Secure Law: Elements and Tests

By: James F. Pastor, PhD, JD
President of SecureLaw Ltd. and Associate Professor in Public Safety at Calumet College of St. Joseph

There has long been an adage in policing where the optimal level of security is to have a “police officer on every block.” This “goal” is considered both desirable, and yet unattainable. Indeed, people typically do not register the presence of police in their mind. During heightened threats, however, we tend to look for police officers and other authority figures to qualm our fears, and to provide a sense of security. This article explains how the threat of terrorism will change the nature of policing.

We are at the cusp of a silent, yet fundamental shift that will change the notion of public safety. This new policing model will emphasize tactical methods, technology, and alternative service providers, such as security personnel. It will replace the “community policing” model, which is the dominant policing strategy. Community policing emphasized a “client centered” focus, and helped to introduce the concept of order maintenance. One critical affect of this model was to re-orient the police to a more proactive and preventive approach to crime fighting. In doing so, however, it has expanded the scope of the police mission by fostering the delivery of more and more services. With the threat of terrorism, this model will become unsustainable.

With more than two million security personnel, the private security industry is well positioned to help deliver security services to municipal government and communities.1 In many places, private security personnel outnumber public police by a ratio of four to one. Going beyond these raw statistics, there is a growing trend to employ private police officers in public areas, including within business districts, on public streets within residential communities, and in large municipal facilities such as shopping malls, concert and sports stadiums (also termed “mass private property”).

The “trigger” for this policing transition can be explained with two basic foundations: fear and money. Both of these factors are complicated by or relate to “9-11” and “911.” Ironically, these factors, referring to the terrorist incidents and the communication system, have served to stretch police budgets and served to increase police work load.

Since the terrorist acts of 9-11, this country has been on an emotional roller coaster, dealing with various public pronouncements and increased threat levels. Understood in the grave reality of 9-11, these on-going threats cannot be discounted or ignored. Indeed, threats create fear which demand action. This cycle of threats and fear result in government spending billions of dollars on security related expenditures.

Added to this dynamic is the fact that Community Policing monies previously provided by the federal government have dried up. Most of the federal funding is now centered by “homeland security.” Most of this funding, however, is earmarked for technologies and training, designed to improve the performance of the “first responders”—the police, fire, and medical personnel who encounter a terrorist act.

Conversely, the computerized call taking system of “911” has resulted in huge increases in work loads in police departments throughout the country. Years of urging citizens to call “911” has created a culture whereby people tend to call the police for more and more service orientated requests. Calls for such things as barking dogs, street light repairs, noisy neighbors, unruly children, alarm response, and the like have created a difficult “unintended consequence” for police agencies already strapped with resource constraints. These service and order maintenance tasks are unsustainable in an era of terrorism.

Attempts have been instituted to resolve the increasing level of service calls. Implementing “311” (non-emergency police response), and call stacking (prioritizing calls for dispatch based on level of seriousness) have had some success. However, these have not resolved the basic dilemma—servicing the community through the resources allocated to the department.

Faced with these twin constraints of fear and financial burdens, thoughtful police executives are responding with creative and innovative methods. To illustrate this dilemma, I often ask two basic, yet telling, questions to police administrators related to the relationship between resources and functions:

Predictably the answers are “no” and “yes”, respectively. A paradigm shift in policing is the better answer. Simply stated, we cannot afford to maintain the status quo. In my opinion, policing agencies must provide more cost effective policing methods. Considering the growth of security firms, coupled with the current budgetary constraints facing municipal government, the development of a “public safety” entity seems inevitable. This public safety entity will witness closer working relationships between public police and private security.

When considering the delivery of police services to a given community or within a given environment, the provision of supplemental service initiatives will be an increasingly viable alternative. While still relatively unusual, I believe that these arrangements will have widespread appeal. The desire for these arrangements will be attractive for many reasons.

Almost all police executives believe that budgetary constraints diminish their ability to deliver police services in an optimal manner. If the proactive executive cannot resolve this limitation through management and organizational initiatives, then the next logical approach is to assess the types and levels of services provided to the community. Can some services be contracted out, or performed by civilians, that are currently performed by sworn police personnel? Alternatively, can a given police department decide not to perform certain services?

These questions go to many considerations and interests. Indeed, police budgets related to service provisions have political, social, financial, and organizational implications. It is too simplistic to say “give me more money” or “we have decided to stop providing certain services.” The community or governmental officials may not agree with these “solutions.” Instead, the typical answer is to continue to deliver the same types and levels of services, within the current budgetary appropriation. This reality leaves the police executive, or even the municipal official, with the unenviable task of constantly balancing budget with the demand for service functions and levels.

