Extract
The paradox of private policing.
INTRODUCTION
"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. (1) 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. (2) 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 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. (3) Employers routinely hire private investigative agencies to conduct background checks on prospective employees. (4) 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. (5) To make matters worse, legal scholars--especially those who study the public police--have paid them hardly any attention. (6) 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. (7) 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. (8) 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. (9) 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, 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, (10) Officers Morgan and Schmidt were private police officers; their jurisdiction, Disney World. Though Morgan's...See the full content of this document
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