In mid-April, 2017, Alabama’s Senate approved a bill that
would authorize Briarwood Presbyterian Church to create a police department. At
the time, the church hired off-duty police employees to provide security-- “a
common practice among nonprofit organizations.”[1]
With 4,000 congregants, a K-12 school and thousands of events on its land each
year, church officials had difficulty finding enough off-duty cops who were
available. More important than being able to make up for any shortages, the
proposed law “would empower a religious group to do a job usually performed by the
government.”[2] That
the group is religious in nature whereas police power is governmental (i.e.,
“church and state”) is less important than that the “job” had come to be viewed
societally, as per the quote from The New
York Times, as usually performed by government. In
other words, the slippery, subtle slope is itself a red flag.
“Police powers are a quintessential government role,” said
Randall Marshall of the ACLU of Alabama.[3]
In U.S. constitutional law, the Tenth Amendment is judicially interpreted as giving
the states police powers in line with the protection and maintenance of the
health, safety, and welfare of the citizens.[4]
In other words, the police power resides with the state governments. That the
elected representatives in state offices are “closer to the people”—meaning
smaller districts—means that the police power is tightly woven with democratic
accountability and thus democratic legitimacy, at least in theory. That state
governments delegate the power to local subunits (i.e., counties and
municipalities) introduces a wrinkle in this feedback loop, especially if the
county or city government is corrupted by local wealth, which is by nature
pro-police qua property-protection.
Randall Marshall of the ACLU of Alabama overlooks the key
governmental basis of police power in privileging the problem of church and
state in his conclusion, “Giving the powers of the state to a private religious
organization is a …violation of the establishment clause” of the U.S.
Constitution.[5] I
submit that for a government to allow a church to have employees with the
powers to arrest and use deadly force is not to establish a state religion. The
decisive problem is rather that a non-governmental entity—a non-profit
organization—would assume a governmental role. That democratic legitimacy would
be replaced by managerial prerogative is the sort of shift that is not typically
transparent to translucent daylight.
The church employees would have “all of the powers of law
enforcement officers” in Alabama, including “the powers to make arrests and use
deadly force.”[6] They
would have to be certified by the Alabama Peace Officers Standards and Training
Commission, making them a real police department. The church pastor and his
board of directors—private citizens, not government officials, in a private
association—would be the bosses of a full-fledged police force. As troubling as
this may sound, precedent exists in another domain of non-profit organizations.
Universities have their own police forces, which are
accountable, in theory at least, to academic administrators (i.e., managers)
rather than to a city council or mayor. In the case of state universities, their
respective state governments are at a distance; typically a board of regents is
the go-between. A university administration’s over-reaches can easily go under
such a board’s radar—not to mention that of a state capitol. Even assuming
adequate accountability, the interest of a university’s administration is not
that of a state government—the former being considerably narrower in scope.
A government, unlike an organization’s board and management,
stands for and protects society as a whole, so a police force answers to
officials who are tasked with looking after the interests of the whole, rather
than those of a part thereof. In theory, police can serve in an unbiased way
between two contending groups within society, unless one of those groups is the
government itself; but that group is not in
society. Government as an organization differs qualitatively from
organizations in society because only
government represents the whole (i.e., the entire society, and thus the common
good). This difference is crucial as to why giving organizations in society police forces of their own; organizational
“police” are subject to a part (of society) rather than the whole and therefore
something partial rather than the
general good. Rather than the whole acting in its interest with respect to two
contending parts of the whole, one part gains a lever over another part—a lever
of such power that the U.S. Constitution assigns that prerogative to governments.
The issue at hand, whether the organizations are religious
or educational (or both, as is Briarwood), is thus not the particular flavor of
the organization. Even beyond whether a governmental power is misappropriated,
the ultimate concern for the general public ought to be the risk of
unaccountable police overreach at the expense of the members of organizations—whether
parishioners, students, staff, faculty or even visitors. The risk is real
because an inherent bias exists in the institutional arrangement itself, which
unfortunately comes part and parcel with the misappropriation.
The troubling matter of accountability is so important
because a serious, albeit unfortunately overlooked conflict of interest exists
when a “police force” is beholden to an organization (i.e., its management) rather
than a government, which represents the public good. Anytime such a “police
force” intervenes in a conflict between the organization’s administration and
its members, the “police” employees are subject to an inherent bias in favor of
their bosses higher up in the organization. The bias is institutional in
nature; employees are going to lean in the direction of the people who pay and
direct them. A “police chief” in an organization is naturally going to side
with the administration of which he or she is a part, rather than with members,
and the “chief’s” subordinate employees are going to follow along even if they
harm or intimidate members unjustifiably.
An organization’s management can order its “police force” to
take action against “troubling” members, whereas they in turn face an “uphill
climb” in convincing the administration’s “police” to take action against
administrators who are out of line. “Police” employees of a church are likely
to be hesitant at best to remove an irate, abusive pastor at the behest of some
offended members, but those same employees would not blink an eye before
removing a parishioner, who is orally challenging the pastor on a
hitherto-secret regarding his salary or expenses, at the pastor’s request. This
asymmetry is the fault-line in the conflict of interest. Any tense relation
between an administration and the organization’s members suffers from the lack
of a fair resolution mechanism because the security, or “police,” employees are
subject to the institutional bias. In other words, the umpire or referee works
for one of the teams.
As a result, administrators can potentially take liberties
with more assurance than warranted of practical impunity, whereas the members and
the general public (e.g., visitors) are potentially without the protections of
liberty that are guaranteed citizens as per abuse of power by a government but
interestingly not members as per abuse of power by an organization’s management
or its armed “police force.”
More commonly, the board and pastor of a church and the
administration of a university are likely to look the other way as members feel
uncomfortable or even subtle intimidation on a daily basis due to an excessive “police”
presence enabled by the bias in favor of the organizational leadership. That
is, an organizational “police force” is not likely to be managed in such a way
that the protection of the organization’s property and enforcement of its rules
and even local law is balanced against the prerogative of members to feel at
ease while at the organization. Unfortunately, the risk of damage or violations
of rules or laws cannot possibly reach absolute zero, so police forces, whether
local or of organizations, are going to try to maximize their presence—caring
less about member comfort in the process.
In short, giving non-profit organizations powers that are
quintessentially governmental is inherently problematic, for to do so creates
private governments without democratic legitimacy or accountability.
Accordingly, universities and churches should be allowed to have security
employees, who are empowered to guard the assets and enforce organizational
rules yet without weapons and the power to arrest. Instead, they should be able
to the local police rather than assume such governmental powers themselves.
Otherwise, I fear the perpetuation of private governments—even at state
universities!—with little or no real accountability. In a democracy, such a
sordid spread should be a matter of concern rather than indifference or
support.
