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Louis Michael Seidman provided detailed and especially helpful comments on an earlier draft, and Stephen Heifetz gave the piece a careful, practitioner's review.
Finally, for assistance with this Article and for much else, I carry a permanent, measureless debt to my late friend and mentor Julian Eule. For most lawyers and scholars, private security is terra incognita - wild, unmapped, and largely unexplored. Increasingly, though, government agencies are hiring private security personnel to guard and patrol government buildings, housing projects, and public parks and facilities, and a small but growing number of local governments have begun to experiment with broader use of private police.
No doctrinal change, moreover, could obviate a second, more fundamental obstacle to deeming private policing state action on the ground that it carries out a "traditional governmental function": But the state remains present in other ways deemed significant by the Supreme Court's state action jurisprudence: Similarly, it may explain why lower courts have refused to resolve state action questions "by looking at the nature of the activities performed by security employees," and instead have stressed their formal status, explaining that "[a] security guard is not a police officer.
Introduction For most lawyers and scholars, private security is terra incognita - wild, unmapped, and largely unexplored. Criminal procedure, the branch of constitutional law that aims to regulate the conduct of the police, is a well-developed field of jurisprudence and of legal scholarship.
The complaint is heard increasingly often that contemporary criminal procedure is too well developed - too ornate, too complicated, too far removed from first principles. No one makes that complaint about private security law.
Indeed, no one even speaks of "private security law," for the very phrase suggests a unified and specialized body of rules that does not exist.
On those rare occasions when private security employees become "state actors," constitutional criminal procedure gets added to the mix. Partly as a result of this disarray, legal scholars have tended to ignore private security. The private security industry already employs significantly more guards, patrol personnel, and detectives than the federal, state, and local governments combined, and the disparity is growing.
Private policing poses no risk of supplanting public law enforcement entirely, at least not in our lifetime, and it is far from clear to what extent the growing numbers of private security employees are actually performing functions previously carried out by public officers.
Still, if criminal procedure scholars continue to focus exclusively on the public side of law enforcement, our work is likely to become of steadily more marginal importance. More importantly, ignoring private policing has impoverished our thinking about the public police and about constitutional criminal procedure.
Private security firms offer tangible evidence about what some people want but are not receiving from public law enforcement, and what the public may increasingly pressure police departments to provide.
The legal regime governing private security, moreover, is strikingly similar to the legal regime that many reformers have advocated for public law enforcement: It therefore offers tantalizing opportunities to test some of the most persistent objections to modern criminal procedure law.
Finally, police privatization furnishes an opportunity to reconsider the focus of constitutional law on negative obligations of government, and the overwhelming focus of constitutional criminal procedure on fairness to individual criminal defendants.
The dramatic spread of policing-for-hire may require rethinking, for example, what it means to guarantee all citizens, regardless of wealth, the equal protection of the laws. This Article seeks to demonstrate why private policing deserves more attention from legal scholars, to suggest what forms that attention should take, and to draw some tentative lessons from the little we already know.
It offers more questions than answers, and more suggestions than conclusions. It aims not to exhaust a subject of study, but to begin one. To do even that much requires some background.
Part I of the Article thus sets forth what every scholar of criminal procedure or constitutional law needs to understand about today's private police: I start by examining what is known, and what is unknown, about the private security industry and its recent, dramatic growth.Adopting the recommendations of the report on the MTEF and FSP submitted by the Committees on Finance, Budget and Research and Aid, Loans and Debt .
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