Arresting Developments

For six hours every month, Lieutenant Rick Lewis of the Jacksonville sheriff's department moonlights at the Jacksonville Golf and Country Club, a lush 18-hole course located in the heart of the city's wealthiest gated community. As a moonlighter, Lewis does exactly the sort of things he does as a cop. For five dollars an hour, he dons his police uniform, gets in his cruiser, and patrols the clubhouse and grounds. Five dollars an hour might seem a little low for Lewis's services, and, in fact, it barely covers the rental fee the sheriff charges him for use of the car and uniform. But the money isn't his real remuneration. His "principal form of payment," as Lewis puts it, takes the form of free golf privileges at one of Florida's finest and most exclusive golf courses—something that would otherwise be available only to those who have spent several hundred thousand dollars for a home within the community's gates. Sergeant Norm Brewer, who has participated in a similar deal with Jacksonville's Deer Creek Country Club, calls it the "club cop program." In 1991, Robert Reich coined the phrase "secession of the successful" to describe the growing tendency for wealthy Americans to opt out of the public system and instead pay privately for their medical treatment, their children's schooling, their roads, their green spaces, and even their policing. But policing is special. It's not that policing is somehow a more public function than, say, education or health care. What distinguishes policing is that it implicates both the world of raw physical reality (the realm of physical force and space) and the world of pure social construction (the realm of laws and rules) in a fashion simply not replicated in education, health care, or any other comparable sphere. Police not only operate under the color of public authority. They may also constrain a citizen's personal freedom largely at their own discretion, and they are granted a wide latitude in exercising the state's monopoly over the legitimate use of violence. Policing, moreover, lends itself to peculiarities like Jacksonville's club cop program. Paying moonlighting cops in golf passes that can't otherwise be purchased not only takes policing into the marketplace, it takes the mode of payment out of the marketplace. It doesn't just privatize policing, it privatizes the currency as well.

In a variety of gradual and unnoticed ways, new policing practices are subtly transgressing the traditional boundaries between the public and the private. Three practices in particular are noteworthy: the increasing use of public police officers to enforce privately established rules; the enforcement of public traffic, parking, littering, and loitering ordinances in private spaces; and the real possibility of using public funds to underwrite police forces that are under private control. In each case, the nation's 150,000 private communities—planned developments, condominiums, or cooperatives managed by private home owners associations—are taking the leading role. Some are "gated," but most are not. Along with malls, parking lots, and other private businesses, these communities are vigorously contesting, and indeed transgressing, the traditional public-private border in policing.


Public Enforcement, Private Law

On January 2, 1998, Miguel Valdes, a private security guard working for a Florida bank, shot a customer for double parking. Nobody would disagree that Valdes went way over the line. In contrast to public police, private police enjoy only a clearly circumscribed set of powers to enforce public laws. They have the power of citizen's arrest and the capacity to eject trespassers from private property. But beyond this, private police may not use physical force, pursue, detain, search, or seize. Overzealousness may be a constant temptation for what some people derisively call "cop wannabes," but we usually know overstepping when we see it. But now reverse the private-public arrow, and consider another problem: public police enforcing private rules. Put away the image of a liveried private security guard brandishing a gun at you for double parking, and imagine instead a uniformed police officer coming to your door and telling you to mow your lawn. This actually happens. All across the country, police officers are working off duty as private security personnel—for private communities, shopping centers, hotels, and restaurants. In that capacity, they do nothing beyond what an ordinary private security guard would do to enforce the private rules of their employer. They utter verbal warnings, and, in the case of guards working in private communities, they might issue citations from the home owners association which can be "enforced" (since no public law has been violated) only by pursuing the violator through the civil courts.

But there is a difference. These police officers are very frequently allowed to wear their official police uniforms and drive in their official police cruisers while working at off-duty jobs. Steve Teal, who manages 130 private communities in the Phoenix area, regularly hires uniformed moonlighting cops to enforce home owners association rules. Teal's moonlighters can, for example, tell residents and visitors not to fish in one place, or picnic in another, or swim in the pool past ten; and none of these are acts that violate any public ordinance. Everything the guards do is totally private; the only thing public about them is their uniformed physical presence. And that's the point. Teal has tried "pure" private security patrols from Brink's and Pinkerton's but, he says, "they just aren't as effective as a policeman wearing a city uniform." Uniformed public police "have an authority image," Teal observes. "People don't question them—that's the point of it."

