Urban Lawyer

Special Districts, Sovereignty, and the Structure of Local Police Services

by Noah M. Kazis

Noah M. Kazis is a Law Clerk to the Honorable Douglas P.Woodlock, United States District Court for the District of Massachusetts. Yale Law School, J.D. 2015. He would like to thank David Broockman, Conor Clarke, Heather Gerken, Henry Hansmann, Suzanne Kahn, Meredith Kane and David Schleicher for their insightful comments and helpful suggestions, and is especially grateful to Robert Ellickson for his support, encouragement and assistance.

LOCAL GOVERNMENT IS FRAGMENTED — usually. It is fragmented geographically, of course, with metropolitan areas carved into hundreds of independent municipalities. But local government is also fragmented functionally. For decades, single-purpose special districts have been replacing traditional general-purpose local governments, like cities and counties, as the providers of public services. In 1966, Los Angeles Mayor Sam Yorty testified before a subcommittee of the United States Senate on the “urban crisis” of the day. Eager to disclaim responsibility for fixing the problems facing Los Angeles in the wake of the Watts riots, Yorty repeatedly pointed out that independent agencies, such as the school board, were responsible for all the programmatic functions about which the senators were concerned. Exasperated, Connecticut Senator Abe Ribicoff pressed Yorty on the point. “This morning you have really waived authority and responsibility in the following areas: schools, welfare, transportation, employment, health, and housing, which leaves you as the head of the city basically with a ceremonial function, police, and recreation.” “That is right,” responded the mayor, “and fire.”¹

Since Yorty made that statement, the number of independent special districts providing one or a few specified public services has roughly doubled.²The role of traditional general-purpose governments — towns, cities, and counties — as the sole providers of local public services, which Yorty questioned in the 1960s, has only eroded since then. At no point during the last half-century did the growth in the number of special districts slow. In some parts of the country, residents pay taxes to a dozen different local governments, each providing a single specialized service.³ Indeed, for many cities and suburbs, Yorty’s list of municipal responsibilities would be two services too long: thousands of special districts now provide fire protection or manage parks and recreation.⁴

But Yorty included one final service under city control: the police. And even in the most fragmented places, where layers of overlapping special districts provide almost every public service, the police remain immune. Across the country, special districts essentially never provide policing. Policing is uniquely reserved for general-purpose governments. In some states, special police districts are forbidden outright. In others, they are legally permissible, yet still non-existent. Everywhere, policing resists the overwhelming trend in local government structure towards special district service provision.

This anomaly — which scholars have never before analyzed⁵ — has significant implications for the study of local government. First, it provides a new answer to the question of what local governments do. Traditionally, scholars have argued that citizens incorporate municipalities for two reasons: to regulate land use and control property taxes.⁶ While cities may do more, they need not. Most other significant functions can be, and are, performed instead by special districts or private contractors. This essay adds policing to that list. Citizens demanding additional policing cannot form a special district to provide it. They must form a municipality.

Second, the lack of special police districts helps answer the question of what local government is. Doctrinally, all local governments — special districts and general-purpose governments alike — are merely creations of the states with no independent authority. Accordingly, the states are free to structure local government however they choose. But the deep and uniform resistance to structuring police services in the same manner as all other local public services suggests this is not true in practice. Policing is, almost by definition, a central act of sovereignty: the use of force to uphold the law is the classic exercise of the Weberian⁷ monopoly on legitimate violence, and the connection between policing and sovereignty has deep historical roots.⁸ Special districts are denied the power to police — either by state law or by citizen action — and therefore denied sovereignty. They are actually the mere administrative appendages of the state that general-purpose local governments are sometimes described as being. In contrast, cities and counties, granted the right to use violence to enforce the law, share in the state’s sovereignty.

This essay begins by firmly establishing its descriptive and most important finding: that policing is all-but-never provided by special districts.⁹ Part I demonstrates this at a national level, using a variety of national data sets for confirmation. Part I also contextualizes the lack of special police districts against the ever-increasing significance of special districts in local service provision and the importance of policing among local government functions: that special districts are not used for policing is truly anomalous. Part II grounds these national findings in case studies of three states: Connecticut, Illinois, and New York. These case studies illustrate, among other things, that there are no formal legal obstacles to special police district formation (in Connecticut, for example, such districts are explicitly authorized), and that there are no practical barriers to special police district operation (one has operated in New York for decades). The case studies also illustrate that special districts are not used even in the most special district-friendly state in the country (Illinois). Part III concludes that local government scholars must re-conceptualize the function of municipalities. While the standard account of municipal incorporation holds that only zoning and taxation are powers reserved for general-purpose governments, while special districts can be used for service provision, I demonstrate that policing must be added to the short list of functions reserved for cities and counties.

Having shown that special districts do not provide policing, this essay goes on to analyze why. Part IV explores a range of possible explanations for the lack of special police districts, grounded in comparisons to other forms of local service provision. It finds that, if anything, existing scholarship suggests that large numbers of special police districts should exist. Special districts are commonly used to provide fire services, which are politically and organizationally similar to policing. Police privatization is an often-proposed and sometimes-tried reform. Special districts, however, would offer the advantages of privatization with few of the disadvantages. Finally, most of the factors believed to lead to special district formation generally — a desire to put spending off-budget, special interest control, the need for better-drawn geographic service boundaries, and more — would apply equally well to police districts. Given the failure of existing theory to explain the lack of special police districts, Part V puts forward a new explanation. Policing is constitutive of sovereignty, but special districts are not deemed sovereign. As such, they are not capable of providing policing. Finally, I argue that the uniform, nationwide resistance to special police districts shows that cities and counties are not constitutionally interchangeable with special districts, as current doc- trine holds, and not mere administrative units of state government. Rather, states respect and protect the sovereignty of general-purpose local governments. In line with contemporary scholarship, I find a zone of autonomy preserved for local government. This essay adds to that literature by showing that, for policing, such autonomy extends only to towns, cities, and counties, not to special districts.

I. Posing the Question: Why Are There No Special Districts for Police Services?

A. The Importance of Special Districts and Policing in Local Government

Increasingly, local public services are not provided by the traditional structures of local government: counties, cities, and towns. Especially in suburban areas,¹⁰ special districts are often the service providers of choice. Their proliferation is striking. From 1942 to 2012, the number of non-school special districts increased by 361 percent. The number of municipalities, the only other form of local government to grow over that period, increased by just 20 percent.¹¹ By and large, when citizens form new governments today, they form special districts.

Accordingly, special districts collect a healthy share of local revenue. Special districts collect 35 percent of all local revenues nationwide, but in some places account for up to 80 percent of local revenue.¹² On average, school districts take in just over two-thirds of the total special district revenue.¹³ Though special districts earned an early reputation for providing a quasi-private system of service provision, levying user fees in proportion to services consumed,¹⁴ today, special district finances look more like those of general purpose governments. Almost two-thirds of special districts levy a district-wide property tax, while only 41 percent impose service charges and 24 percent use special assessments to raise revenues.¹⁵Special districts are simply another, increasingly favored, structure for providing public services. Special districts operate everything from fire and water services to sanitariums and cemeteries; indeed, one scholar has asserted that “districts are active in all the major functions of local government.”¹⁶

One might expect, therefore, that local policing would be among the panoply of services provided by special districts. Policing is a core function of local government. Nationwide, local governments spend $83.5 billion a year providing police services.¹⁷ That makes policing one of the two largest local government line items after education, which dominates local spending.¹⁸ In New York State, for example, policing constitutes 16 percent of county spending, 23 percent of city spending, 9 percent of town spending, and 18 percent of village spending.¹⁹ Moreover, local government is the primary provider of police services. Local governments spend almost seven times as much on policing as do states.²⁰ From a budgetary perspective, at least, policing is one of local government’s primary functions. Given the importance of special districts in local service provision, one would expect policing to be provided by special districts, at least some of the time.

B. The Lack of Special Police Districts

Yet special districts, despite their prevalence, essentially never provide policing. Accounts of special districts at the national level consistently fail to mention policing at all. The Census of Governments, for example, classifies special districts into 25 functional categories, but has no category for police services.²¹ An early attempt to authoritatively catalogue every type of special district in the nation, state by state, ignored policing entirely.²²These national surveys suggest that special police districts do not exist.

The same general pattern appears in surveys of local police departments. Data from the 2000 Census of State and Local Law Enforcement Agencies show the number of special police districts to be vanishingly small. That Census identified 17,784 state and local police departments across the country.²³ Of those, the overwhelming majority of districts, numbering 12,666, were operated by municipalities. County sheriff ’s departments constituted another 3,070 agencies.²⁴The Census identified another 1,376 so-called “special jurisdiction” departments, such as the Port Authority of New York and New Jersey Police, or the Florida Game and Fresh Water Fish Commission, whose authority is limited to particular public facilities or discrete categories of crime.²⁵ Only eight police departments out of nearly 18,000 in the country identified themselves as general-purpose police departments operated by special districts.²⁶While these data are not perfectly reliable when dealing with such small numbers — the Census categorized at least one special police district as a municipal police department²⁷ and at least one municipal department as a special district²⁸ — they provide an order-of-magnitude estimate of the prevalence of special police districts: as a general rule, they are unheard of.

This is a striking deviation from the normal shape of local service provision, in which special districts play a prominent role. It is especially remarkable for its consistency nationwide. Scholars have long noted that special districts are used very differently state-by-state; libraries are disproportionately managed by special districts in Indiana, sewers are disproportionately managed by special district in Pennsylvania, and hospitals are disproportionately managed in California.²⁹ The federal Advisory Commission on Intergovernmental Relations disclaimed any ability to satisfactorily identify any pattern of when services were provided by special district, claiming that “local customs” defined their use.³⁰ But for policing, this local variation disappears. Across the United States, policing remains in the hands of general-purpose governments.

Scholars have largely overlooked this pattern and have entirely failed to explain it. Most of the scholarly literature on special districts, in both law³¹ and political science,³² simply ignores policing. A handful of scholars have noticed the lack of special police districts, but they have addressed the issue in ways that are cursory — no more than a few sentences — inconsistent, and imprecise. Christopher Berry, for example, claims, “except in unusual cases, districts do not have the power of zoning, regulation, or law enforcement.”³³ In contrast, while Kathryn Foster notes that police protection is usually provided by general-purpose governments, she asserts, “[t]here is no institutional reason, however, why these services could not be part of the special district portfolio.”³⁴Taking a middle position, Nadav Shoked states, “[a] special district may be afforded the power to police behavior or land uses . . . and even establish a police force to enforce these rules . . . yet their regulatory effect does not extend beyond the particular facilities managed by the district.”³⁵ They claim, in other words, that special districts are generally permitted to provide police services, generally forbidden to do so, or only permitted to do so in connection with district-operated infrastructure. Moreover, to the extent that evidence is offered to support these claims, it is sometimes inaccurate. Foster inaccurately claims, for example, that there are no special police districts in New York State.³⁶Given the paucity of re- search on the subject, this essay attempts to more definitively establish current practice regarding special police districts and to understand its legal underpinnings. To do so, I examine special police districts in three states. First, however, I pause to more precisely define a special police district.

C. The Definition of a Special Police District

Up to this point, the lack of special police districts has been described without defining the concept. A working definition is necessary, how- ever, because neither “special district” nor “policing” has a clear, fixed meaning. Many public single-purpose districts, including some that provide policing, are not sufficiently independent to be considered special districts. And many special districts provide some limited security or law enforcement function that is not really policing. In both the quantitative national data just presented and the qualitative case studies that follow, they are not counted as special police districts.

