Texas Allows Private Guards to Police Properties Near the Border

As if the Border Patrol didn’t invite enough controversy, Texas is now permitting private guards to police the U.S.-Mexico border. The Texas Department of Public Safety has given the International Security Agency license to operate in the Rio Grande Valley. Its clients would be ranchers and local businesses threatened by violence from drug cartels. With the promise of this extra safety, however, comes questions of who exactly controls these new knights in shining armor.

ISA President Jerry Brumley insists that his guards are seasoned, responsible veterans. Any applicant to the ISA must have been in the military for at least four years with an honorable discharge, a federal or civil law enforcement officer with at least two years of service, or a security officer with six years of experience. Unlike the Blackwater guards in Iraq, his guards have never been charged with a crime. And the guards themselves would only police private property near the border — not interfere with border agents’ duties.

Yet the ISA also peddled their services to local ranchers and farmers by showing newsreel clips of a bomb exploding in a city, of smugglers abandoning cars and goods in the Rio Grande — events that are not only not on private property, but are designed to get people pumped up and hotheaded. And ISA guards aren’t troubled by traditional limitations like waiting for culprit to shoot first. “Our practice is if someone raises a weapon to me and I feel threatened, with my life or the life of my client, I am taking action,” says Brumley.

So we have a private company meant to operate on private land, yet for a very public reason–the federal government failed. “It is the federal government’s responsibility to protect Americans by securing the international border,” says Governor Perry’s press secretary, Katherine Cesinger. “[T]he federal government is not fulfilling that responsibility.” With these sentiments in mind, it’s a question of how long before one of these private guards takes action on public property. If they do, they might not be bound by the Fourth Amendment the way public law enforcement agencies are.

The Fourth Amendment prevents public law enforcement agents from searching a house without a warrant, auto search and seizure without probable cause, and detaining someone without reasonable suspicion. In other words, you can’t just go up to someone, pin him down, and start searching through his pockets. While Fourth Amendment protections have been weakened in many troubling ways, the idea still is that you must have a reason for detaining someone, more than just a vague suspicion. What is more, your use of force must be in proportion to the danger.

Private guards on private property don’t have to worry about all that. The Fourth Amendment does not apply to them. Someone manhandled by a private guard would not look toward criminal procedure, but toward tort law (such as assault, battery, false imprisonment) for relief. But the situation changes if the private guard is fulfilling a public role. In Washington v. Heritage (2002), private security guards in a public park were found to be government actors — and therefore bound by the Fourth and Fifth Amendment — because they had been hired by the city. The situation with ISA presents a complex middle ground. What if private guards hired to protect private property chase a suspect onto public property and search or shoot at him there? Or what if these guards shoot a possible “danger” while that person is still on public property? Would they be considered state or private actors? Just how far would their private freedoms extend?

It may be a while before we find out: ISA charges anywhere from $200 to $2,500 per agent per day, far outside of the average farmer or rancher’s price range. Even so, this situation is not going away, and will provide much fodder for federal criminal defense attorneys for years to come.