Who Are You Working For?

One of the core principles undergirding the public grant of power to police is that police remain accountable to the people that they protect and serve.

This core principle might be coming under attack in Michigan.

Three days ago, Senate Majority Leader Arlan Meekhof proposed a package of bills designed to supplement Michigan’s police forces by officially empowering private police agencies.

What is the proposal, what protections does it offer, and what are the dangers it presents to Michiganders?

Explaining Majority Leader Meekhof’s Proposal

The Private Police Bill Package creates independently owned private police agencies which can enter into agreements with “legally organized entities” to fulfill most normal police functions. “Legally organized entities” include (but is not limited to):

“...an association, corporation, partnership, proprietorship, trust, foundation, non-profit organization, school district, political subdivision, local unit of government, federally recognized Indian tribe, or institution of higher education.”

In other words, the Michigan State Police would ‘deputize’ independent private police agencies which could then contract to provide police services to any of those ‘legally organized entities’ ostensibly reducing pressure on already existing state and local police forces.

There have been several public press articles that have misrepresented Mr. Meekhof’s private police proposal (it is a very confusing bill package, I had to read it about ten times last night before I started to understand it myself) by suggesting that private police officers would not need any training at all before being licensed as officers. For instance, Electablog concluded :

“But I have to say this latest package of bills introduced by Republican Arlan Meekof took me by surprise. If signed into law, it would allow for private, for-profit police agencies which are immune from FOIA laws. These private police don’t even have to have gone through police training but would have arrest powers.”

Private police officers, under Mr. Meekhof’s proposal, would have to be licensed by the Michigan State Police utilizing the standards and practices codified in Michigan code (which I am fairly sure means that officers have to meet MCOLES standards). However, anyone who is over 21, has a high school diploma (or GED), and hasn’t been convicted of a felony during the last five years could own and run an agency (providing that they hire at least one person who has police experience).

Agencies could be run and organized by non-professionally trained personnel, but the policing would still have to be carried out by officers who were licensed by Michigan’s State Police (while the legislation doesn’t explicitly mandate MCOLES requirements it does insist officers meet state licensing standards).

I am not a lawyer, but by insisting in the statute that the new law would extend state sovereign immunity to these new agencies the private officers would most likely be legally responsible for extending traditional Constitutional protections to the citizens they come into contact with (they would most likely be held by courts to be responsible for protecting rights under Public Function, Color of Law, or State Action Doctrines).

Despite Protections, Many Dangers Remain

So, let’s assume for the sake of argument that Private Officers under the new proposal would have to meet licensing requirements and would have to respect the same level of Constitutional protections as normal police officers do, are there still potential problems?

1. Policing By Consent

While these new private police officers would have to extend Constitutional protections to the citizens of Michigan that they come into contact with, they would not answer to the people directly and they would also be afforded State Sovereign Immunity and extended protection from FOIA requests by statute.

State Sovereign Immunity grows out of a presumption of accountability and service to the people of the State of Michigan which is not present in Mr. Meekhof’s legislation. Private police agencies, while they would be empowered by the State of Michigan, would be accountable to their employers and not to the people of Michigan.

Remember, many of these agencies would be hired by corporations or business interests in order to protect corporate interests.

When public safety comes into conflict with corporate interests, these agencies would have no obligation to intervene on behalf of the people of Michigan.

When the public safety comes into conflict with corporate interests, these agencies would have no obligation to share information with the people of Michigan and the people of Michigan would have no way to easily access any consequential information (because these agencies would be shielded from FOIA requests).

Also, what happens when corporations act in bad faith?

Why should we set up a system that provides ‘defense in depth’ for Corporations that misuse their private police agency powers?

2. What Exactly Is Meant By “Political Subdivisions?”

This sounds a great deal to me like this legislation explicitly allows political parties or political entities to hire private police forces with full search, surveillance, and arrest powers.

What could possibly go wrong when a political party uses its new police powers? Could these entities:

* Investigate or harassing opposition candidates, donors, or supporters during elections?

* Use official surveillance tools to intimidate or gather information on opposition candidates, donors, or supporters?

* Use enforcement and arrest powers to break up legitimate protests or to intimidate opposition rallies or voters?

I am probably just scratching the surface here, but this sounds like an incredibly dangerous and bad idea to me.

3. Big Data

Police can collect data that could be used in ways that could benefit corporations or political entities without the consent of the people surveilled. In addition, these entities could, theoretically collect data and then sell it as part of a for-profit big data play (especially if the data were anonymized).

Imagine a local entity hiring a private police agency who supplemented their income by collecting data on all residents using methods like New York CIty's anti-terrorism protection methods and then selling that aggregated data to the highest bidders?

In addition, corporations could ask their private police agencies to use collected data in order to exacerbate class and race inequality (remember these private officers have all the stop-and-frisk and arrest powers of normal police officers).

As Sarah Brayne put it in the American Sociological Review :

“Unchecked predictions may lead to an algorithmic form of confirmation bias, and subsequently, a misallocation of resources.They may justify the over-policing of minority communities and potentially take away resources from individuals and areas invisible to data collection sensors or subject to systematic underreporting. Put differently, the mechanisms for inclusion in criminal justice databases determine the surveillance patterns themselves. Predictive models are performative, creating a feedback loop in which they not only predict events such as crime or police contact but also contribute to their future occurrence. Second, new digitized surveillance practices broaden the scope of people law enforcement can track. This can be understood as a new form of “net widening” (Cohen 1985), effectively widening the criminal justice dragnet, and doing so unequally. ConsiderALPRs, one of the primary means of tracking people without police contact. Even though ALPRs are dragnet surveillance tools that collect information on everyone, rather than merely those under suspicion, the likelihood of being inputted into the system is not randomly distributed. Crime and enforcement patterns lead to unequal data capture across individuals, groups, and the city.”

If this database issue is problematic for police in general, what happens when there is a profit motive in purposeful over-enforcement or in placing a heavy corporate finger on the scales of public-accommodation? And remember, these new entities would be protected by both State Sovereign Immunity and a FOIA shield (so even if this were illegal, there would be a moral hazard problem created by the protections and lack of transparency built-in to the statute).

And why would we want to widen the net to provide private officers, agencies, and corporations with access to the increasingly sophisticated and voluminous amounts of increasingly personal Minority Report style data available to official police agencies? And even if private police could not legally collect and sell the data themselves, they would have an incentive to use any data they obtained to help their company maximize profits and could purchase law-enforcement-only data to use in ways that could help their benefactors maximize profit.

And all of this doesn’t even consider what would happen the first time a private police officer was involved in a deadly-force incident, a fleeing felon, or a deadly-force incident involving, for instance, an unarmed person of color.

I am just starting to think through the full implications of this proposal, but it already seems like a monumentally bad idea to me.

Josh is a blogger and freelance writer. Please consider following him on Twitter , throwing a tip into his hat on Patreon , or adding his blog OnPirateSatellite to your feeds.