Walking the line on police privatization: efficiency,accountability,and court decisions

Abstract

This research reviews key issues in the privatization of local police services by discussing economic and political pressures for police privatization and concerns regarding the quality and accountability of privatized police. In particular, the authors explore whether the cost-efficiency sought from police privatization outweighs a critical side effect of a growing confusion regarding police oversight and significant uncertainties in accountability. They analyze court decisions in the US dealing with the question of whether constitutional protections extend to private police conduct. Relevant court decisions suggest that the confusion may grow even worse and local policy makers may need to pay more attention if they decide to privatize police services.

Points for practitioners

While police privatization occurs at all levels of government, this research focuses narrowly on the municipal level because there are significantly more local police agencies than at any other level of government. This study first clarifies the motives behind police privatization and then brings to light the side effects that may occur, especially accountability issues. This will act as a guide for local policy makers because accountability and cost-efficiency are major concerns when considering police privatization. Local officials can more comprehensively consider the demand for privatization of local police services and potential legal issues caused by the privatization effort.

Keywords

accountability civil rights court decisions efficiency entanglement police privatization public function state action

Introduction

The challenge for government to offer cost-efficient public services is growing, particularly in times of economic instability. For decades, one common solution to this problem has been to turn to the private sector. Privatization is defined as ‘the process of returning to the private sector property or functions previously owned or performed by government’ (Shafritz et al., 2013: 7) and involves ‘the delegation of control of governmental functions, like public services, to the private sector’ (Savas, 2005: 17). Since the late 1970s, privatization has experienced growing support from many countries as a way to increase service efficiency and to reduce government involvement. The privatization of government functions was further brought about by the Reinventing Government Movement initiated by Osborne and Gaebler (1992). Privatization has changed the role of government: government plays the role of steering while leaving the rowing to the private sector (Osborne and Gaebler, 1992; Savas, 2005). These changes are often termed hollow state (Milward and Provan, 2000) or third-party government (Salamon, 2002). The economic and political climate has motivated all levels of government to contract with private companies for the performance of essential public services.¹

Privatized public services vary from electricity production and distribution, prison operations, fire services, garbage collection, road construction, to military services to name a few. While privatization is sure to touch numerous public service areas, this research investigates the privatization of local police services in the US. The US has a highly fragmented police system that is divided into three tiers of government among the federal, state, and local levels, each with its own respective law enforcement agencies.² We focus our study on the privatization of local public police because most police activities for general citizens occur at the local municipal level.

The study of police privatization is intriguing for several reasons. First, regardless of the differing views on the nature of police services, accountability will remain an important and critical challenge surrounding police privatization. Traditionally, policing is seen as a public good from the public economic view (for example, Leach, 2004) and sociological and political views (for example, Loader and Walker, 2001) or a function of the state (Manning, 1999). There are also some scholars that have rejected the narrow economic view that policing is a public good and argue that policing has a private good nature as well (for example, Ayling and Shearing, 2008; Forst, 1999, 2000). Whether policing is believed to be a public good or not, the issue of privatization of police services involves in-depth discussions especially with regard to accountability. Second, when considering the importance of police as a major expenditure source among local governments and the historic interest and attention to crime by local media, the lack of recent work in public administration is surprising (Whelan, 1999). Third, as the use of private police in the private sector as well as the use of private police services by the government is likely to continue to grow, it is necessary to discuss related issues surrounding police privatization. For example, since 11 September 2001, the need for private security for additional protection from potential terrorist threats has increased, and hence some security firms predict revenue growth to be about 10 to 12 percent per year (Pastor, 2003). Fourth, police privatization deserves more scholarly attention because ‘private policing offers a unique and underused vantage point for reexamining the public–private distinction’ (Sklansky, 1999: 1168). Finally, in spite of the large and growing number of studies on police privatization, research has not paid sufficient attention to issues related to accountability and the court’s regulatory role (Ayling and Shearing, 2008; Shearing, 1992; Shearing and Stenning, 1981).

