Private Security Contractor Crimes Agains Humanity
Legal Challenges Limit Security Officers' Authority
01 September 2019 Print Issue: September 2019
Picture a security officer on duty at a Class A office building in the United States. An agitated man enters the building, approaches the reception desk, and demands to speak with human resources, refusing to leave until an HR professional comes down to the lobby to explain why he was not hired.
The security officer approaches, flashes his badge at the visitor, and tells him that if he does not leave in the next five minutes, the guard will arrest him. While the guard's action may be well-intentioned, it can put the officer—and the company—at legal risk.
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"Unfortunately, the law is not always kind to those who are—in their judgment—trying to do the best thing or the right thing based on an emergency or threat situation," says Tod Stephens, an industrial security attorney with Armstrong Teasdale, LLP, a law firm headquartered in St. Louis, Missouri. "Even the best intentions in trying to protect an employee or a visitor from an emergency or threat situation can later be misconstrued into an unwanted touching or unwanted confinement, which can lead later to either criminal or civil litigation against the security officer or guard."
While the image and authorities for guard services can vary country to country, the use of police-like uniforms and badging for U.S. guard services and the authoritative tone guards may take when issuing instructions during an emergency can later lead to allegations that the guard was impersonating a police officer, Stephens says. Those claims can become especially serious when the instructions issued by the guard result in injury or loss of property.
"Police impersonation certainly has been a problem since private security was conceived of, and a lot of that can occur because of the resemblance to a police officer in the public's eye and not having a good understanding of what their limitations are," says Eddie Sorrells, CPP, PCI, PSP, chief operating officer and general counsel for DSI Security Services.
He adds that security officers usually do not intentionally overstate their legal level of authority; however, in their efforts to protect people, property, and assets, they sometimes push the envelope of what is acceptable.
And some guards may intentionally abuse this perception. Sorrells cites one case where security officers pursued a shoplifting suspect two miles off property and then interrogated him about the theft.
"That is certainly overstepping their bounds," he says. "Whether or not they identified themselves as police officers, they certainly were holding themselves out as having some authority to require that person to stay there and answer questions." If the suspect asks if he or she is allowed to leave and the guard says "no" or blocks his or her way, this produces another legal challenge—false arrest or false detainment.
"The civil action of false imprisonment or confinement will be defined differently in different jurisdictions," Stephens says. False imprisonment and false confinement are generally considered acts that involve a person—or organization—instructing another person under threat of force or punishment to not leave an area.
"Sometimes people make the mistake of thinking an allegation of false imprisonment or confinement can only happen when an organization or a security guard puts someone in a makeshift jail—like a locked room—or handcuffs an individual to a railing at a mall," Stephens explains. "However, in many jurisdictions across the country, allegations can arise when a security guard or officer simply instructs an individual that they are not allowed to leave the premises under threat of some type of punishment."
"In most situations, security guards have the same ability as private citizens to detain someone for a crime they believe has been committed," he says.
In most jurisdictions, this means that if the guard witnesses or has a reasonable belief that a person committed a felony, he or she can detain that person until law enforcement personnel arrive. But what is considered reasonable varies from case to case.
False detainment claims crop up frequently in the retail space around shoplifting, which is why insurers are leery of underwriting guard companies that do a lot of work in this industry, says Tory Brownyard, president of the Brownyard Group, an insurer for security guard firms. Shoplifting claims are "not usually very serious claims, but they're generally more nuisance claims that result in significant legal expenses" because the guard firm must defend itself, he says. "From a risk analysis standpoint, if we see a company doing a lot of retail security, we want to make sure the officers are more 'observe and report' and not detaining people to try to limit the liability on those incidents."
It can be difficult to draw the line between what a reasonable person would construe as being free to leave or not. Being asked to come into a facility, brought up to the third floor, and placed in a room with a closed door could imply that the individual is being detained, even if the door is not locked, Sorrells says. It can be valuable to clearly inform the person in question that they are free to go anytime and to have another person present to observe any interviews to keep an accurate record of the proceedings.
