Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, March 21, 2007

Privatization of Government

This dovetails nicely with Dr. S's last post.

Our entire government is being privatized, from the war in Iraq to critical government services. In my current position, I am experiencing this creeping privatization up close and personal.

When my friends went to Iraq, they saw their jobs being taken over little by little by contractors. They were left with the most dangerous, deadly work. Many of them told me that they understood that somehow their lives were less valuable to their government than those of Halliburton contractors. They were paid a mere $30K a year. The contractors were getting 3 figure salaries.

This is happening through out the US government. More and more services once provided by government from public education to defense are being taken over by private firms on government contracts. My own job is headed that way. I can see it coming. That is the real painful part. You know that you and your colleagues are the best qualified to do the work, but your work is considered less valuable and less reputable to the government than the work of contractors who cost a whole lot more.

At the same time that this is going on, there not real regulatory system in place. As we have said here before, the court system serves as the sole regulator. As demonstrated in the most recent scandal over government prosecutors and in the selection of U.S. Supreme Court judges, they are even trying to dismantle that form of regulation, turning it into partisan politics.

Why? Well the benefits to those who make these decisions are vast. For starters, they can unload the government workers who are represented by unions. They face to regulation. They can hand big money contracts over to their friends. A blue ribbon commission is called by the government to do some type of review. The commission makes recommendations. And then, a commissioner will see to it that his company wins the resulting contract. Legal departments say this isn’t a conflict of interest. This is what is happening in my work now. And all information is stove piped by people who are more interested in their own careers than in their department or the mission.

The only area where government is centralizing its power is security and intelligences. THEY ARE CENTRALIZING THE POLICE, PEOPLE. We can only stop it by voting Democrat in 2008. Either that or we have to start reforming and developing modern day unions and alliances to stop this move toward the end of fair and just government.


Dr. Strangelove said...

How depressing it is to see the move toward ever-greater, ever-more-centralized police powers. True homeland security comes from a strong community of proud, free, vigilant citizens. It does not come from monolithic federal institutions that divide the community, sow suspicion between citizens, and instill a victim mentality in us all. Handing the police unchecked power does nothing protect us from terrorists. It weakens us.

USwest said...

Marx pointed out that capitalism contained the roots of its own destruction.

Combine that with the piece by piece deconstruction of government, and handing it over to the market, and the centralization of police, and you are well on the way to destruction.

France nearly saw the fall of the 5th Republic six years ago. It took them 5 tries, two empires, and centuries of monarchies. Maybe the time is coming for us to consider a third Constitution.

Raised By Republicans said...

They are centralizing police power in the USA. That's a big part of what Homeland Security is all about. But at the same time they are centralizing the government end of things, they privatizing law enforcement too.

Guess who the first federally authorized people to get into New Orleans were after Katrina hit...Blackwater Security. I heard an interview on NPR the other day of a reporter who found heavily armed plain clothes Blackwater employees patrolling in New Orleans in the earlier stages of the response. These were guys who were just back from Iraq where they were notorious among the regular military for "shooting people and leavig us to deal with the consequences."

Blackwater's founders are closely linked to the Religious Right movement and they are rapidly expanding not only their military capacity (they now claim to be able to deploy entire brigades of mercenaries) but their law enforcement training capacity too.

I can think of few scarier things than the development of a private military that answers to the American Religious Right. Blackwater Security is like a quasi-capitalist version of the NAZI party's private army the SA/SS (quasi-capitalist because they depend entirely on bloated and rigged government contracts not free markets).

What's the next step? Some Republican candidate hiring Blackwater to do their security work at campaign rallies? The next thing would be a political version of Altmont (the concert where the Hells Angels assulted Jefferson Airplane's lead singer then murdered a fan while they were performing "security" for the Rolling Stones). Given the way the Bush campaign people threatened anyone not known to be a Republican at Bush rallies, I think this is a reasonable fear.

Our democracy is in serious danger. And the threat is not Al Qaeda. All they can do is kill us a few hundred at a time (that's bad). The current incarnation of the Republican party can completely destroy our form of government (That's a hell of a lot worse!).

Raised By Republicans said...

BTW, I think our constitution is just fine. We just need to protect it from the Theo-fascist movement that has taken over the GOP.

Christopher said...

[Private Security Officers With Police Powers]

Arrest means the taking of a person into custody, see for example section 556.061(7) of the Missouri Revised Statutes (2006) which states “Custody", a person is in custody when the person has been arrested but has not been delivered to a place of confinement.” An arrest may be effected by either an “actual restraint of the person or by his or her submission to custody.”

