Where, According to Tort Law, Should Accused Criminals and Ex-Convicts Live?

The Kansas case where a university — as landlord — was held potentially liable for not evicting a dorm resident who was accused of raping a fellow resident raises a broader question: Where should accused criminals (whose criminal cases are still pending) and ex-convicts (who have been released from prison) live, at least so far as tort law is concerned?

Say that someone has been convicted of a violent crime, especially one that could be likely committed against a neighbor. It could be a sex crime, or an assault motivated by some perceived slight, or some such. Or it could even be an alcohol or drug crime that increases the likelihood that the person will drive drunk in the parking lot, or will get drunk or high and will attack someone as a result. The person has gone to prison for a few years — not long enough that we now think he’s likely to have a completely different temperament — and is now out, whether at the end of his sentence or on probation.

Or say that the person was just accused of such a crime, as in the Kansas case. Or say that he was accused of a crime but he plea-bargained down to a lesser crime, or that he was accused of a crime and convicted but the conviction was reversed on appeal for procedural reasons, or even that he was accused of a crime and acquitted, but that there was still enough evidence to put him on trial. Say also that it is very cheap to do criminal background checks on a tenant, so that any landlord can easily do them; and say that those checks would reflect past arrests and not just convictions.

According to the case that I cited, a landlord’s duty of reasonable care to his tenants would require him to take steps to protect the tenants against criminal attack by cotenants — presumably, according to some of the commenters who were defending the Kansas decision, by evicting the tenant, and (I take it) by not renting to the tenant in the first place if the landlord knows or has reason to know of the past conviction. And if indeed criminal background checks are cheap, it would be reasonable for the landlord to do that check and learn of the conviction.

So where then, according to the tort liability system, should these ex-convicts live? According to the Kansas decision, every apartment building landlord would potentially be breaching the duty of reasonable care by allowing the ex-convicts to be present. [UPDATE: I changed the preceding sentence to say "potentially," and changed a few other sentences accordingly, since it's possible that a jury would conclude that the duty wasn't breached under the facts of a particular case. But naturally no landlord could rely on that possibility: All that landlords know from the Kansas decision is that, as a matter of law, their renting to ex-convicts or accused criminals, or not evicting such people, might well lead, hundreds of thousands of dollars in attorney fees later, to a finding that they breached their duty.] Every landlord might be acting unreasonably in renting an apartment to them.

I can imagine several responses:

1. “The Kansas decision only applies to the special circumstances of university dorms.” But it doesn’t; the Kansas court expressly stressed that it wasn’t relying on a university’s special duty as a university, but simply its duties as a landlord. Nor do I see any basis for treating universities as landlords differently from other landlords. (Some commenters pointed out that some universities require freshmen to live on campus; but nothing in the court decision even mentions any such policy, much less relying on it. Others say that universities assure their students that they’d be safe; but again, nothing in the court decision relies on that theory.)

2. “Accused criminals are one thing, ex-convicts are another.” Well, yes, but the tort law case for imposing liability when a landlord rents to an ex-convict is stronger than for someone who’s simply under indictment. The ex-convict’s past attack has presumably been proven beyond a reasonable doubt in court (rather than just being suspected, as with the accused criminal in the Kansas case). There’s little reason to think that the ex-convict has somehow been radically reformed by his stay in prison. So he’s at least as hazardous to his neighbors, and the landlord’s duty of reasonable care to prevent harms to his tenants is thus at least as much in play.

3. “Nothing says that landlords can’t rent to this person — they just have to compensate his future victims if he attacks other tenants.” But negligence law (as opposed to strict liability law) doesn’t simply impose a duty of compensation; it specifically says that the landlord’s action is unreasonable, a breach of his legal duty as a landlord. The legal system is telling landlords that they shouldn’t do this, not just that they need to run an extra cost. Presumably if the landlord does this repeatedly, it might even be held liable for punitive damages, on the theory that it knowingly and persistently breached its duty. But in any event, the tort law (at least as reflected in the Kansas decision) is saying that reasonable landlords shouldn’t rent to people in such circumstances.

4. “The Kansas decision only required the university to evict the person; it didn’t prevent future landlords from renting to him.” No; if a landlord’s duty of reasonable care requires the landlord to evict a tenant who is supposedly dangerous to co-tenants, it also requires the landlord to decline to rent to such tenants — after all, a new dangerous tenant is as much a danger as an old dangerous tenant. And while some landlords might not know of the tenant’s past criminal history, our assumption is that it’s cheap to learn of that history, so they should reasonably inquire and learn about it.

5. “The ex-convict has paid his debt to society, while the accused rapist in the Kansas case hasn’t done so.” But the Kansas case’s theory is that landlords must consider actual risk posed by the tenant, not his current status vis-a-vis the criminal system. After all, the premise of the criminal law is that the accused is presumed innocent; yet the Kansas case allows liability, on the theory that the circumstances of the accusation inform the landlord that the tenant is an actual danger. Likewise, even if the premise of the criminal law is that the person who served his sentence is no longer counted as a criminal (not exactly right), the logic of the Kansas case would still allow liability, on the theory that the circumstances of the conviction still inform the landlord that the tenant is an actual danger.

6. “The ex-convict should just rent a single-family home.” The Kansas case is indeed focused on the landlord’s duty to his tenants, not to the public at large. It is probably the case that a landlord who rents a single-family home to an ex-convict won’t be liable to neighbors who aren’t the landlord’s tenants. (Query, though, if it’s sensible for tort law to simply shift the risk of crime from being borne by apartment building residents to being borne by people who live near single-family homes.) But the landlord probably would be liable to, say, plumbers who come to service the building, and possibly even the ex-convict’s social guests. And beyond that, what if we’re talking not about Manhattan, Kansas (where KSU is located), but about Manhattan, New York, where there’s virtually no single-family rental housing?

7. “We already do this to sex offenders under various state statutes.” But those statutes are special rules that are focused on particular zones (not on all apartment buildings) and on particular crimes (not all crimes of violence against neighbors). They are themselves controversial, partly for the same “where do we expect ex-convicts to live?” reasons. And beyond that, they were implemented not on a theory that this is all reasonable landlord’s common-law duty, but that the democratic process has mandated a specific narrow constraint on a narrow set of ex-convicts.

8. “We’re not asking for a duty to evict or not to rent, just a duty to warn cotenants.” It’s far from clear to me that the landlord’s duty of reasonable care in the Kansas case is limited to a duty to warn; after all, while a warning might decrease the risk to neighbors a bit, it might not decrease it by nearly as much as eviction would. Nor did the majority opinion say that the landlord’s duty of reasonable care would have been satisfied by mere warning.

But even if this is so, is it really the case that landlords already have a common-law duty of reasonable care to publicize all their tenants’ arrest records — not just as to specific crimes, as with the legislatively enacted Megan’s Law provisions, but as to any crimes that might put the neighbors at risk? And even if they do, would the supporters of the Kansas decision at least agree that the landlord’s duty is discharged by such a warning, so that at least the landlord could (without acting negligently) rent to ex-convicts and accused criminals, so long as it’s willing to publicizing the new tenants’ crimes?