LEGAL ISSUES IN PRIVATE POLICING

Affording police powers into private police may become increasingly necessary given
governmental efforts to protect public safety in the face of depleting manpower and
financial resources. The advent of these public–private arrangements requires addressing
key legal questions. These include the following: What are the legal and constitutional
limitations of private police? What licensing, training, and accountability guidelines are
appropriate? These and other key questions will be developed below.

Private policing have sparked a national debate, in part, because of the significant
constitutional issues raised by its usage. These issues have been magnified by
allegations—and evidence—of private police officers abusing their powers when
confronting those suspected of committing crimes. Likewise, the potential for conflicts of
interest by private firms due to their focus on financial profits, rather than competence
and law abiding actions, raise many troubling questions. These concerns manifest the
distinction between public and private policing. They raise many implications.

There are two basic issues relating to legal authority. Although we will deal with
each separately, it is important to note that legal authority and constitutional protections
are often interrelated. For example, if a private security officer makes an arrest, his or her
authority to make the arrest may be questioned. Typically, this inquiry points to the legal
power to affect the arrest. Conversely, in the prosecution of the arrestee, there will often
be an inquiry as to whether any search or seizure is constitutionally proper. In this
inquiry, the question is not about the power to effect the arrest, but whether the search
and seizure conforms to the Fourth Amendment. While may seems like splitting hairs, it
is a rather distinct legal inquiry. In the former example relating to the power of arrest, the
legal inquiry typically goes to whether the private security officer had the power to arrest
the individual. In the latter example relating to the search and seizure, the legal inquiry
goes to whether the search and seizure of the arrestee was constitutionally proper. With
this caveat established, these issues will be examined separately.

A. Constitutional Protections

It is generally understood that the constitutional prohibitions contained in the Bill of

Rights were designed to limit the power of the government. These rights are applicable
only when government is involved. In legal parlance, the applicability of these
protections is triggered when a “state actor” was involved in the arrest. State actor is a
legal term to describe government employees, agents, or officials, such as a police officer
or some other law enforcement official. The initial question one must ask is whether
private police are state actors. The answer to this question determines whether
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constitutional provisions will be applicable to the actions of private police. Simply stated,
constitutional protections are only applicable to government. Unless private police
officers are considered “state actors,” they are not deemed part of government.

If they are not part of government, particular constitutional protections, such as

the Fourth Amendment prohibitions against unreasonable searches and seizures, will not
be applicable to private police. While there is often confusion over this question, in my
research, I concluded that private police within the Marquette Park arrangement were
indeed state actors.1

Historically, constitutional protections did not apply to private police.2 However,

courts are now apt to extend constitutional protections to include actions by private
security personnel.3 In order for constitutional protections to apply to security personnel,
typically it must be demonstrated that their actions have a connection to government or
with sworn police officers. While this is a factually driven determination, one way to
understand this is by assessing their respective functions. This is important, in part,
because the goal(s) of the client in the specific arrangement may drive how the private
police officers perform their job. For example, a client could desire aggressive and
extensive security measures. This may result in practices markedly similar to the
functions of public police. In this context, clients may expect them to “act like the
police,” thereby enforcing laws and public order. This conclusion was echoed by
Clifford, who asserted that “the application of the law enforcement (Fourth Amendment)
standard to security professionals is inevitable as the scope of security increases.”4
This assertion begs the obvious question: When does an individual act as a state
actor? When this involves police and law enforcement officials performing a public
function, the answer is straightforward: Constitution protections are applicable. When
private security personnel are involved, the answer is more complicated. There are a
number of criteria that courts use to assess if security personnel acted as a “state actor,”
including:5

1. Whether the security personnel are licensed by a governmental entity

2. Whether the security personnel acted in cooperation with or by the supervision
of public police
3. Whether the security personnel were actually police officers working secondary
employment (moonlighting)
4. Whether the security personnel were designated with “special police” powers
5. Whether a “nexus” exists, meaning a significant connection or contact with
government
6. Whether security personnel were performing a public function. This question
typically hinges on whether the individual was:
a. Acting to enforce the law versus merely serving a private interest
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 b. Wearing a “police-like” uniform, firearm, and other police equipment
c. Whether the individual was identified as the “police”
d. The location of the arrest, either on private or public property

The applicability of constitutional prohibitions is determined by these factors.

Generally, the more factors that are shown, the more likely the private police officer will
be deemed a state actor. Using these factors, courts typically apply three tests in
determining whether or not a private security officer acts under color of law.