The same logic applies in the case of mall managers who hire moonlighting police in full uniform to speak to teenagers flouting the mall's private rules against running, yelling, or roughhousing—none of which are illegal acts. The manager has always been able to ask patrons to stop violating shopping-center rules or ask them to leave if they don't behave. Should miscreants refuse to leave, the manager can even call the police, since trespassing is illegal. But more and more often, these moonlighters convey in every respect the "authority image" of regular police officers, with all that that entails, even before the matter has risen to the level of a public offense.

As long as the moonlighter does nothing that exceeds the bounds of what a private security guard would do in enforcing private rules—as long as he arrests no one, detains no one, issues no public citations—what difference does it make what he's wearing? Consider the example of Black Butte Ranch, a private gated community near Bend, Oregon. In 1990, Black Butte created its very own special services district, a governmental entity that uses residents' property taxes to fund a fully equipped, fully empowered public police force with a jurisdiction that happens to coincide precisely with the borders of the private ranch. This newly minted public force then contracted with the community's home owners association to enforce a number of the association's private covenants, among them its curfew and golf course rules. In principle, the distinction between public laws and private rules remains intact. When the Black Butte police enforce private rules they do not issue official police citations, but private home owners association citations, which are enforceable only through small-claims court. The real tickets are reserved for violators of the county ordinances the Black Butte police are also obligated to enforce. Yet when they stop a private-rule violator and hand him a private ranch ticket, they have all the appearance of public cops. In fact, they would be impersonating police officers if they weren't, in fact . . . well, police officers.

There is in fact a stunning diversity in how Amer ican police departments approach this issue. On the one hand, a large number of departments permit uniformed moonlighting. In fact, because off-duty cops immediately become on duty if they witness a crime, some departments require moonlighters to wear their public uniforms. "If you have to take police action," says Phoenix Sergeant Mike Torres, "you might as well be in your uniform from the get go." On the other hand, many departments—including Paradise Valley, right next door to Phoenix—absolutely prohibit moonlighters from wearing their uniforms. Chief John Winterstein decries wearing uniforms off duty because it creates "the impression that the arrest authority is being used for private purposes." Uniformed moonlighting even makes some private community leaders quail. "When a cop wearing full regalia says 'You're violating our pet rule,'" worries Bob Diamond, former national president of the Community Associations Institute (CAI), the nation's umbrella association of private communities, "clearly it's troubling."

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In the face of such conflicting opinions among police departments themselves, one might think to look to the courts for guidance. But most court decisions involving moonlighting cops actually turn on a very distinct but equally important question—whether moonlighters can do things in their private capacity which they could never do in their public capacity without a warrant, even if those activities then lead to an arrest for a public offense like drug trafficking. Courts have ruled, for instance, that cops moonlighting for FedEx may open packages at the company's behest in order to verify contents, which is something they could never do without a warrant while on duty. But permissive as these decisions are, they focus on moonlighters who adroitly use the trappings of their private role to enforce public laws; hence they say nothing about whether moonlighters can use the trappings of their public role to enforce private laws.

There is a several-decades-old case that speaks to this latter question. In 1963 in Griffin v. Maryland, the Supreme Court found that a uniformed police officer moonlighting as a security guard had acted under color of public authority in asking five black teenagers to leave a Maryland amusement park in compliance with the owner's policy of racial segregation. The Court found that the off-duty cop's uniform alone sufficed to place his actions on the public rather than the private side of the divide, even though he used no enforcement techniques that could not be employed by a garden-variety security guard.

There is an added wrinkle in Griffin that is likely responsible for limiting the case's influence over recent instances of police moonlighting: the discriminatory private policy in question would have been unconstitutional if it were a public law, something that is seldom the case in the instances currently under discussion. The rules that private communities and shopping malls promulgate could be public laws; they just aren't. Yet that doesn't vitiate Griffin's essential relevance: the determination that for moonlighters the uniform, even with no arrests, no detentions, and no searches or seizures, suffices to bring the color of public authority to the enforcement of rules no public body has passed. The Supreme Court has held that the uniform converts what would otherwise be a private act into a public one. The rationale is simple: as Jeremy Travis, head of the National Institute of Justice, says, "Publicly uniformed police will be given greater latitude by those who are the recipients of enforcement. . . . They intrude a zone of public enforcement into the private."