First, this essay largely follows the Census’s definition of special districts. Special districts, which are defined to exclude counties, municipalities, townships, and, for historical reasons, school districts, are public entities “authorized by state law to provide only one or a limited number of designated functions, and with sufficient administrative and fiscal autonomy to qualify as separate governments.”³⁷ While scholars have classified special districts along many different dimensions,³⁸ the Census’s requirement of substantial independence is essential. A government agency — the New York Police Department, for example — is obviously not a special district, but neither is a com- mission whose board is fully controlled by another government.³⁹ Districts that exist as mere formalisms are not counted as special districts. For example, the voters of Lewisville, Texas, created a new “crime control and prevention district” in 2011. That district is coterminous with the city, and the Lewisville City Council serves as the district’s managing board.⁴⁰ The district exists only to levy a sales tax that the city would not otherwise be allowed to impose.⁴¹Fundamentally, though, the City of Lewisville remains the provider of policing. Following the Census definition, such a district is not considered to be a special police district. Even a district that was not coextensive with a municipality but which still only levied surtaxes to pay for additional city-provided services, as with Louisiana’s “tax election districts,”⁴²would be better understood as an administrative subdivision of the city than as an independent service provider.

The early history of American policing is replete with examples of police agencies organized along these lines. In the mid-19th century, when modern policing was first introduced to the United States,⁴³ states and cities pitched bitter conflicts for control over big-city police forces. In 1857, for example, the Protestant, Republican New York State government created a new Metropolitan Police force to replace the municipal police forces of New York City and the then-independent Brooklyn, controlled by Irish Catholic Democrats.⁴⁴ When the Metropolitans attempted to arrest the mayor of New York, the two police forces engaged in armed battle.⁴⁵ State governments seized control over local policing in major cities like Detroit, New Orleans, and Boston, in some cases creating metropolitan forces that extended beyond city lines, although local control was reestablished everywhere by the turn of the 20th century.⁴⁶ The question of who would police America’s large immigrant cities — the state, through so-called “special commissions,” or the cities themselves — was hotly contested with important ramifications in state constitutional law.⁴⁷ But the state-created commissions were not special districts in the contemporary sense. They were not independent agencies but rather directly controlled by governors or state legislatures.⁴⁸They were what we would now call public authorities: state-controlled agencies, often with cross-jurisdictional reach, created to serve as ostensibly apolitical service providers.⁴⁹The early experiments with state-run police commissions show that it was not historically inevitable that cities and counties would be the primary providers of policing — although for the last century that has been true across the country — but also at no point were independent special districts employed: general-purpose governments, whether state or local, have always been generally responsible for policing.

Conversely, many true special districts provide security services, but are not police districts. For example, the Los Angeles Unified School District — which has an independently elected board and a jurisdiction that crosses municipal boundaries⁵⁰ — employs 340 sworn law enforcement personnel.⁵¹The Census deems the LAUSD police and similar forces guarding schools, parks, and transportation facilities “special jurisdiction” law enforcement agencies.⁵² While these forces may have many of the powers of a police force, they are not the equivalent of general-jurisdiction police departments. For example, Illinois park districts may hire police officers with the power to make arrests and carry firearms, but those officers’ powers are “expressly limited to park district property.”⁵³ These forces, in essence, are tasked with guarding public facilities, not with investigating and preventing crime.⁵⁴ They respond to disturbances on specific properties; they do not maintain order and enforce the law for a political community.

These special jurisdiction police forces are in important respects more like private guards, following a “logic of security,” than they are like public police, following a “logic of justice.”⁵⁵ Or, as former Metropolitan Transportation Authority chairman Joe Lhota more bluntly put it, these facility-based police forces are “mall cops.”⁵⁶ Government agencies often hire private security guards to perform the same functions.⁵⁷ When this essay discusses special police districts, it excludes these special jurisdiction police forces, even when special districts operate them. It is unremarkable that government agencies are empowered to protect their own facilities and ancillary to the central question of how citizens and states organize the provision of local policing. This essay is concerned instead with general-jurisdiction police agencies — the primary providers of law enforcement for residents of a given territory — organized as special districts.

The business improvement district, or BID, is a harder case to classify. These districts, which have rapidly expanded across the country, provide supplementary public services to commercial centers and are paid for by taxes on property owners and businesses.⁵⁸ Among those services is usually some form of additional security. Often these efforts — the installation of security cameras, for example, or the employment of unarmed security guards who do not make arrests⁵⁹ — are unambiguously not policing. They are the equivalent of hiring private security guards. But some BID security services go further. They may share space with a police precinct, carry radios connected to police dispatchers, or analyze crime trends in the district.⁶⁰ They may even be empowered to carry firearms and use deadly force.⁶¹ Do these BIDs provide policing? The Second Circuit has ruled they do not. Noting that the Grand Central BID called in the NYPD for serious crimes, could not make arrests, obtain warrants, or detain suspects, the court held that its security staff were “security guards” with “no authority to perform typical law enforcement functions.”⁶² More importantly for this paper’s purposes, BID security is purely supplemental to local policing. Policing is never taken away from a local government and given to a BID. For the purposes of analyzing the structure of local service provision, I limit my analysis to those special districts that are both meaningfully independent of other local governments and empowered to act as the primary law enforcement agency for a particular territory.

II. Special Districts in Practice: Connecticut, Illinois, and New York

In order to better understand how local governments provide policing — and how law structures those service provision decisions — three states are examined as case studies: Connecticut, Illinois, and New York. Each state is relatively reliant on special districts, suggesting that if police districts were to be found anywhere, it might be in these states.⁶³ But having already demonstrated the rarity of special police districts nationally, these case studies are not meant to again prove the absence of special districts. Rather, they were chosen for particular features that allow them to more clearly illustrate how the lack of special police districts is manifested. These selections are not intended to be either comprehensive or representative — they leave out the West, for example, where special districts are common but more often tied to water issues; and it does not look at the many states in which special districts are rarely used — but rather, were selected to best illuminate the nature of special police districts.

Connecticut has a unique system of local government. The state has had no county government since 1960, and all land in the state is included in one of 169 municipalities.⁶⁴ Without counties, special districts fill an important role: they are the only independent regional governments available. Unless special districts are used, the only options for providing policing are municipalities and the state itself. New York has engaged over the last decade in an unusually public debate about the merits of special districts. Long Island’s Nassau County, in particular, has attracted attention from county officials and governors alike for its inefficient and often-corrupt special districts, as well as for the high property taxes that result.⁶⁵Accordingly, more and better information is available about New York’s special districts than those of most states — both hard data on the number and type of special district and qualitative accounts of the uses and functions of special districts in that state. Finally, Illinois has more special districts than any other state in the nation and, therefore, is a natural choice for further investigation.⁶⁶

A. Connecticut

Connecticut offers what should be a friendly environment for special police districts. The lack of counties provides a regional governance vacuum that special districts are well-suited to fill. More importantly, Connecticut’s legal regime explicitly allows the creation of special police districts. Yet in Connecticut policing is still almost never provided by special districts. Moreover, the few exceptions are special cases that only underscore the state’s deep resistance to special police districts.

Connecticut has 447 non-school special districts, with housing authorities and fire protection districts particularly common.⁶⁷ Connecticut has enacted a general incorporation statute for special districts, providing a standardized formation process that does not require legislative approval.⁶⁸ That statute expressly authorizes the creation of special police districts, stating, “the voters may establish a district . . . to appoint and employ watchmen or police officers.”⁶⁹ To establish such a district, a two-thirds vote by residents of the proposed district is required.⁷⁰

However, despite explicit legislative authorization, the general in- corporation law has never been used to form a special police district. Rather, almost all policing is provided by general-purpose governments. Either the local municipality operates a police department or, if it is too small to efficiently run its own department, it contracts with the state for a “resident state trooper.”⁷¹ Almost half of all municipalities in Connecticut use resident state troopers, suggesting that economies of scale exist in non-municipal police provision.⁷² One might think that towns would prefer to capture those economies by partnering with their neighbors and forming a special district, rather than cede policing entirely to the state, but this never happens. A state- provided list of all law enforcement agencies in the state confirms that, with a single exception, all general-jurisdiction police agencies are operated by municipalities.⁷³

The sole special district to provide policing is the Groton Long Point Association, which governs a beachfront community of roughly 600 houses.⁷⁴ The district was created in 1921 by special act of the Connecticut legislature in response to local citizen demands for additional public services.⁷⁵ The larger town of Groton either could not or would not serve the seasonal residents out of its general tax revenues, so the Long Point community sought legislative authorization to assess its own taxes and provide its own services, including policing.⁷⁶Today, the Groton Long Point Police Department, whose chief is appointed by the Association’s elected board, continues to serve Long Point as its basic, general-jurisdiction police force.⁷⁷

That said, Groton Long Point is arguably not a special district at all. Though state officials have said it is best understood as a special district, Groton Long Point’s precise legal status is unclear.⁷⁸ Because it was created by special act, the legislature did not need to classify the Association’s legal status into a defined category. It could simply enumerate the Association’s powers. Indeed, ten years after the creation of the Association, when the district’s residents were before the legislature seeking an expansion of the district’s powers, the district’s legal status was considered an open question.⁷⁹ What is clear, however, is that the Groton Long Point Association was delegated all the powers of boroughs, which are considered municipalities under Connecticut law.⁸⁰Most importantly, Groton Long Point controls its own land use regulations, a traditional power of general-purpose local governments.⁸¹ In other words, Groton Long Point was broadly delegated a quasi-municipal status by the legislature. It is not a single-purpose police district in the manner of, say, the independent Center Groton Fire District.⁸²

A second special district, the Clinton Beach Association, is also statutorily authorized to appoint police officers.⁸³The Clinton Beach Association was also created by special act of the legislature, in 1967.⁸⁴ The Association, however, no longer operates its own police department. Instead, it relies on the Town of Clinton for all policing.⁸⁵ Moreover, the Clinton Beach Association was never empowered to act as a stand-alone police provider. Its officers are only empowered to make arrests for ordinance violations, not for more serious crimes, and may only levy penalties of up to $25.⁸⁶ Essentially, the Clinton Beach Association was empowered only to make and enforce its own traffic regulations. Unlike the quasi-municipal Groton Long Point, this limited- purpose special district was granted only a sliver of the authority to provide policing.

In Connecticut, therefore, special police districts remain extremely rare, even with an express statutory authorization for their creation. Special police districts are legally permissible but disfavored. Moreover, when passing special legislation to create particular districts, the legislature has only authorized those special districts that functionally resemble municipalities to provide the full range of police services. In a functional sense, only general-purpose governments — whether municipalities, the quasi-municipal Groton Long Point Association, or the state — operate police departments in Connecticut.

B. Illinois

Numerically, if for no other reason, one would expect Illinois to employ special districts for policing if anywhere did. Illinois boasts more special districts than any other state in the nation: 3,227, not including school districts.⁸⁷ Cook County alone has 244 special districts, more than ten states.⁸⁸ Yet despite this multitude of special districts, police districts are not counted among their number. In 2003 a state commission attempted to identify and categorize each of those thousands of districts, sorting them into 36 different categories. Though Illinois still had two special districts operating tuberculosis sanitariums,⁸⁹ it did not have a single special police district.

Unlike Connecticut, Illinois does not have a single incorporation statute for special districts. Rather, the state has passed individual incorporation statutes for each type of special district, requiring different formation procedures and assigning different powers.⁹⁰ The state has not passed a general statute regarding special police districts. Such a statute would be permissible under the state constitution, which requires only that special district powers be limited to those authorized by statute and which imposes limits on special districts’ ability to raise revenue.⁹¹However, the legislature has not chosen to allow citizens to form special districts for policing.