The first test is the public function test, which is determined by examining the
duties and functions of security officers. The operative question is to ascertain whether or
not the duties and functions serve a public function (see Payton v. Rush-Presbyterian,
184 F.3d 623, 627-30 (7th Cir. 1999). The Payton decision held that where private
security guards are endowed by law with plenary police powers, such that they are de
facto police officers, they may qualify as state actors under the public function test. This
standard was later supported by Rodriguez v. Smithfield Packing Co., Inc., 338 F.3d 348,
355 (4th Cir. 2003), where the court observed that “the police function” is one of the
most “basic functions of government.” In making this assertion, the court noted that “an
arrest is the function most commonly associated with the police” (citing Foley v.
Connelie, 435 U.S. 291, 297 (1978).

The second prong is the state compulsion test. This test is determined by the
existence of a statute, rule, regulation or order to compel, counsel, direct, encourage or
control the conduct of a private security officer (see Adickes v. S.H. Kress & Co., 398
U.S. 144, 170 (1970). In this test, the question is whether the government body required
the performance of specific functions.

The third prong is the symbiotic relationship or nexus test. This test is determined
by serving, or having the appearance of serving, the ends of government in protecting
public safety by fighting crime. If the purpose is to protect the public, courts are inclined
deem the conduct as being under “color of law” (see Burton v. Wilmington Parking Auth.,
365 U.S. 715, 721-26 (1961). This test is the key assessment for public-private policing
arrangements. Many of the factors enumerated above, such as licensing, wearing “police-
like” uniforms, working in conjunction with or under the supervision of public police, are
evident in these arrangements. Remember the more factors identified, the more likely the
private police officers will be deemed as “state actors.”

If the individual is deemed to have acted under the color of law (as a state actor)
then constitutional protections apply. The next inquiry is to assess if governmental
immunity applies. Generally, government officials performing discretionary functions
typically are granted qualified immunity. Qualified immunity is available to state actors,
generally if:6
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1. The action was not a breach of clearly established rights at that time, and
2. The individual’s conduct was objectively reasonable.

Whether qualified immunity applies is a question of law for courts to consider. If

qualified immunity does attach, then no liability exposure will result. The attachment of
immunity to private police officers is unsettled. For example, in Richardson et al v.
McKnight (521 U.S. 399), in 1997, the U.S. Supreme Court appeared to reverse its prior
ruling in Procunier v. Navarette, 434 U.S. 555 (1978) that extended qualified immunity
to private citizens acting under color of law. In the Richardson decision, the court did not
allow immunity to private prison guards. This decision, however, contained an important
caveat. The court stated “the immunity question has been answered narrowly, in the
context in which it arose, and, thus, does not involve a private individual briefly
associated with a government body, serving as an adjunct to government in an essential
governmental activity, or acting under close official supervision.” In my mind, this
language could allow immunity to attach to private police if they were sufficiently
connected with government, including acting under its close supervision.

If qualified immunity does not attach, then various statutory remedies are
available to the plaintiff in civil cases. In a criminal context, the remedy is to prevent
evidence obtained in violation of the constitution from being used at trial. This is known
as the exclusionary rule, which is designed to exclude evidence that was improperly—or
illegally—obtained. This rule seeks to prevent, or at least diminish, the incidence of
constitutionally violative actions by not rewarding bad police conduct. The aim is to
dissuade police from such conduct by excluding the evidence at trial. The logic is that
police will be less likely to commit bad acts if they are prevented from using the fruits of
the constitutional violation, such as a coerced confession or illegally recovered
contraband, from being used at the trial. In this sense, the remedy is defensive in that it
protects the integrity of the trial (and constitutional violations) by refusing to allow
tainted evidence in a criminal proceeding.7

In a civil context, the remedy is to assert causes of actions against the offending
officer(s) and the employing entity. These causes of action seek compensatory and
punitive damages, injunctions, changes in policy and practice, and other relevant
remedies. Here the aim is to “make the plaintiff whole” by awarding compensatory
damages, or to punish and deter bad actions through the assertion of punitive damages.
Typically, the lawsuit asserts some deprivation of rights, either statutory or constitutional.
The most common statutory claim is Title 42 Section 1983.

