46 UCLA L. Rev. 1165 (1998-1999)
The Private Police

handle is hein.journals/uclalr46 and id is 1179 raw text is: THE PRIVATE POLICE

David A. Sklansky
Legal scholars have largely neglected private policing, and the neglect is
increasingly indefensible. The private security industry already employs more
guards, patrol personnel, and detectives than the federal, state, and local gov-
ernments combined, and the disparity is growing; to a striking extent, private
firms now perform many of the beat-patrol tasks once thought central to the mis-
sion of the public police. In this Article, Professor David Sklansky describes
what is known and unknown about the private security industry, traces the
industry's history, assesses the challenges and opportunities it creates for judges
and scholars, and provides an agenda for future research and doctrinal develop-
ment. Private security firms furnish tangible evidence about what some people
want but are not receiving from public law enforcement, and the legal regime
governing private security-deconstitutionalized, defederalized, tort based, and
heavily reliant both on legislatures and on juries-offers important opportunities
to test some of the most persistent proposals for reforming criminal procedure
law. In addition, because maintaining order and controlling crime are paradig-
matic governmental functions, private policing presents a unique and underused
vantage point for reexamining the public-private distinction and the state action
doctrine. Finally, and perhaps most importantly, police privatization provides
occasion for reconsidering the focus of constitutional law on negative obligations
of government, and the focus of constitutional criminal procedure on fairness to
individual criminal defendants; the dramatic spread of policing-for-hire should
prompt us to rethink what it means to guarantee all citizens, regardless of wealth,
the equal protection of the laws.
*    Acting Professor of Law, UCLA School of Law. I am grateful for support provided by
the UCLA School of Law, the UCLA Chancellor's Office, and the UCLA Academic Senate; for
guidance and criticism offered by my colleagues Richard Abel, Michael Asimow, Daniel Bussel,
Ann Carlson, Jody Freeman, Carole Goldberg, Robert Goldstein, Joel Handler, Kenneth Karst,
Daniel Lowenstein, Grant Nelson, Gary Schwartz, John Wiley, and Stephen Yeazell; and for
research conducted by Michelle Ahnn, Paul Derby, Goriune Dudukgian, David Frockt, Julie Gao,
Julia Heron, Carolyn Hoff, Teresa Magno, and the wonderful staff of the Hugh & Hazel Darling
Law Library, particularly Amy Atchison, Linda Maisner, and Linda Karr O'Connor. I presented
earlier versions of this Article to the UCLA School of Law Junior Faculty Group, the Virginia
Constitutional Law Workshop, the Georgetown Law and Society Workshop, and the Australian
and New Zealand Society of Criminology; I thank all four groups for their assistance. As always, I
benefited from thoughtful suggestions by Pamela Karlan, Deborah Lambe, and Jeff Sklansky.
Louis Michael Seidman provided detailed and especially helpful comments on an earlier draft, and
Stephen Heifetz gave the piece a careful, practitioner's review. William Cunningham, Darryl
Holter, Robert McCrie, Thomas Wathen, and Robert Weiss shared their expertise about private
security. Finally, for assistance with this Article and for much else, I carry a permanent, measure-
less debt to my late friend and mentor Julian Eule.


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