As the study of police privatization is largely unexplored (Sklansky, 1999), its consequences still remain poorly understood (Joh, 2005). So, what will happen as more police services are provided by private companies? Some predict a departure of police oversight and the circumvention of established constitutional safeguards of liberty and privacy (O’Leary, 1994). To better understand the impact of privatization of local police services, the following questions are addressed in three parts of this study. Part one, why are local governments motivated to privatize police services? Part two, how will police privatization cause concerns regarding quality control? Part three, how has the court – as the final decision maker for challenging policy issues – addressed the issue of accountability in the context of police privatization? Through the process of answering these research questions, we investigate whether the cost-efficiencies of police privatization outweigh the uncertainties of accountability. After addressing these questions we conclude with a few predictions and recommendations regarding the possible consequences associated with a growing reliance on private police services.

Today public police no longer hold a monopoly over the ‘legitimate’ use of force (Marks et al., 2009), and policing is accomplished by a complex network of different nodes of public and private agencies (Ayling et al., 2009; Brodeur, 2010; Brown, 2014; Button, 2002; Forst, 2000; Johnston and Shearing, 2003). Policing takes many different forms, including self-help, secondary social control, informal policing, private policing/security, policing carrying out previously public police functions, hybrid policing and public police (Manning, 2014). The scope of this article is not private policing per se, that means ‘paid-for actions in regard to private interest’ (Manning, 2014: 29), but private policing carrying out previously local public police functions. According to Perry (2011), police privatization takes several forms, including privatization of entire police departments, contracting out where police departments retain funding responsibility and hire private service providers, and privatization of specific individual services, including funding responsibility, to private companies. The three questions mentioned above can be applied to all these different forms of police privatization. These issues may be more significant when a local government pursues total police service privatization (or complete replacement of public police with private police to use Button and Johnston’s (2012) term). However, local governments should consider the issues and their consequences carefully no matter to what extent they decide to privatize. Also, while this article is developed in the US context, it has implications for other countries that are experiencing political and economic crises and are motivated to privatize public services, especially the police.

Why privatize the police?

The first step while walking the line on police privatization is to understand why governments decide to privatize police services. The demand for private police services has increased drastically, effectuating ‘a quiet revolution in policing’ (Shearing, 1992; Sklansky, 1999). There were approximately 1.4 public law enforcement officers for every private guard in 1970 (Joh, 2005). But the numbers of private police agencies and agents have grown since 1970 (Kakalik and Wildhorn, 1971), and there were about three private security guards for every two sworn officers in the late 1990s (Sklansky, 1999). Today, private security guards outnumber the real cops at least five to one, and increasingly look and act like them (Schneier, 2007). They wear uniforms, carry weapons, and drive their patrol cars to protect both public officials and private citizens from crime (Schneier, 2007). Sklansky (2006) argues that many Americans, especially the wealthy, are more likely to encounter private police service providers than public police officers.

While most private policing arises in the private sector to meet private purposes (Joh, 2005), a growing number of local governments in the US as well as Europe are granting greater police powers to private security companies (Elliott, 1991; Joh, 2005; O'Leary, 1994; Pastor, 2003; Savas, 2005; Sklansky, 1999, 2006). According to Sklansky (1999), the increased demand for private security in the private sector offers tangible evidence about what the public may want, but are not receiving from public law enforcement, as well as the pressure society may place on police departments to offer similar private services.

Local governments may contract out or privatize police services as varied as directing traffic, issuing parking tickets, guarding crime scenes, responding to subscriber alarms, and security patrols to appease public expectations (Perry, 2011). In a few rare cases local governments have privatized all or a significant portion of their police services including traffic stops, conducting searches and seizures, and making arrests (Perry, 2011). Even though cases of total privatization are rare and we were able to find a limited number of cases, we use these cases in related parts of this research as total privatization involves a more comprehensive approach to local police privation. Also, privatization of local police services has been sought more actively in countries that have decentralized police systems, such as the US and the UK, than other countries with centralized police organizations, such as most counties in Continental Europe. In particular, uncommon efforts for privatizing all or most police service in a local government have been made especially in the US and more recently in the UK.