To state a Section 1983 claim, the plaintiff must allege the violation of a
constitutional right, and show that the alleged violation was committed by a person acting

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under color of state law. Acting under color of state law requires that the defendant
exercise power possessed by virtue of state law, and made possible only because he or
she is “clothed with the authority” of state law. In the context of private security,
common allegations relate to searches and seizures and improper use of force. To defend
against these Fourth Amendment claims typically requires establishing probable cause for
the arrest. Probable cause means that the facts and circumstances within the officer’s
knowledge are sufficient to warrant a prudent person, or one of reasonable caution, to
believe, in the circumstances shown, that the suspect has committed, is committing, or is
about to commit an offense. Establishing probable cause also requires that the arresting
officer articulate concrete and objective facts from which he or she inferred criminal
conduct.

B. Arrest Powers

The power of arrest is also a legal question for the court. This inquiry typically points to
the power, not the conduct, of the person making the arrest. As inferred in the above
discussion, the ability to make an arrest is inevitably tied to the authority of the state. The
notion of making a “citizen’s arrest” is illustrative of this point. Government has long
allowed, and often encouraged, citizens to act to affect an arrest when warranted. Upon
the advent of public police, this practice was slowly and inevitably discouraged. After
many generations, the incident of citizen arrests is now quite rare. However, with the rise
of private security personnel, the frequency of arrests by security personnel is much more
frequent. Consequently, there appear to be two trends going in opposite directions.
As the average citizen is less inclined to make an arrest, the inclination of security
personnel to make arrests becomes more common. Although I make this assertion, I do
not necessarily see a correlation between them. Instead, the increase in the number and
scope of private security personnel may be the key factor in any increase in the number of
arrests. Indeed, the more security personnel employed, the more likely arrests will be
made. It becomes a function of probability based on the sheer size and scope of the
security industry. Further, consider the number of shoplifting arrests that occur on an
annual basis. It is safe to assume that many, if not most of these arrests are made by
security personnel. In any case, whenever an arrest is made, it inevitably involves the
power of the state. The arrestee is typically processed by the police, charged by
prosecutors, and tried in a state or federal court.

Even when one understands that the power of arrest is available to all citizens, it
is commonly believed that the police have broad arrest powers, while private citizens
have much more limited powers. This is generally false. While each state has differing
laws relating to the power to effect arrest, there is some commonality throughout the
country. Almost all states give citizens power to effect arrests for felonies, and for
misdemeanors committed in their presence. Indeed, the slight distinction relating to arrest
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powers between the police and private citizens can be illustrated by the language of arrest
powers for all citizens: 8

Any person may arrest another when he has reasonable grounds to

believe that an offense other than an ordinance violation is being
committed (emphasis added).

The legal powers derived from this statute reveal the following elements: First,
the timing of the arrest—“is being committed”—entails while the criminal act is in
progress, or immediately after the criminal act has been completed. Second, private
citizens can arrest for a felony and a misdemeanor, but not an ordinance violation.

Obviously, this gives private citizens (read security personnel) wide authority for
making an arrest. This is particularly true when one considers most ordinance violations
relating to criminal acts also have a corresponding misdemeanor charge. In this sense,
there is little distinction between arrest powers of ordinances and misdemeanors. A
classic example of this empty distinction is disorderly conduct, which is often sanctioned
in both municipal ordinances and in state misdemeanor statutes. Consequently, the most
common distinction between the arrest powers of police and security is that police can
arrest on the authority of court-issued warrants and after the crime has been committed.

These legal distinctions also exemplify philosophical implications. This relates to

the fact—or at least a perception—that security personnel do not carry the same sense of
legal and moral authority as public police officers. In this sense, the level of perceived
authority could affect how private officers perform their jobs. The classic example, used
above, relating to disorderly conduct, or when private police officer directs someone to
refrain from loitering, are both applicable to the level of perceived authority. The
willingness to adhere to this directive may go to whether the officer has the authority,
either legal or moral, to force compliance. The answer may not be clear-cut.
Consequently, the level of perceived versus actual authority is extraordinarily important.
Both of these are grounded in the notion of legal authority.