Public Law, Private Space

Now consider another permutation of the public-private policing question. In 1993, a middle-class St. Louis private community by the name of Maryland Estates, tired of paying high maintenance costs for the private roads weaving through its property, returned them to the public domain through a formal dedication to the city. As private roads, they had been governed by Maryland Estates' covenants, one of which banned parking by oversized vehicles. But even though the roads were now part of the public domain, the Maryland Estates home owners association saw no reason why its private rules should not continue to govern them. Marvin Nodiff, the attorney who represented the home owners association, says that Maryland Estates v. Puckett is the only reported instance in which a private group has sought to extend its rules concerning speeding and parking to public roads. A test case was provoked when Christopher Schallert, a local resident, insisted on parking his RV on what was now a public street. The home owners association sued, and in December 1996, Judge Robert Campbell decided that private rules cannot bind the behavior of any person on public space unless that person has agreed to those rules. Thus while no members of the association could park a Ford Explorer on the now public streets, any member of the general public would be free to do so.

But now consider another question. What happens when private communities or businesses try to reverse the arrow and get a host of minor public laws, like those concerning speeding, parking, littering, or loitering, enforced on their private roads and spaces? The question highlights an important distinction in the rationales behind different sorts of law enforcement. Crimes like murder, theft, and drug trafficking threaten the public good no matter where they occur. But petty infractions like speeding, parking in the wrong space, or littering do not. They may cause harm, but the harm is necessarily limited to the particular space in which the infractions occur. Because of this reasoning, police have traditionally not enforced these laws in private areas. "Even if the cops happen to be present for some other reason," says Marjorie Meyer, a Houston private community manager, "they won't give you a ticket for speeding on a private road." While cops can generally ticket cars for parking in fire lanes or disabled spaces even in privately owned parking lots—since there is a broader public health and safety interest involved—they cannot, says Dallas police officer Kenneth Seguin, "ticket the guy from apartment 202 for parking illegally in apartment 203's spot." Likewise, the police or public authorities will typically enforce dog license laws on a private space but not dog litter laws, where the injury, in a sense, is done to the space. The difference lies in the rationale for these two separate kinds of law. Unlike assault or theft laws, laws concerning traffic offenses, littering, and loitering are tied to a particular space. And thus we feel that it matters whether that space is public or private.

American courts have long affirmed this distinction. Yet many private communities and businesses have begun exploring ways of sheltering their private spaces under the umbrella of the public police power. After all, says Florida attorney Chuck Edgar, "if the cops will deal with a speeder for free and through the traffic courts, but your home owners association must bear the burden of chasing him through the civil courts, who ya gonna call?" True, police will only enforce the more serious public offenses in private areas. But they can find a way around this problem. Cops can enforce minor speeding and parking laws by citing the offender for graver public violations that are more directly threatening to public health and well-being.

"A clever cop," says former Seattle Police Chief Mike Shanahan, "has a bag of tricks whereby he can forge such links." "If someone was exceeding a privately posted speed limit in a private street," claims Boston Sergeant Kevin Jones, "I couldn't get him for speeding, but I would consider arresting him for 'operating to endanger'; I'd go to court, if necessary, and if I lose, I lose." "If you're parking in the space reserved for the law firm in a private parking lot," says David Brennan of the Anchorage Parking Authority, "they can get you for trespass but not illegal parking." Similarly, as New Jersey private community attorney Ron Perl points out, if young people gather on a private community's lakeshore or golf course, "the police can't get them for loitering per se; it would have to be trespass." The space between recklessness and speeding, or between trespassing and illegal parking is, Bob Diamond says, "full of sticky wickets."

