North Carolina Appeals Court Allows HOAs To Arrest For DUI

[Feuer Frei!]

A horrible precedent?


North Carolina Appeals Court allows armed HOA security guards to conduct traffic stops that would be illegal for police to make.


SOURCE (http://www.thenewspaper.com/news/42/4292.asp)

[August]

Sure sounds like it to me. I guess if they're not police then there is no legal obligation to pull over for them either though.

[Platapus]

Having been an officer on a HOA, the last thing we need is the HOA garnering more authority over the residents.

HOA security should have the same authority as other citizens. If they see someone driving drunk, they can call 911 and report it.

[August]

Having been an officer on a HOA, the last thing we need is the HOA garnering more authority over the residents.

HOA security should have the same authority as other citizens. If they see someone driving drunk, they can call 911 and report it.

What's to stop a person from ignoring these renta-cops?

[Platapus]

What's to stop a person from ignoring these renta-cops?

If they have guns ....

[August]

If they have guns ....

Well so do I. What I meant was do they have the power to arrest or detain a person.

[Platapus]

As far as I know, they don't have any more or less power than any other citizen. Perhaps the security guards referenced in the SC article are sworn officers?

I just think it is a bad precedent to have HOA controlled personnel have law enforcement powers.

[Wolferz]

I think I'd sell the house and move after painting the place a gawd awful shade of color.:nope:

[Platapus]

I think I'd sell the house and move after painting the place a gawd awful shade of color.:nope:

Unfortunately, the way the HOA "agreement" that you were forced to sign would give them the authority to either prevent the sale or hold you responsible for the cost.

Did you read the story a bunch of months ago where a HOA in Texas sold a woman's house without even informing her in order to collect back HOA dues? HOAs have gotten way too powerful and the last thing we need is to give them more power.

I will never buy another house that has an HOA. There is actually a builder in our area that uses the fact that there is no HOA in their developments as a selling point.

[Neptunus Rex]

If the "State Actor" rule does not apply, then the requirement to stop when indicated by the flashing lights or flashing of badge does not apply either nor can resisting arrest charges be made as the guard has no arrest powers. Nor can they detain you. Of course if your stupid enough to live within an HOR....

[CaptainHaplo]

Like most things, the devil is in the details....

If the HOA rules/bylaws/regulations permit a stop and were agreed and signed by the homeowner, the homeowner has placed himself/herself and other residents of his/her home under those guidelines. Because an HOA operates on what is considered communal yet private property, they do not operate under color of law, but under a civil contract agreed to by both parties. Therefore, any security operates under that same authority.

Where things get really tricky is what those same guidelines allow for in regards to remedies / actions for those that disregard direction of security.

Also - NC laws do allow for what is described as a "detention" by a citizen who witnesses a crime. Specifically:

§ 15A-404. Detention of offenders by private persons.
(a) No Arrest; Detention Permitted. - No private person may arrest another person except as provided in G.S. 15A-405. A private person may detain another person as provided in this section.
(b) When Detention Permitted. - A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:
(1) A felony,
(2) A breach of the peace,
(3) A crime involving physical injury to another person, or
(4) A crime involving theft or destruction of property.
(c) Manner of Detention. - The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.
(d) Period of Detention. - The detention may be no longer than the time required for the earliest of the following:
(1) The determination that no offense has been committed.
(2) Surrender of the person detained to a law-enforcement officer as provided in subsection (e).
(e) Surrender to Officer. - A private person who detains another must immediately notify a law-enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law-enforcement officer. (1973, c. 1286, s. 1.)
Source: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_15A/GS_15A-404.html

As such, while I despise the idea of HOA's anyway, the ruling itself was accurate based on legal principle and current NC law.

[Wolferz]

I'm just glad I don't live there.:up:

Sounds too much like a socialist setup. Where you sign away your rights for the opportunity to live in a gated community. We have some of those around hyere.:nope:

[Armistead]

I've heard some about it living in NC. My father lives in such a community with armed HOA about, but as stated he signed an agreement when he moved there. Now my fathers youngest brother, about my age often visits him and on of the guards tried to pull him flashing his red light..{all cops are blue in this town} so he ignored him and the renta cop followed him into my fathers driveway....told him he was going too fast, even wrote some sort of ticket, but some warning form. Course my uncle ignored him and told him to get out of the yard, which he did. I do know my father has complained about certain bylaws that have been added as they built more roads and houses, but it's put to a vote, majority wins..

This line is in the OP link is rather scary..."A traffic stop conducted entirely by a nonstate actor is not subject to reasonable suspicion because the Fourth Amendment does not apply," Judge Rick Elmore wrote for the appellate panel."

[Aktungbby]

A horrible precedent?[/I][/SIZE][/SIZE][/FONT] Nope: private security can do it all in a given locale; the private security at the library issues parking tickets after two hours for example...

Well so do I. What I meant was do they have the power to arrest or detain a person.Yes but only as a citizen making a lawful witnessed-act arrest; not as peace officer who may act based on suspicion alone.

I think I'd sell the house and move after painting the place a gawd awful shade of color.:nope: BLACK will do nicely, including the windows...really lowers surrounding curb appeal in da' hood too...that's why the CC&R's restrict colors exterior of HOA's!:har:

If the "State Actor" rule does not apply, then the requirement to stop when indicated by the flashing lights or flashing of badge does not apply either nor can resisting arrest charges be made as the guard has no arrest powers. Nor can they detain you. Of course if your stupid enough to live within an HOR.... Not so. As a Federal contract private guard where full police P.O.S.T. (police officer standards and training) certification is required at Federal housing projects and at a converted Air Base in the Bay area; The private unsworn security has full or as much police powers as the contracting authority wishes to grant...on the client's property. At one point I had pulled over an obviously intoxicated driver on the base while in my Navy police marked vehical. He protested that he was a NAVY Captain and not subject to a private security guard. NO PROBLEMO SIR!:salute: I obligingly only detained him, summoned the local city police, who then formally arrested him for DUI. He then also went before "Captain's Mast" with the base commander...and opted for retirement for conduct unbefitting an 'officer and gentleman serving at the pleasure of the Commander in Chief'. The key is not to exceed force (incl. deadly) necessary to do what any citizen with arrest powers can do subject to a criminal or civil suit...a-la the Zimmermann matter in Florida in his HOA community. A Federal Housing project is ten times worse..it ain't gated; It be locked down...every night in da 'hood!:D

[August]

So bottom line is don't pull over or cooperate in any way unless it's a real cop.

[AVGWarhawk]

So bottom line is don't pull over or cooperate in any way unless it's a real cop.

Even then be suspicious. Call the 911 dispatcher and inquire if one of their units is effecting a traffic stop on the road you are pulled over on.

HOA serve a purpose. Sometimes the get out of hand. Other times they are good to have. Does anyone really like a neighbor with 6 Ford F150 up on blocks hosting intergalatic keggers every night while mud wrestling in the beds of the F150's? Usually the keggers fall under police action. But HOA help keep a orderly neighborhood that some prefer to live.

As far as HOA laws and bylaws they are usually very basic and what a majority of homeowners do with their investments anyway. If a new law for the HOA is to be put on the table it is voted on by the community correct? I don't believe a law can be put into effect without the vote. Only BO can do that. In this particular case the HOA has hired a renta-cop. This cost money. The money ultimately comes from the residence who looked to have agreed on this type of action in the neighborhood. However, I see it as overstepping their bounds as if a town in the old west making rules for their town. The neighborhood should be under state and local police jurisdiction in my opinion.