Given this analysis, it is recommended that private police officers be vested with
some governmental authority. Currently, there are three basic alternatives, as shown in
Figure 1. Consider this figure as a continuum. At one extreme are private citizen arrest
powers. At the other extreme are peace officer (police) arrest powers. In the middle, are
special police. This status provides for the enforcement and arrest powers of peace
officers though the individual is actually employed by a private firm. 9 This combines
private citizen (i.e., not an employee of government) with the arrest powers of a peace
officer (public police officer).10 Peace officer arrest powers are only available to the
special police officer when he or she is “on duty.”11

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 Figure 1: Legal/arrest power continuum

Private Citizen Special Police Peace Officer

This limitation does not affect the work they are paid to perform. This is because
the private police are vested with “special police” powers only when they are on-duty. As
mentioned earlier, when private police work in public setting, they may be inclined to
“act like the police.” This may be the key distinction. If they operate on public
environments, we must expect them to act more like police than security. This assertion is
consistent with Joh’s contention who argues that one way to distinguish the arrest powers
of citizens and private police is through the practical applications of the work performed.
While they possess the same inherent powers, in practice “private police are
occupationally disposed to use powers that a citizen may rarely, if ever, invoke.12
Because of this, Joh asserts that “private police are more like public police, and less like
private citizens.”13

In addition, while there is not typically a great distinction in arrest powers, there
are certain benefits of being “blessed” by government. This includes a certain moral and
legal authority that most citizens tend to respect. In this way, the pronouncements and
actions of an officer with some governmental authority is much more likely to be
complied with. For example, the common response, “I don’t have to listen to you, you are
not the police,” would be largely negated with this official connection to governmental
authority. Without this designation, these encounters would constitute one private citizen
(i.e., private police officer) telling another private citizen what to do.

Consequently, it is recommended that the “special police” designation be used for

private police officers to address the issue of moral and legal authority. Special police
officers have full police powers as peace officers while performing their job. This “on-
duty” aspect would give municipal police departments a larger “police force” without the
economic and operational constraints caused by employing more police officers. The
special police designation would also give the private police officers a much greater level
of moral and legal authority, which is often an important element of an effective police
officer. An example of this approach can be found in the Cincinnati Private Police.
Pursuant to its municipal code, the city allows private police to perform special police
duties.14

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 Another benefit of the special police designation is that it may carry with it the
protection of “qualified immunity.” Qualified immunity is essentially a shield against
liability. It protects the officer (and his or her employer) from civil lawsuits. While it is
an unsettled question of whether immunity would apply to private police, if they are
vested with “special police” powers, courts will be much more apt to afford immunity to
their work. While this shield is not available for reckless or malicious conduct, it does
serve to protect the reasonable and prudent officer who makes a mistake in judgment or
behavior. Further, having qualified immunity attached to private police officers serves to
reduce the legal exposure of the security firm and, accordingly, the insurance costs
associated with the service provision.15 On the other side of the equation, a municipality
can reduce—or even negate—its liability exposure by using indemnification and hold
harmless provisions in the contract with the security firm. These provisions place the
liability exposure on the security firm instead of the city. While these provisions may not
completely absolve the city from liability, they are effective in reducing the liability
exposure from the special police designation.

C. Licensing Standards

Licensing standards directly relate to the issue of legal authority. In order to perform the
work of the “police,” private police officers should be prepared in a manner
commensurate with their functional work product. Stated another way, appropriate
standards must prepare these officers for the complexities of policing. Indeed, the largest
security association in the world, ASIS International, has recognized this fact. In
furtherance of this goal, “The Private Security Officer Selection and Training Guideline”
has been promulgated. In this guideline, the authors note that “security officers … must
also be able to work closely and effectively with public safety personnel.”16 This is
directly in line with the thesis of this paper.

This guideline is, by far, the most comprehensive approach to addressing the
standards of security officers. While this guideline is designed for private security
officers generally, it has direct application to private police officers. Simply stated, the
guideline is both relevant and pointed. This guideline recommends state regulation in
such areas as background investigations, training, continuing education, insurance,
licensing, and oversight bodies. In addition, the guideline suggests certain selection
criteria for new hires, including criminal history, education, citizenship, fingerprinting,
photographs, drug screening, and other personal information related to the applicant.
Without getting into the details of these criteria, suffice it to say that each of these factors
will go a long way toward establishing more professionalism in the security industry. It
also is relevant to those private police officers who operate within the public realm.
Indeed, since the actions of private police officers are likely to be much more visible in
the public realm, the need to meet or exceed these criteria is of critical importance.
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 This being said, it is not necessary that the training and selection standards be
equivalent to public police officers. Police typically receive 600 to 800 hours of police
academy training. This is not necessary for most private police personnel. Instead, the
best practice would be to develop a training curriculum that focuses on the particular role
or function to be performed. The different levels and types of training would then be
regulated by a particular type of license issued by the state (or other government entity).

