Civil Liability of Security Personnel

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4 Civil Liability of Security Personnel

CHAPTER OUTLINE

Introduction………………………………………………………………………………………………………………….. 117

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The Nature of Civil Liability …………………………………………………………………………………………… 121

Classification of Civil Wrongs/Torts ……………………………………………………………………………….. 123

Intentional Torts…………………………………………………………………………………………………………124

Assault…………………………………………………………………………………………………………………… 124

Battery …………………………………………………………………………………………………………………… 126

False Imprisonment ………………………………………………………………………………………………….. 126

Infliction of Emotional or Mental Distress …………………………………………………………………….. 133

Malicious Prosecution……………………………………………………………………………………………….. 134

Defamation…………………………………………………………………………………………………………….. 135

Invasion of Privacy……………………………………………………………………………………………………. 136

Negligence……………………………………………………………………………………………………………… 142

Negligence and Security Management ………………………………………………………………………… 148

Strict Liability Torts …………………………………………………………………………………………………….158

Vicarious Liability ……………………………………………………………………………………………………….158

Miscellaneous Issues in Vicarious Liability……………………………………………………………………… 162

Remedies under the Civil Rights Act: 42 U.S.C. §1983 ……………………………………………………… 164

“Private” Applications of }1983 …………………………………………………………………………………..166 State Regulations as Providing Color of State Law ……………………………………………………….170

The Public Function Theory ……………………………………………………………………………………….. 172

The Nexus Theory ……………………………………………………………………………………………………. 173

The Police Moonlighter: A Merging of Public and Private Functions ………………………………….. 175

Summary………………………………………………………………………………………………………………………. 178

Discussion Questions …………………………………………………………………………………………………….. 180

Notes……………………………………………………………………………………………………………………………. 181

Introduction By all accounts, the past four decades have evidenced phenomenal growth of the private

security sector.1 In 1972, James S. Kakalik and Sorrel Wildhorn performed a benchmark

study for the RAND Corporation,2 which prophetically indicated the influential role

security would play in the protection of people and assets. At the same time, the RAND

report harshly criticized the security industry, observing:

[T]he vast resources and programs of private security were overshadowed by

characterizations of the average security guard—under-screened, under-trained,

under-supervised and underpaid and in need of licensing and regulation to upgrade

the quality of personnel and services.3

Private Security and the Law 117 Nemeth, C. (2011). Private security and the law. ProQuest Ebook Central <a onclick=window.open(‘http://ebookcentral.proquest.com’,’_blank’) href=’http://ebookcentral.proquest.com’ target=’_blank’ style=’cursor: pointer;’>http://ebookcentral.proquest.com</a> Created from apus on 2020-09-28 12:27:14.

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The Bureau of Labor Statistics portrays a bright future for the security industry

through 2018. See Figure 4.1.4

With new and emerging opportunities come the natural liabilities for industry per-

sonnel and its employing agencies. This chapter presents an intense analysis of the civil

realm and its corresponding liabilities, as applied to private sector justice. The industry

knows how liability impacts the bottom line better than any other constituency. The Risk

and Insurance Management Society, Inc., lists the issues of risk in the marketplace at

Figure 4.2.5

FIGURE 4.1 Security Industry Employment Statistics and Projections through 2018.

FIGURE 4.2 Issues of Risk in the Marketplace.

118 PRIVATE SECURITY AND THE LAW

Nemeth, C. (2011). Private security and the law. ProQuest Ebook Central <a onclick=window.open(‘http://ebookcentral.proquest.com’,’_blank’) href=’http://ebookcentral.proquest.com’ target=’_blank’ style=’cursor: pointer;’>http://ebookcentral.proquest.com</a> Created from apus on 2020-09-28 12:27:14.

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n n n

Visit the risk and insurance management society and discover its many resources at http://

www.rims.org/Pages/Default.aspx.

