While we rail at abusive, unconstitutional and malevolent conduct by police officers, there remains one constant that provides us a limited degree of comfort: They are subject to the requirements of the law. What is they weren’t?
Paul Ohm at Co-Op gives a chilling vision of world of private police, security forces that serve their employer, not the public. They exist in a fuzzy world where they have many of the accouterments of police, and take actions that police might otherwise take, but without any fealty to the Constitution.
Paul talks specifically about Target, and its retention of a digital forensic expert to examine devices such as cellphones, memory cards, blackberries and other devices seized from shoppers believed to be engaged in retail theft.
Is it proper for the police to delegate its forensic work to Target? The FBI agents I used to work with as a DOJ computer crimes prosecutor kept a tight leash on the data they had seized and were reluctant to share data with state and local cops, much less private parties. They justifiably worried about ensuring that non-FBI analysts were staying within the scope of the warrant, because courts have suppressed electronic evidence obtained outside of the scope of the warrant and have even thrown out all of the evidence obtained if the warrant was executed in flagrant disregard of its terms. I’m not saying that the use of a third-party forensic analyst should automatically result in a flagrant disregard ruling, but it will invite scrutiny.
In the bigger picture, these private police will seize, handcuff, jail and interrogate individuals, just like real cops might. With some very significant differences. All those constitutional-technicality-type-thingies don’t happen, and don’t apply to them.
These are not state actors, but private actors. They have no duty to adhere to the 4th Amendment, or to Mirandize their captives. If I was to have a few goons physically seize you and toss you into a clink that I happened to have behind the pretty, decorated walls of merchandise, it would be kidnapping. But they can do it.
In the olden days, retail stores focused on the simple theft, shoplifting. But they are now shifting into hi-tech theft, involving the use of our must-have devices that contain vast amounts of personal information. So now, when they seize your cellphone and go through every inch of it, they have whatever you put in there, without limitation.
What? How can they do that? They can’t do that!
And how do you propose to stop them? Assert your rights? You have no rights there. They hold all the cards. Might makes right in the backroom, and there isn’t a thing you can do or say to change it.
Sure, there is the possibility of suing them, afterward, for having unlawfully imprisoned you, assaulted you, stolen your possessions, violated your privacy perhaps. As if this changed anything. Abusive conduct by private actors does not result in suppression of evidence. The police (the real ones) take the evidence their private counterparts seize and use it against you in court.
The judge will write a decision denying your motion to suppress, admonishing the abusive, overreaching and improper conduct by the private police, but holding that it’s of no consequences to the prosecution, since this was the conduct of a private actor beyond the reach of this court and not subject to constitutional constraint.
This isn’t a nefarious scheme by department stores to take over the world, but a reaction to the huge problem of retail, and now hi-tech, theft that plagues stores and adds significantly to the prices the rest of us pay for all the little things we need to buy to make us good consumers and Americans. Thieves are killing these stores, and they are sick and tired of taking it on the chin. It’s understandable.
But that doesn’t mean that their reaction to theft should be unfettered. The lack of legal restraint that affects the conduct of private parties to behave as if they had the authority of duly sworn law enforcement officers is an open wound in this scenario.
Or as my mother used to say, two wrongs don’t make a right. This was usually followed by a darn good whupping.
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While it is true that private security officers are not bound by the same constraints as sworn law enforcement officers, I have observed that private security and their employers are significantly more sensitive to the threat of lawsuits or some type of financial loss than their government counterparts.
A private company being sued is going to have to pay out of their own profits and somehow it will affect their bottom line. Maybe they have some insurance coverage for part of it but even so, the companies I dealt with were much more sensitive to transgressions by their employees than the police departments within my experience. Private companies also have to worry about offending and losing customers. I have not heard of a law enforcement agency having that problem.
When a law enforcement agency is on the losing end of some civil action it seems to me that rarely do government employees pay anything out of their own pocket. They often get to retain their employment and benefits as well. That is not as likely in the private sector.
If Target or any other retail establishment continues on the path as described by Paul Ohm, and they become the target (pun intended) of a significant legal action and lose, I suspect they will change their policy much faster than any law enforcement agency.
I think a more important problem to concentrate on is the issue of law enforcement making a mole hill out of a mountain in the area of police abuse of authority.
One more thing I must add, please forgive me, I can’t help it – shoplifters can always cease to steal and people can stop the bad check schemes – that will help the problem as well.
Odd, I’ve found exactly the opposite to be true, where they have no fear whatsoever of lawsuits because they are so enormously unlikely since the stores control all access to evidence and almost invariably claim they will let people go, if only they sign a confession, which is then used as an absolute defense. Not to mention, some states have laws permitting investigative detention by merchants, and absolving them from liability.