The proposed training and licensing continuum is illustrated in Table 1. In this

model, the key is to assess both the functionality and critical nature of the job. As the
functional complexity of the work increases, or as the critical nature of the task increases,
the level of training and licensing should also increase. A similar continuum is found in
vehicle licensing standards. For passenger vehicles, the typical training and licensing
requirements are rather basic. As the nature of the vehicle becomes more complicated to
operate (i.e., larger tractor trailers), or as the nature of the cargo becomes more sensitive
to protect (i.e., passengers in a bus or dangerous chemicals in a tank car), the need for
better trained and higher skilled drivers also increases.

Table 1: Licensing and Licensing Continuum

<---------Training Hours---------->
P
U Traffic CSO Patrol Tactical SWAT
B Control Officer Officer HBT
L
I
C

P
R Armed/
I Traffic
Ambassador Hybrid Proactive
Nuclear
V Officer Utility
Control Patrol
A
Officer SWAT
T
E

License: A B C D E
Copyright, James F. Pastor, 2010

In this sense, the key is to train and license the security officer in a manner that
adequately prepares them for the expected work product. Within each sector, training and
skill levels vary substantially. The table compares public and private police—as these
officers have substantially different training standards and experiences. For example, the
Ambassador model used in Atlanta, Seattle, Minneapolis, etc., can be compared to those
of the Community Service Officer (CSO) in the public sector. These types of officers
have similar roles. They typically perform visible public relations functions, and are
largely designed to perform service tasks. Similarly, the patrol officer in the public sector

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can be compared to the “hybrid” private patrol officer. These hybrid officers should have
more training than the Ambassador. They will also perform certain duties similar to
police patrol officers. They will make occasional arrests. More often, their functions
include public relations, taking reports, and performing various order maintenance
functions.

Similarly, tactical police officers typically are more trained and skilled than patrol
officers. They tend to be much more proactive, looking to engage suspicious persons and
make arrests when appropriate. In the same way, the armed/proactive private patrol
officer will receive more training than the hybrid patrol officer. They also will make
more arrests, and conduct themselves in a more proactive manner. They will look to
engage suspicious persons, yet they will still perform various order maintenance
functions. These are comparable to the models used in Hollywood BID and Marquette
Park. Finally, the respective sectors will also have their SWAT components. In the public
sector, these officers will be a proportionately larger percentage of public policing
personnel (pursuant to the Public Safety Policing model). These SWAT officers (and to
some extent tactical officers as well) will represent the “militarization” aspects of the new
policing model. In the private sector, these SWAT officers can be compared to those
performing security functions in combat zones, such as Blackwater (now Xe) and Triple
Canopy. In any case, of course, the functions of private police substantially differ within
the sector. For example, traffic control aides are quite different from the tasks of security
officers at a nuclear power plant. Each should be trained and licensed at a different level.
However, as noted above, there are similarities across the sectors.

Consequently, the skills and job description of different types of private police
officers must be accounted for—just as in public policing. The licensing should range
from class “A” to “D” or “E,” depending upon the particular legislative approach.
Similarly, training should range from 20 or 40 hours minimum, and rise to 200 to 800
hours for street patrols and utility/critical infrastructure security.

D. Accountability Standards

Finally, the issue of accountability of private police must be addressed. While this is a
large undertaking, it is critical that private police be perceived as accountable to the
community, the law, and to the larger society. This must be more than a perception. Real
and specific mechanisms must be in place. Indeed, one of the most telling conclusions
from my research of privatized policing arrangements is that formal accountability
standards and methods must be developed.17

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 There are several avenues to enhancing accountability. These must go beyond
potential liability in civil courts. As mentioned above, civil and constitutional sanctions
are available to remedy misconduct. This discussion goes beyond these remedies.

First and foremost, specific operating procedures must be developed that address
the realities of the job. Just as post orders are critical to the security of a protected
facility, so is the need for policies and procedures that will guide the private police officer
through the expectations of the work. Without specific guidance, there is simply too
much discretionary decision making in the fluid environment of the “street.” Indeed,
discretion without judgment formed through proper guidance and experience is a recipe
for disaster.

Second, the police chief, the police commission, or a community-based board

should oversee the operations of the private policing firm(s). In my mind, the community-
based board in conjunction with police officials is the best way to facilitate
accountability. This approach parallels the logic of Community Policing. Just as
Community Policing is designed to get the community involved in the day- to- day
operations of the police, this oversight board can work with administrators of the security
firm for direction and guidance in addressing the problems within the community. Unlike
Community Policing, however, a contracted relationship provides for a more authentic
“client-based service” because the security firm can be fired. The police agency does not
face this ultimate “sanction.” Consequently, this model would actually give the
community decision-making powers relative to the work product of the private policing
services. Additionally, local police administrators should also work with this oversight
board, thereby helping to coordinate the activities of both the public and private police
officers.