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The Hallcrest Report II corroborates this picture escalating liability:

Perhaps the largest indirect cost of economic crime has been the increase in civil

litigation and damage awards over the past 20 years. This litigation usually claims

inadequate or improperly used security to protect customers, employees, tenants, and

the public from crimes and injuries. Most often these cases involve inadequate security

at apartments and condominiums; shopping malls, convenience and other retail

stores; hotel, motels and restaurants; health care and educational institutional; office

buildings; and the premises of other business or governmental facilities. Frequently,

private security companies are named as defendants in such cases because they incur

2 basic types of liability: (1) negligence on the part of the security company or its

employees and (2) criminal acts committed by the security company or its employees.6

Private sector justice is deep in the mix of things, places, and circumstances where

liability problems are most likely to occur. In retail and parking complexes, in govern-

ment buildings and nuclear facilities, the industry will be exposed to liability just

because of how and where it carries out its responsibilities. Other locales where liability

is part of the territory include the following:

• Shopping malls, convenience stores, and other retailers

• Apartments and condominiums

• Hotels, motels, casinos, bars, and restaurants

• Health care and educational institutions

• Security service and equipment companies

• Transportation operators such as common carriers, airports, and rail and bus stations

• Governmental and privately owned office buildings and parking lots

• Sports and special event centers7

Add to this striking growth in employment the trend toward privatization itself,8 and it is

only logical that accentuated levels of responsibility and legal liability are part of the

security industry landscape. With increased functionaries laboring in the private sector,

there will be a corresponding increase in legal liability. The Hallcrest Report II sees

nothing but continuous employment growth for private sector justice:

Total private security employment is expected to increase to 1.9 million by the decade’s

end.Thepresent rateof change in employment from1980 to2000 isapproximately 193%.

The annual rate of growth in employment is anticipated to be about 2.3%, roughly

double the rate of employment growth for the national workforce. By 2000 there will

be 7 private security workers for each group of 1,000 Americans, an increase of 1 from

Chapter 4 • Civil Liability of Security Personnel 119

Nemeth, C. (2011). Private security and the law. ProQuest Ebook Central <a onclick=window.open(‘http://ebookcentral.proquest.com’,’_blank’) href=’http://ebookcentral.proquest.com’ target=’_blank’ style=’cursor: pointer;’>http://ebookcentral.proquest.com</a> Created from apus on 2020-09-28 12:27:14.

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1990. Further, by 2000 there will be about 13 private security employees for each group of

1,000 workers in the nation—also an increase of 1 employee from the 1990 figure.9

The National Center for Policy Analysis (NCPA) foretells a further expansion of private

justice function. Since the mid-1960s, the economic impact of private sector justice has

been significant by any measure, as the NCPA notes:

• There are nearly three times as many private security guards as public law

enforcement officers, 1.5 million in 1990, and the private sector spends almost twice

as much on private security as we pay in taxes to support the public police.

• Private bounty hunters, or bail enforcements agents, make the private bail bonding

system work for persons accused of crimes by tracking down and apprehending

those who try to flee.

• And the private sector on occasion has been used innovatively in other ways to

prepare cases for district attorneys, to prosecute criminal cases, and to employ

prisoners behind bars.10

Increased functional responsibility begets enhanced civil liability. “Because the

effects of liability cases are far reaching, potentially affecting all levels . . . the more

security personnel know about their responsibilities and exposure to liability, the less

chance the company will be crippled with lawsuits.”11 Given the range and diversity of

services private security implements, including “a whole spectrum of concerns, such

as emergency evacuation plans, security procedures, bomb threats, liaisons with law

enforcement agencies, electronic security systems, and the selection, training and

deployment of personnel within institutions,”12 liability is an ongoing policy issue.

Dennis Walters, in his article “Training—The Key to Avoiding Liability,” notes:

In the United States, where lawyers occupy a significant portion of the professional

class, it is important to keep track of emerging legal trends when you are developing

a comprehensive security training program. It is very helpful to know what forms of

legal action are appearing that will affect the security industry.13

In fact, liability concerns are by nature part of the security game. The functions of

the industry are now simply part of the mainstream of American life.14 Stephen C.

