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Outline
--Introduction
1. The Agent-Principlal Relationship
2. Public Agents
3. Private Agents
4. The Enforcement Hierarchy
5. The Individual As Principal
6. Models for Private Law Enforcement
7. Indemnification and Insurance
8. A Warning
9. Conclusion
--Notes
"The Constitution is what the cop on the corner says it is."
This age-old street maxim regarding law enforcement points to the central problem with typical public police agencies. Despite any libertarian theory underlying a nation dedicated to freedom, the development of a centralized organization vested with a monopoly of police power will eventually erode the reality of libertarian ideals. This presentation will explore the possible role of private security agencies, operating in a competitive market, to replace the present-day reliance upon monopolistic public law enforcement agencies.
1. The Agent-Principal Relationship
All protective service organizations — whether public or private — act as agents for certain principals. Under this common-law relationship the principal is responsible for the actions of the agent; while the agent may not perform activities outside the scope or limits set by the principal. According to common-law principles, the principal may remove and/or replace any agent, and may act on his own behalf despite the existence of an agent representing him. For example, most people are familiar with the concept of "citizen arrest." A principal (the citizen) may take an action (an arrest) even when an agent has been established to perform that action on his behalf. However, in North Carolina, recent legislation has ended the citizen arrest. Only government commissioned law enforcement officers are empowered to effect an arrest — even if you, as a principal, witness or suffer a violation and are capable of effecting an arrest yourself. This is a corruption of the basic agent-principal relationship, and is evidence of the exclusive, or monopolistic public police agency.1 Public law enforcement departments now act as exclusive agents with all of the rights of the principal — the principal having lost or abandoned the right to act for himself. Thus, public law enforcement departments are no longer "agents" under the common-law understanding. As in many cases of government hegemony, public law enforcement has become detached from its legal basis for existence. The only true agency in the area of law enforcement is the private security industry who are empowered to act only in those areas specified by the principal.
2. Public Agents
There are three types of modern day public law enforcement agencies.
The first is a municipal police department. This agency, in theory, has the inhabitants of a municipality as its principal. Again, in reality, town and city police departments are the agents of the city government and — to the extent the local government is controlled by higher governmental units — police are also the agents of all governments in a law enforcement "pyramid" to exact compliant behavior by the hapless inhabitants of their jurisdiction.
The second type is the sheriff of a county. Unlike the typical police chief, the county sheriff is usually an elected official. The sheriff’s department has as its principals the inhabitants of the county. Normally, a county sheriff displays more autonomy than other law enforcement agents, since, in theory, voters will hold the sheriff accountable for the success or failure of the department.
The third group of public law enforcement agencies is the myriad specialized units commissioned to provide enforcement of specific sections of the legal code. Examples include the B.A.T.F. on the federal level, the A.L.E. on the state level, and Animal Control Officers on the local level.
All public agencies take a reactive approach to protective services. Police today spend very little time deterring criminal activity.2 Instead, police are most often called upon to react after a person’s property rights3 have been violated. Specialized units spend most of their time monitoring compliance with laws or regulations under their control.
As usually happens in cases of "public ownership," police agencies no longer represent a flesh-and-blood principal. In each case above, the principal has become a mythological "city," "county," "state," or "federal authority." For example, if George Smith assaults Brenda Jones and is arrested by public agents, the subsequent adjudication will be styled "The State of North Carolina vs. George Smith." Under these conditions, the true principal seeking justice — Brenda Jones — is not considered important, except perhaps as a witness for the State.
3. Private Agents
Private protective agencies provide a variety of services to a wide-ranging market. All private agencies share a common trait, however. In each case, the principal is an individual client (person, corporation, etc.) who directs the level of activity of the agent, sets policy as to the enforcement of the principal’s property rights, and makes decisions regarding the disposition of a violation of the principal’s property rights. Security guard companies, security motor patrol agencies, private investigators, bail bondsmen, bounty hunters, alarm services companies, and armored car companies are but a few examples of the types of services offered in the private protective marketplace.
Some private agencies are proprietary — employed exclusively by and for the benefit of only one principal. However, most private suppliers are contract agencies — providing one or two specialized services to as many clients as possible.