Lately, however, a few bellwether states and municipalities have taken the final step and eliminated any last vestige of daylight between public law and private space. Instead of fancifully using the guise of recklessness or trespassing, they have dispensed with all pretense and begun directly enforcing public speeding, parking, and pet litter ordinances on private roads and common spaces. "Until recently," Chuck Edgar says, "cops in Florida wouldn't enforce traffic laws in private communities; now, by contract, they'll come into the community, whether gated or ungated, and enforce all the traffic laws that previously applied only on public streets." Some Florida private communities have to pay for the service. But in Illinois, California, Maryland, Virginia, and New Jersey the public will pick up the tab. Similar arrangements have been available to private parking lots for even longer. "In the old days," Ron Perl says, New Jersey "municipal prosecutors refused to handle pooper-scooper violations on private spaces; now they do."

Taken together, these moves represent a qualitative, though little noted, expansion of public law enforcement into the realm of private space. Is there anything wrong with this? The best way of answering that question is to observe how these new arrangements often fail to "take." It is as if private space is covered with an invisible coating that causes the domain of public law to slip and slide over its surface, never quite snugly adhering to it. Consider Panther Valley, a gated community near Hackettstown, New Jersey, which invited the police onto its private roads to enforce public traffic ordinances. Because its roads were private, Panther Valley also wanted to reserve the right to set and enforce its own private traffic rules even as the public police would be enforcing public traffic ordinances on the exact same space. In January 1998, a state superior court shot down that idea. If a private community invites the public police to enforce public traffic laws on its private spaces, the court reasoned, it cannot also enforce a separate system of private rules. It is just too confusing (not to mention dangerous) to post two sets of speed limits on the same roads.

But what Panther Valley could not manage to pull off in New Jersey has already been accomplished—indeed done one better—by a home owners association in the village of Northfield, Illinois. Imagine yourself driving along Northfield's Happ Road, which is a public street. As long as you observe the village's 35-mile-per-hour speed limit, the police won't ticket you. Now, turn off Happ onto Woodley Road, a privately owned and maintained avenue, whose 20-mile-per-hour speed limit is set not by the village, but by the Woodley Road home owners association. Still going 35, you could be pulled over and given a real-live speeding ticket by a Northfield police officer.

Northfield is not just enforcing public traffic laws on private roads. The village has in effect delegated the lawmaking power itself—the determination of what rules the public police will enforce on those private spaces—to a private party, the home owners association. Across the lake in Michigan, cops will now directly enforce private parking rules on private parking lots. If you park in the law firm's space, the lot owner will swear in an affidavit that your car is "an unauthorized user of this particular parking stall," and the cops will tow you. "They do not tow you for trespassing; in fact you've violated no ordinance," says Michigan criminologist Brian Johnson. The same practices exist in Denver and Kansas City. Precisely because there is something unnatural in private space yielding over its most intimate governance to public authorities, ambiguities like these are to be expected whenever the attempt is made.

The use of public power to enforce public (let alone private) speeding or parking laws on private spaces is still uncommon. While "some city attorneys are willing to be innovative," notes Atlanta private community attorney Wayne Hyatt, "most are quite conservative, saying 'We won't touch private roads.'" But what is happening in Florida, New Jersey, California, and Illinois violates a principle that was once deemed universally applicable across America. "Where is the public interest or welfare being served?" asks Anchorage's David Brennan. "You need that for the use of police powers to enforce law on private property." By failing to ask Brennan's question, many American cities and towns have unwittingly crossed the line that once demarcated the proper limits of police power.


Public Payments, Private Police

The next turn in the public-private policing debate may well come when private communities and businesses begin to seek rebates for policing services they purchase privately. This sort of subsidy is familiar enough when it goes in the other direction. During every home game, for example, the Philadelphia Eagles management pays for 100 extra police officers to patrol Veterans' Stadium, above and beyond what the city police department would normally provide. These extra police, like the regulars with whom they work, enforce public laws only. They perform no private security role; and in witness of this fact the Eagles send their payments directly to the department, which then pays the officers at a fixed rate.

