Can a Mississippi city require apartment complexes and multi-unit housing developments to install security cameras and turn over the recordings to police?

Plain-English summary

The City of Greenwood, Mississippi, was considering an ordinance requiring large apartment complexes and multi-unit family housing developments to install security camera systems, maintain recordings for a specified period, and presumably make those recordings available to the city. The stated purposes: deter crime, provide public safety, and help solve criminal activity in the city.

The city's attorney asked the AG two related questions, both essentially asking whether Mississippi's "Home Rule" statute (§ 21-17-5) and police regulations statute (§ 21-19-15(1)) authorized this ordinance.

The AG said no, on two layered grounds:

Ground 1: Statutory authority is missing. Section 21-17-5 gives municipalities broad management authority over their affairs and property, but only to the extent the resulting orders are "not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi." Section 21-19-15(1) gives municipalities police-regulation authority "necessary for the preservation of good order and peace of the municipality." Neither statute expressly authorizes a city to require private property owners to install surveillance equipment on their property.

Ground 2: Constitutional concerns. Mandating security cameras on private property raises serious Fourth Amendment and Mississippi Constitution Article III § 23 concerns. The AG cited:

• United States v. Jones, 565 U.S. 400 (2012), holding that physical intrusion on private property to obtain information is a "search" under the Fourth Amendment.
• City of Los Angeles v. Patel, 576 U.S. 409 (2015), striking down a municipal code requiring hotel operators to turn over guest information to police on demand.
• Crook v. City of Madison, 168 So. 3d 930 (Miss. 2015), articulating the purpose of Fourth Amendment protections.
• Okhuysen v. City of Starkville, 333 So. 3d 573 (Miss. Ct. App. 2022), holding that "a municipal ordinance cannot authorize a search that the Mississippi Constitution prohibits."

Reading the home rule statute together with these constitutional limitations: a city cannot use ordinance authority to compel private parties to install government-accessible surveillance equipment on their own property. That is not within Mississippi's grant of municipal authority.

What this means for you

If you're a Mississippi municipal attorney drafting public-safety ordinances

Under this opinion, Mississippi law does not authorize a city to require private property owners to install security camera systems, or to maintain recordings and provide them to the city. The AG read § 21-17-5's home-rule grant as limited to ordinances "not inconsistent with" the Mississippi Constitution, the Mississippi Code, and other state law, and found nothing in § 21-17-5 or § 21-19-15(1) that expressly authorizes such a mandate. It also flagged that mandating cameras on private property and government retention of the footage raise serious Fourth Amendment and Article III, § 23 concerns. The opinion does not address or endorse any alternative program; it answers only whether the mandate is authorized.

If you're an apartment complex owner

Under this opinion, a Mississippi city is not authorized to require you to install security cameras or to keep recordings and turn them over to the city. The AG grounded that conclusion in the limits of municipal home-rule authority and in Fourth Amendment and Article III, § 23 protections against government-compelled surveillance and information demands.

If you're a city alderman or council member

The opinion is a direct answer for a council considering this kind of ordinance: the mandate is not authorized under Mississippi law. The AG did not weigh in on voluntary approaches or other policy alternatives; it addressed only the proposed mandate.

If you're a tenant in a Mississippi apartment

The opinion confirms that a Mississippi city cannot force your landlord to install cameras and turn over recordings to the city. It addresses the city's authority to compel surveillance, not what a landlord may choose to do voluntarily.

If you're a civil liberties litigator

The opinion assembles authority a challenger to a similar ordinance would use: City of Los Angeles v. Patel on government information demands without pre-compliance review, United States v. Jones on physical intrusion to obtain information as a search, Crook v. City of Madison on the Fourth Amendment's purpose, and Okhuysen v. City of Starkville holding that a municipal ordinance cannot authorize a search the Mississippi Constitution prohibits.

Common questions

Q: What exactly did the city want to do?
A: Greenwood asked whether it could require large apartment complexes and multi-unit family developments to install security camera systems, keep the recordings for a set period, and set penalties for noncompliance, to deter and help solve crime. The AG concluded that mandate is not authorized under Mississippi law.