Most private protective services are "proactive," since deterrence of criminal activity and protection of the principal’s interests are the paramount concerns. In fact, a violation of the principal’s person or property is evidence of failure by the private agency.
Every private protective service provider is heavily regulated by various government bureaucracies — especially since private security is increasingly regarded as a threat to public police forces. Some states grant private protective agents a limited power of arrest. Typically, arrest powers are granted to security guards only while employed on the property of a client. This provision is denied to private agents in North Carolina — but would be present in a free society.
4. The Enforcement Hierarchy
According to LeFevre,4 law enforcement may be divided into four stages: protection, defense, retaliation, and punishment. Briefly, protection encompasses all passive activities taken to deter criminal activity. Defense includes active steps when one is faced with an aggressor. Retaliation includes the concept of restitution and "getting even." Punishment is a class of activities whereby an aggressor is punished, or "taught a lesson" for his aggression. LeFevre concludes that protection alone is a viable option in a free nation, since the stages of defense, retaliation, and punishment require compromises of individual autonomy, a "crossing of the boundary" of another. For purposes of this presentation, LeFevre’s hierarchy will be named as follows: protection, self-defense, restoring the victim, and punitive damages.
5. The Individual As Principal
"The armed society is a polite society."
— Robert Heinlein
Any discussion of the role of private security agents in a free nation5 must begin with the individual. An individual is the only "real" entity that exists. All other forms of entities — partnerships, corporations, joint ventures, etc. — are artificial persons formed in a voluntary fashion. Ultimately, each individual is responsible for the protection of his person and chattels. Individuals intuitively practice protective activities when even vaguely aware of a possible threat. Contra to LeFevre, if an individual is granted the ability to take preventative measures, but denied the ability to defend himself when faced with an aggressor, or to seek to be restored from a violation of his property, then one must question the value of the ownership of property or the value one places upon one’s own life. Since crimes are activities conducted by one person against another, an individual acting as a principal is rightfully entitled to LeFevre’s entire hierarchy of enforcement. It is only when an agent is employed that an unequal or tyrannical "crossing of the boundary" is likely to occur in day-to-day situations. In practical terms, most individuals are not the victims of crime. In the same sense, few individuals are criminals. The vast majority of individuals do not hire agents for individual protection. Those that do, do so for only limited periods of time and for special circumstances. It has been my experience that individuals who feel the need for private protective agents decide to protect themselves when the cost of such services becomes known. This would likely be the case in a free nation as well. It is quite possible that no special protective agency could financially survive if it offered only this type of service, at least on this basic level.
Historically, the individual’s right of protection has occasionally been extended, not to an agent per se, but to another entity. Family protective organizations have been used in many societies. Another example is the spontaneous group reacting to criminal activity — otherwise known as vigilantism. It is quite possible that these adaptations will occur in the absence of a monopolistic police power. Further, one should not discount the effectiveness or the wisdom of such practices under certain circumstances. Vigilante groups have usually consisted of property owners who have each been a victim of a particular aggressor. Once the aggressor is no longer a threat, the vigilante group breaks up and returns to normal productive activities. Vigilantes have been defamed by government police agents — whose jobs do not consist of normal productive activities.
6. Models for Private Law Enforcement
There are several alternatives for private agents to assist in providing a safe and secure environment, as well as assisting individuals who have been the victims of force or fraud. All models assume that individuals can and do act as principals for their own protective needs — whether or not represented by a security agent. Furthermore, any community based privately supplied protection is assumed to be locally controlled.
Model A. Neighborhood and/or community contract. This is the model being implemented by many small towns — a privatization model. Under this model, a competitive contract would be awarded to a security supplier to act as an agent for an entire community or neighborhood. This agent would supply the entire enforcement hierarchy for the community. If an individual desires to participate, payment would be made based upon the value of property owned by the individual. However, individuals and corporations would still be able to contract with other suppliers for their own specialized security needs.
