Tag: Illinois

What is the HOA liability for wrongful acts by its security officers?

 

As a private government, HOAs are not subject to government immunity as other government entities.  Its officers are not covered by limited immunity for discretionary decisions as government officials are.    Can the HOA board escape liability because they are volunteers?  Does their D & O insurance cover such negligence as appears to have occurred in the tragic incident described below?  Or escape liability under the pro-HOA attorney’s business judgment rule defense (my emphasis)?

 

The business judgment rule thus provides significant protection to directors (and officers) from personal liability for their good faith, informed, business decisions. The presumption may be rebutted where it is shown that a director . . . did not inform himself of all information that was reasonably available, failed to exercise the requisite level of care . . . .

 

In other words, doesn’t the HOA board of directors have a duty of care as a prudent person acting in good faith, and under fiduciary duties to the HOA to properly supervise and oversee the acts of their agents?    Under agency law and tort respondeat superior liability, the answer is YES.   And how much can that liability amount to?   Millions of $$$?  I think in the following incident it could well be.

I call your attention to the killing of a 17 year-old in a gated Florida HOA by an armed HOA security guard who is not even a police officer.  Read this report and judge for yourself:  Shooter of Trayvon Martin a habitual caller to cops.  By what authority do HOA governments usurp legitimate public government police powers to stop and detain others?  A recent Illinois court says that stopping and detaining, no less shooting others, was a violation of government authority. See How far will independent HOA principalities go in usurping police powers.

HOAs must be held subject to the Constitution and the laws of the land.  They must not be permitted to hide behind exaggerated claims of “private contract” exclusions and escape application of the 14th Amendment that applies to all legitimate public government entities. They must not be permitted to escape application of their state’s constitution and its Declaration of Rights.

How far will independent HOA principalities go in usurping police powers

In this Illinois case, Poris v. Lake Holiday POA, the HOA was held to unlawfully assume civil police powers.  Here’s the extent to which the HOA gave the false impression of municipal police officials and their legitimate use of police powers. The private HOA security officer detained the homeowner for about 4 minutes while checking his license info, but admitted he was not a cop.

 The following covenants can easily be viewed as an intentional impersonation of municipal police powers. Note the similarity in verbiage to civil government criminal code and authority (paragraph numbers are from the court’s opinion).

 [covenants]

 ¶ 5 The board is authorized to adopt rules and regulations that the board deems necessary for the best interests of the Association and its members. The board promulgated several rules pertinent to this case. The board adopted a rule authorizing “private security officers” to enforce the Board’s rules and regulations, including the power to “issue citations for violations.” Another rule prohibits members from obstructing officers:

 “No person shall knowingly resist or obstruct the performance by one known to the person to be a public safety officer of any authorized act within his or her official capacity. No person shall fail or refuse to comply with any lawful order or direction of any public safety officer authorized by the Lake Holiday Property Owners Association. A request to examine personal identification, such as a driver’s license, in addition to a member’s amenity pass shall be honored. CLASS A VIOLATION.”

¶ 6 The board also approved a rule to regulate speed on Lake Holiday property: “Unless otherwise posted, the speed limit on all Lake Holiday roads shall be 25 miles per hour. Speed limits shall be strictly enforced. Violations from 1 to 10 mph over the posted speed limit are CLASS C VIOLATIONS. From 11 to 15 mph over the posted speed limit are CLASS B violations. From 16 mph or over the posted limit are CLASS A VIOLATIONS.”

 A Class A violation carries a $200 penalty for a first offense. A Class B violation is punishable by a $100 fine for a first offense. The fine for a Class C violation is $50 for a first offense.

 ¶ 7,(in part)

All officers are required to wear a badge, uniform and “duty belt.” A “duty belt” may “include weapons that the officer is certified to carry on duty.”

 [end covenants]

 ¶ 16 Neither Clifford nor any employees of the Association’s security department have been given police powers by the La Salle County sheriff’s office. Clifford has never been given any authority or permission by any police agency or the La Salle County Board to stop vehicles, use overhead lights, use radar to measure the speed of vehicles or make audio and video recordings on Association property.

 ¶ 28 The security officers employed by the Association are attempting to assert police powers. They have neither the right nor the power to do so. They have only those powers that ordinary citizens have. See Perry, 27 Ill. App. 3d at 239. The practice of stopping and detaining drivers for Association rule violations is unlawful.

 ¶ 35 The Association is not a commercial enterprise in the business of “keeping people secure and free from danger.” Rather, it is a property owners’ association created “[t]o promote and enhance the civic and social interest of the owners of real estate in Lake Holiday Development in so far as those interests relate to the maintenance of Lake Holiday.” Thus, the Association is not a “security company.”

 ¶ 53 Here, Podnar activated his overhead lights, causing plaintiff to pull over and stop. Podnar exited his vehicle, wearing a uniform, badge and duty belt containing weapons. He told plaintiff to wait in his car and took possession of plaintiff’s driver’s license. Plaintiff remained in his car for several minutes until Podnar returned his driver’s license, issued him a citation and told him he was free to leave.

 ¶ 54 Under these facts, plaintiff was restrained by Podnar. . . . Since plaintiff’s liberty was restrained, the first element of false imprisonment was met.

 Poris v. Lake Holiday, 2012 Ill. App. LEXIS 42; 2012 IL App (3d) 110131 (Jan 24, 2012)

 See commentary by Evan McKenzie at Case shines light on how much power private security has when policing neighborhoods (Feb. 24, 2012),