Q: Did the opinion address commercial buildings or public housing?
A: No. The request was specifically about privately-owned apartment complexes and multi-unit family developments, and that is what the opinion answered.

Q: Why is the Fourth Amendment relevant if private parties would own the cameras?
A: The AG's concern was government-mandated surveillance on private property and government access to the footage. It cited Patel, where requiring hotel operators to hand over guest information on demand, without an opportunity for pre-compliance review, violated the Fourth Amendment, and Jones, where physical intrusion to obtain information was a search.

Q: Does this stop a landlord from installing cameras voluntarily?
A: No. The opinion is about the city requiring installation and disclosure, not about a property owner's own decision to install security cameras.

Background and statutory framework

Mississippi's Home Rule statute, § 21-17-5, gives municipalities broad authority over municipal affairs, but explicitly subjects that authority to consistency with the state constitution, the Mississippi Code, and other state laws.

Section 21-19-15(1) authorizes municipal police regulations for "the preservation of good order and peace of the municipality." This is the typical "police power" of local government. But police power is not unlimited; it is constrained by constitutional rights and by statutory boundaries.

The Fourth Amendment ("[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated") applies to states through the Fourteenth Amendment. Mississippi Constitution Article III § 23 has parallel language.

The relevant federal cases:

• United States v. Jones, 565 U.S. 400 (2012): Government's installation of a GPS tracker on a vehicle was a "search" under the Fourth Amendment because it physically intruded on private property to obtain information.
• City of Los Angeles v. Patel, 576 U.S. 409 (2015): A municipal code requiring hotel operators to provide police with guest information on demand violated the Fourth Amendment because it failed to provide pre-compliance review.

The Mississippi cases:

• Crook v. City of Madison, 168 So. 3d 930 (Miss. 2015): Articulating the Fourth Amendment's purpose as safeguarding privacy and security against arbitrary government intrusion.
• Okhuysen v. City of Starkville, 333 So. 3d 573 (Miss. Ct. App. 2022): Municipal ordinances cannot authorize searches the Mississippi Constitution prohibits. Search validity must be determined by Section 23 and Mississippi Supreme Court decisions interpreting it, not by reference to municipal ordinances.

Reading these together, the AG concluded that the proposed ordinance was outside Mississippi's grant of municipal authority. Section 21-17-5's "consistent with state law" limitation is the operative restriction.

Citations and references

Statutes and constitutional provisions:

• Miss. Code Ann. § 7-5-25 (AG opinion authority)
• Miss. Code Ann. § 21-17-5 (Mississippi Home Rule)
• Miss. Code Ann. § 21-17-5(1)
• Miss. Code Ann. § 21-19-15(1) (municipal police regulations)
• Miss. Const. art. III, § 23 (search and seizure protection)
• U.S. Const. amend. IV

Cases:

• City of Los Angeles v. Patel, 576 U.S. 409, 419 (2015)
• Crook v. City of Madison, 168 So. 3d 930, 935 (Miss. 2015)
• Okhuysen v. City of Starkville, 333 So. 3d 573, 582 (Miss. Ct. App. 2022)
• United States v. Jones, 565 U.S. 400, 404-05 (2012)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/H.BrockJr.-May-18-2023-City-Ordinance-Requiring-Security-Camera-Systems-at-Apartment-Complexes-and-Multi-Unit-Family-Devel.pdf

Original opinion text

May 18, 2023

H. Donald Brock, Jr., Esq.
Attorney, City of Greenwood
Post Office Box 941
Greenwood, Mississippi 38935-0941

Re: City Ordinance Requiring Security Camera Systems at Apartment Complexes and Multi-Unit Family Developments

Dear Mr. Brock:

The Office of the Attorney General has received your request for an official opinion.

Questions Presented

1. Under Mississippi law, and specifically pursuant to Mississippi Code Annotated Section 21-17-5, is the city of Greenwood ("City") authorized to require the installation of security camera systems in large apartment complexes or multi-unit family developments to promote the public welfare, provide for the safety and comfort of the citizens of Greenwood, and to prevent or solve criminal activity within the City?