The last critical element of accountability is to have some well-defined process to

address citizen complaints. This should be done by a separate board specifically
mandated with investigatory and quasi-judicial powers to impose discipline and other
sanctions. This board should be vested with subpoena powers and the ability to conduct
hearings. These hearings should be designed to assess the substance of any allegation or
complaint. The board should also have the legal authority to levy warnings, fines, and
other employment and contractual remedies. Such board authority could be empowered
to a number of existing governmental agencies, including the Department of Professional
Regulation or a civilian oversight board that monitors police misconduct. However this
board is constituted, it must be able to deal with the type of complaints common to police
departments.18

In the end, the desire for professionalism within private policing must center on
even more basic purposes: the safety of individuals and communities, and the stability of
our way of life. It is important to remember that the threat of terrorism is designed not
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only to kill people and damage property, but also to destroy the very fabric of the
country. Those in the security industry, especially those protecting public environments,
trophy or symbolic buildings, and the critical infrastructure, will be on the front lines of
this asymmetric conflict. Advancing standards and principles of professionalism is our
best defense.

One way to assess standards that will foster professionalism can be illustrated in
Table 2. In this table, the training standards vary depending upon specific state
requirements. Indeed, some states do not even have requirements. In order to generalize
the wide-ranging state “requirements,” the table presents the current standards as 20/40.
This means 20 training hours for unarmed guards, and 40 training hours for armed
guards. These training standards represent the current norm. As noted above, however,
these requirements fall far below those of public police. Police typically receive 600–800
hours of academy training plus ongoing “in-service” training. As presented in this table, I
advocate licensing standards from “A” to “E” similar to vehicle licensing.

Table 2: Private Police Recommendations

ISSUE CURRENT CONSIDER

Training 20/40 A-E License
Education HS/GED Function specific

Drug Screening Industry specific Function specific

“Safety Sensitive”
Intelligence No Private Access/ Criticality Access

Data Imminent Harm

Legal Authority Private Citizen Special Police

Copyright, James F. Pastor, 2010

Considering education standards, current practice is largely confined to minimum

levels, such as high school or GED equivalent. I propose raising these education
standards in accord with the specific job function. In this way, education, as with training,
is designed to prepare the officer to perform the work actually required. Similarly, current
drug screening standards are largely dependent on the specific industry or even the
particular company policy. As with education and training, I contend the appropriate
approach is to tailor the practice of drug screening toward specific industries. In
particular, I believe the legal standard of “safety sensitive” should prevail. This standard
is deemed an exception to the warrant requirement. In the application of this standard,
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those individuals who perform “safety-sensitive” functions, such as police officers, transit
workers, and truck drivers, are subject to random drug screens. The essence of this
standard is that those who perform safety sensitive functions are so important that they
must relinquish some individual privacy rights for the well-being of others. Hence,
security personnel should be subject to drug screening due to their particular “public
safety” functions.

As to intelligence data, typically there is little or no access for private security

personnel. I believe this must change. Consider Project Griffin in London and NYPD
SHIELD in New York City. Both of these programs have a robust information flow from
and to public and private entities. While much of this information may not be deemed
“intelligence” or even “law enforcement sensitive,” the current legal standard of
“imminent harm” likely prevents adequate communication. As such, I believe that this
standard needs to be changed to a lesser standard. This “critical access” standard would
allow communication to select private security personnel who protect critical
infrastructure. These may include transportation, food, utilities, educational, financial,
and other key public safety functional areas. These individuals must submit to an
appropriate level of background checks. They also should be subject to various controls
related to the information. In any event, it is critical that information and data be
disseminated to these “partners” in public safety.

As noted above, in many cases it may be necessary to have private police officers
vested with “special police” powers. As Table 2 illustrates, the typical current
circumstance is to limit private police to “private citizen” arrest powers. While I
demonstrate that the distinction in these arrest powers is not substantial, the larger
message this sends is that private police are vested with the power of government. This is
often critical to obtain compliance. It is also critical to maintain the perception of
professionalism. In the end, the “special police” status enhances both the perceived and
legal power of private police. I believe this will be critical to appropriately perform order
maintenance—and law enforcement—functions on the public way.