Illinois has created one special district related to policing — although not providing policing — through special legislation. The Metro East Police District Commission was created in 2012 and covers East St. Louis and three of its suburbs: Alorton, Brooklyn, and Washington Park.⁹² Those communities have long suffered from both high violent crime rates and rampant misconduct by their four municipal police forces.⁹³In the two years prior to the passage of the legislation, the police chiefs of both East St. Louis and Alorton had been prosecuted for corruption.⁹⁴ The new district was created to provide oversight of the police, in particular by passing rules and regulations that are binding on the four municipal forces, and to use funding incentives to encourage managerial improvement.⁹⁵The district, however, may not operate its own police force directly.⁹⁶The four municipal forces remain the sole providers of direct police services. Additionally, the Commission is not independently elected but rather made up of state and local appointees and ex officio members.⁹⁷

Metro East could become a real special police district. In January 2014, the United States Department of Justice released a report, commissioned by the Metro East District, offering recommendations for improving policing in the area. As one option for improvement, DOJ suggested the dissolution of the four existing police departments and the “creation of a stand-alone police district.”⁹⁸ Notably, the report does not identify any legal obstacle to special police districts in Illinois, though the report acknowledges that legislative action would be required to create such a district.⁹⁹ Even so, in 2014 the Metro East Commission chair has deemed the creation of a regional police district the least likely option moving forward.¹⁰⁰Since then, the quality of policing provided by the local governments has remained abhorrent; in April 2015, the state’s attorney declared that he would not pursue criminal charges in cases brought to him by the Brooklyn Police Department.¹⁰¹ Even so, the departments remain independent; rather than provide policing, the Metro East district is working to build the departments a new evidence locker.¹⁰²

Illinois thus shows that even in a state uniquely reliant on special districts for service provision, the core local service of policing remains exclusively in the hands of general-purpose governments. Indeed, even where municipalities proved themselves incapable of adequately running their police departments, the state opted against taking policing out of municipal hands. The oversight body governing those troubled municipalities similarly seems likely to reject the suggestion of a new special district for police services, though it remains a live issue. Even under extreme conditions, policing remains the work of general-purpose governments.

C. New York

New York provides the only example among these three states of a truly archetypal special police district. That district, the Port Washington Police District, is unique within New York: the sole special police district. It thus stands as the exception that proves the rule. The Port Washington Police District shows that special police districts are possible and highlights how rare they really are. In demonstrating that special police districts are not only conceptually possible but practically workable — even normal — New York casts in a sharper light the question that this essay began with: why special districts are not used to provide policing.

New York, like Connecticut and Illinois, uses special districts as an important form of local government yet, like Connecticut and Illinois, New York generally does not provide police services through special districts. The Census counts 1,174 non-school special districts in New York.¹⁰³ A state commission found 1,126 districts, not including public authorities with appointed boards.¹⁰⁴In some parts of the state, particularly on Long Island, special districts are deeply entrenched features of local government. In Nassau County, where the powerful Republican Party machine historically used a crazy quilt of special districts to provide patronage positions and ensure low turnout elections,¹⁰⁵ concerted political efforts to reduce reliance on special districts have largely failed.¹⁰⁶

Despite the heavy (and politically advantageous) use of special districts generally, policing is not usually provided by special district in New York. The same state commission did not mention policing as a service provided by any of the 1,126 special districts it identified.¹⁰⁷Even where municipal provision of police services is uneconomical, special districts are not used to rationalize service provision in New York. Rather, local police departments are commonly consolidated with those of higher-level general-purpose governments: a village’s force might be merged into that of a town or county, for example.¹⁰⁸

As elsewhere, policing remains in the hands of general-purpose governments in New York.

The exception is the Port Washington Police District. Port Washington is the only special police district in the state.¹⁰⁹ And unlike Groton Long Point or the Metro East Police District, Port Washington is a true special district. It has an elected board of three commissioners.¹¹⁰ It crosses jurisdictional lines, policing both the unincorporated area known as Port Washington and the incorporated villages of Baxter Estates and Port Washington North.¹¹¹ It provides the full range of police services, unlike a special jurisdiction agency, but does not provide any other public services, unlike Groton Long Point or other quasi-municipal bodies.¹¹² The district raises its revenue through an independently assessed property tax.¹¹³ It has the same structure as the hundreds of independent fire districts that can be found across New York or the thousands of other independent special districts across the country. If policing were to be generally provided by special district, it would look like hundreds of Port Washington Police Districts.

But Port Washington stands alone in New York State. Under a statute passed in 1909, New York once allowed the creation of special police districts.¹¹⁴ The state repealed that law in 1934, however, as part of a broader effort, supported by Progressive good government organizations and Governor Herbert Lehman, to rationalize suburban government.¹¹⁵ Port Washington, which had fought off consolidation into the Nassau County police force in 1925,¹¹⁶ again secured its continued independence, persuading the legislature in 1934 to grandfather in existing districts.¹¹⁷Then, as now, Port Washington was home to some of the country’s most wealthy and influential figures, which presumably enabled it to receive special treatment.¹¹⁸The 1934 legislation allowing the continuation of existing police districts was itself repealed in 1939, showing the state legislature’s continued opposition to the provision of policing by special district.¹¹⁹Though the Port Washington Police continue to operate today, the State’s legislative scheme expresses a strong policy preference against such arrangements.

Thus, New York confirms and clarifies the pattern found nationwide. Formally, it is not unconstitutional or improper to create special police districts. Practically, it is not wildly unwieldy or inefficient. Port Washington’s continued, largely unremarkable existence proves as much. Creating special police districts, however, is deeply disfavored and has been for the better part of the 20th century. In New York, unlike in Connecticut, that disfavor has been codified in statute. Thus, even those states that rely on special districts for service provision only allow special districts to run the police in exceptional circumstances.

III. Special Districts and Municipal Incorporation

At this point, I have established that special police districts are all but unheard of in American local government. This is not because they are unlawful or unworkable, however; Connecticut explicitly allows their creation, New York has an operational special police district, and Illinois is currently considering creating one. Still, special police districts are universally disfavored. This fact provides a new answer to one of local government law’s fundamental questions: why incorporate? Or put differently, what do municipalities do?

Political scientists and legal scholars alike have traditionally identified two powers as the primary attractions of municipal incorporation. In the political science literature, Nancy Burns is credited with what is now the “dominant explanation for understanding the formation of local governments.”¹²⁰Forming a municipality, she showed, allows residents control over land use regulation and, to a lesser extent, their tax level.¹²¹ The combination allows for “fiscal zoning”, the exclusion of high-cost or low-value land uses that would increase the tax burden of existing residents.¹²² In contrast, Burns argues, service pro- vision does not require incorporation, even where residents desire greater service levels than the state and county provide. Residents can secure services a la carte through special districts. Indeed, thousands of municipalities provide no services at all, choosing instead to contract with the county or another government for all services.¹²³ Legal scholars, too, see control over land use and the tax base as the primary drivers of incorporation. Richard Schragger, for example, argues that “the chief goal of most incorporating entities is to gain power over land use” and to “insulate themselves from costs and generate increased revenue.”¹²⁴ This traditional story captures what is most important about municipalities, but it is incomplete. Policing, like zoning or control over the local tax base, is one of the few local powers that is not, in practice, delegable to special districts.

In fact, the power to provide policing is in one sense more strictly municipal than the power to provide zoning or taxes, which special districts exercise. Political scientist Christopher Berry has demonstrated that incorporation provides only limited control over taxation in a metropolitan area with vertically fragmented government.¹²⁵ Independent special districts raise taxes — property taxes, sales taxes, and special assessments alike — above the economically optimal or socially desired level, even in incorporated areas, because they are not subject to downward pressure from either Tiebout, vote-with-your-feet competition, or meaningful democratic oversight.¹²⁶ Berry offers the example of Evanston, Illinois, where property taxes alone are paid to 14 different governments.¹²⁷That Evanston is incorporated as a city does not necessarily protect its tax base: the special district school system, which is not co-extensive with city limits,¹²⁸ levies more taxes than the city.¹²⁹ As special districts proliferate, incorporation provides less tax autonomy.

Zoning is also no longer a power reserved for general-purpose governments. Nadav Shoked has uncovered rapid growth in the number of special districts authorized to regulate land use.¹³⁰ Hundreds of “community development districts” and “community services districts”, covering hundreds of thousands of acres, are authorized to zone with- out municipal status.¹³¹ Shoked found that special districts have been granted zoning powers in states “north, east, and west; rural, urban, and suburban; ‘liberal’ or ‘conservative’; declining or booming.”¹³²Though zoning remains primarily in the hands of the municipality, its monopoly on land use regulation is no longer absolute. In contrast, special districts have made no such inroads into municipal policing.

Thus, policing, more so even than taxation or zoning, is an inherently municipal power. This is not meant to suggest that most municipalities incorporate in order to create their own police forces. The fiscal and social payoffs from zoning and taxation alone make incorporation extremely attractive, while the benefit of providing one’s own policing is less immediate. Moreover, it is extremely common for municipalities to control their own zoning and taxes while contracting with a county for their policing.¹³³ Even so, any analysis of the difference between special districts and incorporated municipalities must discuss policing. It alone is a power almost exclusively exercised by municipalities.

IV. The Failure of Existing Theories to Explain the Lack of Special Police Districts

Having established that special districts are essentially never used to provide police services, I now ask why. The answer is, to a certain extent, inherently speculative, an always-dangerous inference from silence. Special police districts are so rare that a comparative approach would reveal little; there is no pattern that can be drawn out from the isolated fact that Port Washington has a special police district while Chicago’s wealthy suburbs do not. A quantitative approach would face the same difficulties. Nor does a historical approach fully illuminate the issue. Special police districts are so disfavored that their creation is rarely even discussed; there have been no bills voted down whose debates might clarify the politics of the issue.

Accordingly, in the following section I come at the question orthogonally, asking whether better-established theories about policing and special districts generally can explain the lack of special police districts. But in each case, existing theories only deepen the mystery; they suggest that special police districts should be plentiful, not exceptional.

A. Comparing Police with Fire Protection

Among local public services, policing most resembles fire protection. Operationally, each has similar needs. Both are protective services with a need to respond quickly to emergencies. Front-line administration is decentralized into precincts and stationhouses to facilitate emergency response. Culturally, the two services share “paramilitary administrative traditions” with hierarchical, chain-of-command management.¹³⁴ Both have long been male-dominated with an insular culture conceptualized as a “brotherhood.”¹³⁵ Politically, the workers in both services are extremely active and politically powerful.¹³⁶ Police and fire unions also tend to use their political power for similar ends. Both are dramatically more politically conservative than the labor movement as a whole, for example.¹³⁷Perhaps more importantly, both services routinely fight for (and often win) bureaucratic autonomy, opposing any “real or imagined political interference” or “civilian review of operations.”¹³⁸

Given the depth of those organizational, cultural, and political similarities, one might expect police and fire to be organized similarly, due to similar needs as service providers or similar demands as political actors. But with regards to provision by special districts, the two services could not be more different. The Census counts more special districts providing fire protection than any other single function: 5,865.¹³⁹ New York State alone has 867 independently elected fire districts, as compared with its single elected police district.¹⁴⁰ Fire districts are as common as police districts are rare. The near-universal absence of special police districts is thus made all the more striking by the many special districts for police departments’ closest organizational cousin.

This contrast also suggests that any explanation for the lack of special police districts must be rooted in the specific nature of police work itself. Explanations based on the nature of emergency service provision cannot suffice, nor can those citing police departments’ administrative structure; fire departments share those features. Nor can lobbying clout be the answer. Firefighters likely prefer to be employed by special districts, a structure which affords them greater independence and often increased spending.¹⁴¹ But the equally-powerful police unions should be able to secure the same special district status. The most salient difference between these two quite similar services is the work itself. Something about policing must explain the lack of special police districts.

B. Comparing Special Districts with Police Privatization

While existing scholarship on the provision of policing by special district is sparse, a great deal more has been written on the potential privatization of policing. In recent decades, municipalities like Oro Valley, Arizona; Indian River, Florida; Reminderville, Ohio; and Buffalo Creek, West Virginia have experimented with contracting out for their entire police forces.¹⁴² While police privatizations have never lasted for longer than five years in this country and are almost unheard of abroad,¹⁴³ America’s ideological disposition keeps the idea of privatizing public services on the table.¹⁴⁴ Just recently, the city of Foley, Minnesota, went through a typical cycle of police privatization. In 2003, the city disbanded its municipal police force and contracted with the county for its policing. In 2011, the city voted to replace the county with a private security firm.¹⁴⁵ Dissatisfied, Foley decided to reopen its local police department one year later.¹⁴⁶Stories like these, though rare, have clear ideological stakes and, to some, echoes of dystopia,¹⁴⁷inspiring both policy analysts and legal scholars to study private policing in some depth.

