Westec story: gated communities and the Fourth Amendment.

• Author: Owens, John B.

1. Introduction

   [F]ortified developments are ... proliferating. Their gates range from elaborate two-story guardhouses manned 24-hours a day to roll-back wrought iron gates to simple electronic arms. Guardhouses are usually built with one lane for guests and visitors, and a second lane for residents, who may open the gates with an electronic card, a punched-in code, or a remote control. Some gates with round-the-clock security require all cars to pass the guard, issuing identification stickers for residents' cars. Unmanned entrances have intercom systems, some with video monitors, for visitors asking for entrance.(1)

   This passage comes neither from a James Bond dossier on his enemies like Doctor No, nor from a set designer's notes for the latest Judge Dredd/Road Warrior post-apocalypse nightmare. This passage is America, 1997.

   These fortified, walled housing developments, often called "gated communities"(2) are "[tlhe fastest-growing residential communities in the nation."(3) They are no longer suburban palaces reserved for rock stars, athletes, or senior partners at law firms, nor are they merely residential retirement communities. Inner city residents, as well as "burbinites," are fortifying their communities,(4) largely out of fear of crime.(5) Gated communities are appearing around the country, with the largest concentrations in California, Texas, Illinois, New York, Florida, and Arizona.(6) Approximately 30,000 gated communities currently exist, and Oscar Newman, president of the Institute for Community Design Analysis, estimates that this total will double by end end of the Century.(7) With up to four million people currently living in these private communities(8) and their populations growing every day, a significant (and often influential) segment of American society will live under private government. These private neighborhoods are more than just fancy homes behind a fence: "[T]hey privatize community space, not merely individual space. Many of these communities also privatize civic responsibilities such as police protection and communal services such as schools, recreation, and entertainment. The new developments create a private world that shares little with its neighbors or the larger political system."(9)

   Guarding these gated communities are the "private police" -- security firm like Westec Security, "whose warning signs are becoming as common as weeds on Southland [Los Angeles] lawns."(10) The growth of the private security industry mirrors the explosion in gated communities: Since 1980, the number of security guards has risen 64% to 1.6 million,(11) and it will reach 1.9 million by the year 2000.(12) Currently, private officers outnumber public police officers three to one.(13) Although the law treats these guards as private citizens,(14) the guards' responsibilities often exceed those of the "Average Joe." Many gated communities rely on private security for their police needs,(15) and the guards often resemble police officers: They wear uniforms with badges, carry guns, and drive patrol cars with sirens.(16) As private security increasingly plays the role of police officer for gated communities, Fourth Amendment issues of unconstitutional searches and seizures will arise.

   "Because scholarly work on gated communities is essentially non-existent,"(17) no one knows whether the Fourth Amendment(18) applies to these private police forces that protect Fortress America." In Burdeau v. McDowell,(19) the Supreme Court held that "[the Fourth Amendment] ... was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies."(20) In the almost seventy-five years since Burdeau, the Supreme Court continually has held that purely private searches do not implicate any Forth Amendment interests.(21) A private search can trigger the Fourth Amendment only if, "in light of all the circumstances of the case, [the private actor] must be regarded as having acted as an `instrument' or agent of the state.(22) Therefore, "town snoop" may open someone's mail,(23) inspect his movies,(24) or even break into his personal safe and desk drawers, (25) all without offending the Fourth Amendment, so long as she acts without police instigation. Perhaps the Framers never wished for the Fourth Amendment to apply to the town snoop or the nosy "little old lady" on the corner.(26) Yet these Angela Lansbury types are a far cry from the modern private police forces that patrol gated communities. When a private security force, such as a trained Westec team with former police officers, effectively acts as the police, does it trigger the Fourth Amendment?