The first local government in the US to fully contract out police services to a private company likely occurred in the 1950s in Kalamazoo, Michigan (Elliot, 1991; Joh, 2005). Private employees of the Charles Services were sworn in as full deputy sheriffs by Kalamazoo; however, the private police services arrangement only lasted about three years because of Charles Services’ involvement in a lawsuit (Joh, 2005). Other examples of significant police privatization experiments that took place in the US include Oro Valley, Arizona; Indian River, Florida; Reminderville, Ohio; Buffalo Creek, West Virginia (Elliot, 1991; Joh, 2005); Borough of Sussex, New Jersey (O’Leary, 1994); and more recently Hardin, Montana (Katz, 2009); Oakland, California; Chicago, Illinois; New Orleans, Louisiana (White, 2009); and Salt Lake County, Utah (Wolverton, 2012). The public’s growing preference for private security products and services may lead to a diminished reliance on public law enforcement.

The primary focus of this research is given to privatization of local public police services in the US. However, it needs to be noted that, whether privatization of public police is frequent or not, the growth of the private security sector is common among countries. The complete or large-scale privatization of local police is a critical issue in the UK (Brown, 2014) and Canada (Brodeur, 2007, 2010) as well. For example, the growing support for private police has continuously increased in the UK. In February 2012, Lincolnshire Police signed a £200 million 10-year deal with G4S, a major private security company. Under the contract, half (around 575) of the force’s civilian staff are transferred to the private company that will build and run a police station (BBC News, 2012; Travis and Williams, 2012). While the private security sector has increased significantly in developed countries in North America and Western Europe, a similar trend is also observed in Australia (Shearing and Marks, 2011), South Africa (Marks et al., 2009), and many other countries in Continental Europe, including post-Soviet and ex-Yugoslav countries, Asia, and South America (Juska, 2009; Nalaskowski, 2002; Nalla et al., 2009; Sotlar, 2009). The issues discussed in this research, especially implications of court decisions and theories regarding accountability, could be extended to the impact of private police generally.

Economic pressures

Cost-efficiency is usually the primary justification for privatizing police services (O’Leary, 1994; Perry, 2011; Stewart, 1985). According to O’Leary (1994), while many profess that police privatization offers a better system of government or more effective law enforcement, money is clearly the primary motivating factor. Police services, especially in large metropolitan cities, often amount to the largest departmental expenditure and a burden to the municipal budget.³ As economic conditions worsen, fiscal pressure on local governments will increasingly cause them to seek alternative methods to save precious public funds without denying citizens essential public safety services (O’Leary, 1994). Thus, public police services are particularly vulnerable to budget cuts.

A perfect example of this occurred in 1981 in the small town of Reminderville in northern Ohio. Residents in Reminderville decided to hire Corporate Security Inc. for $90,000 per year because of having to pay $180,000 a year for continued county police services. The private company increased patrol cars in the area and improved emergency response times from the previous 45 minutes to six minutes (Elliott, 1991). Also, in Fresno, California the use of private security firms instead of public police resulted in significant cost benefits. Instead of paying $59 per hour for public police services, private firms were hired for only $10 per hour to provide security for shopping centers, apartment complexes, concerts and sporting events, the city convention center, and the zoo in Fresno in 1991 (Elliott, 1991). After privatizing local police services in 1993, Borough of Sussex, NJ was able to save more than 52 percent from the annual police budget during the time of privatization (Lyons, 1996).

A significant dilemma for public officials is lowering the crime rate with less incoming revenue. Studies show that increased arrests supported by sufficient funds help deter crime, especially when expected penalties are harsh. Youngs’ (2004) study shows the relationship between economic conditions and crime rates (or provision of police service). In a strong economy, funds are more readily available to allocate to fighting crime. Also, higher arrest rates likely require more money for recruitment, retention, training, and equipment. Unfortunately, local governments are being forced to meet community expectations of lower crime rates with significantly less incoming revenue. Furthermore, policing is increasingly becoming more expensive and less profitable for public governments (Youngs, 2004).