In summary, the challenges ahead present a massive potential market for security
firms. Just as the new asymmetric form of warfare is changing the way the military
confronts and combats terrorism, so too police agencies must reinvent the way of
policing. This transformation will leave a void, or at least a gap, in how public safety
services are delivered to communities. Security firms are uniquely prepared to bridge this
gap and deliver needed order maintenance and related services. This service must be
deployed in a systematic and professional fashion. Simply stated, too much is at stake.
Public safety and constitutional protections will be affected—positively or negatively—
by how this new policing model is ultimately implemented. While we can expect
mistakes to occur, the level of professionalism exhibited by those charged with public
safety will be a key indicator in the level of success. In this sense, wrestling with these
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identifiable deficiencies constitutes a critical yet basic subject that needs to be further
addressed and explored.

Accomplishing these critical principles of professionalism and public safety will

require a delicate balance between individual rights and security provisions. This will not
be easy. The fluidity of the street and the unpredictable nature of the committed terrorist
make this a very delicate balance. There are contemporary examples of this delicate
balance. Consider the use of private security firms in Iraq. Defense Secretary Robert
Gates said he is concerned “whether there has been sufficient accountability and
oversight in the region over the activities of these security companies.” The Defense
Department released a memo to U.S. commanders in response to growing concerns,
instructing them to “disarm, apprehend, and detain” any private security officials
involved in illegal conduct. This new policy signaled the end of immunity for defense
contractors currently shielded from oversight by U.S. law.19 The best “remedy” of
increased liability exposure is increased levels of professionalism.

This entails being sensitive to clients, and at the same time being committed to the
larger mission. While mistakes will be made, the mission must go on. We cannot fail.
With this in mind, F. Thomas Braglia, the former president of the Illinois Association of
Chiefs of Police, noted that in the current climate what was once considered a
“professional relationship” between the public and private sectors has now because a
“professional necessity.”20 This professional necessity presents the largest increase in
business opportunities for security firms since the 1850s, when security personnel
“policed” the American “wild west.” This opportunity, however, is a double-edged
sword, replete with pitfalls for the unwary. This is likely where the greatest opportunities
for the security industry exist. Ironically, this is where most of the problems and pitfalls
reside. Hopefully this paper will help us find the appropriate balance between security
and rights.

If these approaches are not developed, then the result will be a dual system of
policing. Private and public police must come together in a structured manner, or they
will continue as two separate entities. While this has been the historical norm, the
problem going forward is that as private police increase their scope and sophistication,
the implications related to a dual system become more problematic. In this way, the rich
will hire their own police. The poor will have to rely on the public police. While this has
been the norm, the new dynamic will be increased extremism and terroristic violence.
This will motivate people to buy more and more protection. If these protective services
are not connected together, a dual system will result. This will have significant societal
implications. I will close this paper with an observation by Trojanowicz who spoke to
these implications:21
Few people recognize the full implications, which is that the
affluent can afford to buy as much extra protection as they want and
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 need, while the rest must rely exclusively on public police … the irony—
or perhaps the result—is that the poor are the most likely to be the victims
of crime and the least likely to be able to buy more police protection.

Copyright, James F. Pastor, 2010

ENDNOTES:

1. Pastor, James F. (2003). The Privatization of Police in America: An Analysis and Case Study. Jefferson,
NC: McFarland.
2. Clifford, March (2004). Identifying and Exploring Security Essentials. Upper Saddle River, NJ:
Pearson/Prentice Hall, 279.
3. Pastor, James F. (2006). Security Law and Methods. Burlington, MA: Butterworth-Heinemann, and
Pastor, James F. (2003), op. cit.
4. Pastor, James F. (2006), op. cit., 413–414.
5. Pastor, James F. (2006), op. cit., 414–415.
6. Pastor, James F. (2006), op. cit., 415.
7. Pastor, James F. (2006), op. cit., 412–413.
8. See for example Chapter 39/107-3 of Illinois Compiled Statutes, and section 556.061(7) of the Missouri
Revised Statutes (2006). The Missouri statute defines “custody” when the person has been arrested but has
not been delivered to a place of confinement.” Conversely, an arrest may be affected by either an “actual
restraint of the person or by his or her submission to custody.” Therefore, an “arrest” may be better defined
by “the taking of another into custody for the actual or purported purpose of bringing the other before a
court, body, or of otherwise securing the administration of the law” (see Perkins (1942), Elements of Police
Science 223, 227.