   Although the lower courts have largely split on whether private police forces are state actors,(27) thus implicating the Fourth Amendment, the Supreme Court has never decided this issue.(28) As gated communities and their private police envelop more people and land every day, the role that the Fourth Amendment plays in gated communities increases in importance. Part II of this Article examines the gated community phenomenon, and Part III scrutinizes the modern security forces that patrol "Fortress America."

   The Article then pursues four possible that courts could use to extend the Fourth Amendment to gated communities. Part IV scrutinizes Burdeau v. McDowell(29) and determines the feasibility of overturning this cornerstone of private search cases. The remaining Parts apply various branches of the state action theory(30) to gated communities and their private police forces. Part V evaluates the application of the "if it looks like a duck, and it quacks like a duck, then it's a duck" test of Marsh v. Alabama(31) to the emerging "gated towns" that contain a variety of private social services. Next, Part VI applies the "symbiotic" state action theory of Burton v. Wilmington Parking Authority and Moose Lodge No. 107 v. Irvis(33) to the growing partnerships between die public and private police. Finally, Part VII determines if "police services" qualify as state action under the "powers traditionally exclusively reserved to the State" test of Jackson v. Metropolitan Edison Co.(34)

2. Gated Communities (35)

   1. Their Proliferation

      The original gated communities were the ancient Greek city-states, but the first true "gated" communities in the United States belonged to upper-class East Coast and Hollywood residents in the early twentieth century.(36) The creation of retirement developments in the 1960s and 1970s set the groundwork for today's suburban fortresses.(37) In the 1980s, heavy real estate speculation, combined with a fear of crime, led to the gated explosion(38) that has increased dramatically ever since.(39)

      Although gated communities were initially safe havens for the wealthy and elderly, diverse social groups are now "forting up": 40

      Gates, fences, and walls are no longer solely for those with money. At public housing projects throughout the country, housing authorities are installing fences and using guardhouses to restrict access to residents and their guests. Inner city communities are now doing the same, blocking streets to create mazes that deter drive-by crime and quick getaways, and gating apartment complexes and even entire neighborhoods.... ....

      Working class city neighborhoods are also installing gates and fences. ....

      Middle class homeowners are also forting Up .... 41

      Nothing suggests that this "forting up" trend will slow. For example, a 1990 survey of potential Southern Californian home buyers determined that 54% wanted a home in a gated, walled development.(42) Considering that "8 out of 10 urban projects built currently is gated,"(43) not to mention we suburban explosion of gated communities, Fortress America increasingly will engulf significant segments of population and land mass.

      B Gated Government(44)

      Often accompanying the gates and the guards are many "town-like" features that transform private communities into far more than nice places to raise a family:

      [T]he communities privatize community space, not merely individual space.

      Many of these communities also privatize civic responsibilities such as police

      protection and communal services such as schools, recreation, and

      entertainment. The new developments create a private world that shares little with its

      neighbors or tile larger political system.(45)

      Some private communities are providing their own garbage collection, street cleaning, and even parks.(46) Las Colinas, Texas, exemplifies the "new town" move toward complete privatization of civic responsibilities. In addition to its population of 30,000, this new town encompasses hotels, retail complexes, and light industry behind its electronic gates.(47) Las Colinas' town square is none other than the privately owned and controlled mall.(48) Another example of the privatized community is the mammoth Silver Creek Valley Country Club in San Jose, California. A twenty-four hour gatehouse guards 1,500 residential units, and also will protect "a public elementary school and some commercial development on site, with separate entrances for those outside the development."(49) Some gated communities are marching even further down the road toward complete privatization: Five private communities are now independent and incorporated towns, complete with private government.(50) Accompanying these "private-civic" services are private governments, called residential associations, that demand adherence to rigid rules of conduct,(52) often without regard to basic constitutional rights.(53) Although states may exercise considerable control over these private governments, "existing state legislation governing the creation of condominiums, subdivisions, and cooperative apartments gives great latitude to the content of association rules and covenants. Rarely do such laws guarantee specific civil rights for association members."(54) Aside from racially restrictive covenants, which receive...