Bio: Acting Professor of Law, University of California, at Davis (King Hall) (). J. D., Ph. D. (Law and Society), New York University; B. A., Yale University. Thanks to Paul Chevigny, David Garland, Charles Reichmann, David Sklansky and Jerome Skolnick




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Copyright (c) 2004 Northwestern School of Law
Journal of Criminal Law & Criminology


Fall, 2004


95 J. Crim. L. & Criminology 49


CRIMINAL LAW: THE PARADOX OF PRIVATE POLICING

ELIZABETH E. JOH*

BIO:
 
* Acting Professor of Law, University of California, at Davis (King Hall) (eejoh@ucdavis.edu). J.D., Ph.D. (Law and Society), New York University; B.A., Yale University. Thanks to Paul Chevigny, David Garland, Charles Reichmann, David Sklansky and Jerome Skolnick for their comments and suggestions, to the staff of the U.C. Davis Law Library, and Rachael Phillips ("05) for research assistance, to the Open Society Institute's Soros Justice Fellowships for early support; and to Dean Rex Perschbacher and the U.C. Davis Law School for financial assistance and institutional support.

SUMMARY:
... Those who worry about the encroaching powers of the public police in the war against terrorism ignore an equally important group. ... Part III examines the law regulating private policing, and draws attention to the rigid legal distinction between public and private. ... A more subtle effect of public support has been the increased legitimacy of private policing, and a greater willingness by public police to cooperate with them, whether or not they are engaged in formal partnerships. ... Finally, I interviewed the public police officer who served as the liaison for the city's public-private partnership, and attended three of the partnership's monthly meetings to supplement my understanding. ... Most evident from the T Company example is the observation that public policing is deeply intertwined in private policing work. ... Table 1 The Relationship Between State Action, Arrest, and Policing  ... If this creates regulatory lacunae in public policing, the observation is all the more true with private police, who may be organizationally inclined to turn towards a private justice system more often than to the criminal justice system. ... Finally, even if state action could be imputed to the private police, it is far from clear that the arrest-centered model of regulation that governs public policing would be a sensible mechanism for them. ...  

HIGHLIGHT:
"Most people think of security as some unarmed fat guy that can't speak English at the 7-Eleven... . That's not us at all. We're very policelike, even though we are security officers."
 
- Security guard employed by Intervention Agency, a security firm. n1
 

TEXT:
 [*49] 

Introduction

Those who worry about the encroaching powers of the public police in the war against terrorism ignore an equally important group. Increasingly, the private police are considered the first line of defense in the post-September 11th world. n2 Hardly anything is known about the private police, yet they are by far the largest provider of policing services in the United States, at least triple the size of the public police. More importantly, the functions, responsibilities, and appearance of the private and public police are increasingly difficult to tell apart. This development has been surprisingly underappreciated. What's more, the law recognizes a nearly absolute distinction between public and private. This means that private police are largely unburdened by the law of constitutional criminal procedure or by state regulation. While the law multiplies distinctions between private and public police, the two groups perform many of the same tasks, and private  [*50]  police benefit from heavy public involvement. This is the paradox of private policing.

Private police long ago outpaced the public police in terms of persons employed and dollars spent. Today they provide crime control and order maintenance services in many of the places in which we work and live. Uniformed guards patrol shopping malls, "gated communities," and even public streets. n3 Employers routinely hire private investigative agencies to conduct background checks on prospective employees. n4 Many of these privately paid police behave like public law enforcement officers: detaining individuals, conducting searches, investigating crimes, and maintaining order. Because few empirical studies exist, the private police remain largely unknown. Courts have not developed comprehensive rules governing private police, and statutory regulation is minimal, even non-existent in some states. n5 To make matters worse, legal scholars - especially those who study the public police - have paid them hardly any attention. n6

