The paradox of private policing.

• Author: Joh, Elizabeth E.

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 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." (11) 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. (12) 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, (13) the parents of Rob Sipkema, invoking the Florida Public Records Act, sued Reedy Creek, a holding company managed by the Disney Corporation, (14) 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. (15) 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. Therefore, they could not be considered government entities for purposes of the state public records law. (16)

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. (17) 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. (18)

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 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. (19) 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.

1. 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. (20) Sociologist Clifford Shearing describes this growth as a "quiet revolution." (21) In the 1970s, for example, a report commissioned by the Department of Justice estimated that there were approximately 1.4 public police officers for every private guard. (22) Today, that ratio has reversed direction, and there are nearly three private guards for every public police officer. (23) California alone accounts for 185,000 licensed security guards. (24) A number of estimates suggest that nationwide the money spent on private policing is at least twice that spent on public policing. (25)

   1. "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...