Even a cursory view of media reports and economic conditions will lead to the conclusion that both the public and the private sectors are facing difficult financial circumstances. One result has been “belt tightening” within police budgets. Indeed, some police departments are laying off sworn officers for the first time in a generation. Other police departments are reducing their personnel levels by attrition and slowing the rate of new hires. The chart below illustrates the reduction levels of some large police departments, ranging from a 4.4% reduction of force in Los Angeles, 5.5% in New Orleans, 8.7% in New York City, and 14.9% in Minneapolis:

While public police departments experience budget constraints, private security firms have dramatically expanded its relative size and scope. Studies of the “public safety” industry reveal that in 1981, the security industry spent approximately $21.7 billion dollars, compared to the $13.8 billion spent on public policing. In 1991, these expenditures rose to $52 billion for private security, compared to $30 billion for public policing.2 In the year 2000, private security was predicted to spend approximately $104 billion, while public policing would spend only $44 billion.3 This ratio of dollars invested in private compared to public policing reveals that about 70% of all money invested in crime prevention and law enforcement is spent on private security.4

Other statistics reveal an annual growth rate for private security to be about double the growth rate of public policing. Through the year 2004, private security is expected to grow at a rate of 8% per annum.5 As a consequence of the September 11th terrorist attacks, certain security firms predict revenue growth to be in the range of ten to twelve percent per year.6 Indeed, these figures illustrate that private security is one of the fastest growing industries in the country.7 Most of this growth was prior to September 11, 2001. By any account, these data reveal a substantial variance between the two entities.

The movement toward more cost effective policing strategies can be illustrated by the growing use of technologies, such as cameras, crime mapping, and interactive software, designed to detect occurrences within the protected environment. For example, the Chicago Police Department is developing a networked system of cameras that will enable an officer in the squad car or in the dispatch center to monitor such diverse conditions as gunshots on street corners to unattended briefcases within a protected facility. Other cities around the country are using cameras for both crime deterrence and traffic enforcement. Further, crime mapping techniques are becoming more predictive. Police administrators are directing tactical or “saturation teams” to certain locations to prevent the occurrence of likely crimes—such as robbery patterns or gang shootings. While these technologies and techniques are not perfect, they represent a quantum leap in the crime fighting methods of policing agencies.

Another innovation is to use “alternative service providers” designed to supplement the service provision of policing agencies. Alternative service providers are, in essence, civilians who perform certain service functions; from parking enforcement to crime scene security. These services are both cost effective, and they reduce the service provisions required of sworn officers. While some of these tasks have long ago shifted away from sworn officers, there are growing indications that alternative service providers will substantially increase. I predict that innovative initiatives utilizing private police patrols to perform basic police services, including order maintenance functions, will be widespread. Of course, order maintenance is a key component of the Community Policing model.8

As the threat—or the reality—of terrorism grows, so will the need for security. Using the past three years as an indicator, it is reasonable to presume that the impact of terrorism will continue to strain governmental budgets. This will result in continued innovation. Technology and tactical techniques will only go so far. Cameras on street corners may help deter criminals, but will they deter the committed terrorist? Tactical police officers may help prevent the terrorist attack, but they cannot be everywhere. Consequently, what is needed are more “eyes and ears” on the public way.

This could be accomplished by focusing sworn officers on tactical and law enforcement functions, and shifting service and order maintenance functions to alternative service providers. Two options for alternative service providers exist: either they are employed by government or by private firms. Each type of supplemental service has its own strengths and weaknesses. The use of private police, however, has particular appeal because property or business owners can directly contract for public safety service provisions, without adversely affecting municipal budgets.

While space does not allow for a full treatment of these options, it is suffice to say that both will co-exist, but private firms will be the preference. In essence, private firms provide cost savings to municipal budgets through lower salaries, little or no pension and medical costs, overhead savings, more discretion for job actions (due to lack of unions or due to contract provisions), and other similar factors. Indeed, some privatized arrangements are exclusively funded by voluntary real estate tax increases by business and property owners, thereby costing little or nothing from the municipal budget.

These “para-police” officers will perform many order maintenance functions—on the public way—that public police officers are unable or unwilling to perform. These functions include controlling loitering, public drinking and rowdy behavior; providing “street corner security” in business or mixed commercial/ residential districts; and responding to burglar alarm calls. These, and other such tasks, are critical for a secure, orderly environment.