Political pressures

In addition to an economic climate that motivates police privatization, political pressures may also contribute to the use of private police services. Historically there have been underlying political motives both for and against the privatization of public services. Often, party identity and political ideology of elected officials motivate the adoption of privatization (Fernandez et al., 2008). According to Rainey (2009), government officials may implement privatization to justify certain political and social agendas that may not be justified through the legislative process. However, some scholars assert that privatization has become less politically controversial and more commonly accepted as a service delivery approach (Fernandez et al., 2008). Arguably, politics, in particular, may be a more significant influence on police privatization because of the unique political and symbolic nature of policing.

Most of all, police privatization is influenced by the movement against ‘big government’. In addition to the argument that smaller governments require less tax revenue to operate is the view that because men and women are not angels, even the most democratic governments pose a threat to freedom (Daley, 1996). Government corruption and scandals sometime act as a catalyst for police privatization. For example, in 1993 the small town of Borough of Sussex, New Jersey finally decided to privatize its police force because of a drug scandal that ended in the indictment of the police chief and other police officers (O’Leary, 1994). Thus, lessening the role of the government in society may be a valuable end in itself (Daley, 1996).

Also, public police officers in the US sometimes gain a reputation for being overly aggressive and abusers of civil liberties.⁴ Further, police behavior is being scrutinized more today than ever before. As police brutality cases are on the rise since 9/11 (Johnson, 2007), the abuse of political power may become a public issue more frequently due to the rapid advance and use of cell phone cameras by the general public (Sirota, 2011). Thus, a growing negative image can influence the decision to contract out police services.

Quality of service concerns

The next step in walking the line of police privatization is to understand the consequences that may follow a decision to use potentially unqualified private police officers. The case of the Borough of Sussex, New Jersey, mentioned above, is a good example of the negative quality consequences of total police privatization (O’Leary, 1994). The town realized more than 50 percent savings and witnessed faster response times to emergency calls. The private police force took over all aspects of the previous public police duties including pulling over vehicles, issuing summonses, and detaining and arresting persons. Although the town saved money, many unintentional and controversial police situations resulted.⁵ As such, O’Leary (1994) believes that the primary concern when changing from public to private police should be private police qualifications.

Local governments that turn to private police hope to get more value for money. More security officers, albeit private, may provide us with more protection from crime and faster response times to emergency situations. Moreover, the use of private police for even ancillary tasks augments public law enforcement and ‘may even assist in neighborhoods too poor to afford private security services by freeing up public law enforcement resources in areas that cannot afford private security’ (Sklansky, 2006: 97). However, quantity is not always quality.

Most public police officers undergo a rigorous physiological screening and specialized training on the legitimate use of force before being hired (Marks et al., 2009: 151). For example, at the police academy, future officers train on how to deal with people in difficult situations, and train in areas of physical fitness, marksmanship, criminal law and procedure (e.g. search and seizure, laws of evidence, and Miranda rights), and numerous other areas that relate to law enforcement (O’Leary, 1994). Police training can last several months and up to a year. After passing the state peace officer licensing exam, officers are often required to accompany a veteran officer for on-the-job training before being able to perform active duty alone. Compared to public police, the market-oriented system may lack extensive training and serious consideration about public values. As such, unreasonable police practices and questionable reactions to emergency situations, similar to what happened in Borough of Sussex, are likely to occur. Nonetheless, this may depend on how much authority and what tasks are delegated to private police.

Similarly, it is unclear whether the growing trend of police privatization attracts a higher caliber of law-enforcement officers. To ensure that contract cops are qualified, cities like Lakewood, Colorado contract out to private security firms that hire moonlighting certified police officers and ex-cops who know the rules of evidence to protect crime scenes and guard prisoners (Youngs, 2004). Even though Lakewood was cautious about what tasks it privatized, and to whom it would privatize, it still saved a considerable amount of money. Conversely, in Borough of Sussex, O’Leary (1994) determined that police privatization creates an opportunity to be hired into a position of authority requiring little training and the authority to carry a gun at relatively low salaries; that would attract many applicants who are motivated by less desirable factors. While Borough of Sussex saved more money than Lakewood, Borough of Sussex’s privatization experiment was short-lived due to the problems it encountered, mainly their unqualified officers. Actions by unqualified police officers often led to issues regarding accountability.

