DD 4/3/06 Can Association Develop Rules Permitting Civil Detention for Parking Violators?


Daily Development for Monday, April 3, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

ASSOCIATIONS; RULES; CIVIL DETENTION: Can a community association  resort to civil detention of violators in order to accomplish enforcement of its parking policies on association owned property?     

Roberts v. Strawberry Hill Homes Assoc., 2006 WL 77770 (5th Cir., 3/25/06)

Strawberry Hill is a gated, guarded common interest community consisting of 1500 homes in Plano - an upscale suburb of Dallas, Texas.  In order to preserve the security of the community, the roads are owned and maintained by the homes association.  Strawberry Hill does not permit parking on the main roads, but provides identified parking areas throughout the community, with signs clearly identifying its policy that guests are to park in these areas and not on the sides of the streets.  When visitors pass through the guard gate, they are given a card to place on their dashboard identifying them as invited guests, and on the back of the card is printed the Strawberry Hills parking policy.

Notwithstanding the public and well established policy, both residents and guests occasionally park on the streets against the rules.  Residents are ticketed and fined, all as set forth in the parking policies adopted by the community through a formal amendment to the original Declaration.  But the community has experienced continuing problems with visitors.  .   Business patrons, such as lawn services and other service enterprises, generally abide by the rules.  But there has been a  problem with private visitors, especially at night, and especially with young people  having social engagements with children of homeowners in Strawberry Hills.  Typically they are difficult to identify, and even harder subjects on which to impose fines.   In fact, illegal parking by young persons is a growing problem.  Some young people find the quiet streets of the community a perfect place to park and spend time with their friends, rather than going into the houses or spending time in less secure environments in publicly owned areas.  Parking is especially troublesome in the streets adjacent to the community’s parks, out of sight of parental observation. 

The last iteration of the Strawberry Hills Parking Policy, adopted by resolution of the community at an annual meeting, contained a declaration that parties who were not residents of Strawberry Hills who parked on the community streets in violation of the rules were trespassers, and the resolution directed the Board of Directors of the Association to develop appropriate rules to seek prosecution of these individuals.  The instant dispute arose from an effort of the Manager of the association to comply with this directive.

Strawberry Hills has for several years contracted with Dallas Guardians, a private security company that provides armed security guards, most of them former police and some of them presently serving as police, but working an extra job.  A staff of ten Dallas Guardian personnel works at Strawberry Hills in evening hours, and is entrusted with enforcing the parking policy. After being told to initiate prosecution of parking violators as trespassers, the Guardians made several unsuccessful attempts to get the police to come to Strawberry Hills immediately to carry out an arrest of persons found sitting in cars parked in unpermitted areas.  The police, of course, made such visits a low priority, and typically would not arrive until four or five hours after they were called, and by then the violator had departed.

The Manager of the community, a full time Association employee, then instructed the security guards to arrest and detain anyone found parking on the streets at night who would not immediately move the car.  The individual was to be detained until the Plano police could arrive and write a citation for unlawful trespass.  The Association printed on the guest cards, provided to persons entering the community, the new policy that detention was a possible consequence of illegal parking in Strawberry Hills.  During the first several months of the policy, the police warned several unlawful parkers of the new policy, but no detention was invoked, as the cars were moved. 

Soon thereafter, plaintiff John Roberts, a twenty one year old male, accompanied by a young woman presumed to be a resident of the community, was observed to be parking on a community street near one of the parks.  Security guards on their regular patrols twice stopped and asked him to park in designated parking areas.  In both instances he moved the car, but later was discovered parked at another point  on the street near the park with his companion.  On the third pass, the guards came to the car and informed Plaintiff that  he should accompany them to the guard office for detention until the police could be summoned.  Plaintiff resisted, and in the ensuing fracas, his companion disappeared.   Ultimately the guards drew their guns and ordered Plaintiff to accompany them to the guard office. He then complied.   He was “patted down” in a search for weapons, but no more intensive search was performed.  He was held in the guard office in a locked room until the next morning - a period  of more than eight hours.  He was provided water, a bed, and access to toilet facilities and donuts when the morning shift arrived.  He had his own cell phone, which was not taken from him, and was overheard calling acquaintances and describing his situation, but no one came to assist him until 9 A.M., when the Plano Police arrived, issued a citation, and permitted him to leave.

Plaintiff brought suit against the Association  in federal court for violation of his civil rights under Section 1983, and for wrongful imprisonment, with accompanying emotional distress and punitive damages claims.  The federal district court granted summary judgment to the Association. The Fifth Circuit Court of Appeals here reversed and remanded.

The court ruled that Texas law does permit citizen’s arrests for trespass violations, and that such actions might be reasonable responses to aggravated trespass situations.  In any event, the court ruled, the plaintiff implicitly acquiesced in the Strawberry Hills parking policies when he entered the community.  He became familiar with the detailed provisions of the policy when the guards informed him of the policy in his two prior confrontations with them.  Consequently, he had contracted to authorize detention as a sanction for violation of the policy. 

It held, however, that Texas law requires that the response of a party witnessing the commission of a crime and invoking a citizen’s arrest must still be a reasonable response to the offense committed.  It noted that citizen’s arrests usually are carried out either to prevent the escape of an individual committing a crime or to prevent aggravated harm from the continued commission of the crime.   It observed that neither circumstance existed here.  First, the guards had obtained identification from plaintiff already, and could have informed the Plano Police of his whereabouts.  Second, the degree of injury that the Association was likely to sustain from plaintiff’s continued violation of the anti-trespass law was relatively insignificant, and had to be balanced against the degree of intrusion on his private rights through an extended detention.

Perhaps more dramatically, the court held that the Strawberry Hill guards, since they were operating pursuant to the right to effectuate a citizen’s arrest and to detain the plaintiff until regular police arrived, were acting under “color of law,” and were required to provide full due process rights to the individual, including the right to counsel, the right to be warned that anything he said might later be used against him, and the right to a prompt hearing before a magistrate to permit continued detention.  The court commented that it appeared unlikely that these rights were fully provided to plaintiff.

The court also suggested that it appeared that detention policy was  applied only to persons found in their cars, and not to others who might also be violating the parking policy.  Further, the policy was applied only to non residents.   It commented that these features might lead to a finding that the policy violated the Equal Protection Clause, to which the Association became bound when it operated under color of law, but remanded for further proceedings on this issue as well.

A dissenting member of the panel reiterated the argument accepted by the lower court that there was no color of law in this case in that all events occurred in a privately owned neighborhood under circumstances in which the plaintiff had full notice of and gave implied agreement to the events that unfolded.  As the dissenting judge noted:

“There are many circumstances in life in which an individual acquiesces in a temporary suspension of personal liberty in order to enjoy a privately offered benefit.  People are strapped into roller coasters, sealed into elevator cars, kept in their seats and prevented from going to the toilet during air travel, among many other deprivations.  They accept these indignities and unpleasantries because they understand that they are also receiving a benefit in return. 

Plaintiff had full knowledge of the policies of Strawberry Hills.  In fact, at deposition he admitted that he had parked within the community because his companion felt more secure within its guarded confines, and might not have stayed in the car with him had they been on a public street.  Further, the place was quiet, since few cars used the streets in the evening hours, especially around the parks.  In short, there was a quid pro quo for his entry into Strawberry Hills, and he accepted the restrictions on liberty that accompanied the benefits he sought.”

Comment:   Well, what about it?  Association Nazis?  Or just appropriate protection of private property interests?  Might be a good question if this was a real case and not the Editor’s annual April Fool joke - posted in April 1, even though identified for April 3, since the magic day here falls on a non-DD day.

                                               
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