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  • Written By Joe E. Wallen

Do Landlords Have the Right to Protect their Property?

Obama's Justice Department Says Not Necessarily

We like to think, as Americans, that we have the right to do pretty much as we wish with our property and other possessions. Not so, according to the current administration and its Department of Justice.

As many of us have worked and saved and invested in real property, we are extremely cautious when deciding to whom we're willing to rent said property. As any property owner would be, we like to think our tenants will be decent, law-abiding people who will properly care for our property.

Therefore, many of those would be landlords have taken to using background checks on potential tenants, a perfectly legal tool to help screen those applicants for housing that might conduct criminal activity on our property, and using these investigations to decide who might and might not make good tenants. Sounds like a wise approach before turning over our valuable property to a tenant, doesn't it?

But the Obama administration's Justice Department has said, in effect, that it may be illegal for us to utilize such means to screen rental applicants by recently announcing it has involved itself in a New York legal case brought by a group that helps “formerly incarcerated individuals” find housing.

Evidently it is not enough that Obama has commuted the sentences of 774 inmates, more than the previous 11 presidents combined. With a total of 590 commutations this year, Obama has now commuted the sentences of more individuals in one year than in any other single year in our nation’s history.

Now the President's Department of Justice has come out in support of this group of “do-gooders” who complained that a 917 unit complex in Far Rockaway, NY had a policy of refusing to rent to individuals with prior convictions for felonies or misdemeanors other than traffic violations. The plaintiff argues that this policy has an unjustified disparate impact against prospective African-American and Hispanic tenants and violates the Fair Housing Act.

The DOJ says “categorical prohibitions that do not consider when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then run a substantial risk of having a disparate impact based on race or national origin.”

In other words, if landlords have policies banning ex-convicts in general, they could be in trouble if too many of those ex-cons happen to be black or ethnic minorities. It's called "disparate impact."

The Justice Department says when a housing provider's background-check policy is found to have a disparate impact, the housing provider must “prove with evidence-and not just by invoking generalized concerns about safety-that the ban is necessary.”

Even then, the policy will still violate the Fair Housing Act if there is a less discriminatory alternative. The Justice Department intends to "assist the court" in determining whether criminal background checks produce unlawful discriminatory effects.

We feel that once again, this administration and its Department of Justice have overstepped their Constitutional obligations by trampling on the inalienable rights of American citizens and by denying them the God-given right to decide for themselves what they will do with privately owned properties and who they will and will not have as tenants.

Our Principles of Liberty are designed to directly address these heavy-handed and illegal ac