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Stephens recommends training security personnel to never instruct an employee or visitor that they are prohibited from leaving the premises.
"That on its face doesn't seem like a good security practice," he acknowledges. "For example, an employee or a visitor to the facility could walk out the front door with stolen merchandise or stolen property. However, the legal risk of restraining or confining a person—even when they are possessing stolen property—usually outweighs the value of that stolen property."
Instead, Stephens says having good working relationships with local police departments will enable guards to report a suspected theft and have law enforcement promptly take over the investigation.
"That is not to say that the law does not afford the property owner the ability to temporarily detain someone suspected of stealing property from the premises; however, the legal risk rapidly increases every minute a security officer or guard attempts to detain an individual without having the authority of law—that is, being a police officer, for example," he says.
From a legal perspective, the more physically involved the security officer was in the incident, the greater the risk to the company that employs him or her.
It's a constant tension between the guard company protecting its own interests and the interests of its client, as well as the law's affording significant protections for individuals to be safe from being accosted by others or having their personal property taken without due process, Stephens adds.
When navigating that tension, appropriate training is essential to ensure that officers are aware of their rights, their limitations, and any situations that may be unique to their assignments. For example, Brownyard says a security officer assigned to guard a hospital emergency room should be well versed in de-escalation techniques and how to handle patients and visitors under the influence of drugs or alcohol.
In general, "every security officer should be well trained on what are the powers to arrest, how to de-escalate situations, and what kind of deadly force should be used," Sorrells says. "We do monthly or quarterly training when we address these issues, as well as patrol techniques and how to use technologies, but we also refresh and remind the officers of their rights, their obligations, and their restrictions."
There has been a rise in people who attempt to bait or test security personnel, including "First Amendment auditors" who quiz security officers on camera about their legal rights and limitations, underlining the need for officers to know where their limits are—and be able to de-escalate antagonistic situations, Sorrells says.
In February 2019, for example, a security guard protecting a synagogue in Los Angeles shot a First Amendment auditor standing on the public sidewalk after she refused to stop filming and depart the area. The guard was arrested on suspicion of assault with a deadly weapon, but charges were not filed by Los Angeles prosecutors. The protester, on the other hand, filed a civil lawsuit against the guard and his employer.
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"You have a lot of people attempting to test security, for whatever reason, and trying to escalate situations to try and see if that security officer will step over the line, so use of force is certainly a big issue as well," Sorrells adds.
When it comes to use of force, "the officer is no different from a private citizen—they are confined to using only the force that is necessary to repel an attack or to protect their life or someone else's life," Sorrells says. "Responding to nonlethal situations with lethal force can be a problem, and of course security officers can be criminally liable for that and even civilly liable."
One training method that does not work, says Stephens, is extensive written policies, which are often handed out at new hire orientation and then rarely reviewed. Instead, he counsels organizations to conduct annual in-person security training using vignettes or situational training. For example, a guard would be asked to respond to a hypothetical situation where a visitor reports a weapon in the backseat of a vehicle on company property, or an employee reports receiving threatening text messages from an ex-spouse while at work.
The instructor—a legal expert or trained security professional—can provide feedback and discuss the guard's response with the rest of the group, sharing guidance on how recent changes to laws should affect the guard's response to an incident and how to eliminate risks generated by the individual's response.
This type of training enables the guard force to understand and apply legal updates more swiftly and effectively than if the changes were simply added to the written procedures manual.
Learn more about legal challenges security professionals face with the Law & Ethics track at GSX this month. Tod Stephens of Armstrong Teasdale, LLP, will present a session, "Five Ways Security Managers Can Get Sued" (session #6306) on Wednesday, 11 September. Find out more at gsx.org.
Source: https://www.asisonline.org/security-management-magazine/articles/2019/09/legal-challenges-limit-security-officers-authority/
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