Accountability and private police

The third and most important step in walking the line on police privatization is exploring the challenges and the issues with assessing accountability (Perry, 2011; Shearing, 1992; Shearing and Stenning, 1981; Stewart, 1985). While the existing literature perceives maintaining accountability as a major challenge when public services are provided by non-governmental actors (for example, Brown et al., 2006; Gilmour and Jensen, 1998; Salamon, 2002), this issue needs to be more seriously addressed with police services (Ayling and Shearing, 2008; Button and Johnston, 2012; Forst, 2000; Shearing, 1992; Shearing and Stenning, 1981). Police have a symbolic and functional importance for democratic societies (Brown, 2014; Murphy, 2001), and irrelevant use of delegated police authority by private police will result in a serious accountability problem (Stewart, 1985). The increasing trend of sector blurring makes it much more difficult to deal with accountability issues in policing (Ayling and Shearing, 2008; Brodeur, 2010; Shearing, 1992). While court decisions that have direct implications for police service privatization are rare, reviewing related court decisions is critical in understanding the accountability issue in police privatization since the issue, when challenged, will be finally determined by the courts.

The courts’ role

Courts are important because they have authority and execute an aggressive oversight of administrative functions and agencies (O’Leary and Straussman, 1993; Rosenbloom et al., 2010). Court decisions in particular have a critical meaning for city administrators as their intervention can be the source of constraints for city officials and limitations on city governments’ ability to manage their government (Koenig and Kise, 1996).

When dealing with accountability, police departments operate somewhat autonomously from the local government’s administration because the ‘chain of command’ ultimately leads to the court instead of the mayor or city council (O’Leary, 1994). There is a real fear that the incremental outsourcing of police services may circumvent established lines of accountability and court oversight. According to Joh (2005: 594), it is a common belief that ‘private police can perform some of the “dirty work” that the public police cannot because private police are less likely to be caught in illegal behaviour, or because public police are legally prohibited from acting in ways that private police are not’. Thus, because private police are not limited with as many legal constraints (Kakalik and Wildhorn, 1971: 19; Shearing and Stenning, 1981: 220), local governments may attempt to legally isolate themselves from any misconduct carried out by private police during their duty (Pastor, 2003). Private entities may also try to distance themselves from accountability for the misconduct of their own private security by ‘turning a blind eye’ to alleged civil rights violations (see Pineda v. Jorge Arteaga Corp. 2010). While there is some truth to these beliefs, the court in certain instances can hold private police to the same legal standard as the public police.

What public police can and cannot do has largely been determined by state and federal statutes and court interpretation of US Constitutional safeguards of civil rights. In particular, three constitutional amendments from the Bill of Rights – the Fourth, Fifth, and Sixth Amendments – have been the foundation of thousands of United States Supreme Court decisions that limit, support, or extend police powers. After the Civil War these constitutional protections were gradually incorporated to be enforced against state governments via the Fourteenth Amendment. This meant that state and municipal governments, including public police, had to conform to certain substantive and procedural protections found in the Bill of Rights. For example, the Fourth Amendment ensures,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment basically provides a safeguard against unreasonable and overly intrusive searches and seizures and generally requires that the police first obtain a warrant from an impartial magistrate that bases his decision on the existence of probable cause. However, depending on the situation, sometimes sufficient independent probable cause, exigent circumstances, and any other exception established by the US Supreme Court justify warrantless searches and seizures. The gray area of determining when a warrantless search or seizure is ‘reasonable’ is often where many complicated and controversial legal battles occur. In such cases, the court requires a difficult constitutional analysis to be applied to the facts and circumstances of the police conduct in question.