This literature serves two valuable functions for this paper’s inquiry. First, those seeking to understand the privatization of the police have also had to grapple with the reasons general-purpose governments uniformly provide policing, although they have not considered the option of special district provision. Second, provisions by the private sector and by special districts have long been thought to share certain features. Special districts have been labeled “quasi-public governments or the businesses of government” due to their sometimes fee-for-service nature.¹⁴⁸While this characterization is decreasingly accurate — special districts rely heavily on district-wide property taxes¹⁴⁹ and even exercise regulatory powers¹⁵⁰ — there are insights to be gained by thinking of special districts as a midpoint between provision by general-purpose governments and by private contractors.

Do the established advantages and disadvantages of private policing explain the lack of special police districts? A report by the Department of Justice’s research arm helpfully analyzed the most important of each.¹⁵¹ As compared to public policing, private policing allows communities to purchase additional policing for particularistic needs that a broader jurisdiction finds unimportant.¹⁵² Private policing allows significant cost savings on non-uniformed officers, who would not be subject to civil service requirements or as likely to be unionized.¹⁵³ The borough of Sussex, New Jersey, for example, briefly privatized its police force and cut costs by 50 percent.¹⁵⁴Contracting out for private police allows municipalities facing “taxpayer revolts” to provide additional services without personnel expenditures appearing on budget.¹⁵⁵ Finally, private security firms are better able to provide flexible, on-demand policing, as they can spread their workforce across a broad area and deploy additional officers when needed.¹⁵⁶

Special police districts would provide almost all of these same advantages. For example, special districts are traditionally used to provide extra services to areas with special demands.¹⁵⁷The Groton Long Point Association, for example, was created to serve a beachfront community with different needs than the upland, year-round residents.¹⁵⁸ Special districts also allow service providers to avoid the same administrative mandates that increase non-uniformed personnel costs. Political scientist Jered Carr has found that special district formation is driven by the presence of such mandates, including collective bargaining, workers’ compensation, and civil service policies.¹⁵⁹ And special districts are routinely used as a way for elected officials to offload political and fiscal costs onto new entities, particularly where legal or political constraints limit tax or debt levels for general-purpose governments.¹⁶⁰ For three of four factors, special districts provide all the advantages of police privatization. For the fourth, staffing flexibility, special districts would provide the same advantages to the extent they serve larger jurisdictions than a municipality or cross county lines.

On the other hand, private policing carries significant disadvantages. Police unions strongly oppose privatization.¹⁶¹ In Arizona, for example, a state law enforcement council refused to accredit a privatized police force, dooming the town’s privatization efforts.¹⁶² Private security officers are generally less qualified and less well-trained than public police.¹⁶³ Finally, many worry that, due to the state action doctrine, private police may not be subject to the constitutional restraints found in the Bill of Rights.¹⁶⁴Interestingly, legal factors are only a minor obstacle to police privatization. In states like Ohio and North Carolina that have considered whether local police privatization would be permissible under state law, no formal bar to privatization has been found.¹⁶⁵However, legal actors’ discomfort with police privatization has still posed a challenge. Sussex’s police privatization experiment came to a halt when the state attorney general challenged it, although the borough could have come into compliance with state law “with little difficulty.”¹⁶⁶ In Kalamazoo, Michigan, a dissenting judge’s attack is credited with unraveling police privatization.¹⁶⁷

Special police districts would suffer from few of these disadvantages. First, police unions should have little reason to oppose special police districts. Special police districts would remain public police departments, after all. If anything, the special district structure would allow greater union influence in elections and greater resource allocation toward policing.¹⁶⁸ The Port Washington Police District faces no resistance from its neighbors or workforce. Second, the state action doctrine would bring special district police officers under constitutional oversight. That said, there may be reason to believe that special district police departments would be less qualified than those operated by local governments. Library districts, for example, tend to hire fewer trained librarians than libraries operated by general-purpose governments.¹⁶⁹ However, the kind of under-qualified officers whose hiring by private contractors caused concern in the past — minimum wage workers with their own arrest records¹⁷⁰ — would be unlikely to constitute the workforce of a special police district.

The comparison with private policing, therefore, makes the lack of special police districts more puzzling. Using special districts for policing could provide many of the advantages sought by governments exploring private policing, while avoiding many of its pitfalls. Yet while private policing is a consistently recurrent policy proposal, special police districts are almost never proposed. Still, the comparison with private policing further focuses this essay’s inquiry. The many factors discussed in this section, from cost to constitutional oversight, cannot explain the lack of special police districts. The answer, again, must be something else.

C. Applying General Theories of Special District Formation to Policing

Another important body of scholarly literature has attempted to pro- vide a generalized theory of special district formation. This research has largely disregarded substantive differences between government functions. Still, if the causes of special district formation generally did not apply to the specific case of policing, it would explain the absence of special police districts. But, once more, these theories do not provide such an explanation. All but one of the factors that spur the creation of special districts should spur the creation of special police districts as well. The sole exception is that special districts are thought to depoliticize service provision, a goal that might not be appropriate for the police. But even the desire to keep the police subject to political oversight cannot fully explain the total absence of special police districts.

Before proceeding through the possible explanations for special district formation, it should be noted that the empirical research on special districts is decidedly inconsistent and even contradictory.¹⁷¹As Kathryn Foster has noted, special districts have been called “fragmentary and integrative, efficient and inefficient, apolitical and partisan, competitive and cooperative, growth-inducing and growth-hindering, equitable and inequitable, politically responsive and anti-democratic.”¹⁷² Even at the level of mere description, scholars disagree, for example, over whether tax limits on local government encourage special district formation.¹⁷³ This paper does not attempt to referee that debate, though the most recent and respected quantitative scholarship in the area suggests that service provision by special districts is generally more expensive and less efficient than provision by general-purpose governments.¹⁷⁴ For my purpose, I need ask only whether a given explanation for special district formation would apply to policing and so can accept all significant scholarly explanations, even those that are incompatible.

First, the most basic explanation for the creation of special districts is that a growing area might desire additional services beyond those offered by a county, but not want the full range of services provided by municipal government.¹⁷⁵ Political scientist Barbara McCabe has found that faster-growing and faster-urbanizing states each see more special district formation. In her words, “[t]he simplest rationale for the creation of special districts is that citizens demand services.”¹⁷⁶ However, urbanizing areas desire more intensive police protection than the county sheriff would otherwise provide or alternatively, more local control over the police. If not, municipalities would not bother operating their own police departments at all. Thus, one would expect at least some urbanizing areas to seek additional policing through the creation of a special district before incorporation.

Second, special districts allow the tailoring of service provision to geographic reality rather than preexisting political boundaries. For example, to efficiently provide services like transportation or water, large regional jurisdictions that cross county lines are often necessary.¹⁷⁷ The geography of service provision may also require smaller special districts. The Mystic Fire District in Connecticut, for example, serves a historical community that straddles the mouth of a river and thus sits in two different towns.¹⁷⁸ But as that example shows, policing, too, might need to cross political boundaries. District lines that facilitate quick response times or community policing are not necessarily coterminous with existing local governments.

Third, special districts allow governments to evade tax, spending, or debt limits imposed on local governments by the state.¹⁷⁹ Prior to 1970, for example, the Illinois constitution limited local government debt to five percent of the value of taxable property. Because the constitution did not set aggregate debt limits, though, local governments simply created special districts as needed to take on additional debt.¹⁸⁰ Nothing about these limits, though, explains why police services would remain within the fiscally-constrained general-purpose government rather than being offloaded to special districts. Policing, after all, makes up a sizable share of local government spending.¹⁸¹

Fourth, special districts allow services to be provided free from certain administrative mandates imposed by the state on local governments, such as civil service rules or pension requirements.¹⁸²Under the theory that special districts should be run more like businesses, special districts are sometimes exempt from these requirements. States with fewer administrative mandates are statistically likely to have fewer special district governments, according to political scientist, Jered Carr.¹⁸³ Carr’s own research, however, suggests that this explanation should extend to policing: one of the mandates he included in his calculation was for police training.¹⁸⁴ Moreover, there are routinely efforts to reduce the civil service protections or pension contributions for police officers.¹⁸⁵Many would be eager to see policing exempted from state administrative mandates.

Fifth, an early wave of public choice scholars argued that special districts increase competition among governments, allowing more citizen choice and keeping down spending. Stephen Mehay, for example, argued that general-purpose governments employ monopolistic “full line forcing,” in which residents who want one local service must purchase all the others from the same provider.¹⁸⁶ Thomas DiLorenzo found that states that restricted special district growth saw an increase in per capita spending as a result.¹⁸⁷ While these results have been challenged, even if true, they would not explain the lack of special police districts. Citizens hoping to mix-and-match service providers would have no reason to leave policing bundled. Indeed, “widely beneficial and politically secure services like police” would be top priorities for such citizens to unbundle, as their presence in a local budget provides political cover for less popular services like welfare spending during debates over tax and spending levels.¹⁸⁸

Sixth, many scholars reject the optimistic story just described about intergovernmental competition, instead describing special district formation as a tool of special interests to secure greater control over the public services of most concern to them. Real estate developers have been identified as the force behind many special districts.¹⁸⁹ But other interest groups also benefit from special districts. Because only one service is at stake in a special district election, only those voters with a strong stake in the issue will bother to vote. Interest groups, whether public employees or the heaviest users of the service, will dominate the elections, increasing spending.¹⁹⁰ While in a general-purpose government, elected officials must balance competing interest group demands, special district leaders respond to far fewer constituencies. Given that police are politically active and electorally powerful,¹⁹¹ they would be well-suited to exploit this dynamic. Firefighters, whose political organization is similar, have certainly done so.¹⁹²

Seventh, federal spending policies have encouraged special district formation. Certain federal programs, including those related to soil conservation, drainage, and housing, are intended to flow through special districts rather than local governments.¹⁹³ These programs, mostly started during the New Deal, inaugurated the modern boom in special district formation.¹⁹⁴ Unlike the above explanations for special district formation, this one would not equally well explain the formation of special police districts; federal spending does not prioritize special districts for the receipt of law enforcement aid. However, it also does not explain the absence of special police districts. It simply changes the question from why states and citizens have not favored special police districts to why the federal government has not done so.

Finally, special districts have been hailed as a way of depoliticizing service provision. They are created “to pursue their specialized functions as neutrally competent entities outside the tousle of local politics,”¹⁹⁵ or, put more strongly, “to divorce the service, more or less completely, from the political structure of the community.”¹⁹⁶ Special districts tend to have fewer mechanisms for democratic oversight, often by design. Here, finally, is an argument that may not extend to the police. Technocratic insulation from popular opinion may be appropriate for the provision of, say, flood control. But citizens can reasonably demand greater oversight and control over those authorized to use deadly force. Indeed, some residents of center cities have fought for decades to reduce police autonomy, for example by seeking to establish civilian review boards overseeing police behavior.¹⁹⁷They believe that, as a policy matter, local police departments already exercise too much autonomy; creating a police special district would likely exacerbate that problem dramatically. At the same time, though, many citizens oppose additional oversight of the police. In New York City, for example, voters overwhelmingly rejected Mayor John Lindsay’s early attempt to provide civilian review of police misconduct at the ballot box.¹⁹⁸ Then-mayoral candidate Rudolph Giuliani marched with police in opposition to efforts to reconstitute civilian review in 1992.¹⁹⁹Policy arguments against police autonomy surely have resonance and likely reduce the demand for independent police districts. That policy position, however, is not so widespread that it could account for the universal lack of special police districts. Something deeper must be the cause.²⁰⁰The following section puts forward such a cause, somewhat related to the idea of depoliticization: special districts do not provide policing because they lack the sovereign’s authority to use force.

V. Sovereignty and Special Districts

General theories about special districts or comparisons to fire protection fail to explain the lack of special police districts because policing is unlike all other local public services. The police enforce the law and use deadly force in doing so. Policing, unlike other local services, is a constitutive element of the state’s sovereignty: its monopoly on legitimate violence. As a matter of American legal culture, and perhaps doctrine, special districts lack sovereignty, while cities, towns and counties share the state’s sovereign powers. Policing, therefore, is never delegated to special districts. This sovereign power is reserved for sovereign entities. Recognizing that local governments, but not special districts, exercise this sovereign power has further implications. It challenges the long-established doctrine that all local governments — general-purpose or single-purpose — are merely creations of the states without any independent constitutional status. The near-uniform reservation of policing — of sovereignty — to general-purpose local governments demonstrates that they have a different and greater authority than special districts. In practice, local governments have an autonomy that formal doctrine purports to deny them.