It’s a fine argument. It’s just totally inaccurate. And by the way, when the nab innocent people, “ceasing to steal” isn’t going to help them, is it? Or are private police incapable of error as well?
I can’t explain the difference between your experience and mine. I have no reason or desire to say your experience is not legitimate. At the same time, I do recall regular trepidation on the part of retail store managers and private security employees when dealing with criminal suspects in retail businesses.
Nothing in my post suggested, or was intended to suggest, that private security is incapable of making mistakes or being overzealous. In fact, I have seen that to be the case on occasion.
Nothing in my post was meant to suggest that it is acceptable for private companies to mistreat or in any way violate the rights of people.
As far as the last statement in my previous post goes, it is true that there are people who commit crimes. When someone commits a crime, they should accept responsibility for their actions. Saying that does not mean it is acceptable for law enforcement or private security to overstep their bounds.
…and here I thought I had written a relatively benign post…
Ah, there’s nothing benign at Simple Justice. Actually, we get the reaction, “if they don’t like, then don’t commit crimes,” all the time. It’s evokes a natural response.
We don’t rationalize all we do by dint of getting bad guys off, as by the fact that the rights of all are protected through the representation of the accused. Criminal defense lawyers are not fans of crime, and we don’t like it, encourage it or support it. It just happens to be the mechanism through which we do our job.
And if we told people who was innocent, no one would believe us anyway. So as far as the world is concerned, everyone we represent is guilty. And if we win, everyone assumes that some guilty guy walked. That’s our lot in life. But we never miss an opportunity to clarify the point that anybody can be accused of anything at anytime, no matter how innocent they are.
I am not assuming if a defendant wins in court that some guilty guy walks,at least not all the time :). I have seen some defendants win in spite of lies by cops and I was glad the defendants prevailed. Sadly, I have also seen some convicted based on lies.
I am no longer from the government, trust me, I mean you no harm.
Please accept my digital handshake.
Peace, brother Karl. Accept mine too.
Kumbaya.
The issue is whether the losses incurred by lawsuit outweigh the benefits incurred by engaging in the illegal behavior. It’s the same calculus as in criminal cases, but in civil cases it’s only money, not imprisonment and loss of civil rights, that is your penalty for engaging in illegal behavior.
An example of this calculus in action: Ten years ago, my mother reported to the State Department of Hospitals that her employer (HCA) was deliberately understaffing below state requirements in order to save money, and that ten deaths were attributable to that understaffing. Each of those ten deaths had already been through the civil process adjudicating that yes they had been caused by understaffing and judgments totaling a little over $500,000 had been awarded in those cases, generally in settlements that involved closing the case files to public review. However: The hospital saved approximately $1.5 million dollars from the understaffing over the course of the 18 month period in question.
In other words, the hospital earned $1,000,000 from their illegal behavior, and thus had no incentive, even despite losing lawsuits over their illegal behavior, to change their behavior. The State Department of Hospitals, BTW, fined them $50,000 and illegally told them who the whistleblower was, and they once again acted illegally and fired my mother. By their lights, any judgment by my mother against them during the next 18 months that was less than $1,000,000 would be cheaper than having to hire additional staff because of her continued whistle-blowing.
That is how large corporations think, people. Fear of lawsuits deters them only if the consequences outweigh the benefits of the illegal behavior. I’ve seen it happen time after time, and unfortunately it’s just human nature — because the people who run corporations and order or engage in illegal behaviors are not held *personally* responsible for the illegal behaviors of the corporation, they have no reasons to consider the legality of their behaviors except insofar as they affect the corporate bottom line.
Well said. From the corporate perspective, it’s a mere cost/benefit calculus.
From the folks I listen to locally, some perspective: the three categories of shoplifters that places like Target (headquartered here) worry about are the small-time amateurs, the professional teams, and the insiders. The basic policy for the first is making life difficult for them by misdemeanor arrests that they move on down the line, without setting the company up for false arrests/abuse of force lawsuits, which is why they employ a fair number of offduty cops to do the actual hooking up, and tell the mall ninjas to keep their hands to themselves, regardless. (That’s an oversimplification, but not much of one.) If a cop is accused of excessive force (rightly or wrongly), the city will handle it; not a problem for the corporation. There’s a fear — I don’t know what the basis is — that one incident with one mall ninja with grabby hands can easily cost the company six figures in both attorneys’ fees and judgments. Hence the rental of the blue wall.
The second category is small, but expensive; the real pros can do a lot of damage to the bottom line.
The third category is perceived as a huge problem. One employee filling a dumpster with stolen merch can do a lot more damage than bunches of the professional outsider thieves can, and they worry about that a lot.
I’m not sure if or how that advances the discussion, but it’s all I got.