Chapter 7

Security and the Law

Goal: Provide students with an introduction to the legal factors which impact on the performance of security functions.

Objectives: 

• Explain the sources of law including common law, case law and law derived through legislation.
• Explain how the law differs when applied to security and public police.
• Discuss various elements of civil law, the controller of private security, relating how they impact on security practices.
• Discuss contract liability and the case law which has developed.

Lecture: The law legitimizes the private security function. Case law is our primary reference, so we concentrate on security and the law, private security powers, civil law, security and liability. We look particularly at key cases: Cervantez v. J. C. Penney Company , in re Deborah C. , Miranda v. Arizona, Escobedo v. State of Illinois, Mapp v. Ohio and others for guidance. We also consider the impact of the Exclusionary Rule on the private sector. We also define the parameters of arrest: taking a person into custody for the purpose of charging him/her with an offense. We learn that the private security officer usually (An exception might occur when the officers are deputized by the local law enforcement agency.  This is unusual but it does happen.)  has no powers that exceed those of an ordinary citizen. Concepts to include "Vicarious Liability" and "Respondeat Superior" (both are related) are key terms to the security manager and supervisor. We also learn that Section 1983 of the Civil Rights Act authorizes suits for damages for violation of a person’s civil rights. Indeed, it is possible that the entire chain of command in an agency might be held liable as well as the offending individual.

One of the most important points I can make is that if you are the security manager (this includes the titles "manager," "director," "vice-president," etc., whatever the senior security person is at a particular location), you get to know and work well with the organization's lawyer or counsel.  This is usually a person in upper management.  It may, in a small company, be a law firm that is hired as "outside counsel."  The legal point of contact is your "district attorney" or in military terms, your "JAG."  It is always important that you work with this person when you are getting ready to do a search or start an investigation.  And then, keep in touch with him or her as you go through one of those processes.  (You will also need to work with area management and HR, unless this investigation is against the area management or HR).  But always, always consult with legal before embarking on searches, investigations, etc.  I can't emphasize this enough! 

Here's our outline for this session:

Authority - this is power over another.  When a cop pulls you over for speeding, he or she has power over you and you know it.  That's why (if you're sane!), you pull over and do what he or she says.  The officer has the authority granted him or her by the government, in this case, the State (UHP) or local government, e.g., Ogden or university PD. In the same light, a security officer has authority to stop you and ask to see your badge or search your briefcase.  In this case, the security officer has the authority of the company behind him or her.  Of course, the company must have procedures and policies that back the officer up in case of a challenge.  For example, there are usually procedures that state who can enter the facility and what is considered contraband.  It's these procedures (not laws) that the officer enforces.

In general, public police officers have more authority than private security officers.  In fact, in general, security officers have, as far as arrest is concerned, no more authority than any other citizen.  Most people don't know this. Thus, an officer, if not trained, can easily overstep his or her authority and commit a crime, such as false arrest.  Or, he or she can commit an assault by wrestling an employee or customer to the ground; or by bonking someone over the head with a nightstick.  (Sometimes I listen a radio show called the Phil Hendrie Show.  It's on KALL 700 AM at 5 PM.  He does skits with different voices and he plays the part of himself and a "guest."  Real people get sucked in and call about being offended.  Actually, some of his skits, though funny, are really quite offensive and that's why I sometimes turn him off.   At any rate, one of his characters is "Jay Santos" with the "Citizens' Auxiliary Police."  Of course, it's all a joke, and it can be quite funny when "Sub-admiral Santos" talks about laws he is trying to enforce and some of his methods, which are clearly out of line.  For example, he had a skit in which the Citizens' Auxiliary Police would pull over female drivers of SUV's because "these are men's vehicles and women shouldn't drive them unless they can prove they can drive on an obstacle course."  Women listeners called in and were furious that someone would do such a thing. ) Unfortunately, there are officers and even some managers in the security field that have let their jobs and "authority" go to their heads.  If you are like this, i.e., overbearing, you won't last long in a company.

Laws - there are criminal laws and civil laws.