A. Special Districts Do Not Police Because They Lack Sovereignty

The police, as the primary institution empowered to use deadly force domestically,²⁰¹play a central role in defining the sovereignty of the state. Max Weber famously defined the state as “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”²⁰²Police, along with the army, thus constitute the essential core of the state, that which differentiates the state from private forms of organization. This Weberian definition of the state has deep roots in American political thought, being traceable back to Hobbes, Locke, and the idea of the social contract.²⁰³ Contemporary political theorists, too, place policing at the center of the state’s obligations. The most minimal, night-watchman conception of the state’s role still leaves government in charge of security.²⁰⁴

Even the very term “police” reveals how tightly intertwined the institution is with the state itself. Etymologically, the word derives from the Latin politia, a term which meant “civil administration,” “government,” or “the condition of the State.”²⁰⁵ The legal concept of the “police power” was defined from an early moment to be synonymous with state sovereignty. “[W]hat are the police powers of a State?” asked Chief Justice Taney in 1847. “They are nothing more or less than the powers of government inherent in every sovereignty.”²⁰⁶ Conceptually, American legal culture equates the police with the state itself, and has for centuries.²⁰⁷

Policing, therefore, is not just another local public service. Almost by definition, it is a service that only government can provide. The importance of public policing to the sovereignty of the state has been recognized when public police forces have been replaced with private security. After the 1892 Homestead strikes, for example, both the United States Senate and the Pennsylvania Supreme Court worried that the use of private Pinkertons to violently suppress strikers constituted “an assumption of the state’s authority by private citizens”²⁰⁸ and a failure of the state’s “duty as a sovereign.”²⁰⁹ While private forces can help provide security — there are three times as many private investigators and security guards as sworn public police officers in the United States²¹⁰ — the state is responsible for the basic maintenance of law and order through the legitimate use of violence. The repeated failure of efforts to fully privatize local police forces is evidence for the resilience of this legal principle.²¹¹

Like private corporations, special districts lack the sovereign status needed to take over policing. Writing in the context of voting rights, the Supreme Court has held that while cities and counties can claim sovereignty, special districts often cannot. Specifically, the Court ruled that one-person-one-vote only applies to special districts if they exercise the “powers of sovereignty typical of a general purpose unit of government, such as a State, county, or municipality.”²¹² The Court’s opinion reflects a conception of special districts as “essentially business enterprises” which just happen to be publicly operated.²¹³ Admittedly, this conception is often wrong.²¹⁴But the sense of special districts as only “quasi-public governments” remains widespread and influential in the law.²¹⁵ Whether because special districts are too insulated from politics, too susceptible to special interest capture, insufficiently generative of a political community and identity, or simply non-traditional, special districts are not granted sovereign status in American law and politics.

If special districts are not sovereigns, indeed not quite considered governments at all, then the reason for the lack of special police districts becomes clear. No hard law forbids the creation of special police districts; nothing in the text of the federal or state constitutions bars them, and exceptional districts like Port Washington exist. But a deeper, quasi-constitutional sense of sovereignty holds citizens and states back from creating special police districts. The power to police is understood to be constitutive of sovereignty, so states feel they may not delegate that power to non-sovereign special districts. There is, perhaps, something like a spectrum of governmentality. Special districts may provide traditionally private services like electricity generation without even meeting the democratic norm of one-person-one- vote. Traditionally public functions, such as taxation or education, may be performed by special districts, but only those that are operated as democratic governments rather than quasi-private businesses.²¹⁶ Policing, which is not merely traditionally public but constitutive of the state itself, cannot be operated by non-sovereign special districts at all.

This theory explains not only why special districts are almost never allowed to provide policing, but also why certain special districts are empowered to do so. Groton Long Point, for example, is essentially a municipality.²¹⁷ It is close enough to being a sovereign, general- purpose government that Connecticut permitted it to provide policing. A more traditional special district with one or two functions, like the Clinton Beach Association, can only be granted limited powers of policing, closely connected to its specified function. This pattern repeats itself outside this essay’s three case study states as well. In California, there are multiple “community services districts” that provide policing as one of many public services in a quasi-municipal package.²¹⁸ In contrast, there is only one single-purpose special police district remaining in the state.²¹⁹ The more a special district approximates a general-purpose government, the more likely it is to be granted the power to police. But as a general rule, special districts lack sovereign status, so policing, the core domestic act of sovereignty, may not be delegated to them.

B. Sovereignty and the Constitutional Status of Local Government

The finding that general-purpose local governments may exercise the sovereign’s monopoly on legitimate violence but that special districts generally may not challenges an important principle of local government law. According to long-settled doctrine, all local governments are mere creations of state government, legally no different than “a state administrative agency” tasked with managing a small geographic area.²²⁰ Yet the provision of policing shows that deep differences remain between special districts on the one hand and counties and municipalities on the other: only the latter police and only they are sovereign. Beneath the formally equal, and negligible, constitutional status of special districts and general-purpose local governments, it turns out that general-purpose local governments hold a privileged position.

The debate over local government’s constitutional status extends back to the early 19th century,²²¹ but it took on its clearest and most consequential form a half-century later.²²²The ultimately victorious side was led by Iowa judge John Dillon, who argued that local governments were entirely dependent on the states that created them. “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature.” Dillon wrote. “As it creates, so it may destroy. If it may destroy, it may abridge and control.”²²³ Michigan judge Thomas Cooley, one of the leading constitutional scholars of his day, was the most prominent advocate for the opposite position. He argued that while local governments are subordinate to states, some degree of local self-government is constitutionally mandated. Cooley wrote, “local government is [a] matter of absolute right; and the state cannot take it away.”²²⁴ “It would be the boldest mockery . . . to call that system one of constitutional freedom under which it should be equally admissible to allow the people full control in their local affairs, or no control at all.”²²⁵Ultimately, Dillon proved victorious, with his position being taken up by the Supreme Court as a matter of federal constitutional law²²⁶ and as a matter of state statutory interpretation through the widespread adoption of “Dillon’s Rule.”²²⁷

Recent scholarship, however, has questioned how total Dillon’s victory was. Clearly, in the face of direct conflict between state and local government, state government is supreme.²²⁸ Outside of that scenario, however, pockets of local autonomy remain, with real legal force. Professor Richard Briffault, for example, has noted that both state and federal courts consider local control of education to be constitutionally encouraged.²²⁹ In one case, the Wisconsin Supreme Court overturned the state legislature’s effort to equalize school funding on the grounds that it unconstitutionally infringed on local autonomy.²³⁰ Professor David Barron similarly has found “traces of local constitutionalism” in a diverse set of equal protection decisions by the Supreme Court.²³¹ These scholars share a common approach with each other and with Cooley himself. Each has found local autonomy in “institutional arrangements and political values rather than formal local legal rights.”²³² My argument falls squarely in this same tradition, employing the same institutional methodology and finding additional evidence of local autonomy.

Specifically, I have shown that municipalities and counties have some sort of special, extra-textual, quasi-constitutional status. Under the logic of Dillon, there is no reason to distinguish between the delegation of policing to multi-purpose subdivisions and the delegation of policing to single-purpose subdivisions. As the Supreme Court stated in Hunter v. City of Pittsburgh, “[t]he number, nature, and duration of the powers conferred . . . rests in the absolute discretion of the state.”²³³ But as a matter of institutional practice and political values, such a distinction nevertheless exists. States do not provide policing through special districts, despite the rapid proliferation of special districts for all other local government functions. Rather, police services are provided almost exclusively by municipalities, counties, and states themselves. Those jurisdictions can exercise sovereignty. Special districts, in practice, cannot.

The political values blocking the creation special police districts are more than a mere policy preference by states. They are more-or-less uniform across all fifty states and consistent across decades, and they are strong enough to overcome the many factors driving the constant proliferation of special districts, all of which apply with equal force to policing. These values are rooted in the most basic nature of the state, its sovereignty. In other words, they are of a quasi-constitutional dimension.

This is not to say that states are constitutionally barred, as a brightline rule, from creating special police districts. New York has done so. The reservation of policing for general-purpose governments still has legal weight, however. As Richard Briffault has shown, the “institutional arrangements of local autonomy, and the accompanying support for local self-government as a political value, have affected federal constitutional and statutory interpretation.”²³⁴ In cases like Milliken v. Bradley²³⁵ and San Antonio Independent School District v. Rodriguez,²³⁶the Supreme Court has found local self-government to be a “legal value potent enough to withstand challenges based on claims of equality” despite the lack of a “legally enforceable right” to local self-government.²³⁷ General-purpose governments’ right as sovereigns to exercise the monopoly on violence through policing is a similar legal value, one strong enough to prevent the creation of special police districts almost everywhere in the country. When push comes to shove, states can create special police districts, but it is not some passing policy preference that everywhere, across the country, they do not.

The words of a Cooley-ite judge on the New York Court of Appeals capture well the kind of constitutional argument surrounding special districts and policing:

All our thoughts and notions of civil government are inseparably associated with counties, cities and towns. They are permanent elements in the frame of government, and so treated in the instrument that creates it. . . . They are subject to control and regulation by the legislature. . . but they must still assume the form and be known and governed only as counties, cities or towns; because their distinctive character and attributes cannot be changed or destroyed without confounding the entire scheme of civil government. . . . ²³⁸

The traditional forms of local government have a distinctive role in American system of government to which states pay overwhelming deference. They are not mere appendages of the state, despite doctrinal claims to the contrary. Cities and counties, and not special districts, may provide policing; they may participate in the monopoly on legitimate violence; they share in sovereignty.

VI. Conclusion

Special districts are increasingly the preferred structure for the provision of local government services. The number of special districts grows year after year, and states regularly authorize special districts to enter new fields of service provision. Some special districts now even regulate land use, most traditionally a municipal function. The growth of special districts is perhaps the most important fact about local government structure today. Yet despite that growth, special districts still do not provide one of the most important services provided by local governments — policing. The number of special districts that serve as the primary, general-purpose providers of policing probably numbers fewer than a dozen. Illinois, the state with the most special districts in the nation, does not have a single special police district.

The lack of special police districts defies easy explanation. Doctrinally, the law is no obstacle to the creation of such districts. They are expressly permitted by statute in Connecticut, for example, and were once allowed in New York. Fire protection, which shares operational, political, and cultural qualities in common with police services, is commonly provided by special district. The existing political science literature on special district formation offers many reasons to expect policing to be provided by special district and no way to distinguish policing from other services. Policing’s uniform provision by general- purpose governments is entirely anomalous.

What sets policing apart from all other local public services is its connection with sovereignty. Policing is the exercise of the state’s monopoly on legitimate violence; only the sovereign state may police. Special districts, traditionally understood to be technocratic, quasi- private, politically insulated entities, are not entitled to act as sovereigns. Cities, towns and counties are.

These findings provide new answers to two of local government law’s most important questions. First, they show that municipal incorporation provides more than just control over land use and taxes, which are traditionally thought to be the two powers that drive citizens to form municipalities. Policing, too, is unavailable to unincorporated communities. Second, it challenges the long-established doctrine that general-purpose local governments and special districts are constitutionally equivalent and that states may allocate authority between them at their discretion. As a matter of institutional practice and deep political values, special districts are not considered constitution- ally capable of providing policing. Special districts do not, or cannot, provide policing because unlike cities and counties, they cannot claim a share of state sovereignty.