However, “stopping” and “making reasonable inquiries” of a person reasonably suspected of criminal activity does not constitute an arrest. See Terry v. Ohio, 392 U.S. 1 (1968). It is rather, merely an investigative process to establish probable cause.

Therefore, an “arrest” may be better defined by “the taking of another into custody for the actual or purported purpose of bringing the other before a court, body or official, or of otherwise securing the administration of the law.” See Perkins, Elements of Police Science 223, 227 (1942).

Neither private security officers nor the employers have qualified immunity, which shields another, who acts under color of law from legal liability under 42 U.S.C. § 1983 and 18 U.S.C. § 242. See Richardson et al v. McKnight 521 U.S. 399 (1997), (U.S. Supreme Court reversed its prior ruling in Procunier v. Navarette, 434 U.S. 555 (1978) that extended qualified immunity to private citizens acting under color of law or were state actors).

Section 42 U.S.C. § 1983 states: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.” Title 18 U.S.C. § 242 is the sister to 42 U.S.C. § 1983, and imposes criminal liability.

Determining whether or not a private security officer acts under color of law, is done on a three-prong test.

The first prong is the public function test, which is determined by examining the duties and functions of security officers and the governing force, to ascertain whether or not the duties and functions serve a public function. See Payton v. Rush-Presbyterian, 184 F.3d 623, 627-30 (7th Cir. 1999) (holding that where private security guards are endowed by law with plenary police powers such that they are de facto police officers, they may qualify as state actors under the public function test). See also Rodriguez v. Smithfield Packing Co., Inc., 338 F.3d 348, 355 (4th Cir. 2003) (observing that “the police function is ‘one of the most basic functions of government’” and “an arrest is ‘the function most commonly associated with the police’”) (quoting Foley v. Connelie, 435 U.S. 291, 297 (1978)).

The second prong is the state compulsion test, which is determined by the existence of a statute, rule, regulation or order to compel, counsel, direct, encourage or control the conduct of a private security officer. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 170 (1970). A prime example of this rose in 2000, when the Assistant Legal Adviser to the Kansas City, Missouri Police Department, Dale Close, argued before the Missouri State Board of Mediation that “person’s holding private security officer licenses are vested with police powers to supplement the Kansas City Police Department’s overall effort to fight crime.” See Kansas City Firefighters, Local 42 v. City of Kansas City Public Case No. R 2000-046 (Mo. State Board of Mediation 2000). Thereby establishing a clear mandate in the execution of ones official duties and functions to further the ends of government under his or her security officer license pursuant to Title 17 of the Missouri Code of State Regulations, Section 10-2 et seq (1999).

The third prong is the symbiotic relationship or nexus test, which is determined by the presence of ones conduct serving or having the appearance of serving the ends of government in protecting public safety by fighting crime so as to bring into focus federal questions of law. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-26 (1961).

For purposes of the remaining part of this thesis, the focus will be that of examining Title 17 of the Missouri Code of State Regulations, Section 10-2.010(3) which states, in pertinent part that ” Those licensed to perform private security services have police powers. . .” and Section 10-2.030(1)(A) which states in pertinent part that “Class A licenses shall have the authority to detain or apprehend suspects either committing felonies, misdemeanors, or city ordinance violations in the presence of the licensee or during the attempt to commit the same or upon probable cause to believe an offense was committed. . .”

The State of Missouri defines a police officer to be: “A member of “police” which is an organized civil force for maintaining order, preventing and detecting crime, and enforcing laws, the body of men by which municipal laws and regulations of the city, town, or district are enforced.” See American Federation of Teachers, Local 691 v. The School District of Kansas City, Missouri Public Case No. 99 (Mo. State Board of Mediation 1999) (citing Burke v. State 47 S.E.2d 116 (1948) (the Board rejected the City of Kansas City, Missouri argument that school district security officer’s are police officers, because school district security officer’s do not carry a firearm and do not have the authority to enforce laws by means of arrest powers]. Thereby demonstrating that security officers who carry firearms and have arrest powers, are, in fact, “members of the police force.”

The Missouri Supreme Court defines a “law enforcement officer” to “encompass those persons engaged in law enforcement, who, regardless of job title, perform duties and functions substantially comparable to those performed by police and deputy sheriffs.” See Jackson County v. Missouri State Board of Mediation, 690 S.W.2d 400, 402-03 (Mo. banc 1985). Thereby including private security officers with police powers and because of such, are precluded from joining a union pursuant to 105.510 of the Missouri Revised Statutes and therein are deprived this right, liberty, privilege and / or security under the Missouri Doctrine of Public Policy that extends such protection to “at will employees.”

