Westec Story: Gated Communities and the Fourth Amendment
Owens, John B., American Criminal Law Review
[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. …