Entity:

Section of State and Local Government Law

Topic:

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Federal Role in Urban Affairs, Hearings Before the Subcomm. on Exec. Reorganization of the S. Comm. on Gov. Operations, 89th Cong. 774 (1966).
2012 Census of Governments, U.S. CENSUS BUREAU, tbl.5 (2012) [hereinafter U.S. CENSUS BUREAU], https://www.census.gov/govs/cog/ (select “Table 5” from the Table drop-box; then select “Special district governments”) (illustrating that the number of special districts has risen nationally from 21,264 in 1967 to 38,266 in 2012).
See id. at tbl.2.
See id. at tbl.9.
See, e.g., sources cited infra notes 32-36.
See, e.g., NANCY BURNS, THE FORMATION OF AMERICAN LOCAL GOVERNMENTS: PRIVATE VALUES IN PUBLIC INSTITUTIONS (1994).
See Max Weber, Politics as a Vocation (Jan. 28, 1919), in THE VOCATION LECTURES 33 (David Owen & Tracy B. Strong eds., Rodney Livingstone trans., 2004).
See discussion infra Part V and notes 201-05.
This article does not take a normative position on whether special districts should provide police services; it begins descriptively, showing that they do not and ends analytically, explaining why they do not.
See Sara C. Galvan, Wrestling with MUDs to Pin Down the Truth About Special Districts, 75 FORDHAM L. REV. 3041, 3068 (2007).
See U.S. CENSUS BUREAU, supra note 2, at tbl.9.
CHRISTOPHER R. BERRY, IMPERFECT UNION: REPRESENTATION AND TAXATION IN MULTILEVEL GOVERNMENTS, 39-40 (2009) (noting that California, Washington, and Oregon in particular rely heavily on special districts for revenue collection).
Id. at 107.
See Salyer Land Co. v. Tulare Lake BasinWater Storage Dist., 410 U.S. 719, 729 (1973) (“All of the costs of district projects are assessed against land by assessors in proportion to the benefits received.”); see also Laurie Reynolds & Carlos A. Ball, Exactions and the Privatization of the Public Sphere, 21 J. L. & POL. 451, 455 (2005) (claiming that special districts “rely heavily, sometimes exclusively, on non-tax revenues”).
BERRY, supra note 12, at 37-38.
Id. at 30.
JEFFREY L. BARNETT & PHILLIP M. VIDAL, U.S. CENSUS BUREAU, STATE AND LOCAL GOVERNMENT FINANCES: 2011, at 7 (2013), https://www.census.gov/prod/2013pubs/g11-alfin.pdf.
Id. at 3-4.
Local Government Finances, N.Y. ST. COMMISSION ON LOC. GOV’T EFFICIENCY & COMPETITIVENESS (2008), http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwj70ZqN3fXMAhURRlIKHetmDH4QFggcMAA&url=http%3A%2F%2Fs3.amazonaws.com%2Fzanran_storage%2Fwww.nyslocalgov.org%2FContentPages%2F690861090.pdf&usg=AFQjCNG4RttvdenMk6uPfYR4mCp9oxcChg. These figures exclude New York City spending.
BARNETT & VIDAL, supra note 17, at 4.
U.S. CENSUS BUREAU, supra note 2, at tbl.9.
U.S. ADVISORY COMM’N ON INTERGOVERNMENTAL RELATIONS, THE PROBLEM OF SPECIAL DISTRICTS IN AMERICAN GOVERNMENT 12-22 (1964).
BRIAN A. REAVES & MATTHEW J. HICKMAN, BUREAU OF JUSTICE STATISTICS, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT AGENCIES, 2000, at 2 (2002), http://bjs.gov/content/pub/pdf/csllea00.pdf.
Id.
Id. at 2, 12.
Author’s calculation, from data collected by BUREAU OF JUSTICE STATISTICS, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT AGENCIES (CSLLEA) (2000), http://www.icpsr.umich.edu/icpsrweb/NACJD/studies/3484.
The Port Washington Police Department, which is a special district, see infra notes 109-119, was categorized as municipal.
The Freedom Township Police Department, located outside of Altoona, Pennsylvania, is categorized as a special district but appears to be operated by the township.
KATHRYN A. FOSTER, THE POLITICAL ECONOMY OF SPECIAL-PURPOSE GOVERNMENT 140 (1997).
U.S. ADVISORY COMM’N ON INTERGOVERNMENTAL RELATIONS, supra note 22, at 54.
See, e.g., Galvan, supra note 10; George W. Liebmann, The New American Local Government, 34 URB. LAW. 93 (2002).
See, e.g., BURNS, supra note 6; Scott A. Bollens, Examining the Link Between State Policy and the Creation of Local Special Districts, 18 ST. & LOC. GOV’T REV. 117 (1986); Jered B. Carr, Local Government Autonomy and State Reliance on Special District Governments: A Reassessment, 59 POL. RES. Q. 281 (2006); Thomas J. DiLorenzo, The Expenditure Effects of Restricting Competition in Local Public Service Industries: The Case of Special Districts, 37 PUB. CHOICE 567 (1981); Barbara Coyle McCabe, Special District Formation Among the States, 32 ST. & LOC. GOV’T REV. 121 (2000); Stephen L. Mehay, The Effect of Governmental Structure on Special District Expenditures, 44 PUB. CHOICE 339 (1984).
BERRY, supra note 12, at 29.
FOSTER, supra note 29, at 96.
Nadav Shoked, Quasi-Cities, 93 B.U. L. REV. 1971, 1999 (2013); see also Robert W. Tobin, The Legal and Governmental Status of the Metropolitan Special District, 13 U. MIAMI L. REV. 129, 150 (1958) (stating that regional special districts only provide policing in connection to the function of the district, as with port authorities protecting infrastructure).
FOSTER, supra note 29, at 115 n.8. But see infra notes 110-20 and accompanying text (describing the Port Washington Police District).
Lists and Structure of Government, U.S. CENSUS BUREAU, http://www.census.gov/govs/go/definitions.html#s (last updated Feb. 29, 2016).
See, e.g., FOSTER, supra note 29, at 7 (dividing special districts into those with property-taxing powers and those without); Jerry Mitchell, Policy Functions and Issues for Public Authorities, in PUBLIC AUTHORITIES AND PUBLIC POLICY 2 (Jerry Mitchell, ed., 1992) (dividing special districts into those that are elected and appointed).
See BERRY, supra note 12, at 27.
Crime Control/Fire Prevention District, CITY OF LEWISVILLE, TEXAS, http://www.cityoflewisville.com/index.aspx?page=897 (last visited May 20, 2016).
Wendy Hundley, Early Voting on Sales Taxes Starts Today in Lewisville, Flower Mound, DALLAS MORNING NEWS (Oct. 23, 2011, 10:41 PM), http://www.dallasnews.com/news/community-news/flower-mound/headlines/20111023-early-voting-on-sales-taxes-starts-today-in-lewisville-flower-mound.ece.
See Richard Briffault, A Government for Our Time? Business Improvement Districts and Urban Governance, 99 COLUM. L. REV. 365, 466 (1999).
The first police force in the Anglo-American tradition was created in London in 1829. The model did not arrive in the United States for two decades after that, and took decades more to spread across the country. ERIC MONKONNEN, POLICE IN URBAN AMERICA, 1860-1920, at 24, 46 (1981). The police replaced a system of constables and night watches that dated back to the 13th century, which was supplemented with militias and professional thief catchers. Id. at 32-35. This was a very different system, as tied to the civil courts as to criminal law, dependent on citizens’ obligations to participate in posses and respond to the “hue and cry” of someone in need, and concerned with order rather than the 20th century idea of crime prevention. Id. at 32-37, 47. This essay’s conclusions about the structure of policing are limited to the form of policing that developed in the 19th century and dominated the 20th century. What preceded modern policing was non-bureaucratic. ROBERT M. FOGELSON, BIG-CITY POLICE 16 (1977). Questions of how a service-providing bureaucracy are organized simply do not apply.
MONKONNEN, supra note 43, at 42-43.
Id.
FOGELSON, supra note 43, at 13-14.
See David O. Porter, The Ripper Clause in State Constitutional Law: An Early Urban Experiment—Part I, 1969 UTAH L. REV. 287 (1969).
Id. at 299-300.
See Mitchell, supra note 38, at 2-3.
See District Information, LOS ANGELES UNIFIED SCHOOL DISTRICT, http://achieve.lausd.net/about (last visited May14, 2016).
REAVES & HICKMAN, supra note 23, at 9.
Id. at 8.
70 ILL. COMP. STAT. 1325/1 (2012).
Another way of looking at these districts is as specialists in a single aspect of policing: patrolling. Elinor Ostrom et al., Police Agency Size—Some Evidence on Its Effects, 1 POLICE STUD. INT’L REV. OF POLICE DEV. 34, 36 (1978).
David H. Bayley & Clifford D. Shearing, The Future of Policing, 30 L. & SOC’Y REV. 585, 592 (1996); see also Elizabeth E. Joh, Conceptualizing the Private Police, 2005 UTAH L. REV. 573, 587 (2005).
Celeste Katz, Mayoral Candidate Joe Lhota Stirs 9/11 Fury by Calling Port Authority Police ‘Mall Cops’, N.Y. DAILY NEWS (May 8, 2013, 11:59 PM), http://www.nydailynews.com/news/election/joe-lhota-apologizes-mall-cops-remark-port-authority-article-1.1338833.
See Clifford J. Rosky, Force, Inc.: The Privatization of Punishment, Policing, and Military Force in Liberal States, 36 CONN. L. REV. 879, 898 (2004) (noting that 40 percent of government security work is contracted out to private firms).
See Briffault, supra note 42, at 368-70.
Id. at 397-98.
Id. at 398.
See Kessler v. Grand Cent. Dist. Mgmt. Ass’n, 158 F.3d 92, 113 (2d Cir. 1998) (Weinstein, J., dissenting) (equal protection action analyzing the authority of a business district which employed armed guards).
Id. at 105.
BERRY, supra note 12, at 11 fig.1.3.
FRANK B. CONNELLY, LOCAL GOVERNMENT IN CONNECTICUT 22 (3d ed. 2013).
See John Rather, A Skeptical New Look at Special Tax Districts, N.Y. TIMES (Mar. 23, 2008), http://www.nytimes.com/2008/03/23/nyregion/nyregionspecial2/23districtsli.html?pagewanted=all.
U.S. CENSUS BUREAU, supra note 2, at tbl.5.
Id. at tbl.9.
Connecticut actually allows for two forms of special districts. In addition to the process described here, “special service districts”, the equivalent of business improvement districts, are also allowed. CONN. GEN. STAT. ch. 105A (2011). Special service districts may provide police services; by statute, they are only barred from providing elementary and secondary education and any service already being provided by a multi-town body. CONN. GEN. STAT. § 7-339n (2011). However, because special service districts are created by local ordinance, CONN. GEN. STAT. § 7-339m (2011), they are arguably not independent governments.
CONN. GEN. STAT. § 7-326 (2011).
CONN. GEN. STAT. § 7-325 (2011).
See EDWARD C. SEMBOR, AN INTRODUCTION TO CONNECTICUT STATE AND LOCAL GOVERNMENT 100-101 (2003). Tribal governments also run their own police forces. See, e.g., Tribal Departments, THE MOHEGAN TRIBE, http://www.mohegan.nsn.us/government/departments.aspx#policDept (last visited May 20, 2016).
See Tracy Gordon Fox, Towns Resist State Bid to Shift Trooper Costs, N.Y. TIMES (Mar. 5, 2009), http://www.nytimes.com/2009/03/08/nyregion/connecticut/08policect.html?pagewanted=all.
See VERONICA ROSE, OFFICE OF LEGISLATIVE RESEARCH, CONNECTICUT POLICE DEPARTMENT STATISTICS (Apr. 25, 2011), https://www.cga.ct.gov/2011/rpt/2011-R-0194.htm. As noted supra Part I.C, I exclude special jurisdiction agencies such as the Bridgeport Port Authority Police.
Groton Long Point, MY GROTON LONG POINT, http://www.mygrotonlongpoint.com/index.cfm?fuseaction=content.start&contentid=E05CBEC7-A0C5-4348-AA667CB5E579A297&title=Groton%20Long%20Point (last visited Apr. 27, 2014).
John Rappa, Groton Long Point Association, OFFICE OF LEGISLATIVE RESEARCH (Dec. 15, 2006), http://www.cga.ct.gov/2006/rpt/2006-R-0789.htm.
Id.
See ERIC BEESON ET AL., TOWN OF GROTON, A GUIDE TO TOWN GOVERNMENT 13 (2012), http://www.groton-ct.gov/about/TownGovGuide.pdf.
Rappa, supra note 75.
Id.
See CONN. GEN. STAT. § 7-187 (2011) (“ ‘Municipality’ means a town, city, borough, consolidated town and city or consolidated town and borough.”).
See BEESON, supra note 77, at 31.
See id. at 13.
VERONICA ROSE, OFFICE OF LEGISLATIVE RESEARCH, CLINTON BEACH ASSOCIATION POLICE FORCE (Nov. 13, 1997), http://search.cga.state.ct.us/dtsearch.asp?cmd= getdoc&DocId=9383&Index=I%3A%5Czindex%5C1997&HitCount=0&hits=&hc=0&req=&Item=7147.
Id.
Id.
Id.
U.S. CENSUS BUREAU, supra note 2, at tbl.5.
ILL. COMM’N ON INTERGOVERNMENTAL COOPERATION, LEGISLATOR’S GUIDE TO LOCAL GOVERNMENTS IN ILLINOIS: SPECIAL DISTRICTS iv (2003), http://www.ilga.gov/commission/lru/specialdistricts.pdf.
See id. at 104; see also Kristin Schorsch, Tiny Taxing Districts with Limited Duties Scattered Across Illinois, CHI. TRIB. ( June 20, 2011), http://articles.chicagotribune.com/2011-06-20/news/ct-met-your-tax-dollars-20110620_1_library-board-library-districtstreetlights/ (noting that one of the sanitariums takes in $50,000 a year in tax revenues without treating a single patient in most years).
Compare 70 ILL. COMP. STAT. 105/1 (2012) (requiring a referendum for the creation of a cemetery maintenance district) with 70 ILL. COMP. STAT. 605/3-3 (2012) (requiring a petition from a minority of landowners to create a drainage district).
ILL. CONST. art. 7, § 8.
70 ILL. COMP. STAT. 1750/5 (2012).
See Paul Hampel, Troubled Metro East Police Departments Get Standardized Procedures, ST. LOUIS POST-DISPATCH ( Jan. 8, 2014), http://www.stltoday.com/news/local/crime-and-courts/troubled-metro-east-police-departments-get-standardized-procedures/article_d735dd2f-34ad-5342-a810-0dfac8c69cda.html.
See U.S. DEP’T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, SITE VISIT DEBRIEF AND NEXT STEPS, METRO EAST POLICE DISTRICT COMMISSION 11 (2014), https://www.ojpdiagnosticcenter.org/sites/default/files/spotlight/download/MEPDC_Post-Site%20Visit%20Debrief.pdf.
ID.; see also 70 ILL. COMP. STAT. 1750/10 (2012).
See 70 ILL. COMP. STAT. 1750/10 (2012).
Id.
U.S. DEP’T OF JUSTICE, supra note 94, at 19.
Id.
Carol Daniel, Commission Decides Whether to Close Metro East Police Departments, KMOX (Apr. 4, 2014, 10:53 AM) http://stlouis.cbslocal.com/2014/04/04/commission-decides-whether-to-close-metro-east-police-departments/.
Camille Phillips, State’s Attorney: Ethics Violations Make Brooklyn Police Cases Too Unreliable to Prosecute, ST. LOUIS PUBL. RADIO (Apr. 8, 2015), http://news.stlpublicradio.org/post/states-attorney-ethics-violations-make-brooklyn-police-cases-too-unreliable-prosecute.
Bob Pieper, New East St. Louis Mayor Begins Promised Overhaul, METRO EAST CHRON., ( July 20, 2015), http://chronicleillinois.com/news/metro-east-news/new-east-st-louis-mayor-begins-promised-overhaul/.
U.S. CENSUS BUREAU, supra note 2, at tbl.5.
21ST CENTURY LOCAL GOVERNMENT, N.Y. ST. COMMISSION ON LOC. GOV’T EFFICIENCY & COMPETITIVENESS 10 (2008), http://www.greaterohio.org/files/policyresearch/ new-york-final-report.pdf. I included in this total the 867 independently elected fire districts and the 728 special purpose units of government, while excluding public authorities and town special districts, which are not elected. The Census count includes some public authorities with appointed boards, making the disparity between the two counts even greater.
See Michael Schwirtz, In Nassau County, an Influx of Democrats Threatens a G.O.P. Stronghold, N.Y. TIMES, ( July 7, 2013), http://www.nytimes.com/2013/07/08/nyregion/in-nassau-county-a-deluge-of-democrats-threatens-a-gop-stronghold.html (“[T]he party can also turn for campaign help to workers from the county’s special tax districts, which handle services like water and sewage. Most are run by loyal commissioners.”).
Cf. Editorial, Simplifying Special District Elections, NEWSDAY (Mar. 21, 2014, 6:24 PM), http://www.newsday.com/opinion/simplifying-special-district-elections-editorial-1.7466893 (noting that special districts remain unaccountable and unconsolidated).
See N.Y. ST. COMMISSION ON LOC. GOV’T EFFICIENCY & COMPETITIVENESS, supra note 104, at 10. To reach this figure, I counted the three miscellaneous special purpose units and added to it the seven percent of the 66 commission-run town districts classified as performing “other” services.
