ABSTRACT
This Article uncovers a critical yet unexplored dimension of policing: the strategic oscillation of police officers between their roles as state actors and private individuals, and its significant implications for police accountability frameworks. As officers toggle between these two roles to their legal advantage, they exploit a deep systemic flaw in the structural design of policing. Tracing the trajectory of policing from its vigilante origins to its institutionalized form, this Article argues that contemporary policing merges state-sanctioned power with vestiges of vigilantism to blur the public-private divide. This duality enables a form of state-sanctioned vigilantism, through which officers exploit legal grey areas. Police wield the state’s coercive power under the color of law, enjoying immunities and legal protections unavailable to private individuals. Yet, simultaneously, they can invoke their identity as private individuals to circumvent constitutional constraints on their conduct.
The resulting rupture of accountability frameworks is a significant design flaw that harms policed individuals and communities while undermining the institution of policing from within. Where these frameworks presume a clear divide between state and private action, officers instead navigate a liminal space, leveraging state-sanctioned power while exploiting doctrinal ambiguities to subvert legal constraints. The Article critically evaluates how the state action doctrine, designed to delineate state and private conduct, fails to account for this reality. So, too, does the qualified immunity doctrine, which often shields vigilante conduct that exceeds constitutional bounds. To address this pressing problem, the Article advocates for a radical reconceptualization of police authority and accountability. It proposes reinterpreting the state action doctrine to break down the dichotomy between state and private action. It suggests implementing comprehensive statutory regulations to constrain police identity shopping. Ultimately, it challenges us to consider whether the entrenched vigilante origins of policing may necessitate a fundamental re-evaluation or even abolition of the institution of policing itself.
Banteka, Nadia, Police Vigilantism (February 12, 2024), Virginia Law Review, volume 110, 2024.
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