In determining whether or not private security officers have arrest powers, the United States Supreme Court held that “one has the power to arrest when one is “clothed with the authority of state law””, see Cf. Screws v. United States, 325 U.S. 91, 109-10 (1945) and as such. The aforesaid sections under Title 17 clearly give private security officers arrest powers, see also 556.061(7) RSMo (2006).

Therefore, when examining the aforesaid sections of Title 17, one can clearly see the existence of all three prongs (public function test; state compulsion test, and the symbolic or nexus test) and thus, private security officer’s operate under color of law and as a result, both private security officers and their employers are liable under 42 U.S.C. § 1983. See Richardson et al v. McKnight 521 U.S. 399 (1997).

The public function test is fulfilled by private security officer’s being given “police powers” specifically to further the ends of government in protecting public safety by fighting crime. See Payton v. Rush-Presbyterian, 184 F.3d 623, 627-30 (7th Cir. 1999); see also Kansas City Firefighters, Local 42 v. City of Kansas City Public Case No. R 2000-046 (Mo. State Board of Mediation 2000) (“person’s holding private security officer licenses are vested with police powers to supplement the Kansas City Police Department’s overall effort to fight crime”).

The state compulsion test is fulfilled by (1) the mandate set forth in Kansas City Firefighters, Local 42 v. City of Kansas City, which has the intent or the effect to compel, control, direct or encourage the conduct of private security officers in their duties and functions. And (2) by the State imposing a substantial predicate to constrain the decision making authority of others, and therein prevent or otherwise substantially curtail others in precluding or obstructing a private security officer performing his or her official duties or functions. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463 (finding discretion to be constrained by “substantive predicates").

The symbolic or nexus test is fulfilled by the conduct of private security officers being controlled, directed, counseled or encouraged by the State or its’ political subdivision(s) through Title 17 CSR, Sec., 10-2 et seq, and the mandate in Kansas City Firefighters, Local 42 v. City of Kansas City, to achieve a particular end, in government functions; thereby compelling security officers to adhere to the Constitutional mandates when confronting and / or arresting a suspect for alleged criminal activity. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-26 (1961) (holding that “private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it).

The substantial predicate set forth in the state compulsion test is of particular importance, as by and through the words “shall have” the State demonstrates its intent to knowingly and willingly arm private security officers, with a Class A license, with the legal framework and legal authority to serve a compelling state interest in protecting public safety by fighting crime and as such, is countervailing to any interest [real or purported] of an employer.

The substantial predicate and the state compulsion test; combined with the mandate declared by Dale Close, in Kansas City Firefighters, Local 42 v. City of Kansas City, effectively creates a duty to act and for, which inherently often transfers into a duty to arrest in order for the employer and / or the security officer to avert negligently or knowingly and willingly committing criminal acts, for example. Section 575.030.1of the Missouri Revised Statues (2006) states “A person commits the crime of hindering prosecution if for the purpose of preventing the apprehension, prosecution, conviction or punishment of another for conduct constituting a crime he: Subsection (2) “Prevents or obstructs, by means of force, deception or intimidation, anyone from performing an act that might aid in the discovery or apprehension of such person.”

One example of this is an employer who threatens to or actually: (1) terminates the security officer from employment; (2) gives the security officer a poor work performance evaluation; (3) reassigns the security officer to another post, (4) denies a raise or promotion, (5) creates a hostile working environment, or (6) takes any other adverse tangible employment action(s) against the security officer, as a means to prevent or obstruct the security officer from performing his or her official duties and mandates under Title 17, or that which has the effect of adversely punishing the security officer because the security officer performed his or her official duties and mandates under Title 17. See Pennsylvania State Police v. Suders, 542 U.S. 129 (2004);Yow v. Village of Eolia, 859 S.W.2d 920, 922 (Mo. App. E.D. 1993) (failure to have an individual prosecuted for sale and possession of drugs). See also Faust v. Ryder Commercial Leasing & Servs., 954 S.W.2d 383 (Mo. App. W.D. 1997).

In terms of a security officer committing a criminal act, in consideration for or receipt of (1) retaining employment; (2) receiving a favorable work performance evaluation, raise or promotion, or (3) avoiding any other adverse tangible employment action, by negligently or knowingly and willingly failing or refusing to abide by his or her duty to act and exercising their powers within the existing duty. Section 575.020.1 of the Missouri Revised Statutes (2006), states that “A person commits the crime of concealing an offense if“: Subsection (2) “He accepts or agrees to accept any pecuniary benefit or other consideration in consideration of his concealing any offense, refraining from initiating or aiding in the prosecution of an offense, or withholding any evidence thereof.”