DIV. OF LOCAL GOV’T AND SCH. ACCOUNTABILITY, OFFICE OF THE N. Y. STATE COMPTROLLER, SHARED SERVICES AMONG NEW YORK’S LOCAL GOVERNMENTS 6 (2009), http://www.osc.state.ny.us/localgov/pubs/research/sharedservices.pdf.
See James Barron, Why Port Washington Switched Police Chiefs, N.Y. TIMES (June 30, 1981), http://www.nytimes.com/1981/06/30/nyregion/why-port-washington-switched-chiefs.html.
Id.
Id.
See Jennifer Rowland, The History of the Port Washington Police District, PORT WASHINGTON POLICE DISTRICT, http://www.portwashingtonpolice.com/history.html (last visited May 21, 2016).
See PORT WASHINGTON POLICE DIST., COMPONENT UNIT ANNUAL FINANCIAL REPORT (2013), http://www.portwashingtonpolice.com/resources/2013InterimDecemberreporting.pdf.
See 1934 N.Y. Laws 1760 (allowing the continuation of all districts established under Chapter 63 of the Laws of 1909).
See Text of Gov. Lehman’s Recommendations as Read by Him Before the Legislature, N.Y. TIMES, Jan. 4, 1934, at 12; Derry Dixon, Reforms Wanted in Nassau County, N.Y. TIMES, Sep. 23, 1934, at E6.
See Towns Lose Police Forces, N.Y. TIMES, Aug. 9, 1925, at 19.
See Lehman Vetoes Canal Claim Bill, N.Y. TIMES, May 28, 1934, at 39; see also 1934 N.Y. Laws 1760.
See Shaila Dewan & Robert Gebeloff, Among the Wealthiest One Percent, Many Variations, N.Y. TIMES ( Jan. 14, 2012), http://www.nytimes.com/2012/01/15/business/the-1-percent-paint-a-more-nuanced-portrait-of-the-rich.html?pagewanted=all (noting that the Port Washington area currently hosts more members of the wealthiest one percent of Americans than anywhere else in the country and was the inspiration for The Great Gatsby’s West and East Egg).
See N.Y. TOWN LAW § 217 (McKinney).
Carr, supra note 32, at 481.
BURNS, supra note 6, at 19-20.
See Vicki Been, Comment on Professor Jerry Frug’s the Geography of Community, 48 STAN. L. REV. 1109, 1111 (1996).
BURNS, supra note 6, at 9-10, 58; see also GARY J. MILLER, CITIES BY CONTRACT: THE POLITICS OF MUNICIPAL INCORPORATION 64-67 (1981) (describing the origination of this low-tax, contracted-services model of local government in Lakewood, California).
Richard Schragger, Consuming Government, 101 MICH. L. REV. 1824, 1829 (2003) (reviewing WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS: HOW HOME VALUES INFLUENCE LOCAL GOVERNMENT TAXATION, SCHOOL FINANCE, AND LAND USE POLICIES (2003)).
See BERRY, supra note 12, at 9.
Id. at 194-95.
Id. at 9.
See About Us, EVANSTON/SKOKIE SCHOOL DISTRICT 65, http://www.district65.net/domain/6 (last visited May 21, 2016).
BERRY, supra note 12, at 10.
See Shoked, supra note 35, at 1986 (discussing special districts granted zoning powers as broad as those held by municipalities). Special districts often have limited powers of land use regulation related to their purpose. See Koontz v. St. John’s River Water Mgmt. Dist. 133 S. Ct. 2586, 2592 (describing the water management district’s authority to regulate construction in order to protect water quality). Like special jurisdiction police forces empowered to protect special district facilities, these are not at issue here.
Shoked, supra note 35, at 1974.
Id.
See sources cited supra note 124.
Jeanne B. Stinchcomb & Francisco Ordaz, The Integration of Two “Brotherhoods” into One Organizational Culture: A Psycho-social Perspective on Merging Police and Fire Services, 7 PUB. ORG. REV. 143, 148 (2007).
Id.
See Rafael Gely & Timothy D. Chandler, Protective Service Unions’ Political Activities and Departmental Expenditures, 16 J. LAB. RES. 171, 172 (1995).
See Reginald Fields, Police and Fire Unions Say They Will Make Ohio Republicans Pay for Proposal Limiting Collective Bargaining, CLEVELAND PLAIN DEALER (Feb. 24, 2011, 7:46 PM), http://www.cleveland.com/open/index.ssf/2011/02/police_and_fire_unions_say_the.html (noting that 70 percent of Cleveland police union members identify as conservative).
John M. Cappazzola, The Impact of Government Employee Unions, 34 PROC. ACAD. POL. SCI. 153 (1981).
U.S. CENSUS BUREAU, supra note 2, at tbl.9.
See N.Y. ST. COMMISSION ON LOC. GOV’T EFFICIENCY & COMPETITIVENESS, supra note 104, at 10.
See BERRY, supra note 12, at 84-85; see also id. at 67-68 (describing independent fire districts strategically holding elections at firehouses to increase voter support for fire spending).
See Joh, supra note 55, at 614.
See Philip E. Fixler, Jr. & Robert W. Poole, Jr., Can Police Services Be Privatized? 498 AM. ACAD. POL. & SOC. SCI. 108, 114 (1988).
See David A. Sklansky, The Private Police, 46 UCLA L. REV. 1165, 1221 (1999).
See Karl Petrie & Kirsti Marohn, Minn. Town to Replace Police with Private Security Force, USA TODAY (Nov. 17, 2011, 12:17 PM), http://usatoday30.usatoday.com/news/nation/story/2011-11-14/police-private-security-foley/51194090/1.
See Conrad Wilson, Foley to Re-Start Police Department, MPRNEWS (Feb. 22, 2012), http://www.mprnews.org/story/2012/02/22/foley-police-department.
See, e.g., ROBOCOP (Orion Pictures Corp. 1987).
See FOSTER, supra note 29, at 8.
See supra notes 15, 126.
See supra notes 130-32.
See generally MARCIA CHAIKEN & JAN CHAIKEN, NATIONAL INSTITUTE OF JUSTICE, PUBLIC POLICING—PRIVATELY PROVIDED (1987).
Id. at 11.
Id. at 12.
Dennis O’Leary, Reflections on Police Privatization, 63 FBI L. ENFORCEMENT BULL. 21, 24 (1994).
CHAIKEN & CHAIKEN, supra note 151, at 12.
See id. at 13.
See, e.g., McCabe, supra note 32, at 128.
See sources cited supra notes 74-77.
Carr, supra note 32, at 485, 486 tbl.1; see also FOSTER, supra note 29, at 10.
See Galvan, supra note 10, at 3043 (“[G]eneral purpose local governments advocate for special districts as an easy solution for the toughest problems.”); see also Bollens, supra note 32, at 120.
CHAIKEN & CHAIKEN, supra note 151, at 17, 20.
Fixler & Poole, supra note 143, at 114.
CHAIKEN & CHAIKEN, supra note 151, at 18; see also Martin Tolchin, Private Guards Get New Role in Public Law Enforcement, N.Y. TIMES (Nov. 29, 1985), http://www.nytimes.com/1985/11/29/us/private-guards-get-new-role-in-public-lawenforcement.html.
CHAIKEN & CHAIKEN, supra note 151, at 21; see also Roger A. Fairfax, Jr., Outsourcing Criminal Prosecution?: The Limits of Criminal Justice Privatization, 2010 U. CHI. LEGAL F. 265, 274 (2010); Stephen Rushin, The Regulation of Private Police, 115 W. VA. L. REV. 159, 197-98 (2012).
Fixler & Poole, supra note 143, at 118.
O’Leary, supra note 154, at 22-23.
Fixler & Poole, supra note 143, at 113.
See BERRY, supra note 12, at 20, 145-46.
Id. at 145.
See Tolchin, supra note 163.
See BERRY, supra note 12, at 50; FOSTER, supra note 29, at 84.
FOSTER, supra note 29, at 28.
Compare McCabe, supra note 32, at 122, with Carr, supra note 32, at 485.
See FOSTER, supra note 29, at 155, 172; BERRY, supra note 12, at 127, 146. Case studies also show that many special districts are formed for the sole benefit of real estate developers, often due to outright corruption. See, e.g., Galvan, supra note 10, at 3053-56.
McCabe, supra note 32, at 124.
Id.
See Carr, supra note 32, at 482-83 (reviewing the literature on fiscal limits and special districts); see also U.S. ADVISORY COMM’N ON INTERGOVERNMENTAL RELATIONS, supra note 22, at 55.
See BEESON, supra note 77, at 13.
See U.S. ADVISORY COMM’N ON INTERGOVERNMENTAL RELATIONS, supra note 22, at 54, 58.
Bollens, supra note 32, at 120.
See sources cited supra notes 17-20.
FOSTER, supra note 29, at 10.
Carr, supra note 32 at 485.
Id. at 486.
See, e.g., Jaquetta White, Critics Protest Landrieu’s Civil Service Proposals, NEW ORLEANS ADVOC. (Apr. 21, 2014, 8:38 PM), http://www.theneworleansadvocate.com/news/8962855-171/critics-protest-landrieus-civil-service; Charles Thomas, Pension Concerns Cause Illinois Mayors to Call for Reform, ABC7CHICAGO (Apr. 21, 2014, 3:41 PM), http://abclocal.go.com/wls/story?section=news/local&id=9511199.
Mehay, supra note 32, at 341-42.
DiLorenzo, supra note 32, at 572-73, 575.
FOSTER, supra note 29, at 192.
See BURNS, supra note 6, at 115; Galvan, supra note 10, at 3048.
See BERRY, supra note 11, at 85-87; FOSTER, supra note 29, at 190.
See Fields, supra note 137.
See, e.g., BERRY, supra note 11, at 67 (describing a fire district holding all elections at firehouses to increase voter support for fire services).
See Galvan, supra note 10, at 3042; Bollens, supra note 32, at 119.
U.S. ADVISORY COMM’N ON INTERGOVERNMENTAL RELATIONS, supra note 22, at 1.
McCabe, supra note 32, at 127.
U.S. ADVISORY COMM’N ON INTERGOVERNMENTAL RELATIONS, supra note 22, at 57.
See, e.g., Police Advisory Board, CITY OF PHILA., http://www.phila.gov/phils/Docs/Inventor/graphics/agencies/M104-1.htm (last updated July 9, 1999) (describing the history of Philadelphia’s citizen oversight board, which was created in 1958, dissolved in 1969, and reconstituted in 1994).
History, N.Y.C. CIVILIAN COMPLAINT REV. BOARD, http://www.nyc.gov/html/ccrb/html/about/history.shtml (last visited Apr. 28, 2014).
George James, Police Dept. Report Assails Officers in New York Rally, N.Y. TIMES (Sept. 29, 1992), http://www.nytimes.com/1992/09/29/nyregion/police-dept-report-assails-officers-in-new-york-rally.html.
One explanation that meets this standard, but still fails to adequately explain the structure of local policing, is the argument that the power to enforce the law must be paired with the power to create the law. In this telling, general- purpose governments can operate general-purpose police departments, but a free-standing law enforcement agency without legislative power would be improper. Historian Eric Monkonnen, for example, has suggested that “[b]ecause the police use statutes and laws as the basis for their activities, it seems logical that the legislative jurisdiction should provide the base.” MONKONNEN, supra note 43, at 24. However, there is no such concurrence of legislative and enforcement powers in practice. Local police can enforce state and federal law that their government had no part in formulating; after all, the traditional felonies tend to be state law. Moreover, special districts that operate specialized police departments, such as school districts, may enforce general criminal law that their parent district would not be empowered to enact. See COUNCIL OF STATE GOV’TS’, JUSTICE CTR., OFFICERS IN SCHOOLS: A SNAPSHOT OF LEGISLATIVE ACTION (JAN. 2014), https://csgjusticecenter.org/wp-content/uploads/2014/03/NCSL-School-Police-Brief.pdf (detailing 50 states’ practices on school police departments). While a theory with some intuitive appeal—and one perhaps worthy of further exploration—it does not seem to actually reflect the structure of local policing.
The National Guard and correctional officers are other important groups.
Weber, supra note 7.
See Rosky, supra note 57, at 885 (“[T]he state-of-nature story always ends with the same basic punchline: The state has, must have, or should have a monopoly of force.”).
See Daphne Barak-Erez, The Privatization Continuum, in PUBLIC SECURITY, PRIVATE ORDER: THE OUTSOURCING OF PUBLIC SERVICES AND ITS LIMITS 71, 77 (Simon Chesterman & Angelina Fisher, eds. 2009) (contextualizing police privatization against various theories of the state).
Santiago Legarre, The Historical Background of the Police Power, 9 U. Pa. J. CONST. L. 745, 748-49 (2007).
Thurlow v. Massachusetts, 46 U.S. 504, 583 (1847).
At the time Chief Justice Taney was writing, policing looked very different than today. Until the creation of the Metropolitan Police of London in 1829, a decentralized system of day constables and night watches, who were a part of the judicial branch and were paid on a fee-for-service basis, provided law enforcement. Eric H. Monkonnen, History of Urban Police, 15 CRIME & JUST. 547, 549 (1992). Even then, however, constables and night watches were part of general-purpose governments.
See M. Rhead Enion, Constitutional Limits on Private Policing and the State’s Allocation of Force, 59 DUKE L.J. 519, 539 (2009) (citing Elizabeth E. Joh, The Forgotten Threat: Private Policing and the State, 13 IND. J. GLOBAL LEGAL STUD. 357, 366 (2006) (quoting S. REP. NO. 52-1280, at XV (1893)).
The Homestead Case, 1 Pa. D. 785, 789 (1892).
Joh, supra note 55, at 578.
Notably, black-letter doctrinal analysis suggests that police privatization is permissible, yet normative legal attacks, such as dissenting judicial opinions, undermine privatization efforts. See Fixler & Poole, supra note 143, at 113.
Ball v. James, 451 U.S. 355, 372 (1981) (Powell, J., concurring).
Id. at 368.
See supra notes 117-18 and accompanying text.
See FOSTER, supra note 29, at 8.
See Ball, 451 U.S. at 366.
See supra notes 78-82.
See, e.g., STALLION SPRINGS COMMUNITY SERVS. DISTRICT, http://www.mysscsd.com/default.html (last visited Apr. 30, 2014) (providing policing, parks, roads, trash disposal, sewers, and water); BEAR VALLEY COMMUNITY SERVS. DISTRICT (2014), http://bvcsd.com/ (providing policing, water, roads, wastewater treatment, and solid waste disposal).
See The History of Broadmoor, BROADMOOR POLICE DEP’T, http://www.broadmoorpolice.com/history-of-broadmoor/ (last visited Apr. 30, 2014) (identifying Broadmoor as “the last remaining, single purpose, police protection district” in California).
See Richard Briffault, Our Localism: Part I-The Structure of Local Government Law, 90 COLUM. L. REV. 1, 8 (1990).
See David J. Barron, The Promise of Cooley’s City: Traces of Local Constitutionalism, 147 U. PA. L. REV. 487, 497 (1999) (identifying the 1819 Supreme Court case of Trustees of Dartmouth College v. Woodward, 17 U.S. 218, as “set[ting] forth the basic contours of the constitutional doctrine”).
See generally id; Edwin A. Gere, Jr., Dillon’s Rule and the Cooley Doctrine: Reflections of the Political Culture, 8 J. URB. HIST. 271 (1982).
Clinton v. Cedar Rapids & Mo. River R.R., 24 Iowa 455, 475 (Iowa 1868).
People ex rel. Leroy v. Hurlbut, 24 Mich. 44, 108 (Mich. 1871) (Colley, J., concurring).
Id.
See Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907); see also Williams v. Mayor of Baltimore, 289 U.S. 36, 40 (1933).
See JESSE J. RICHARDSON, JR., ET AL, BROOKINGS INSTITUTION, IS HOME RULE THE ANSWER? CLARIFYING THE INFLUENCE OF DILLON’S RULE ON GROWTH MANAGEMENT 17 (2003), http://www.brookings.edu/~/media/research/files/reports/2003/1/01metropolitanpolicy%20richardson/dillonsrule.pdf (finding that 39 states used Dillon’s Rule in 2003, and citing research finding 48 states applying it in 1962).
The state may grant the local government additional home rule powers, of course, whether by statute or constitutionally. See David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255, 2260 (2003) (finding all but two states provide some form of home rule). But the choice, and the power, remains the state’s.
Briffault, supra note 220, at 24-39.
Id. at 29-30 (discussing Buse v. Smith, 247 N.W.2d 141 (Wis. 1976)).
See Barron, supra note 221, at 568-95.
Briffault, supra note 220, at 91; see also Barron, supra note 221, at 516 (arguing that for Cooley “[p]opular institutional practices, not simply legal texts, would give life to constitutional principles.”)
Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907).
Briffault, supra note 220, at 98.
Milliken v. Bradley, 418 U.S. 717 (1974).
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
Briffault, supra note 220, at 112.
People ex re. Wood v. Draper, 15 N.Y. 532, 561 (N.Y. 1857) (Brown, J., dissenting).

