

U.S. 40, 49 (1960) (declaring that the Takings Clause

was “designed to bar Government from forcing some

people alone to bear public burdens which, in all

fairness and justice, should be borne by the public as

a whole”). It is time the courts held Seattle to this

standard, too.

II.

Criminal

Record

Checks

Serve

Legitimate Public Purpose in Several

Social and Economic Contexts

Criminal record checks are utilized in numerous

facets of life—and for justifiable reason. Research

indicates that recidivism rates among the formerly

incarcerated remain stubbornly high—with little to

only moderate disparities between the category of

violent crime committed (e.g., burglary versus murder

and everything in between). See Mariel Alper et al.,

2018 Update on Prisoner Recidivism: A 9-Year FollowUp Period (2005-2014), Bur. Jus. Stats., 1 (2018)

(finding 83.4% of all prisoners released in 2005 were

rearrested at some point through 2014; 71% of

prisoners released across 34 states in 2012 were

rearrested within the next five years). While high

recidivism rates are a serious policy failure that

deserves smart solutions involving both government

and the private sector, it should never fall on

individual Americans to attempt to solve such a

systemic issue through countless, atomized

transactions—like leasing a spare unit in their home

to a tenant with a violent criminal history; especially

if doing so involves violating those individuals’

constitutional rights.

The use of criminal record checks in various social

and economic settings illustrates that such

atomization is far from the preferred method for

reducing recidivism across the board. There is no

reason why what is good for the geese—e.g., local,

state, and federal governments; and private

employers—should not also be good for the gander of

small rental owners. Those who Seattle seeks to

saddle with an outsized portion of what is, according

to the Armstrong principle, properly a fully public

burden. 364 U.S. at 49.

From this standpoint, it is at best incongruent for

Seattle to prohibit owners from doing what

governments elsewhere require property managers to

do, or that employers engage in everywhere on a

regular basis. Below is just a small sample of the

myriad federal laws, state licensing rules, employer

policies, and statutory or common-law duties against

certifying, hiring, or hosting the exact class that the

FCHO now demands Seattle rental owners transact

with. The breadth and depth of several of these

examples—inside and outside of the housing space—

illustrate the FCHO’s radical departure from

longstanding rules and norms.

In order to receive federal funding to host lowincome tenants, for example, public housing

administrators must reject applicants who were

convicted of, or are presently engaging in, certain drug

crimes. 24 C.F.R. § 982.553. In Minnesota, owners

must by law ensure that none of their property

managers have certain criminal histories. Minn. Stat.

§ 299C.68; § 299C.67, subd. 4 (2023). Meanwhile,

many homeowners’ associations and other private

residential groups require purchasers to covenant

against future sales to registered sex offenders and

others whose presence threatens neighborhood safety.

Lior Strahilevitz, Information Asymmetries and the

Rights to Exclude, 104 Mich. L. Rev. 1835, 1844

(2006).

On top of all these, there is a panoply of state and

common-law rules holding owners responsible for

third-party harms visited upon tenants and other

guests for failure to diligently restrict violent parties

from their premises. See Minnesota v. Carter, 525 U.S.

83, 101 (1998) (Kennedy, J., concurring) (“I would

expect that most, if not all, social guests legitimately

expect that, in accordance with social custom, the

homeowner will exercise her discretion to include or

exclude others for the guests’ benefit.”); Kline v. 1500

Mass. Ave. Apt. Corp., 439 F.2d 477 (D.C. Cir. 1970)

(finding landlords are liable for third-party bad acts if

they had notice and reason to believe such danger

existed). See also Arthur E. Petersen, The Landlord’s

Liability for Criminal Injuries—The Duty to Protect,

24 Tulsa L.J. 261 (1988).

Several federal agencies require criminal record

checks as well. The Maritime Transportation Security

Act requires them for all “unescorted” persons

engaged in shipping. 46 U.S.C. § 70105. Truck drivers

transporting hazardous materials, too. 49 U.S.C. §

5103a. Insurance companies are prohibited from

employing those convicted of insurance fraud. 18

U.S.C.A. §1033(e). Nor can firms under the

supervision of the Federal Deposit Insurance

Corporation hire those convicted of certain financial

crimes. 12 U.S.C. § 1829. Many states have similar

rules. In Washington, the state can deny occupation

licenses to those previously convicted of crimes

relating to their work in that field. Rev. Code Wash.

9.96A.020. Most of the states have at least the same

standard as Washington does, whereas several allow

any criminal conviction as grounds for denial. Barred

From Working: A Nationwide Study of Occupational

Licensing Barriers for Ex-Offenders, Inst. for Justice,

https://rb.gy/bpszbe (last visited Nov. 11, 2023).

All of these federal and state measures make

sense, of course. The public deserves protection from

workers with a proven record of violating their

professional trust. But they also deserve that same

feeling of safety in their homes. The statutory and

caselaw rules against housing certain criminals and

dangerous individuals makes this clear—if it was not

already. But Seattle’s FCHO actively prevents owners

from taking similar safety precautions. This case

thusly demonstrates that the Ninth Circuit’s hairsplitting is not merely an academic anomaly. It has a

very real impact on individuals seeking only to engage

in commerce while continuing to protect themselves,

their neighbors, and their families.

CONCLUSION

For the foregoing reasons and those stated in the

Petition, the Court should grant review of the

Petition, reverse the Ninth Circuit panel, and remand

the case for further proceedings in accordance with

the Court’s longstanding recognition that the right to

exclude is a fundamental right of ownership, under

either the Takings or Due Process Clause.

Respectfully submitted,

NOVEMBER 2023