Looking at such tasks from a conceptual manner, it is useful to think of the location of the services in relation to the service provision. This location to provision analysis is illustrated by the below diagram:

Traditionally, security firms have operated almost exclusively within private environments. This is illustrated by the Corporate Security box. In this sense, security personnel are the “sheriffs” within their environment, acting with little or no support from the public police. The practice in this environment is that security act as a “substitute” for police agencies, providing most, if not all, of the security services at the particular location. Conversely, the towns of Reminderville, Ohio and Sussex, New Jersey fired their police departments and hired security firms to replace them. While these arrangements proved unsustainable, it represents the extreme of privatization—being the actual “sheriff” within the town. To be clear, I do not advocate such an extreme approach. I do, however, advocate the use of privatized patrols as supplements in both private and public environments. Indeed, this is where the focus will be as we go forward.

As illustrated by the diagram, security firms are operating in private environments; such as gated communities, corporate and college campuses, and large shopping malls, sports and concert facilities (“mass private property”). These supplemental services within a private location provide an additional level of security, typically through patrols, access controls, and other security related methodologies. Similarly, in public locations, such as Business Improvement Districts or Special Service Districts, private security firms provide patrol and other “quality of life” services that the police are unable or unwilling to perform. Most of the functional service provision is manifested in “observe and report” and order maintenance tasks. In this sense, these arrangements combine the traditional “observe and report” function of private security with the order maintenance role traditionally reserved for public police. Performing such functions in the public domain, however, raises important public safety and public policy questions. Notwithstanding the potential for both benefit and abuse, these private patrols have been relatively unstudied within academic research and largely overlooked by policy makers.

Considering the relative lack of research in this niche area, I conducted extensive research on privatized patrol arrangements. The research included riding in the patrol car, as the private police officers performed their duties. As one of the few—if not the first—to perform such ride-along research, I had a “birds’ eye view” of this new policing model. This research demonstrated that private police officers will perform many service and order maintenance functions. The research also revealed that even law enforcement functions, such as arrests for gun possession and serious crimes, were performed by private security personnel—as they patrol public streets. It also demonstrated that constitutionally violative searches and seizures would occur, and that questionable legal authority will complicate their patrol functions. Consequently, because of the extended scope of private police within public and semi-public property, the need for professionalism within the industry has dramatically increased.9

One compelling conclusion of my book is that law enforcement and private security will become increasingly interrelated into a “public safety” industry. In order for this to occur, however, private police must exhibit increased professionalism at the patrol level, which can only be accomplished by a requisite increase in training, wages and accountability. Consequently, if “parapolice” are to function within the public realm, they must be prepared to appropriately contribute to the order maintenance and service needs of the community—thereby being the supportive “paraprofessionals” of municipal police departments.

The use of private security patrols has its corollary in both the legal and medical professions. About three decades ago, there was much controversy in both the legal and medical professions related to the growing use of “para-professionals.” Many in these professions viewed the introduction of “paramedics” and “paralegals” as an offensive and even dangerous intrusion into the standards maintained within the industry. In these professions, market and fiscal constraints necessitated the development of supplemental service providers who act as “para-professionals” for the higher skilled, licensed professionals. In this way, “paramedics” and “paralegals” contribute to client service delivery, while simultaneously supporting the professionals in a structured “work sharing” or division of labor relationship. This working relationship is manifested in different functional and cognitive roles.

Looking at this concern from 21st century norms, any “controversy” seems pale. Indeed, not only have these respective professions been able to sustain high standards, but the work product of these para-professionals is critical to the service provision afforded to their clientele.

This new policing model utilizing para-police, however, may result in certain unintended consequences. It may create a tension between two critical principles: security and freedom. Just as fear is driving the need for security, it may also trump the quest for individual rights. In this sense, the desire for security will motivate people to hire private police officers. If these officers are not adequately trained and skilled, they are likely to violate our rights in the quest to keep us safe. In order to achieve the balance between security and rights, we must require higher levels of training, licensing standards, legitimatized legal authority, and more accountability. To do this will require regulations, and increased expenditures for these services. Consequently, the relationship between the money expended and the services rendered creates a delicate balancing act. The optimal balance can only be achieved in relative calm, as opposed to the face of fear.

The use of private security within public environments is likely to be increased in direct relation to the level of terroristic threat. This will foster competing desires of security and liberty. Those who are fearful of crime and terrorism naturally desire more security. Those who worry about liberty and constitutional rights will demand accountability and professionalism from public safety service providers. These goals, however, are often competing.

