Alabama Expands Law Allowing Private Police Forces — And the Opposition Goes NutsTags Legal System
Recently, Alabama Governor Kay Ivey signed legislation permitting Briarwood Presbyterian Church to establish its own police force for its church and school campuses, which are used by 2,000 students and faculty, as well as 4,000 parishioners. The legislation is to take effect in the fall. The church’s attorney who drafted the legislation, Eric Johnston, said that they have traditionally hired off-duty police officers to patrol their campuses, but they are not always available, and therefore the church would like to have its own dedicated sworn peace officer. The bill’s language is similar to that found in the Alabama Code, Section 16-22-1, which lists various educational institutions (including private ones) that may hire their own police officers who are charged with all the duties and powers of police officers, trained in the use of non-lethal weaponry, and certified by the Alabama Peace Officers’ Standards and Training Commission. Johnston stated that it would not involve a jail or other facilities, but basically an officer and an official car and “If there is an arrest on campus, the local jurisdiction would be called and they would come pick the person up."
Of course, there has been the expected knee-jerk reaction regarding the desirability of such an arrangement. Randall Marshall of the Alabama ACLU, for instance, says the law will help the church cover-up criminal activity that occurs on its campuses, and that it is a violation of the First Amendment’s establishment clause because “It establishes a singular religion that is favored above all others in the state of Alabama and it gives them the authority of state government.”
It is interesting to note, however, that the functions the church wants the police to perform would not require sworn peace officers. Various media accounts of the story (for example, see here, here, and here), emphasize that the proposed police force would have the power to arrest people committing crimes on campus property, as if this would be a major power grab. However, in comparing the arrest powers of private citizens in Alabama (AL Code § 15-10-7) to those of a sworn officer without a warrant (AL Code § 15-10-3), one sees striking similarity.
Section 15-10-7 Arrests by private persons.
(a) A private person may arrest another for any public offense:
(1) Committed in his presence;
(2) Where a felony has been committed, though not in his presence, by the person arrested; or
(3) Where a felony has been committed and he has reasonable cause to believe that the person arrested committed it.
(b) An arrest for felony may be made by a private person on any day and at any time.
(c) A private person must, at the time of the arrest, inform the person to be arrested of the cause thereof, except when such person is in the actual commission of an offense, or arrested on pursuit.
(d) If he is refused admittance, after notice of his intention, and the person to be arrested has committed a felony, he may break open an outer or inner door or window of a dwelling house.
(e) It is the duty of any private person, having arrested another for the commission of any public offense, to take him without unnecessary delay before a judge or magistrate, or to deliver him to some one of the officers specified in Section 15-10-1, who must forthwith take him before a judge or magistrate.
Section 15-10-3 (abridged) Arrest without warrant — Generally; written report; protection orders.
(a) An officer may arrest a person without a warrant, on any day and at any time in any of the following instances:
(1) If a public offense has been committed or a breach of the peace threatened in the presence of the officer.
(2) When a felony has been committed, though not in the presence of the officer, by the person arrested.
(3) When a felony has been committed and the officer has reasonable cause to believe that the person arrested committed the felony.
(4) When the officer has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed.
(5) When a charge has been made, upon reasonable cause, that the person arrested has committed a felony.
(6) When the officer has actual knowledge that a warrant for the person's arrest for the commission of a felony or misdemeanor has been issued, provided the warrant was issued in accordance with this chapter. However, upon request the officer shall show the warrant to the arrested person as soon as possible.
Thus, it’s not even clear that the church police force legally has much more power than would private civilians providing security. Regardless, the church finds having sworn officers provide security, with the concomitant costs of getting the state to allow it and the promised litigation by the ACLU, to be preferable to hiring non-sworn personnel. Without speaking to the church leadership directly, one can only speculate why this is the case.
Despite the insignificant legal change, there is a strange asymmetry with which power in the hands of a state actor is treated compared to the same (apparent) power in the hands of a non-state actor. No doubt the writer of the CBS News article on the subject meant the following to sound ominous:
Some of the restrictions of the church’s police force would include: no jail, police activity would be limited to church property, officers would answer to the church and if you had a complaint, you’d have to complain it [sic] to the church.
To most ears, the idea of complaining to the church about its own police force seems ludicrous. How could they be an impartial arbiter? And yet, for most municipal police departments, the recourse if one has a complaint is to complain to the department directly. It is not clear why we should expect better outcomes in the latter case.
Others question whether the church police force will be properly transparent and accountable, saying, “Most police forces serve public entities, so ultimately they are accountable to the community they serve.” If we grant such an incredibly naïve and tautological view of government accountability some degree of plausibility, I can see no reason why the same idea would not apply to a church campus serving 4,000 parishioners and 2,000 students, numbers on par with a rather small municipality. Unlike a city government, the parishioners and parents of students choose whether to give money to the church and can more easily switch churches than cities. Even if one thinks that an individual parishioner or parent will have little influence over church governance, it is absurd to think that their influence over municipal government will be any stronger. The only way to come to the conclusion that a municipal police force has any advantage in terms of accountability over a 2-man church police force patrolling a privately-owned campus is to not have thought about the issue at all.
This is not to argue that Briarwood Presbyterian Church’s upcoming police force should be thought of as an ideal arrangement; granting certain parties privileges to use coercive force is inherently suspect. However, if one is concerned about Briarwood’s police force, they ought to be hysterical over pretty much any police force in the United States. Somehow, the state seems to get a pass in areas where non-state entities are treated with suspicion.
One final thought: advocates of community-oriented policing should be Briarwood’s champions. Briarwood a well-defined and organized community with specific problems they want the police to solve, and will itself be involved in the co-production of security. The Briarwood police will be more accountable to community leadership than the typical municipal police force, who in addition to the tax money they extract from locals also receive federal “community-oriented policing services” grants to purchase SWAT equipment. Yet I would be surprised if any policing scholar who has written in support of community policing will come to the defense of Briarwood, or see it as an example of what they purport to support. If I am right, there ought to be no doubt left that community policing is truly rhetoric over reality.