Such practices are common across the United States. It seems fair, after all, to ask anyone who is deliberately creating their own extra need for police—whether an NFL team, a jewelry store owner, or a director shooting a scene on a public street—to pay for the additional coverage. There are certain risks involved: public police must enforce the law, but their employers may not want them to enforce it too zealously. "Businesses don't want the cops they hire to make arrests," Richard Zappelli, the Philadelphia deputy police commissioner, says. "It's bad publicity." But while underzealousness can sometimes be a problem, the norms are clear. We know what privately paid public police officers are obligated to do, and, assuming we have all the facts at hand, we know it when they fall short. Here again, the problems arise when we reverse the private-public arrow, for this raises the specter of publicly paid private police—police who are underwritten by the government but are privately directed and controlled.

All across the country, residents of private communities are now seeking rebates of the property taxes they pay for trash collection, street cleaning, sewer maintenance, road repair, and the like. Their argument? They purchase those services privately through their home owners association dues; so while the local municipality is still taxing them for those amenities, it isn't actually providing them. In 1990, New Jersey passed the Municipal Services Act, under which counties and towns, at an estimated cost of more than $100 million annually, are rebating to private community residents the property taxes they pay to support public trash collection, snow removal, and street-lighting services.

Should the logic of rebates apply to policing as well? Can the approximately 25,000 private communities that pay for their own private security patrols argue successfully that they should not have to pay to support the public police system because they are policing themselves? "I think they can," says San Diego attorney Jon Epsten. "It's ripe for class action; it's just that private communities don't want to spend the attorney's fees." "Clearly the rebate argument could be made to apply to policing," agrees Florida State University economist Bruce Benson, an expert on private security. "Some large private communities have their own security forces and don't call in the public police."

The majority of the private community lawyers and lobbyists with whom I've spoken agree that the logic of rebates should apply to policing. A few, however, express concerns that seeking such rebates may seem like a politically unpalatable overreach on the part of private community residents. They insist that their goal is to get rebates only for services that the public system explicitly refuses to furnish to private communities. Trash collection, street lighting, snow removal, and street cleaning clearly fall into this category, since municipalities, as part of their original deals with private community developers, deliberately relieved themselves of the responsibility to provide them. Phyllis Matthey of the Coalition of Associations for Political Action, a New Jersey private community group, says that policing "is more like education." "The public police, much like the public schools, are there for you even if you live in a private community," she says, "but if you decide to hire private security—just as when you opt to send your kid to a private school—that's your choice, not something that government's withdrawal has forced onto you."

Such an analogy might seem like a potent barrier against rebates for policing if it were not for the fact that the educational voucher movement has already attacked the logic of public education on just the same grounds, and with a good deal of success. In fact the advocates of policing rebates may even have at least one good argument on their side. Unlike public schools, which must accept all children within a given geographical area, police have far greater discretion over how to allocate services. The fact is that in many private communities the police have withdrawn an array of services which they normally provide to the rest of the public. Mike Walker, security director of PGA West, a golf-centered gated enclave in Palm Springs, says he knows of private communities where the local public police say "you've got private security, we won't respond to that call." If "somebody shoots your window with a BB gun," Walker says, "normally the cops come out, but here, the police say, in a private community we don't take criminal mischief calls"—a response that Walker, a former cop, finds "appalling." Experts in other states agree. With more and more "belt tightening by local police," says nationally celebrated private security consultant William Cunningham, "people will start saying 'Hey, wait a minute—when we pay for our own private security and for the public police, that could be construed as double taxation.'" Businesses could make the same argument, Cunningham says; he recalls hearing of "a Fortune 500 CEO saying to his head of security, 'Why in hell are we paying property taxes for cops when we're paying $120 million a year for our own private security system?'" A policing rebate movement "makes sense," Cunningham argues, adding, "I would be glad to lead it."

No town or municipality has yet staged a full-scale debate over policing rebates, and even Cunningham believes that any such controversy is at least some years away. But the stirrings are evident. Mike Woo, a Democrat who ran for mayor of Los Angeles in 1993, says he knows rich Angelenos "who wonder 'How come we have to pay for public police?'" Mike Gambrill, former police chief of Baltimore County, heard the same thing while he was in office. One hitch that might derail a policing rebate movement is the fact that, as Phyllis Matthey puts it, "private security provides only peripheral policing services. . . . Private patrols can chase kids off vacant lots or ticket cars, but they cannot follow in hot pursuit or wrestle suspects to the ground." They cannot, in other words, offer the kinds of core arrest, investigative, or deterrent services the real police provide. Thus the range of legitimately rebatable services would likely be limited to the narrow periphery of night watchmen–type security which most private communities and businesses now provide.

