Oct 15, 2010

Can Landlords Discriminate Based on Arrest Records?

Marie Claire Tran-Leung disagrees. According to Tran-Leung, “Landlords and local housing authorities should stop using arrest records to screen tenants.” She states that doing so does “more harm than good.”

Although it is illegal for landlords to discriminate based on race, color, religion, sex, national origin, disabilities, and other protected classes under the Federal Fair Housing Act, most states have also applied protection to other classes. For example, the State of Illinois prohibits discrimination based on ancestry, age, marital status, and sexual orientation. Discrimination against people with arrest records, however, is legal.

But should it be? Tran-Leung claims that discrimination based on arrest records “give[s] people a false sense of security against crime, and they deprive disproportionately more racial minorities of needed rental housing for nothing more than an unproven accusation.” Read the full story here.

Tran-Leung cites a recent decision by the Illinois Appellate Court, Landers v. Chi. Hous. Auth., 2010 Ill. App. LEXIS 1010 (Ill. App. Ct. 1st Dist. Sept. 20, 2010), supports for advocating a ban on discrimination based on arrest records.

Landers was a case about a man who had been arrested no more than 34 times while he was homeless. Placed on the Chicago Housing Authority’s (CHA) wait list for public housing in 1995, he finally got his turn in 2008. However, after thirteen years of waiting for a chance to live in public housing, he was turned down by the CHA because of his arrest record.

After undergoing an informal review (per CHA regulations), to dispute his arrest record, the CHA still denied him housing. The Illinois Appellate Court for the First District held that because his arrest record did not contain any convictions, or circumstances outlining his arrests, they did not meet the definition of “the requisite violent crimes or drug-related criminal activity necessary to constitute a criminal activity.”

The case itself doesn’t stand for the proposition that the CHA may not discriminate based on arrest records, rather, the 1st District Appellate Court held that arrest records which do not contain convictions or have any background information as to why the person was arrested, does not constitute “criminal activity.”

Examples of what constitutes “violent criminal activity” that can be the basis of turning someone down for housing are including, but not limited to, “homicide, murder, vandalism, burglary, armed robbery, theft, trafficking, manufacture, or use of illegal drugs …”

In this case, Landers was charged and arrested for numerous crimes related to being homeless. He also denied that he committed those offenses (instead, he attributed them to a twin brother). All but one charge for drinking in public resulted in conviction.

The court explicitly stated that they did not dispute the CHA’s ability to deny housing to an individual based on their convictions and substantiated arrests. However, in this case, the court held there was no evidence that Landers was a potential threat to the “health, safety, and welfare of the public housing community,” concluding that “the sheer number of petitioner’s arrests does not establish a history of criminal activity.”

While this case opens up some avenues of justice for those who have been arrested, but not convicted of certain crimes, the CHA is still able to discriminate based on past, substantiated convictions. This still leaves out a large number of people who have served time in correctional facilities.

Tran-Leung argues that rejection of housing to individuals with spotty arrest records unfairly denies people housing, and that “to prevent this outcome, HUD should bar housing authorities and private owners participating in HUD programs from using arrests to screen applicants.”

This, however, leaves some concerns about possible public safety concerns. So is there a better way? Perhaps, but for many with arrest records, this case leaves them out in the cold.

2 comments:

  1. My wife and I are going through a civil suit in Virginia Beach because a Property Management company denied us housing stating that my wife is a convicted felon because of an arrest and the charges were dropped. they still denied us after the CRA update the record to reflect the truth. Its absolutely the worst thing to go though because no other property management companies had any issues with our backgrounds. Luckily we found another place to rent with that we like and are pursuing this full speed ahead with our attorney.

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  2. Before buying a property one must check the background to know whether there is any problems such as arrest records or offensive records of the owner. It is really needed for every buyer I think.

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