Friday, September 14, 2012
Sharon G. Finegan (South Texas College of Law) has posted Watching the Watchers: The Growing Privatization of Criminal Law and the Need for Limits on Neighborhood Watch Associations on SSRN. Here is he abstract:
On the night of February 26, 2012, George Zimmerman, a member of a neighborhood watch program, was patrolling his community in Sanford, Florida when he spotted Trayvon Martin, a 17-year-old African-American high school student, walking through the neighborhood. Zimmerman called 911 and indicated that he was following "a real suspicious guy." Zimmerman then disregarded the police dispatcher's request that he discontinue following Martin and approached the teenager. In the resulting confrontation, Zimmerman used his legally-owned semi-automatic handgun to shoot and kill Martin. Martin had been returning from a local convenience store to his father's fiancée's house, where he was spending the night. He was unarmed.
George Zimmerman is currently being charged with second-degree murder. It is unclear whether Zimmerman will be proven guilty of the offense, but what is certain is that despite the fact that Zimmerman was engaged in law enforcement activities, Zimmerman's conduct in approaching and confronting Martin is not governed by the same constitutional restrictions that limit the actions of police. The Fourth and Fifth Amendments that restrict police in detaining, searching, and interrogating suspects do not apply to neighborhood watch organizations. At the same time, in many states neighborhood watch members can carry firearms and are protected under Stand Your Ground laws from having to retreat when confronted by a suspect. Thus, neighborhood watch members wield significant authority, but with neither the training that police officers receive nor the restrictions that govern their conduct.
While neighborhood watch groups, just like police, perform a valuable service to the community, they are also in need of statutory oversight and restrictions, just like the police. This Article proposes statutory provisions that could effectively address the problems posed by the growing privatization of criminal law enforcement as it relates to neighborhood watch associations. By enacting statutes that limit the abilities of neighborhood watch members to confront suspects, mandate training for those engaged in law enforcement activities, and expand the exclusionary rule to bar evidence seized illegally by private citizens engaged in law enforcement functions, legislatures would better ensure that due process guarantees are not abandoned when private actors participate in law enforcement activities.