 [*51]  This Article begins to remedy that ignorance, by drawing a contrast between the rigid legal conception of the private police, on the one hand, and their increasingly complicated and shifting social role on the other. Drawing upon materials from ethnographic observation, sociology, and law, this Article argues that private police participate in much of the policing work that their public counterparts do. Although every private police agency may not perform all the tasks that a public police department does, many do, and private police in the aggregate unquestionably perform all of these duties. This apparently simple observation warrants reconsideration of the private police by courts and academics. Their common legal characterization as mere "night watchmen," is both dated and inadequate. n7

Exactly what constitutes "policing" and who may legitimately call themselves "police" are now contested issues. As a consequence, the regulatory framework governing the police, by giving insufficient consideration to these increasingly unsettled questions, creates legal distinctions at odds with actual police work. n8 Furthermore, the contemporary proposition that private police ought to serve as partners with public police in a common enterprise of crime prevention must be met with caution, for these partnerships carry unresolved questions as to the proper balance of burdens, benefits, and controls that are distributed between the public and private sectors. n9

How stark is the contrast that I have drawn? Consider the following example. A store clerk in a Florida town alerted a police officer, named Morgan, that he had seen several counterfeit fifty-dollar bills redeemed that morning. In response, Morgan alerted nearby shopkeepers, and then observed Thomas Francoeur pass one such counterfeit bill. Followed by Morgan, Francoeur completed his transaction and then met with two associates, Jack Pacheco and Robert Pizio. After summoning a fellow officer, Morgan stopped the three men, showed them his badge, and told them to follow him to his office. Once there, another officer, Schmidt, examined a book one of the detained men had turned over, and found inside nine counterfeit fifty-dollar bills. The three men also surrendered plane tickets bearing false names, and a key to a room in a local motel, in which police later found hotel receipts with the same false identities. While in custody,  [*52]  Francoeur, Pacheco, and Pizio stood behind a one-way mirror so that shop employees could identify them. The three men were later convicted of passing counterfeit currency and conspiracy. n10

Officers Morgan and Schmidt were private police officers; their jurisdiction, Disney World. Though Morgan's behavior differed little from that of a public police officer, the Fifth Circuit Court of Appeals thought otherwise, and in 1977 rejected Francoeur's claims that Morgan and Schmidt had violated his Fourth Amendment rights. In its view, Disney World was "an amusement park to which admission is charged... . No one is permitted into the outer gates of Disney World except by consent of its owners." n11 Disney World was not a community, according to the court, and consequently, Morgan was not like a police officer responsible for that community. While the court offered few facts about the Disney police department, today the eight-hundred member security force of Disney World, solely responsible for patrolling the hundreds of acres of Disney property, answers 911 calls, and investigates crimes up until the point of arrest. n12 Officers Morgan and Schmidt looked like police, behaved like police, but in the view of the Francoeur court, were not "real" police.

Twenty years later, a Florida state court characterized Disney police just as the Francoeur court had. In Sipkema v. Reedy Creek Improvement District, n13 the parents of Rob Sipkema, invoking the Florida Public Records Act, sued Reedy Creek, a holding company managed by the Disney Corporation, n14 to obtain copies of the operations manual used by Disney police. A high speed chase conducted by Disney police led to an accident resulting in Sipkema's death. n15 While the appellate court summarily affirmed the trial court's refusal to require Disney to produce the records, Judge Harris, in a concurring opinion, provided a glimpse into one judge's view of the Disney police. These employees issued only "Mickey Mouse ... citations," and provided "night watchman" rather than "law enforcement" services.  [*53]  Therefore, they could not be considered government entities for purposes of the state public records law. n16

More than twenty-five years after Francoeur was decided, the Fifth Circuit's view of private policing remains the dominant one in American legal thinking. From this standpoint, only public employees paid by tax dollars, and no one else, are the police. n17 This Article explains how this inaccurate assessment produces a tension between law and police practices, as well as opportunities for exploiting that tension.

Consideration of private policing poses some preliminary questions: defining more precisely the term "private policing," and distinguishing private from public policing. Accordingly, Part I provides a definition and the socio-legal context for the following parts. n18

Relying principally on a case study, Part II demonstrates three points about the present state of private policing. First, the advocacy of private-public partnerships creates incentives for ever greater involvement between the two policing groups. Second, as that case study shows, meaningful distinctions  [*54]  between "private" and "public" in private police organizations are difficult to make. Finally, private police work involves much more than passive protection of private property. More than ever, private police agencies are sophisticated organizations not dependant on public direction or aid.

