For obvious reasons, there’s a great deal of attention paid to police officers and federal agents who break the law or deprive people of their constitutional rights. But there’s a similar cadre of people, some in uniforms and some not, some with weapons and some not, who evade much scrutiny, though their performance of their job can have as brutal an impact on people’s lives.
From 2009 to 2012 the U.S. Department of Justice charged 254 police officers throughout the United States with violating the individual rights of Americans.
The private security industry remains historically insulated from claims of civil rights-related violations and the resulting criminal sanctions that can be imposed against security personnel. The private security industry in the United States is much larger than the public sector police force; the industry outnumbers public police by a ratio of at least three to one. This growing number of security personnel could lead to increased civil rights violations.
From mall cops to private investigators, they’re out there, appearing somewhat official while often having no training*, little oversight and essentially no liability. If someone pinches you for shoplifting in a store, they might physically grab you, hold you in a backroom and subject you to interrogation. You’ve essentially been kidnapped by some private individual working for some private company with some pretend badge.
Some states have laws permitting this faux-cop conduct, and impose rules or limits, but they’re not the rules that cops apply. And if they fail to respect your rights, what are you going to do about it? You can sue the company in tort, but what about culpability for the quasi-cop who beat you with a hose?
A crime committed by a mall cop is no different than a crime committed by anyone else, and prosecutable as such. But
One federal statute that has been used to prosecute police officers for civil rights violations is Title 18 of the United States Code, Section 242. It makes it a crime for anyone acting “under color of any law, statute, ordinance, regulation or custom” to willfully deprive a person of a right or privilege protected by the U.S. Constitution or state and local laws.
The statute also applies to public officials violating a person’s civil rights, including elected officials, public facilities’ care providers, correctional officers, court staff, and security officers.
Many of the potential wrongs perpetrated by quasi-cops don’t involve state law crimes, but deprivations of civil rights. The problem is that most of the time, private security or investigation isn’t under “color of law,” and therefore constitutes no crime under 18 U.S.C. § 242. There are, under certain circumstances, ways by which a private actor can be held culpable by extension.
Police powers. Some security personnel were prosecuted under Section 242 when they were granted state-related powers and considered “state actors.” In the events leading to Williams v. United States (U.S. Supreme Court, 1951). Williams was a private detective with a special police officer’s card issued by the City of Miami. He had also taken an oath. Lindsey Lumber Company hired Williams to investigate a series of thefts, and during the investigation Williams used “brutal methods,” displayed his badge, and included the presence of a policeman to “lend authority” to the interrogations of four suspects who were “unmercifully punished for several hours,” according to court documents.
While fact-dependent, private cops who assume some level of authority under state law can be held to be acting under color of law. Licensure isn’t enough, but if the law imbues the quasi-cop with peace officer status, then it’s likely that his violation of constitutional rights could subject him to prosecution.
Moonlighting. Off-duty police officers granted government powers in a private security capacity have also been prosecuted and convicted of civil rights violations, such as in 2003 when a federal court ruled that a security guard in a strip club was acting under the color of law when he assaulted a dancer.
While cops moonlighting is both common and hugely problematic on numerous levels, it’s extra money and allows them to free-ride off public authority for private gain. As they’re cops 24/7, even as they count the cash in the sealed envelope and use their power for the benefit of private employers (often in the uniforms and with the weapons the public paid for), they are likely to be culpable for violations.
Government contract. The third identified theme is that security personnel can be prosecuted under Section 242 when operating under a contractual relationship with the state. In cases where security personnel employed as contractors for the state were prosecuted under Section 242, private security personnel had positions within a state agency, making the parties liable for their actions under the statute. Private security personnel working in correctional settings have also been prosecuted under similar circumstances.
From running private prisons to security officers around government buildings, government subcontracts a substantial portion of security to private contractors.
So why do we hear so little about the prosecution of quasi-cops who act under color of law for the violation of civil rights? Is it not happening, even as they run private detention facilities for ICE? Is it not sufficiently egregious that it doesn’t make the papers? Is the government not prosecuting, because reasons?
One stumbling block is that culpability may not be as clear when it’s a quasi-cop, as it adds an additional layer of proof to cover the “acting under color of law” element that is otherwise taken for granted. And the government has never shown an inclination to prosecute for 242 violations under any circumstances.
But given the number of quasi-cops out there, and the potential for harm, it’s worthwhile to be aware of this option as a means by which to hold these cop-wannabes culpable for their conduct. There is, essentially, an unchecked army out there made of private actors who believe they can enforce their own vision of “justice” with impunity on anyone they choose.
It is time the government started taking the deprivation of constitutional rights at the periphery of law enforcement seriously. just because you’ve been kidnapped by a mall cop doesn’t mean you’ve been any less kidnapped. Just because it doesn’t make the front page of the papers doesn’t mean the harm didn’t happen.
*In college, to earn enough money to eat that night, I took a job as a Wells Fargo security officer. The training consisted of “pick out a shirt and a badge and report to this warehouse in the morning.” Thankfully, I wasn’t given a weapon.