Criminal laws deal with offenses against society.  They are usually based on common law or legislation.  Common law comes down to us mainly from England.  It deals with murder, rape, kidnapping, etc.  It is usually modified from the old English law to fit U.S. customs and traditions.  There are also criminal laws that have been enacted by federal or state legislation, sometimes called "statutory law."  A good example might be laws that relate to alcohol, such as laws that deal with the distilling of spirits.  Criminal law can also be based on case law.  We'll be talking a bit about case law later on.

Civil laws deal with conflicts among individuals.  Civil law can come up in  private sector security when, for example, an officer oversteps his or her authority.  For example, to be a little silly, an officer stops an employee's vehicle at the main gate.  The officer asks for the employee's vehicle pass but the employee has forgotten it.  The officer says, "Outta the car!  I'm confiscating your vehicle."   In this situation, you are very vulnerable to some type of civil suit.

Classes of crime:

Felonies - serious! E.g., murder, rape, kidnapping, robbery.

Misdemeanors -petty offenses, infractions; e.g., being loud and obnoxious in public, creating a disturbance.

Requirements for Arrest:

Police - a belief that a felony has occurred and the person arrested is guilty, even if a felony has not actually occurred.

Citizen - a felony has occurred and there are reasonable grounds that the person arrested is responsible.  Reasonable grounds: another person, given the same facts, would have the same conclusion.  Citizens may usually arrest in felony situations and in misdemeanors amounting to a breach of the peace.

Public police usually have some protection against false arrest lawsuits.  Private security officers don't.  See the case Cervantez v. J.C. Penney Company on pages 108-109 of your text.

Arrest vs. Detention: in arrest, the person arrested must be turned over to authorities ASAP.  In detention, the person is temporarily delayed.  See pages 109-110 and the case Collyer v. S.H. Kress Co.

Interrogation and legal issues: there used to be, and still are, serious wrongs when police interrogated a suspect.  You've heard of the old "rubber hose" treatment.  I knew a cop from a major city who swore by "hitting the uncooperative suspect over the head with a big city telephone book."  As he said, "It don't leave no marks."  Clearly this is wrong.  These wrongs led to the so-called "Miranda warnings."  Miranda applies to public police; it generally does not apply to private security.

Searches: searches are generally easier to do by private security than by police.  That is, there are fewer constraints on private security.  Many private facilities that have a security program have a posted list of what is contraband and can't be brought in or they have a no shoplifting policy posted or they have a "you are subject to search" sign.  (But these searches can't be unreasonable.  You would certainly not allow a security officer to do a body cavity search.  Nor should they do a "strip search.")  Normally, security officers search briefcases, vehicles entering or exiting the facility, lunch boxes, etc.

Exclusionary rule: for public police this rule says that evidence seized illegally can't be used and is non-admissible in court.  This rule generally doesn't apply to private security but if the search is abusive or becomes an invasion of privacy, there can be problems.  Many years ago I worked at a nuclear facility where all employees were subject to search on entry and egress.  These searches were done on a regular basis.  One day a female employee came in with a bag and when asked to open it, she refused.  The officer rightly would not let her in and summoned supervision.  It turned out that the woman had a "female problem" and had to use a douche and medication while at work and she was embarrassed.   However, the situation was handled well and in private and she was ultimately let in.  Imagine what would have happened had the officer grabbed the bag and dumped it out on the search table!!  Or worse, grabbed her and handcuffed her for not submitting to the search.  In situations like this, training pays off.

Here's a good place to mention Respondeat Superior. See pages 120-121 in the text.  This doctrine means that when a private security officer is acting in the context of his or her employment and commits an offense, the employer may be held liable.  This is also known as vicarious liability.

Use of force: this is important for training of security officers.  You need to make sure your officers know to what extent and in what situation they may use force.  For example, if your officers are armed, under what situations have they been trained to use deadly force?  Have you done the training and is it documented?

Another legal issue: duty to protect from third party crime.  This is important in the hotel industry.  Remember the 50's-60's singer, Connie Francis? (You are perhaps too young to know who she is!) She was raped in a hotel.  The hotel was held liable for that rape because of absence of a security program.  Stores with dark parking lots can be held liable for crimes that occur because the darkness facilitated the crime. 

Courts: read over the material on pages 124-125 in the text.

Let's end this discussion with the mantra: "Know your general counsel and work with him/her."

Assignment: Answer questions 4 and 5 on page 127 of the text.