Thursday, September 17, 2015
Kiel Robert Brennan-Marquez (Yale University - Information Society Project) has posted Vigilantes and Good Samaritans (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:
Because the Fourth Amendment does not apply to "private searches," the doctrine provides no bulwark when private actors appoint themselves as vigilantes and voluntarily aid law enforcement. This Essay argues (1) that the categorical permissibility of vigilante behavior is a blind spot of Fourth Amendment law, (2) that the blind spot stems from the doctrine's roots in agency law, and (3) that the "government agent" test — under which private assistance of law enforcement is currently analyzed — should be replaced by an "outsourced policing" test. Where the former asks about the status of the actor who performs a given search (whether the actor is, actually or constructively, a law enforcement official), the latter focuses on the actor's conduct. Was the private actor merely assisting the police — trying to alert the authorities to (the possibility of) criminal behavior — or was the private actor stepping into the shoes of law enforcement, and thereby supplanting the need for law enforcement activity? In the latter event, Fourth Amendment scrutiny — at least in some measure — is warranted. Concretely, I argue that the “outsourced policing” test should turn on four variables: first, whether the private search was motivated by an ex ante intention to aid law enforcement; second, whether the private search involved illegal conduct; third, whether the private search stemmed from a “dragnet” program of surveillance; and fourth, whether the private actor who performed the search has an ongoing relationship with law enforcement.