Hence, under the Doctrine of Pari Materia , the substantial predicate found by and through the words of “shall have the authority to. . .” in Title 17 CSR, Sec., 10-2.030(1)(A) (1999), correlates to the legislative intents found in such state statutes as but not limited to: 562.016 RSMo, 575.010(2) RSMo, 575.020(4) RSMo, 575.180.1(2) RSMo, 575.230.1(2) RSMo, 576.010.1(2) RSMo, and / or 576.020.1(2) RSMo (2006), to ensure the interests of the City of Kansas City, Missouri and the State of Missouri are carried out in fighting crime, by security officers performing their official duties and functions found in the public function test and the state compulsion test.

The Doctrine of Pari Materia requires that statutes relating to the same subject matter be construed together even though they are found in different chapters or were enacted at different times. When one statute deals with a subject in general terms and another statute deals with the same subject in a more specific way, the two statutes should be harmonized if possible. If the statutes cannot be reconciled, the more specific prevails over the more general. See Dupont v. Mills, Del., 196 A.168, 9 W.W.Harr. 42, 119 A.L.R. 174 (The purpose of "pari materia" rule is to ascertain and to carry into effect the Legislature's intention). See also Derossett v. Alton and Southern Ry. Co., 850 S.W.2d 109, 112 (Mo.App. E.D 1993) (Missouri courts recognize doctrine of "pari materia," a rule of construction wherein statutes relating to same subject matter are considered together).

Privatizing police powers into the hands of private security officers has fast become the norm in governmental efforts to protect public safety in the face of depleting manpower and financial resources. See "Sourcewatch: Company police agencies" see also "San Francisco Chronicle: More security firms getting police powers - January 2007” see also "Assistant Chief Joseph Lyons, Stuart Police Department, Florida: Privatization of Police Services" see also “Private police violence and the scope of Section 1983,” By Lynne Wilson

In doing so, State legislators have sparked a national debate, in part, because of the monumental constitutional issues existing, in and of itself, but also due to private security officers abusing their powers when confronting those suspected of committing crimes. See Ridge v. Metropolitan Patrol, Inc., No. 0616-CV30330 (Jackson County, Mo. Cir. Ct. 2006) (allegations of physical brutality against a private citizen); see also Gerle et al v. Sunset Security et al No. 01CV217626 (Jackson County, Mo. Cir. Ct. 2001) (wrongful death of a private citizen). See also Debbie Meszaros et al v. KCPI Security, Inc., et al No. 0516-CV12683 (Jackson County, Mo Cir. Ct. 2005) (wrongful death suit); see also United States. v. Classic, 313 U.S. 299 (1941), wherein the Court held that "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." Id. at 326; accord Parratt v. Taylor, 451 U.S. 527, 535 (1981).

Likewise, we also create enormous conflicts of interest when privatizing police powers because the majority of employers are focused on financial profits, rather than security officer competence and law abiding actions and the result often requires or permits criminal acts to occur. See Yale Law Journal, Vol. 102, No. 8, Symposium: Economic Competitiveness and the Law (Jun., 1993), pp. 2231-2257 doi:10.2307/796865, (the Model Penal Code, which was adopted by the American Law Institute, in 1962, and revised in 1985, distinguishes between four levels of criminally culpable means rea: purposeful; knowing; reckless; and negligent). See Cross v. North Kansas City Security Patrol Service, et al No. 07-0226 (U.S. Dist. Ct. for Mo. W.D. 2007) (arguing, among other claims that security officers operated without the mandated licensures in the State of Kansas and Missouri). See also Orion Security, Inc., v. Board of Police Commissioners No. WD61195 (Mo.App. W.D. 2002) (Appeal Court affirms suspension of license for violations of 84.720 RSMo in security officers operating without a license).

Thus, while Courts must consider the governmental interest in efficiently and effectively providing public services, see Barnard v. Jackson County, Mo. 43 F.3d 1218, 1223-24 (8th Cir. 1995) even if such is to be accomplished by privatizing police powers. We must be mindful and certainly exceptionally careful to ensure that those private security officers who have police powers and exercise such, are well trained and educated in these powers. Leastwise, we only effectively create a militia which has no meaningful purpose other than to engage in vigilantly operations for financial and other profits; under the cloak of such being a legitimate government function.

Christopher Cross, M.A.
Kansas City, Missouri Commissioned Private Security Officer, (Class A license)
April 2007