Additional evidence of the interrelationship with public-private policing may be illustrative. For example,
in 1985, the Missouri Supreme Court defined a “law enforcement officer” to “encompass those persons
engaged in law enforcement, who, regardless of job title, perform duties and functions substantially
comparable to those performed by police and deputy sheriffs” (see Jackson County v. Missouri State Board
of Mediation, 690 S.W.2d 400, 402-03 (Mo. 1985). This language clearly includes private security officers
with police powers. Because of such, private security officers with a Class A license are precluded from
joining a union pursuant to 105.510 of the Missouri Revised Statutes, even though they are “at will
employees” and would otherwise enjoy this right, liberty, privilege and/or security under the Missouri
Doctrine of Public Policy, if not for being a law enforcement officer.

Further, in 1999, Title 17 of the Missouri Code of State Regulations, Section 10-2 was amended and
expanded the legal framework. It provides those with a Class A private security officer license, operate, to
include the legal authority to exercise “police powers” [17 CSR, Sec., 10-2.010(3)] and exercising “arrest
powers” [17 CSR, Sec., 10-2.030(1)(A)] against those committing felonies, misdemeanors and city
ordinance violations of law. Also see Screws v. United States (1945) (325 U.S. 91, 109-10), holding “one
has the power to arrest when one is “clothed with the authority of state law.”

9. See for example, Maryland Public Safety Statute Section 3-307, which allows the special police officer
to make arrests, issue traffic citations, and direct and control traffic.
10. The use of “special police” status is rather common, but not well publicized. For exampl, in the city of
Boston, there are about 125 armed special police employed by the city with an additional 100 employed by
private firms. Swidey, Neil (2006). “Private Eyes: In Boston, as in Iraq, Private Cops Are Now Patrolling
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Some of the Most Dangerous Beats: Is This the Best Way to Keep the City Safe?” The Boston Globe, April
9, 46.
11. Pastor, James F. (2006), op. cit., 424–425.
12. Joh, Elizabeth E. (2004). “The Paradox of Private Policing,” The Journal of Criminal Law and
Criminology 95, no. 1:49–132, 64.
13. Joh, Elizabeth E. (2004), op. cit., 112.
14. Cincinnati Municipal Code, Title VIII: Business Regulations, Section 887-1.
http://216.196.232.226/1c/cppa/PAGE8.HTM (retrieved on March 20, 2006).
15. Pastor, James F. (2006), op. cit., 425–426.
16. “Private Security Officer Selection and Training” (2004). ASIS International.
17. Pastor, James F. (2003), op. cit
18. Pastor, James F. (2006), op. cit., 427–428.
19. Cole, August (2007). “Private Security Providers Become a Pentagon Focus,” Wall Street Journal,
September 27, A9; Lardner, Richard (2007). “Who Watches US Security Firms in Iraq?” Associated Press,
September 19; Barrett, Barbara (2007). “House OKs Bill to Make Security Contractors Subject to
Prosecution in U.S.,” Kansas City Star, October 4; and Karp, Jonathan (2007). “Contractors in War Zone
Face Legal Front,” Wall Street Journal, March 8, A10. In this article Karp provided some interesting legal
background regarding this issue. He stated that “[p]rivate security contractors who serve with American
troops in Iraq are facing the threat of liability claims over the deaths of private security guards and
American soldiers. Due to a 1950 Supreme Court ruling and other forms of protection, U.S. soldiers and
their relatives are prohibited from suing the U.S. government over injuries or deaths that occur during
military service.

But suits are being filed against private security contractors that could test whether the contractors can be
held liable under civil tort law. One case in particular that could impact the private security industry
involves a suit filed against affiliates of Blackwater USA over the deaths of three U.S. soldiers who died in
Afghanistan in November 2004 aboard a transport plane being operated by the affiliates. Michael Socarras
of McDermott, Will, and Emery, lead trial lawyer for the Blackwater affiliates, says that defense
contractors will face a changed environment if the case is allowed to go forward. ‘Here is what is so
alarming about the case: Never before has tort liability been applied to operations on the battlefield.’
Blackwater is facing another suit in North Carolina that centers on the deaths of four Blackwater security
guards during a March 2004 ambush in Fallujah, Iraq. The North Carolina suit alleges wrongful death and
“fraudulent misrepresentation in contract.”

20. Braglia, F. Thomas (2004). “Public-Private Law Enforcement: A Win-Win Partnership,” Command,
Winter.
21. Trojanowicz, Robert C. (1988). “Serious Threats to the Future of Policing,” Footprints, National Center
for Community Policing, Fall/Winter: 1–2.

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