George highlights how liability is part and parcel of crowd control:

Many professional security firms refuse to handle events that draw large crowds.

They are often the best people equipped to deal with such situations, but they

reject these jobs because of the concern over—and the potential for—liability. But

if private security won’t work these events, and police are reluctant to act, who’s left

to do the job?15

Whether crowd supervision and control or security at defense installations, the indus-

try’s growth cannot escape the downside of an emerging economic force—that of legal

120 PRIVATE SECURITY AND THE LAW

Nemeth, C. (2011). Private security and the law. ProQuest Ebook Central <a onclick=window.open(‘http://ebookcentral.proquest.com’,’_blank’) href=’http://ebookcentral.proquest.com’ target=’_blank’ style=’cursor: pointer;’>http://ebookcentral.proquest.com</a> Created from apus on 2020-09-28 12:27:14.

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liability. With the industry’s tentacles around every place imaginable, private sector

justice will have to discover how to mitigate and prevent liability.

This chapter’s discussion involves the civil liability of security personnel from various

angles. First, exactly what is the definition of civil liability and what types of civil liability

are there? Second, what is negligence? How does negligence impact the security work-

place? Third, what are torts, especially the intentional variety? How can the industry

be held strictly accountable? Finally, what ameliorative steps can be taken to minimize

the diverse forms of civil liability?

The Nature of Civil Liability Civil wrongs or causes of action can be grounded in various remedies including

negligence, intentional torts, and even strict liability findings. Private sector justice is

exposed each and every day to both its protections and its corresponding liability.

Consider this factual situation:

Mr. X and his fiancée Ms. Z were shopping in a large department store in the State of

Missouri. The evidence indicated that Mr. X left the department store without purchas-

ing a tool. Soonafter,Mr. Xwas confronted bya security officer inahostile fashion.Mr. X

was handcuffed after engaging in a physical altercationwith the security guard.Mr. X’s

face was bleeding, his ribs were bruised and he suffered other injuries. Mr. X was

eventually acquitted at trial on all charges brought forth by the department store.16

Who bears legal responsibility for these physical injuries? Is the liability civil and/or

criminal in scope? Has there been an assault or battery? Was the restraint and confine-

ment of the suspected shoplifter reasonable? Has there been a violation of Mr. X’s

constitutional or civil rights? How are civil actions distinguishable from criminal actions

when reflecting on this situation?17 At its core, a civil liability arises from an action that

causes a particular and demonstrable harm. Civil wrongs, like criminal actions, have

consequences. Civil wrongs harm personally and cause measurable damages. A civil

harm is a cause of action that is uniquely personal. An individual who is victimized by

an unsafe driver is personally victimized. Civil rights are correctly construed as individ-

ual harms, whereas criminal acts are seen as a public harm, an action against the society

as a whole that injures the public peace or public good. Crimes, despite their personal

harm, do more to influence the common psyche of a neighborhood or family. A criminal

act injures the world at large. While criminal law is chiefly concerned with protection

of society and a restoration of the public good, the basic policy behind tort law is “to

compensate the victim for his loss, to deter future conduct of a similar nature, and to

express society’s disapproval of the conduct in question.”18 Civil remedies are more

concerned with making injured parties economically and physically whole, whereas

criminal remedies are more preoccupied with just desserts—namely punishment of

the perpetrator either by fines or incarceration. Tort remedies involve damages, whereas

criminal penalties result in incarceration or fines.19

Chapter 4 • Civil Liability of Security Personnel 121

Nemeth, C. (2011). Private security and the law. ProQuest Ebook Central <a onclick=window.open(‘http://ebookcentral.proquest.com’,’_blank’) href=’http://ebookcentral.proquest.com’ target=’_blank’ style=’cursor: pointer;’>http://ebookcentral.proquest.com</a> Created from apus on 2020-09-28 12:27:14.