While the intent of this article is not an exposition on criminal procedure, it is important to understand how the US Supreme Court interprets the Constitution to protect civil rights without unnecessarily stifling important police duties. Essentially, the task of the Supreme Court has been to ‘hold the balance true’, or in other words, to balance the societal interest of being protected from unreasonable and overly intrusive police conduct against the law enforcement interest of increasing crime fighting efficiency (Illinois v. Gates 1983). Thus, the US Supreme Court walks a narrow constitutional line in an attempt to interpret the Constitution and creates rules in an attempt to strike a balance between the two often competing societal interests, liberty and security.

Likewise, clarity in court decisions and court-made rules is important in holding police accountable, while providing them with clear guidelines on how they may or may not act. Sometimes, the court creates bright line rules to increase police understanding and adherence to court decisions while providing the police with an incentive to re-evaluate and adapt their law enforcement tactics. Joh (2005: 597) states that ‘… law helps constitute relationships between police and citizens, provides a source of legitimacy, and presents private and public police with opportunities for strategic manipulation.’ Thus, knowing how the court will decide is not only vital to ensure police accountability; it is also important that the police know how to adapt and implement policies and procedures that increase police efficiency without crossing court-established constitutional lines that protect civil liberties.

Public–private distinction and state action doctrine

The growing trend in the public sector to privatize their public services has led to uncertainties in accountability. Typically, private actors will not be subject to the same constitutional scrutiny and legal restrictions as government actors. Thus, delegating public services to private providers ‘profoundly challenges traditional notions of accountability’ (Gilmour and Jensen, 1998: 248). In reference to the reinvention of government, Kennedy (2001: 5) states that privatization:

… blur[s] the boundaries between public and private, making it ever more difficult to decide where ‘public’ stops and ‘private’ begins. If we are altering traditional definitions of public and private by virtue of these new relationships, what is the effect of that alteration on a constitutional system that depends upon the distinction as a fundamental safeguard of private rights?

In an attempt to resolve this question the court has relied on the unpredictable state action doctrine to determine whether or not private persons can be held accountable under provisions in the US Constitution. For example, state action is the legal principle holding that the Fourteenth Amendment only applies to state conduct, not private entities or actors (Chemerinsky, 2009: 548). Also, the state action doctrine says that the government and not some private party must be the defendant (Stone et al., 2005). The state action requirement is meant to preserve ‘an area of individual freedom by limiting the reach of federal law and federal judiciary power’ (Lugar v. Edmondson Oil Co. 1982). However, the state action doctrine does not say that the government has no duty to stop private parties from injuring other people (Stone et al., 2005). Often, the court stretches its purview of a case to determine whether private action is really ‘state action’. To do so, the court can ‘sift and weigh’ the facts and circumstances to determine whether a sufficient ‘nexus’ or ‘entanglement’ exists between the government agency and the private actor to justify the extension of constitutional protections (Burton v. Wilmington Parking Authority 1961). For example, factors such as whether or not the government funded, regulated, encouraged, improved, or facilitated the private conduct are analyzed by the court. Generally, the existence of only one factor is not enough for a court to find state action. The court is more likely to find state action when more factors are present. The court also evaluates the extent and depth of each factor regarding the government’s relation to the private actor.

Not surprisingly, the application of the state action doctrine by the courts has been unpredictable. In the case Lebron v. National Railroad Passenger Corp. (1995), Justice Scalia ‘began his state action analysis with an almost breathtaking understatement: “It is fair to say that our cases deciding when private action might be deemed that of the state have not been a model of consistency”’ (Kennedy, 2001: 8). Also, the Supreme Court has said almost nothing about the constitutional status of private policing and has provided remarkably little guidance regarding when, if ever, private policing is considered to be state action (Sklansky, 1999). Thus, even if all or some police services are privatized, it is not always clear who will be held primarily accountable for questionable private police conduct.

Public function doctrine

The thin line between what is public and what is private is convoluted even further when local governments decide to distance themselves entirely from providing police services. This trend has already increased among fire services, prisons, public utilities, waste-disposal services, and more. Although full police privatization is rare, it does occur as demonstrated in the local government cases explained above.

