HOAs with police powers: sliding down the slippery slope to HOA-Land

In State of NC v. Weaver[1] an HOA security officer stopped a driver on the suspicion of speeding within the HOA grounds.  Even though there were almost identical circumstances in Poris v. Lake Holiday[2]uniforms, patrol car marked “Metro Public Safety,” and flashing lights – where the Illinois court held that security agents had the right to stop and detain drivers, the state in this appeal argued that the security officer was not a state agent. 

 The HOA authorized the security officers “to issue civil citations and fines to anyone on the property who violated the rules and regulations of the community (fines to be collected by a debt collector).  Note the broad grant of power to the security officers to fine and collect debt from non-members (the question of public streets remains unknown).  Therefore, it should not be surprising that the trial court had held:  “1. The armed security guard . . . [a]cted as an agent for the State[.]; 2. The armed security guard is a State actor.”[3]

 In reply, the State argued that:  “a traffic stop conducted entirely by a nonstate [emphasis added] actor is not subject to reasonable suspicion because the fourth amendment does not apply.”  In other words, while a cop had to have had a good suspicion that a crime was committed in order to stop and detain, it did not pertain to the security agent who was not a state agent, and constitutional protections did not apply as it does not apply to the HOA contract in general.

The question of whether or not the officer was acting under HOA orders was avoided, thus not allowing the question of HOAs as state actors to be entertained.   Questions like: Was the HOA’s authority to have its security agency act with civil police powers – stop and detain – constitutional?  Was the HOA, itself, a state actor?[4]

Where did the HOA get such authority? Certainly not by delegation from the NC legislature as required by law even for the creation of state agencies.  (In Arizona, constitutionality challenges were mounted by CAI attorneys questioning the authority of the Office of Administrative Hearings (OAH) to adjudicate HOA disputes).

But, this constitutionality issue was not the question before the court, but should have been as it pertained to the legality of the initial stop and detain act by the security officer.

The appellate court maintained that there was no evidence that the officer was acting to assist bona fide law enforcement officers or was asked by them for assistance.  However, it ignored its own acknowledged fact that the officer detained the defendant when  he smelled alcohol and “asked defendant to “step out of [the] vehicle and have a seat on the . . . sidewalk[.]”

The appellate court also ignored the trial court finding, which was not challenged by the State, that: “No Longer was he performing under Metro’s contract. After issuing the civil citation his actions exceeded his contractual authority. His goal and purpose evolved into detaining [d]efendant until local law enforcement arrived.” Was this a legitimate citizen’s arrest?

And what if the officer was acting under contract?  Then what?  Not addressed.

The appellate court dismissed the findings that the HOA security officer was a state actor and the case goes back to the trial court to decide its merits.  Namely, as a private citizen did the officer unconstitutionally stop and detain the defendant?  Poris said no. Federal court decisions on Arizona’s SB 1070 immigration laws put a strong damper on even police stopping and detaining citizens. 

So, where do we go from here?    Hopefully to answer the question of the HOA’s authority to act with police powers, a power confined to civil, not private, government.

 

 References


 

[1] State of NC v. Weaver, NO. COA13-578 (NC App. 12-13-2013). This appeal centered on the trial court’s granting of a motion to suppress evidence in the DUI case, because the security officer was a state actor.  It does not consider the very important issue of HOAs as state agents. The defendant was represented in the appeals case by NC’s version of a public defender.

[2] See in general, Corporatism in America: IL Supreme Court grants HOA police powers to arrest and detain.

[3] A ‘state actor’ can be defined simply as ‘an arm of the state’ as if it were a public agency or entity.  As such, the HOA would then be subject to 14th Amendment restrictions that protect your rights.  See Do state HOA Statutes Establish HOAs as State Actors?

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One CommentLeave a comment

  1. Of course, the real problem lies with the abuse of power by the HOA board’s of directors. The Zimmerman case certainly made it evident that appointed homeowners having the power to do citizen arrest is not the way neighborhoods should be monitored. Boards of Directors are acting like vigilantes with their self appointed powers. Local government needs to restrict the actions of boards. We all need to continue to work with state legislators to limit HOA power. Thank you George for all your diligence in making these situations apparent.


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