CA1: Controlled access to neighborhoods under PR law does not violate Fourth Amendment

Controlled access to neighborhoods, permitted under Puerto Rican law, that had the effect of excluding Jehovah’s Witnesses from entering neighborhoods did not violate the Fourth Amendment. Denial of access was not the same as a seizure. Watchtower Bible & Tract Soc’y of N.Y. v. De Jesús, 634 F.3d 3 (1st Cir. 2011):

To abate crime, Puerto Rico adopted a Controlled Access Law, P.R. Laws Ann. tit. 23, §§ 64-64h (2008), allowing local entities (called “urbanizations”), organized by the community but approved by the municipality, to control street access to areas within towns that have voted in favor of such plans. Appellants are two corporations operated by the Governing Body of Jehovah’s Witnesses 1 that challenged in federal district court both the statute and its application.

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The statute, as currently amended, authorizes municipalities to grant permits to neighborhood homeowners’ associations called urbanizations to control vehicular and pedestrian access to the public residential streets within the urbanization (the term referring either to the association or to the controlled area). In such cases, the area is enclosed with fencing or other barriers and with one or more entry and exit gates for pedestrians and vehicles. P.R. Laws Ann. tit. 23, § 64. Some of the gates are manned by security guards paid by the association; others are unmanned and opened by a key or by an electric signal operated by a buzzer linked to the residences within the urbanization.

In some respects, the controlled access regime is a counterpart to the private “gated” residential communities that have developed elsewhere; but in Puerto Rico the streets within the area were and remain public property, and the municipality is closely involved in authorizing the urbanization. To obtain a permit, the residential community must create a residents’ association; propose a plan describing the permanent barriers and access arrangements; file a petition supported by at least three-quarters of the residential homeowners; and assume the costs of installing and operating the plan. P.R. Laws Ann. tit. 23, § 64a.

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Turning now to the Jehovah’s Witnesses’ Fourth Amendment challenge, they say that they are subject to an unlawful “seizure” when they are brought to a halt at access points set up around the enclosures. The Fourth Amendment applies to Puerto Rico through the Fourteenth Amendment. Maldonado v. Fontanes, 568 F.3d 263, 270 n.2 (1st Cir. 2009). As already explained, the use of nominally private guards does not avoid the issue because the urbanizations and their guards qualify as state actors under the public function test. See also Romanski v. Detroit Entm’t, LLC, 428 F.3d 629, 636-38 (6th Cir. 2005), cert. denied, 549 U.S. 946, 127 S. Ct. 209, 166 L. Ed. 2d 257 (2006) (applying the public function test to private guards).

In ordinary usage, no seizure occurs at the barrier; one denied access to a government building, for example, can hardly claim to be “seized.” See Sheppard v. Beerman, 18 F.3d 147, 153 (2d Cir.), cert. denied, 513 U.S. 816, 115 S. Ct. 73, 130 L. Ed. 2d 28 (1994) (excluded visitor not “seized” where “‘free to go anywhere else that he desired,’ with the exception of [the judge’s] chambers and the court house”). The Jehovah’s Witnesses, in response, rely mainly on cases involving police roadblocks of vehicles, but these cases say or assume that detention–at least temporary detention–is the design or effect.