The court has held in a few rare instances that private entities may still be subject to constitutional restraints even without a sufficient entanglement/nexus between a public agency and a private actor. The court may still find government liability for far removed private action under the public function doctrine. The public function doctrine says that ‘a private entity must comply with the Constitution if it is performing a task that has been traditionally, exclusively done by the government’ (Chemerinsky, 2009: 552). Thus, this doctrine is a legal theory that the court may use to impose constitutional constraints on private actors when they are acting alone ‘like’ a state (Stone et al., 2005). The public function doctrine was first implemented by the court in Marsh v. Alabama (1946) (Kennedy, 2001). In Marsh a private ‘company-town’ imposed criminal punishment on the Defendant for distributing religious materials on the town’s privately owned streets and property. The Defendant then alleged that the ‘company-town’ violated his First and Fourteenth Amendments. The Court agreed with the Defendant and found state action in ‘permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties’ (Marsh v. Alabama 1946: 509). According to Kennedy (2001: 13) ‘Marsh has been so strictly limited as to suggest a very narrow scope indeed for the public function test’. The Court has also held that to find state action under the public function test, the activities rendered by the private company have to be the kind reserved exclusively to state authority or commonly associated with state sovereignty (Jackson v. Metropolitan Edison Co. 1974). In other words, a private company may in narrow situations be considered as a public entity when the private entity is acting as a proxy for the government (Kennedy, 2001).

However, courts have been reluctant to burden governmental units – and ultimately taxpayers – with liability for the actions of private contractors under this theory (Kennedy, 2001). For example, the Court in Jackson (1974) held that utilities such as a privately owned electric company are not a public function and are not subject to constitutional scrutiny. Also, in Rendell-Baker v. Kohn (1982), the Court found that private nursing homes in receipt of federal Medicaid payments were not performing a public function when they decided on the type of care for their patients. According to Sklansky (1999: 1257), the public function theory today ‘holds far less promise for litigants hoping to apply constitutional restrictions to nominally private actions.’ (see also Pineda v. Jorge Arteaga Corp. 2010). In the case Pineda v. Jorge Arteaga Corp. (2010), a US district court refused to hold a private entity liable for actions allegedly done in violation of an individual’s constitutional rights, performed by off-duty officers serving as restaurant security guards. The court held that ‘[i]n short, [the private entity] did not employ a security staff that performed functions exclusively reserved to the police and, thus, did not voluntarily undertake a delegated public function’ (Pineda v. Jorge Arteaga Corp. 2010: 6).

Similarly, courts may be influenced by significant policy considerations. For example, the courts may hesitate to over-extend liability to the government for far-removed private police actions. If liability is over-extended for private policing, privatization may lose its appeal and law enforcement and ultimately society may lose the important cost benefits. Police privatization, as explained above, has proven to be a cost-efficient alternative for many local governments.

Public function and private policing

Although the question of whether or not police services are considered to be a public function has not officially reached the Supreme Court, the Court in Flagg Bros. Inc. v. Brooks (1978) alluded to the fact that policing may be a power ‘traditionally exclusively reserved to the state’. However, the constitutional status of private police was still left open by the Court in Flagg Bros. as demonstrated in a footnote to that case which denied that this question was ever answered, or even considered by the Supreme Court (Sklansky, 1999).

In spite of Flagg Bros., to suggest that policing may be ‘traditionally exclusively reserved to the state’ presents two imposing obstacles (Sklansky, 1999). First, no aspect of policing, either patrol or detection, has ever been ‘exclusively’ performed by the US government, and all have at one point or another been left largely to private initiative (Sklansky, 1999). A good example of this is the private Pinkerton Detective Agency hired by governments in the late nineteenth and early twentieth centuries. Second, the public function doctrine is somewhat counterintuitive to the conceptual underpinnings of its sister legal theory, the state action entanglement doctrine, which may hold private actions to a public standard when a sufficient nexus is established between the private action and a public organization. Distinguishing private security personnel from other private individuals, i.e. their status, how they act and ‘cloth themselves’,⁶ is somewhat problematic and may suggest that a finding of state ‘action’ via the public function theory is a finding of ‘inaction–acquiesces’ on the part of the government (Sklansky, 1999). Likewise, the public function doctrine can protect against a ‘passive state’ which delegates to private parties functions traditionally performed by the state to escape liability (Stone et al., 2005). The government can sometimes be held accountable under the public function theory for sitting back and washing its hands completely of certain public functions performed by private companies (Sklansky, 1999). Thus, the public function theory, as an alternative approach for finding ‘state action’, is conceptually weak and difficult to apply. The uncertainty in accountability may lead to confusion on the part of private police on what they can and cannot do, which could result in either overly paranoid officers and inefficient policing methods or extreme police conduct leading to constitutional violations of civil liberties.