Model B. Market Competition and
Grand Jury. This model represents a qualified market environment. Each
security agency would contract with as many entities as possible in the
community. These companies would primarily supply protection alone (in
the enforcement hierarchy). If a violation occurs, the victim would present
evidence to a grand jury. If the jurors feel a hearing to determine guilt
or innocence is necessary, a contracted agent could be given the task of
beginning the remaining enforcement hierarchy. The grand jury would contract
with a private agent to accomplish these tasks (service of arrest, hearing
security, follow-through of restitution and follow-through of punitive
damages awarded). Since each security supplier would attempt to gain the
grand jury contract for the community, co-operation between protective
agents should develop. (See LeFevre’s hypothetical situations.) The grand
jury could be aided by a type of "sheriff" for the local community — the
grand jury chosen by lot and the sheriff elected from among the individuals
of the community. Payment to these suppliers could be made as in Model
A, above.
Model C. Pure Competition and Specialists (Bounty Hunters). This model represents a market only environment. All entities in the community would be responsible for their own security needs, as principals, with an unlimited ability to contract with any agent. Contracts would be awarded for protection (first level of hierarchy). If a violation occurs, a specialist (rather akin to today’s bounty hunter) could be hired to effect the remaining components of the enforcement hierarchy.
7. Indemnification and Insurance
If one considers protection as the only valid "enforcement" activity (after LeFevre), there are several alternatives to the activities of restoring the victim and punitive damage.
The first is an indemnification of the principal, should he suffer loss while employing an agent for security. It is common for security companies to assess a client’s property prior to offering security service. This assessment pinpoints activities or improvements a client should do to fully protect himself and/or his chattels. This assessment limits the security contractor’s liability should a loss occur connected with the weaknesses detected in the assessment. This present practice could be easily extended in a free nation. A protection agent could indemnify a client (principal) against any loss suffered during the contract period. It is a valid assumption that part of the contract negotiations would center on the amounts of indemnity to be paid for various possible occurrences. Private agents could also re-insure themselves against possible losses resulting from a violation of a client’s person or chattels.
The second alternative is for the principal to insure himself against loss with a specialized insurer. It is a valid assumption that substantial premium discounts would be granted to entities who contract with a security agent. Such insurers would also be able to inform clients of the effectiveness of various security contractors.
8. A Warning
All protective activities should be conducted in as de-centralized a fashion as possible. Current public law enforcement suffered a great decline in community responsiveness and local accountability when the United States federal government began to "assist" local public agencies. If one surveys local police department practices prior to alcohol Prohibition, one finds that police officers conducted foot patrols of neighborhoods and enjoyed personal relationships with residents on their "beat." A simple, inexpensive "call-box" was used for reporting incidents and verifying officer safety. These practices are still the norm for private security companies. However, public departments have suffered from federal interference since Prohibition (many local police refused to enforce the Volstead Act). Since that date, the federal government has mandated standards and practices for local law enforcement officials and extended control of local departments by the use of federal matching funds, property seizures, and grants (bribes). The result is a community alienated from its "protectors" and understandably suspicious of intervention in their private affairs. Police officers have also suffered a disassociation from those whom they purportedly serve. An entire police sub-culture now exists — the public is now the "enemy."
9. Conclusion
Today, the private security industry is growing four times faster than appropriations for public law enforcement. It has been calculated that private agents can supply the same services at one-fourth to one-third of the cost of current public law enforcement. Security in a free nation would be inexpensive, readily available, and very effective. D
Notes
1 This same condition applies to the concealed carry of weapons in North Carolina. The "Bayonet Constitution" of 1868 prohibited citizens' ability to carry concealed weapons — only commissioned government law enforcement officers are granted this ability.
2 "Criminal activity": For the purposes of this presentation, criminal activity includes only those acts which injure or cause the loss of one's person or chattels by the use of force or fraud.
3 "Property Rights": For the purposes of this presentation, property rights include those rights normally referred to as "personal rights." The term "chattels" is used to denote real or personal property.
4 LeFevre, Robert, The Libertarian (Orange, CA, 1985), pp. 38-49.
5 "Free Nation": For the purposes of this article, I am assuming no governmental units exist in regards to law enforcement, except for those listed under #6, Model B.
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Scott E. McLaughlin of High Point, NC, is President and CEO of Key Security Services, Inc. Mr. McLaughlin's company provides private security guards and patrol officers to a wide variety of industrial and institutional clients in the Piedmont region of North Carolina. Mr. McLaughlin also serves as the current Chairman of the Libertarian Party of North Carolina, and represented the Party as its gubernatorial nominee in 1992.