Renew Your ABA Membership

Urban Lawyer

Special Districts, Sovereignty, and the Structure of Local Police Services

by Noah M. Kazis

I. Posing the Question: Why Are There No Special Districts for Police Services?

A. The Importance of Special Districts and Policing in Local Government

B. The Lack of Special Police Districts

C. The Definition of a Special Police District

II. Special Districts in Practice: Connecticut, Illinois, and New York

A. Connecticut

B. Illinois

C. New York

III. Special Districts and Municipal Incorporation

IV. The Failure of Existing Theories to Explain the Lack of Special Police Districts

A. Comparing Police with Fire Protection

B. Comparing Special Districts with Police Privatization

C. Applying General Theories of Special District Formation to Policing

V. Sovereignty and Special Districts

A. Special Districts Do Not Police Because They Lack Sovereignty

B. Sovereignty and the Constitutional Status of Local Government

VI. Conclusion

Entity:

Topic:

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Transportation & Energy Issues & more

State and Local Government Law Section & more

Environment & more

ABA Resources

The ABA

Connect

Renew Your ABA Membership

American Bar Association TM American Bar Association

I. Posing the Question: Why Are There No Special Districts for Police Services?

A. The Importance of Special Districts and Policing in Local Government

B. The Lack of Special Police Districts

C. The Definition of a Special Police District

II. Special Districts in Practice: Connecticut, Illinois, and New York

A. Connecticut

B. Illinois

C. New York

III. Special Districts and Municipal Incorporation

IV. The Failure of Existing Theories to Explain the Lack of Special Police Districts

A. Comparing Police with Fire Protection

B. Comparing Special Districts with Police Privatization

C. Applying General Theories of Special District Formation to Policing

V. Sovereignty and Special Districts

A. Special Districts Do Not Police Because They Lack Sovereignty

B. Sovereignty and the Constitutional Status of Local Government

VI. Conclusion

Entity:

Topic:

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

ABA Resources

The ABA

Connect