But there's a problem with that argument. In education, unlike policing, it is private providers that boast a greater array of offerings than their public counterparts. No one, accordingly, expects any publicly funded education voucher scheme to cover the "extras" private schools offer; the amount of any proposed voucher will always hit a natural ceiling at the core public minimum. The more a private school expands its menu beyond the core-curricular to the extracurricular—from math to macramé—the more it moves those offerings toward the realm of pure market goods, a realm where the state has long since taken leave and has no general obligation to help parents out. But as private security forces expand their offerings, they will travel in precisely the opposite direction, from the peripheral (traffic control) to the core (arrests)—hence moving ever closer to the realm of central state responsibilities. Precisely because the public policing system is so much more powerful than the private, it provides no breaking point at which to terminate any push for rebates. The more private communities arm themselves, says Florida attorney Charles Morgenstein (who himself looks askance at the prospect), the "more the rebate argument should stick."

A small but growing number of private communities and businesses have, in fact, managed to get their private security forces installed with full police powers. In South Carolina's Sea Pines and Hilton Head Plantation; in Virginia's Aquia Harbor and Oregon's Sun River and Ten nessee's Fairfield Glade; in a cluster of private communities in the Poconos; and even in Cunningham's own home community of Amelia Plantation in Florida, the home owners association security force remains privately controlled, paid, and attired, but is court sworn with the full capacity to arrest, search, and seize. Their members can follow in hot pursuit, just as they can wrestle suspects to the ground. In the Poconos, private communities had their security patrols deputized under Pennsylvania's dormant 1895 so-called "night watchman act"—originally adopted to enable coal companies to create their own union-busting police. Sun River and Fairfield Glade got special legislation passed permitting their security personnel to obtain training and accreditation at their states' police academies. In Michigan, similar legislation recently vested private security at certain malls and hospitals with total police power. Frenchman's Creek, a wealthy gated enclave in Florida's Palm Beach Gardens, boasts its own five-man Special Tactical Operation Patrol (STOP), which doesn't have full police powers but is equipped with camouflage clothing, night-vision scopes, infrared heat detectors, high-speed vehicles, and specially trained dogs.



One of the hallmarks of modern state function is the state's monopoly over the legitimate use of coercive force. This is in part what we mean when we speak of public authority and thus the public sphere. But what is troubling here is not so much the rollback of the public sphere as its subornation to private purposes: the use of public police in enforcing private laws; the extension of public laws governing people's movements—how fast they go, where they stop, where they stand, and what they drop—onto private spaces; and the possible diversion of public funds, through rebates, into privately controlled police forces. Because the state has a monopoly in the most valuable and central police functions, private interests will naturally prefer to coopt the state rather than displace it themselves. In policing, therefore, what is worrisome is not so much the diminution of the public sphere as its balkanization, as private communities and businesses struggle to hive off chunks of public police power and resources.

In many arenas of government action, blurring the lines between public and private can have salutary effects. Creative combinations of public payers and private providers (contracting out) or private payers and public providers (user fees) are often worth exploring, and—depending on the service—frequently worth implementing. The public-private border in policing raises similar questions. But policing remains a special case: it engages laws or rules, which are social constructions, and force and space, which are physical entities. Each can be either public or private; but here blurring of the lines is not so easily done, and the social consequences are potentially far greater. It is not physically possible for a police officer to wear two kinds of uniform—public and private—at the same time, even if she is enforcing two different sets of laws. Nor is it possible for two different sets of laws to govern the same physical space, even if both a public government and a private government have jurisdiction over it. But beyond the practical problems of mixing public and private law enforcement resides a more profound question of civic ecology—how to strike the proper balance between the public and private realms. These issues often remain fuzzy and imprecise in other privatization debates. But they come right to the surface in the case of policing because police power implicates the use of force, one of the most fundamental provinces of public authority. The evolving debate over the public-private boundary in policing will test whether any coherent borders remain between America's public and its private spheres.

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