These competing goals are facilitated by security methodologies designed to control human behavior and the environment surrounding the potential target. In security parlance, this is known as “target hardening.” Target hardening is designed to protect the facility or person from physical attack. Protecting the target, however, usually requires control and surveillance, both of which are likely to affect the liberty and constitutional rights of the “controlled” or the “surveilled.”

Conversely, the more liberty afforded within society, the less secure its citizens are likely to be. Liberty—by its very nature—allows for the free flow of people within society. In this sense, liberty—through the application of constitutional protections, allows citizens to interact, reside, conduct business, and move to and fro in a relatively unencumbered manner. The ability to do so, however, may provide opportunities or vulnerabilities to physical attack. Consequently, the conveniences and rights afforded to citizens of this country facilitates a perverse counter objective—the destruction of people and property by those who are inclined to do so.

In summary, I believe that the use of private policing within a public environment is required by the economic and operational realities of policing. However, private policing raises important legal, constitutional, and public policy questions. Indeed, like any major public policy initiative, the potential for unintended consequences exist. While the focus of private police will be on certain “lower” level police functions, such as order maintenance, and as the “eyes and ears” of the police (the “observe and report” function), certain basic questions as to the nature of private policing need to be addressed.

My research addressed these issues in a comprehensive manner. The findings and conclusions are illustrative of the concern for unintended consequences. In assessing the functions performed by private police, I found that order maintenance was the dominant task (51.5%). This is consistent with the “client service” focus of private security, and is consistent with a key premise of community policing—reducing disorderly conditions results in less crime. The remaining functions by the private police officers were law enforcement (16.6%) and traditional/observe & report (31.8%). Considering the relatively large percentage of law enforcement, it is fair to say that the personnel from one security firm acted more like a tactical police officer than a traditional security officer.

Based partly on these functional findings, plus such factors as licensing, uniforms and weaponry, and the coordination and cooperation with the City of Chicago and the Chicago Police Department, I concluded that these security officers were “public actors,” thereby making constitutional protections applicable. Since constitutional protections were applicable, I concluded that the security officers violated the 4th Amendment in their quest to provide patrol services to the community. Finally, there was little, if any, formal accountability within the privatized patrol arrangement, and little formal training, other than the very basic forty hour standard required by the state. These deficiencies coupled with the public policy questions raised by these privatized arrangements, such as the potential for a dual system of policing—one for the rich and one for the poor, constitutes a critical, yet basic, subject which needs to be further addressed and explored.

What seems certain is that the societal conditions influencing this new policing model are prevalent. It’s the “perfect storm” that cannot be stopped. We can only prepare for its arrival. Indeed, it is already here. Most people simply have not detected it. Consequently, we may be drawing near to the goal of a “police officer on every block”. The definition of the ‘police officer’, however, may be expanded to include such diverse things like cameras and private security personnel. In this sense, the time has come to redefine the nature of policing. In doing so, we must consider the delicate balance between security and liberty.

Author Note: This article was originally written in 2005 and published in Law Enforcement Executive Forum. This article was subsequently posted on SecureLaw Ltd.’s website in February 2010. For those readers who review this article, please think about the circumstances in 2004. Back then, would you have agreed with the premises in this article? Do these premises seem more relevant today? What do think will occur two-three years from now?

1. See for example, National Policy Summit: Building Private Security/Public Policing Partnerships to Prevent and Respond to Terrorism and Public Disorder, U.S. Department of Justice, 2004.

2. See Cunningham, William C., John J. Strauchs and Clifford W. Van Meter, Private Security: Patterns & Trends, National Institute of Justice, August, 1991.

3. Ibid

4. See Cunningham, William C., John J. Strauchs and Clifford W. Van Meter, Private Security: Patterns & Trends, National Institute of Justice, August, 1991; Carlson, Tucker, Safety Inc: Private Cops are There When You Need Them, Policy Review, 73, Summer, 1995; and H.B. 2996: Law Enforcement & Industry Security Cooperation Act of 1996 (104th Congress), February 29, 1996.

5. See Bailin, Paul, Gazing into Security’s Future, Security Management, November, 2000.

6. See Perez, Evan, Demand for Security Still Promises Profit, The Wall Street Journal, April 9, 2002.

7. See Zielinski, Mike, Armed & Dangerous: Private Security on the March, Covert Action Quarterly, caq.com/caq/caq54p.police.html, 1999.

8. See Oliver, Willard M., Community Orientated Policing: A Systemic Approach to Policing,
Prentice Hall, 2001.

9. For a fuller discussion on this matter, see my book entitled The Privatization of Police in America: An Analysis & Case Study, McFarland & Company, 2003.