2. If the governing authorities of the City determine there is an active and earnest interest to protect the public, provide safety, and solve criminal activity, is the City empowered to curb and restrain criminal activity by enacting ordinances requiring the installation of security camera systems, to maintain and keep recordings for a period of days, and to establish penalties for violation of said ordinance for apartment complexes and residential multi-unit family developments?

Brief Response

1. It is the opinion of this office that the City-mandated security camera system about which you ask is not authorized under Mississippi law.

2. Mississippi law does not authorize the City to enact ordinances requiring the installation of security camera systems or to maintain and keep security camera recordings for a certain amount of time.

Applicable Law and Discussion

Official opinions of the Attorney General are limited to prospective questions of state law. Miss. Code Ann. § 7-5-25. While this office does not, by way of official opinion, interpret federal law, we find it necessary in this particular instance to examine certain federal law in order to resolve your questions. Any portion of this opinion referencing federal law is for informational purposes only.

Section 21-17-5, the "Home Rule" statute, provides, in pertinent part:

(1) The governing authorities of every municipality of this state shall have the care, management and control of the municipal affairs and its property and finances. In addition to those powers granted by specific provisions of general law, the governing authorities of municipalities shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi, and shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances.

Section 21-19-15(1) also provides: "The governing authorities of municipalities shall have the power to make all needful police regulations necessary for the preservation of good order and peace of the municipality and to prevent injury to, destruction of, or interference with public or private property." While the statutes appear to give municipalities broad authority in crafting regulations and ordinances to manage municipal affairs and keep order, nothing in the plain language of the statutes expressly authorizes the City to require owners of private property to install security camera systems on their private property or to maintain recordings from those security camera systems and provide them to the City upon request. Instead, the municipal authority to adopt such resolutions and ordinances is limited by the requirement that such resolutions and ordinances be consistent "with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi. . . ." Miss. Code Ann. § 21-17-5(1).

Paramount to the issue of government-mandated security cameras on private property is the Fourth Amendment to the United States Constitution, which provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV. The Mississippi Constitution's corresponding section states: "The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized." MISS. CONST. art. III, § 23. The Mississippi Supreme Court has stated that the purpose behind the Fourth Amendment "is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Crook v. City of Madison, 168 So. 3d 930, 935 (Miss. 2015) (citation omitted). Installing security cameras on private property may raise serious constitutional issues. Physical intrusion on private property by the government for the purpose of obtaining information is without doubt a "'search' within the meaning of the Fourth Amendment. . . ." United States v. Jones, 565 U.S. 400, 404-05 (2012) (holding that the Government's placement of a GPS tracking device on an individual's personal vehicle to track the vehicle's movements constituted an unlawful search).

In addition to placing security camera systems on private property, the City also desires to monitor and retain the recorded footage obtained from the security camera systems. This also may raise serious constitutional issues regarding government's access to and retention of personal information. See City of Los Angeles v. Patel, 576 U.S. 409, 419 (2015) (holding that a municipal code provision requiring hotel operators to provide police officers with specified information concerning guests upon demand violated the Fourth Amendment since it failed to provide hotel operators an opportunity for pre-compliance review).

The plain reading of the statute fails to authorize the City to mandate by ordinance that private property owners install and maintain security camera systems and make any recorded footage available to the City for a specified length of time. Again, any municipal resolution or ordinance must be consistent with the Mississippi Constitution and the laws of this state. Miss. Code Ann. § 21-17-5(1). "[A] municipal ordinance cannot authorize a search that the Mississippi Constitution prohibits." Okhuysen v. City of Starkville, 333 So. 3d 573, 582 (Miss. Ct. App. 2022). "The validity of a search must be determined based on Section 23 of the Constitution and Mississippi Supreme Court decisions interpreting it, not by reference to municipal ordinances." Okhuysen, 333 So. 3d at 582.

Therefore, it is the opinion of this office that the City-mandated security camera system about which you ask is not authorized under Mississippi law.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Gregory Alston
Gregory Alston
Special Assistant Attorney General