If private policing is complex and varied, the legal framework governing it is not. Part III examines the law regulating private policing, and draws attention to the rigid legal distinction between public and private. n19 We can attribute this sharp distinction to at least two presumptions in the law of (public) policing that obscure private police activity from otherwise applicable rules. I call one the superficiality of state involvement; the other, the centrality of arrest. In Part IV, I conclude with the proposal that "policing" and "the police" are terms with increasingly contestable meanings, and suggest how private policing forces us to reexamine conventional wisdom on police and the law.

I. Private Policing: What is Private and What is Public?
 
If the sheer size of a social phenomenon is a measure of the need for increased legal attention, the private police long ago warranted it. Since the late 1960s, the United States has experienced an explosion in the growth of companies and individuals providing policing services on a for-profit basis. n20 Sociologist Clifford Shearing describes this growth as a "quiet revolution." n21 In the 1970s, for example, a report commissioned by the Department of Justice estimated that there were approximately 1.4 public police  [*55]  officers for every private guard. n22 Today, that ratio has reversed direction, and there are nearly three private guards for every public police officer. n23 California alone accounts for 185,000 licensed security guards. n24 A number of estimates suggest that nationwide the money spent on private policing is at least twice that spent on public policing. n25

A.
 
"PRIVATE POLICING": WHAT IS PRIVATE AND WHAT IS PUBLIC?
 
Much confusion exists regarding what the term "private policing" means. Does it refer only to security guards? How is it different from public policing?

By "private policing" I refer to the various lawful forms of organized, for-profit personnel services whose primary objectives include the control of crime, the protection of property and life, and the maintenance of order. In order to evaluate private policing as a discrete subject of study, we need to define it generously enough to include more than a few examples, but not so broadly that we include all forms of social control apart from the public police. n26 As defined here, private policing is distinct from other social  [*56]  groups and activities, outside of public law enforcement, that also play some role in controlling crime and maintaining order. Throughout American history, groups of private citizens have organized themselves to enforce their own interpretations of law, but vigilantism is distinct from private policing in its extralegal status. n27 Volunteers in neighborhood block-watches and citizen patrols may be more likely to follow the law, but for them policing is not a primary occupation, as it is for private police. n28 Similarly, crime control and safety is only a secondary concern to persons such as insurance adjusters, garage attendants, or janitors, who may be required, as a part of their duties, to engage in some police-like activity. n29 And what of private armies? The provision of private employees in international peacekeeping missions and conflicts is more accurately described as quasi-military work, not the domestic activities with which we associate public policing, my primary point of comparison. n30 Finally, locks and alarms protect  [*57]  property and promise security, but the use of these goods is both too episodic and too widespread throughout society to be contained within a discrete definition of policing, let alone private policing.

We should recognize, however, that the definition of private policing here serves to sharpen the object of analysis, and not to draw absolute boundaries between that which is or is not "private policing" and more generally, "policing." Much social action, broadly interpreted, might be considered policing, so line-drawing exercises are unlikely to be successful here. As the following parts suggest, the story of the private police role in society is also a debate about the boundaries of policing itself, and thus it is my hope to let the problematic character of "policing" permeate the discussion that follows.

B. STUDYING THE PUBLIC POLICE
 
Who are the public police? For many, the "police" are armed, uniformed public servants charged with enforcing the criminal law. To this we might add that they are members of a "bureaucracy created by political and legislative processes," and are also expected to "maintain public order," or to keep the peace. n31 In democratic societies, police are accountable to the courts, and to elected legislatures and executives. n32 The employment of the term "private police" necessarily implies a definition in contrast to the public police. How is each group distinct from the other?

In order to draw a comparison, the student of private policing must be acquainted with the sociological and legal literature pertaining to the public police. Consider the interplay between the formal rules regulating public police behavior and observations made of public
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