How much authority is appropriate for private police officers & the communities they serve?

Suspended police officer sentenced to prison for harassing neighbor in his NC HOA

 

By Deborah Goonan, Independent American Communities

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It is becoming fairly common for homeowner, condo, and cooperative associations to employ or contract with private security services. Sometimes the association chooses active or retired police officers to serve that role.

In North Carolina, the lines between public and private police agencies is blurred by the establishment of private agencies such as the Nova Agency. Nova provides a range of services from unarmed security to neighborhood patrols to private or “special” police services. According to the agency’s website:

Nova Agency Company Police Department is a fully operational law enforcement agency within North Carolina in accordance with the Company Police Act found in Chapter 74E of the North Carolina General Statutes.

Our Police Officers are fully sworn and commissioned Police Officers within North Carolina and maintain full subject matter jurisdiction which means they have the authority to conduct arrests, issue citations, trespass warnings, and conduct criminal investigations.

His license and commission recently suspended, following multiple charges of harassment and abuse, including unnecessary use of Tasers, Michael Joseph Conover is a former police officer of the private Nova Agency.

Security company police chief headed to prison for harassing neighbor

BY THOMASI MCDONALD
tmcdonald@newsobserver.com

RALEIGH
The owner of a private security company could spend more than two years in prison after he was found guilty Friday of using the state’s criminal information network to harass his neighbor.

A Wake County Superior Court jury found Joseph Michael Conover guilty of all eight counts of accessing the state’s computers to look up the personal information of a neighbor with whom he had an ongoing dispute.

Superior Court Judge Reuben Young then sentenced Conover, 38, the former police chief of the Nova Company Police Agency, to three consecutive prison sentences that total 18 to 33 months in prison, followed by three years of supervised probation.

Read more here:

http://www.newsobserver.com/news/local/crime/article130616724.html#storylink=cpy

According to The News & Observer, homeowner Reuben Smith notified local police that Conover was misusing his authority to harass and intimidate Smith, parading his K9 German shepherd on his property, and even parking his police vehicle across the street from Smith’s home.

An investigation into Conover’s bizarre behavior later revealed that he had been using the public criminal records database to look up information about Smith and his adult son.

Also according to a previous news report, Conover’s services had been contracted by the HOA several years ago, but he was no longer employed at the time of incidents reported by Smith.

 

Private police chief’s trial stems from dispute with his neighbor

BY THOMASI MCDONALD, The News & Observer
tmcdonald@newsobserver.com

RALEIGH Wake County District Attorney Lorrin Freeman told members of a superior court jury Tuesday that the owner of a private security company abused his authority and showed “no respect for boundaries” when he used the state’s criminal information network to look up personal information for a neighbor with whom he had an ongoing dispute.

Freeman was speaking on the opening day of the trial for Joseph Michael Conover, 38, the police chief of the Nova Company Police Agency who has been charged with eight felony counts of accessing government computers. She said the dispute stemmed from Conover continually walking his German shepherd through the yard of Reuben Smith in their neighborhood off U.S. 401 in North Raleigh.

Conover’s attorney, Johnny Gaskins, told the jury that his client had authority to access information in the state’s database. Gaskins said Conover was a certified law enforcement officer who contracted with a homeowner’s association to provide security for the property.

Read more here:

http://www.newsobserver.com/news/local/crime/article129889184.html#storylink=cpy

 

Conover has a history of allegedly abusing his power and authority, and awaits trial on several felony charges.

Raleigh law enforcement executive indicted on 15 charges (WRAL VIDEO)

 

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Police powers and state action

This trial in North Carolina raises a much larger issue. Is privatization of police services appropriate, or does it constitute an unwarranted extension of power and authority once strictly limited to a public state agency?

Nova Agency describes its company as “Americas leading private public safety provider with a rich history and humble beginnings.

As explained on Nova’s website, the agency started out in 1996, providing security services to an HOA developer in Florida. Since then, its services and authority have been expanded to include Emergency Services (2004) and their “Company Police” division (2011).

The use of “special police” has a long history in NC, according to Nova Agency:

HISTORY OF COMPANY POLICE:
The history of company police in North Carolina spans almost one hundred and forty four years. As special law enforcement problems arose which could not adequately be handled by existing officers, new law enforcement agencies were created to handle these problems.

The officers of these agencies were called “special policemen” and were authorized for railroads in 1871, for electric or water power companies and construction companies in 1907 and for manufacturing companies in 1923. See, N.C. Code Ann. §§ 3484-3488 (Michie, 1935). In many small towns and communities, the special policemen were often the only police officers available to assist the county sheriff and his deputies. The power to appoint these special police officers rested with the Governor until 1971, when the special and company police were transferred to the Department of Justice by the State Government Reorganization Act. N.C.G.S. § 143A-54.

 

Do you see the connection? Privatization of formerly public services, a hallmark of association governed communities, has now spread to privatization of police powers.

Do police powers constitute state action only in some cases, but not others? Apparently, this is the prevailing belief in states such as North Carolina and Florida – among others – who regularly hire or contract with private police agencies to serve common interest, association governed communities.

For the reader to more fully understand the concept of State Action in the United States, I provide the following reference:

State Action
A requirement for claims that arise under the due process clause of the Fourteenth Amendment and Civil Rights legislation, for which a private citizen seeks relief in the form of damages or redress based on an improper intrusion by the government into his or her private life.

The U.S. Supreme Court has established that the protections offered by the Fourteenth and Fifteenth Amendments to the U.S. Constitution apply only to actions authorized or sanctioned by state law. The “state-action” requirement means that private acts of racial discrimination cannot be addressed under these amendments or the federal civil rights laws authorized by the amendments.