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Intentional conduct that causes civil harm is generally defined as a “tort.” These are

some of the more common torts:

• Assault

• Battery

• Abuse of process

• Malicious prosecution

• Conversion

• Deceit defamation

• False imprisonment

• Intentional infliction of emotional distress

• Invasion of privacy

• Negligence

• Trespass

Each cause of action requires a proof of its elements. “When a party has alleged facts that

cover every element of the cause of action, the party has stated a prima facie case.”20

While there ismuch that distinguishes civil and criminal actions, “the same conduct by

a defendant may give rise to both criminal and tort liability.”21 Selection of either remedy

does not exclude the other, and in fact, success in the civil arena is generallymore plausible

since the burden of proof is less rigorous. Remember the evidentiary burden for the proof

of a crime requires proof beyond a reasonable doubt. A successful civil action merely

mandates proof by a preponderance of the evidence or by clear and convincing evidence.

The fact pattern portrayed here gives rise to a series of civil actions:

1. Assault:

• An act

• Intent to cause harm or apprehension of said harm

• Apprehension that is imminent

• Causation 2. Battery:

• A specific act

• Intent to cause harmful or offensive conduct

• Actual harmful or offensive conduct

• Causation 3. False Imprisonment:

• An act which confines a plaintiff completely within fixed boundaries

• Intent to confine plaintiff

• Plaintiff was conscious of his own confinement or was harmed by it

• Causation 4. Intentional Infliction of Emotional Distress:

• An act that is extremely outrageous

• Intention to cause severe emotional distress

• Actual emotional distress is suffered

• Causation

122 PRIVATE SECURITY AND THE LAW

Nemeth, C. (2011). Private security and the law. ProQuest Ebook Central <a onclick=window.open(‘http://ebookcentral.proquest.com’,’_blank’) href=’http://ebookcentral.proquest.com’ target=’_blank’ style=’cursor: pointer;’>http://ebookcentral.proquest.com</a> Created from apus on 2020-09-28 12:27:14.

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5. Malicious Prosecution:

• Initiation of legal proceedings

• Without probable cause

• With malice

• Favorable termination of legal proceedings regarding defendant22

Tortious conduct canbe costly. Damages determined by a jurist or a jury can be economically

devastating. It is difficult to get an exact figure onhowmany corporate dollars are lost through

jury judgments against security personnel and their employers, but the fact that those losses

are substantial is indicated by the circumstances of the legal climate as it affects security

today. For example, jury awards in the past often amounted to only a few thousand dollars

in many cases. Today, awards of $100,000 or more are becoming increasingly common.

n n n

To get some insight into the size and scope of jury awards, search the well-regarded Verdict

Search at http://www.verdictsearch.com/index.jsp.

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Various industry authorities estimate that at least one suit involving security is filed

in the United States every day.23 A review of the literature indicates that cumulative

damage awards are consistently increasing.24

In sum, there are both similarities and differences between civil law and criminal law.

Table 4.1 provides a concise overview.

Classification of Civil Wrongs/Torts Security agencies and personnel need to become accustomed to the common civil

actions that firms and their officers will likely encounter. Internal and external policies

of security firms and the defensibility of its practices and procedures need constant

evaluation to prevent litigation.

Torts are further divided into three main classifications:

1. Intentional torts

2. Negligence

3. Strict liability torts25

Table 4.1 Comparison between Crimes and Torts

Torts or Civil Wrongs Crimes

Personal harm Harm against society

Does not require intentional behavior Generally requires intentional behavior

Requires proof by a preponderance of evidence Proof beyond a reasonable doubt

Selection of civil remedy does not exclude a criminal

prosecution

Selection of criminal prosecution does not exclude

a civil remedy

Results in damage awards generally compensatory and

sometimes punitive in na

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