Discussion and conclusion

Local governments may be motivated to privatize their police service especially for cost-efficiency gains. What will be the effects on law enforcement and society if police services are increasingly privatized? Once again, this question may depend on what tasks and how much authority is granted to privatized police. Some forms of police privatization are beneficial and have been proven to save money. However, the extant court cases suggest that several unfortunate consequences may result in the future.

The results of the court case analyses suggest that a certain public service provided by a private actor, whether it is police or not, causes a public accountability problem in the service due to the weakened public function, resulting in less protection of citizens’ rights from government and fundamentally the Constitution. One fundamental problem is that the complicated accountability system in police privatization may have a negative impact on human rights. The more police services that are being performed by the private market, the harder it will be to discern where the public–private line begins and ends to determine accountability. The unpredictability of the application of the state action theory and the rare use and weak application of the public function doctrine may create confusion and potential abuses. Public agencies that contract out police services, even when they completely distance themselves from the private service provider, may still be held liable for wrongful private police conduct. If this occurs, police privatization may actually cost the government more money paying out legal damages and attorney fees. In addition, because private police companies are profit driven, it is reasonably anticipated that they will avoid spending the large amount of money necessary to train officers. Consequently, officers may lack the appropriate criminal law and procedural knowledge, as well as the qualifications to handle certain high-risk situations. This would increase the chance of police misconduct or corruption, resulting in greater potential of a market failure and government liability.

On the other hand, there remains the slight possibility in certain situations that a court may not hold private police to the same constitutional standards as public police officers. If this were so, private police may be left in certain situations with unfettered discretion, and thus personal rights may be ignored. For example, a private security guard may be able to invade the private property of an individual, conduct a warrantless search, and collect incriminating evidence for use in court. If no state action or public function is found, then the suspect may become the victim of private police misconduct and may be limited in relief if left solely to rely on tort, agency, and other state laws. In this case, the responsibility to safeguard against private police abuses may fall heavier upon state and local legislatures. However, if US Supreme Court Justices have difficulty interpreting the constitutional provisions that safeguard civil rights,⁷ how much harder would it be for state and local legislators and courts to come up with clear rules that balance the two universal and competing societal interests of police efficiency and civil rights?

In conclusion, understanding the motivations behind privatization and the risks involved, privatizing tasks slowly and cautiously to find a right balance, and maintaining adequate oversight and control are essential steps for a local government which decides to walk a line on police privatization. However, balancing between efficient police protection and human rights is not an easy task. If the process of police privatization is not addressed with sufficient caution, the rights of citizens may be left unprotected since the court, that has the authority to decide on public actions at the final stage, has not provided a clear theory on accountability of private police.

Footnotes

Notes

Pace William Rawlins is an attorney and shareholder with Whittenburg Strange and Walker, P.C., practicing immigration and nationality law as well as criminal defense. Pace earned his JD and MPA degrees from Texas Tech University. Pace lived in Spain for two years, and he is fluent in Spanish, proficient in Portuguese, and a novice in Arabic. Pace is an Adjunct Instructor of Business Law at Amarillo College, and he is a member of the American Immigration Lawyers Association (AILA).

Sung-Wook Kwon is an associate professor of public administration and policy in the Department of Political Science at Texas Tech University. His research interests include urban management, intergovernmental relations, and collaborative governance. His articles have appeared in such journals as Public Administration Review, American Review of Public Administration, Journal of Urban Affairs, and Public Performance & Management Review.

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