The Fourteenth Amendment prohibits a state from denying any person due process of law and the Equal Protection of the law. The Fifteenth Amendment prohibits a state from infringing on a person’s right to vote. Both amendments were passed after the Civil War to guarantee these constitutional rights to newly freed slaves. During Reconstruction, Congress enacted many laws that it claimed were based on these amendments. Armed with this constitutional authority, Congress, in the civil rights act of 1875, sought to prohibit racial discrimination by private parties in the provision of public accommodations, such as hotels, restaurants, theaters, and public transportation.The Supreme Court struck down the 1875 act in the Civil Rights cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883). It held that under the Fourteenth Amendment, “it is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.” The Court relied on language of the amendment that provides that “no state” shall engage in certain specified conduct.

This restrictive reading of the state-action requirement permitted racial discrimination to flourish in the South. For example, the Supreme Court upheld the “white primary,” a device used to circumvent the Fifteenth Amendment, in Grovey v. Townsend, 295 U.S. 45, 55 S. Ct. 622, 79 L. Ed. 1292 (1935). The Court reasoned that because political parties were private organizations, their primary elections did not constitute state action.

The Supreme Court began to move away from a strict state-action requirement in the 1940s. In Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1944), the Court struck down the White Primary as violative of the Fifteenth Amendment, thus overruling Grovey. The Court now found that primary elections played an important part in the democratic process and must be considered as officially sanctioned by the state.

The Court extended this type of analysis in Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), ruling that racially discriminatory restrictive covenants affecting real estate were unenforceable in state courts, because any such enforcement would amount to state action in contravention of the Fourteenth Amendment. Groups of homeowners used restrictive covenants to prevent the sale or rental of their homes to African Americans, Jews, and other minorities. A restriction was included in their real estate deeds forbidding such sale or rental. Until 1948 this form of private discrimination was thought to be legal because the state was not involved.

By the 1960s the Supreme Court was applying a more sophisticated analysis to determine if the state-action requirement had been met. In Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961), the Court found state action when a state agency leased property to a restaurant that refused to serve African Americans. It stated that state action in support of discrimination exists when there is a “close nexus” between the functions of the state and the private discrimination.

Nevertheless, the Court has not abandoned the state-action requirement. In Moose Lodge v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972), a racially restrictive private club refused to serve the African American guest of a white member. The Court determined that the mere grant of a liquor license did not convert the private club’s discriminatory policy into state action under the Fourteenth Amendment.

See link for source reference:

http://legal-dictionary.thefreedictionary.com/State+actor

 

The key question we need to ask is this: isn’t is high time for US courts to expand the state action requirement as applicable to common interest and association-governed housing? After all private property rights are protected by the US Constitution. And private property rights are inextricable from our most basic Civil Rights and Liberties.

The Cato Institute points out that private property rights, granted under the Fifth Amendment of the US Constitution, are “the foundation of all rights.” Therefore, it is puzzling to me and other property rights advocates, that Cato has been reluctant to defend private property rights of owners and residents of homeowners, condominium, and cooperative associations, classifying these associations as private organizations.

That line of thinking is blatantly contradictory.

After all, common interest communities and Covenants, Conditions, & Restrictions (CC&Rs) tied to private property, result in significant overregulation of both private property and individual residents. That is true regardless of whether a community is subject to a mandatory association (HOA), a special development district, or simply the CC&Rs with no association in place to enforce them.

The lines become more and more blurred with each passing day.

On the other end of the political spectrum, Constitutional scholars affiliated with the Public Broadcasting System (PBS), also recognize the supreme importance of private property rights under the Fifth Amendment, as well as privacy rights guaranteed by the Fourth Amendment.

Privacy & Property Rights

Source:

http://www.pbs.org/tpt/constitution-usa-peter-sagal/rights/privacy-and-property-rights/

The Fourth Amendment protects Americans from “unreasonable searches and seizures” by the government. But the Supreme Court’s interpretation of “unreasonable” has varied over time. Some searches require warrants, but others do not. In general, the Fourth Amendment protects a person and their property from searches by the government wherever there is a “reasonable expectation of privacy.” For instance, trash that is still inside a person’s home is protected; trash sitting beside the street curb for pickup is not. In the age of the Internet, where so much personal information is shared over social media such as Facebook and Twitter, some people argue that privacy has become a myth. After the 9-11 attacks, Congress passed laws making it easier for the government to use such information when investigating terrorism.

The Fifth Amendment protects the right to private property in two ways. First, it states that a person may not be deprived of property by the government without “due process of law,” or fair procedures. In addition, it sets limits on the traditional practice of eminent domain, such as when the government takes private property to build a public road. Under the Fifth Amendment, such takings must be for a “public use” and require “just compensation” at market value for the property seized. But in Kelo v. City of New London (2005), the Supreme Court interpreted public use broadly to include a “public purpose” of economic development that might directly benefit private parties. In response, many state legislatures passed laws limiting the scope of eminent domain for public use.

Rights content written by Linda R. Monk, Constitutional scholar

So why hasn’t Peter Sagal of PBS addressed the issue of usurpation of private property rights and Civil Rights violations that regularly occur at the hyperlocal governance level in Association Governed Housing?

Clearly, private property rights and preservation of rights under the US Constitution are a matter of public interest, and social and governance reform to protect individual rights should garner bipartisan support.

If we fail to address these issues, our country risks devolving into an ever more divided authoritarian state, beginning at the grassroots level of our own private neighborhoods.

 

 

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