Behind the gates

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A driver gets that sinking feeling when he sees a flashing light in his rearview mirror. Of course, he should pull over.

Or maybe not, if the driver is traveling in a Virginia gated community and the officer at the wheel has not been deputized as a “special conservator of the peace.”

Some gated communities in Virginia may have to park their private police cars based on new legal advice that draws a distinction between special conservators and private safety patrols.

Unlicensed private security patrols do not have the authority to conduct traffic stops, even in private communities that hire them, according to an official opinion from Attorney General Mark R. Herring.

The opinion comes amid increased scrutiny of private security functions. A state task force is examining rules governing licensed private police officers in Virginia, known as special conservators of the peace.

Critics say current law provides inconsistent authority for SCOPs, who are authorized to display badges, call themselves “police” and make arrests. Those studying the matter pronounce the term “ESS-cops.”

Not every private “safety patrol” officer is an SCOP, however. Herring’s Aug. 13 letter opinion addresses areas where the security staffs are not made up of state-licensed SCOPs

Although the community is not identified in Herring’s opinion, representatives of the 1,400-unit Fawn Lake development outside Fredericksburg acknowledged the letter appears directed at that community’s policies.

The opinion was requested by Sen. Bryce E. Reeves, R-Fredericksburg. According to Herring’s summary, a property owners association in Reeves’ district uses a safety patrol for traffic safety on the POA’s privately owned streets. The POA authorizes the patrol officers to stop moving vehicles and issue citations for traffic infractions.

The POA cops reportedly use a vehicle with flashing lights to pull over errant drivers. Drivers who don’t pull over are mailed citations for the traffic violation and for failure to stop, the summary reads.

If the driver is a guest in the community, the host gets the ticket. Violators can appear with lawyers before a Violations Review Panel, Reeves related.

Reeves asked if a POA can enforce state and local traffic laws and how it might adopt and enforce its own traffic rules. Specifically, Reeves wanted to know if a POA can compel a vehicle to stop or use a patrol vehicle with flashing lights.

Herring said members of a private security patrol who have not been appointed as special conservators of the peace do not have the power to make traffic stops, even in the private enclaves where they work.

Herring said there are ways for private communities to have government law enforcement enforce state and local traffic laws, but a POA on its own cannot do so. Without that authority, “the action of the ‘safety patrol’ described in the opinion request could be considered an attempt at false imprisonment or unlawful detention,” Herring wrote.

POAs need to know

Herring’s opinion could lead to changes for some of the larger gated communities around Virginia, according to lawyers in the field.

One lawyer who represents community associations said the opinion will have a “significant impact” on such organizations.

The opinion arises from the “tension between private property rights and the need and expectation for rule enforcement,” said Lucia Anna “Pia” Trigiani of Alexandria.

She notes that community associations exist in some respects to relieve demands for local government services, such as traffic enforcement and road maintenance. The opinion could lead to additional burdens for local law enforcement, Trigiani said.

In the case of Fawn Lake, the community association’s lawyer said he would be meeting with the board of directors to determine how to proceed.

Andrew G. Elmore of Glen Allen represents a number of community associations including Fawn Lake. He said Fawn Lake has more than 20 miles of roadway with internal speed limits and stop signs to control traffic.

Elmore acknowledged the safety staff is not now licensed as SCOPs.

He said community leaders might consider changing some policies or “making everyone SCOPs.”

“The opinion is out there. It’s got the attention of myself and my client,” Elmore said. “I would expect larger communities will be taking an internal look at their policies,” he added.

Turning the color wheel

The attorney general’s opinion also could affect the kind of lights drivers may see flashing in the rearview mirror.

Herring said only law enforcement can use blue lights. Green lights are reserved for emergency incident command centers. Amber flashing lights may be used by licensed private security companies and by neighborhood watch groups.

It was not clear how many property owners associations might be using unlicensed security staff to stop drivers for violating private traffic rules. In fact, no one seems to know exactly how many organized “communities of interest” there are in Virginia.

The state Department of Professional and Occupational Regulation, which governs community associations, reported a total of 5,645 registered associations as of Aug. 1. State officials concede, however, that there may be from 2,000 to 4,000 unregistered community associations.

There is no state tracking of which community associations provide internal traffic rule enforcement.

“I think there are a lot of communities that have their own speeding rules. I do not think there are many that have their own enforcement staff,” Elmore said.

John Tarley Jr. of Williamsburg, another lawyer for community associations, said there were few communities with internal safety patrols in his area. “The larger HOAs who have engaged security companies have taken the necessary steps to have themselves properly licensed … and designated as Conservators of the Peace,” Tarley said.

Amid complaints about enforcement of community rules, the issue of unlicensed private traffic cops is rarely, if ever, heard at the state level, said a state ombudsman for common interest communities.

“I’ve been here six years,” said CIC ombudsman Heather Gillespie. “I do not believe I’ve ever had a call for that type of issue, or been aware of any such complaint submitted,” she said.

Gillespie’s office assists with complaints about associations failing to follow state laws or regulations. A key area of concern is compliance with regulations that took effect in 2012 requiring community associations to set up procedures for handling written complaints from residents and others, Gillespie said in a recent report.

Private police power

While using licensed special conservators of the peace may be one solution for private community traffic enforcement, the legal landscape could be changing there, as well.

Concerns about the SCOP program caused one legislator to propose reforms in the 2014 General Assembly session, but a late-added provision condoning private police departments sparked opposition from law enforcement. Senate Bill 495, introduced by Sen. Thomas K. Norment Jr., R-Williamsburg, was continued to the 2015 session.

In the interim, a task force under the state Secretary of Public Safety is looking at the SCOP issue.

Special conservators of the peace are appointed by circuit court judges, who have broad discretion under the law to craft individual privileges and restrictions for any SCOP. A judge may designate an SCOP as a “law-enforcement officer,” but the law is murky on weapons privileges. The judge sets the geographic limits for an SCOP’s authority.

The state requires 24 hours of classroom instruction, with additional firearms training as needed, before an applicant can be licensed as an SCOP.

There are 740 individual SCOPs in Virginia registered with the Department of Criminal Justice Services, according to figures presented to the task force. There are about 100 different employers of SCOPs, including private companies and public agencies.

Because of judges’ ability to handcraft the power of any individual SCOP, a citizen has little notice of how much authority stands behind the badge.

“I think there’s a concern out there whether the current system meets modern expectations,” said Del. Scott A. Surovell, D-Mount Vernon, a task force member.

One concern is accountability. Who answers for abuse of a citizen by a state-licensed, but privately hired, police officer?

“It needs to be really, really clearly defined,” said John W. Jones, executive director of the Virginia Sheriffs’ Association. “Some elected official needs to be accountable,” he said.

The buck might stop with the state in the case of a possible constitutional violation. A police officer licensed by the state is arguably acting under color of state law, said University of Richmond law Prof. John F. Preis, who spoke to the SCOP task force on Aug. 27.

“If you go to the state and ask for the authority to arrest, and the state grants that authority, you act for the state,” Preis said.

Other questions include the amount of training required, whether judges need to make the appointments and how an SCOP appointment can be revoked, Surovell said.

Del. L. Scott Lingamfelter, R-Woodbridge, who proposed the task force, said the group hopes to have reform proposals for the 2015 session.

Lingamfelter cautioned against broad brush reforms without close study of what’s wrong now.

“We just need to be very careful we don’t get into the law of unintended consequences,” he said.