New article on criminal law enforcement privatization

April 17

Sharon Finegan of South Texas College of Law has an article in last year’s volume of the University of Massachusetts Law Review: Watching the Watchers: The Growing Privatization of Criminal Law Enforcement and the Need for Limits on Neighborhood Watch Associations. Here’s the abstract:

On the night of February 26, 2012, George Zimmerman, a member of a neighborhood watch program, was patrolling his community in Sanford, Florida, when he spotted Trayvon Martin, a seventeen-year-old African-American high school student, walking through the neighborhood. Zimmerman dialed 911 and indicated that he was following “a real suspicious guy.” The police dispatcher requested that Zimmerman discontinue following Martin, but he ignored the request and approached the teenager. In the resulting confrontation, Zimmerman used his legally owned semi-automatic handgun to shoot and kill Trayvon Martin. Martin, who was unarmed, had been returning from a local convenience store.

George Zimmerman was charged with second-degree murder. At the time of this writing, it is unclear whether Zimmerman will be proven guilty of the offense. What is certain is that despite the fact that Zimmerman was engaged in law enforcement activities, the Fourth and Fifth Amendments that restrict police efforts in detaining, searching, and interrogating suspects do not apply to neighborhood watch organizations. In many states neighborhood watch members may carry firearms and are protected from having to retreat when confronted by a suspect under “stand your ground” laws. Consequently, neighborhood watch members wield significant authority, but they lack the training and limitations to which police are subject.

This article proposes statutory provisions that would limit the ability of neighborhood watch members to confront suspects, mandate training for those engaged in law enforcement activities, and expand the exclusionary rule to evidence seized illegally by private citizens engaged in law enforcement functions. In this way, legislatures would better ensure that due process guarantees are not abandoned when law enforcement activities are privatized.

I take an interest in “private policing” issues and discuss it when I teach my privatization seminar. The classic article on this is David Sklansky‘s The Private Police (which Finegan cites repeatedly). Sklansky’s account is rich and nuanced, and in particular, he shows why “private policing” issues are tougher than they might at first seem to a hypothetical knee-jerk opponent:

[T]he arrest powers of ordinary citizens in most states are not strikingly different, in some significant respects, from those of police officers. Officers can execute arrest warrants; private persons generally cannot. But the vast majority of arrests are made without a warrant, and the arrest powers of officers and civilians in that circumstance are relatively narrow. An officer, as a general matter, may arrest anyone he or she has probable cause to believe has committed a felony, and anyone who commits a misdemeanor in the officer’s presence. A private citizen typically may also arrest for a misdemeanor committed in his or her presence, and for a felony he or she has probable cause to believe the arrestee has committed—as long as the felony has in fact been committed, by the arrestee or by someone else.

Moreover:

Thinking about private policing unavoidably involves thinking about the public-private distinction more generally. This is partly because policing—peacekeeping, property protection, and law enforcement—touches on deep and contradictory intuitions regarding the proper allocations of responsibilities between the public and private spheres. On the one hand, peacekeeping, property protection, and law enforcement are often considered the clearest examples of functions that are essentially and necessarily public, and therefore essentially and necessarily the job of government. The idea here—loosely shared by John Locke and Max Weber, and latterly by Robert Nozick and Ronald Reagan—is that the very point of government is to monopolize the coercive use of force, in order to ensure public peace, personal security, and the use and enjoyment of property. (Hence the classic description of the libertarian ideal: “the night watchman state.”) One reflection of this idea is the common notion that it is wrong to “take the law into your own hands.” Another is the view, taken as self-evident by the Supreme Court, that “the most basic function of any government is to provide for the security of the individual and of his property.”

On the other hand, private policing can easily be understood as the natural product of three paradigmatically private functions. The first is self-defense, widely viewed as an inherent right, particularly in America, just as “taking the law into your own hands” is seen as obviously wrong. The second is economic exchange, the “free market” that, as we will see, transformed the eighteenth-century constabulary from a civic duty to a specialized form of employment. The third is the use and enjoyment of property, generally thought to include the right of owners to place conditions on those invited onto their property.

Do I have a Big Point to make here about private policing or about Finegan’s new article? No. But I recommend reading Finegan and Sklansky together.

Sasha Volokh lives in Atlanta with his wife and three kids, and is an associate professor at Emory Law School. He has written numerous articles and commentaries on law and economics, privatization, antitrust, prisons, constitutional law, regulation, torts, and legal history.
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