Chapter Four Private Security Law 1. Law “Law” can be generally defined as a system of standards...

Chapter FourPrivate Security Law

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Private Security LawLaw

“Law” can be generally defined as a system of standards and rules of human conduct that impose obligations and grant corresponding rights, as well as a system of institutional rules on the creation, modification and enforcement of these standards

“Law” defines, for society, behavior that is proscribed (forbidden) and prescribed (mandated)

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LawHistory of Law

Most societies throughout history have developed methods of governing relationships among their members and resolving conflicts

The primary heritage of the U.S. legal system is England’s “Common Law”

“Common Law’ refers to a traditional body of unwritten legal precedents, created through everyday practice and supported by court decisions during the Middle Ages in English Society

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LawHistory of Law

“Common Law” is sometimes referred to as “Judge Made Law”Because there were no written statutes

in England at the time, the English judges formalized the customs and mores of the times into court decisions and applied the same rules throughout the entire country

These decisions served as precedent for rulings in future court cases

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LawHistory of Law

An example of “Common Law” Persons stealing from businesses or

employers are prosecuted using the statutory law of theft, but the power to use these laws and retailer rights in this area are based on the “Common Law” tradition of the “Shopkeepers or Merchant’s Privilege”

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LawHistory of Law

An example of “Common Law” Also under this theory, a shopkeeper

could reasonable detain and question an individual if the shopkeeper had a justified suspicion that an illegal act, such as theft, has taken place on the property

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LawTypes of Law

Law has been traditionally divided into:Public LawPrivate Law

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LawTypes of Law

Public and private laws establish the rules of behavior that govern our relationship with each other are called ”Substantive Law” Penal LawCriminal Law (CJ 103)

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LawTypes of Law

Public and private laws that specify the methods to be followed in adjudicating “Substantive Law” cases to ensure they are conducted in a way that protects the rights and duties of the participants are call “Procedural Law” Code of Criminal ProcedureConstitutional Law (SS 104)

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LawTypes of Law

“Public Law” concerns the structures, powers and operations of a government, the rights and duties of citizens in relation to the government, and the relationships of nationsConstitutional LawAdministrative LawCriminal LawInternational Law

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LawTypes of Law

“Criminal Law” consists of laws that impose obligations to do or forbear from doing certain acts, the infraction of which is considered to be an offense not merely against the immediate victim, but also against society

“Criminal Laws” are backed up by punishments:FeloniesMisdemeanors

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LawTypes of Law

“Private Law” governs the relationships between individuals in the course of their private affairsContractsPropertyWillsTorts (a tort is a legal injury one person

has caused another)A traffic accident that involves injury or property damage

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The U.S. Legal SystemThe U.S. Legal System

The system of law used in the U.S. is known as the “Adversarial System”

The “Defense” and the “Prosecution” both offer evidence, examine witnesses, and present their respective sides of the case as persuasively as possible

Attorneys representing their client argue their case before a neutral and mostly passive judge

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The underlying assumption of the “Adversarial Process” is that the truth is most likely to emerge as a byproduct of the vigorous conflict between intensely partisan advocates, who each has a goal to win

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In countries with a “Civil Law System” the “Inquisitorial System” is used

In the “Inquisitorial System” the Court, together with the prosecution and the defense investigate the case before it

The Court staff and the judge gather evidence and conduct investigations and the judge’s decision of guilt or innocence is based on the investigation

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The Criminal and Civil processes are very similar but there is a difference

The main difference is the punishment;In a civil suit the punishment is

monetary compensationIn a criminal action the punishment is

confinement or fine

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Another difference is the “Burden of Proof”

“Burden of Proof” is the requirement of a litigant to persuade the trier of the facts (judge or jury) that the allegations made against the other party to an action are true

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In “Civil Law” the burden of proof is the “Preponderance of the Evidence” standardA majority of the evidence must support

the plaintiff’s allegations against the defendant

In “Criminal Law” the burden of proof is the “Proof Beyond a Reasonable Doubt” standardFactual Guilt and Legal Guilt

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EvidenceEvidence

“Evidence” includes all the means by which an alleged fact, the truth of which is submitted to scrutiny, is established of disproved

To control “Evidence” there are “Rules of Evidence” that govern the admissibility of the evidenceRemember the “Exclusionary Rule?”

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The Private Justice SystemThe Private Justice System

The “Private Justice System” is a concept that holds that businesses and corporations might prefer to deal with crime using their own internal systems and controls instead of having crime dealt with through the cumbersome and lengthy formal Criminal Justice SystemFiring an employee who has committed

theft rather than contacting the police20

The Private Justice SystemThe Private Justice System

Why use the “Private Justice System”Private security focuses on focus on loss

prevention (deterrence) to prevent crimesPursuing prosecution through the criminal

justice system is time consuming and expensive (legal staff, gathering evidence, collecting depositions, employee time loss…)

Confession, restitution, new security procedures …

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Legal Powers of Private SecurityLegal Powers of Private Security

The Courts have generally held that private security personnel obtain their legal authority from the same basic authority that an employer would have in protecting their own property

The authority of private security personnel is an extension of private or citizen rights in the U.S.

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In most states, a citizen can only make an arrest for a crime committed in their presence and the crime must actually have occurred, meaning that if the actions for which the citizen made the arrest were not a crime, then the arrest was illegal and the citizen may be sued for false arrest

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Private security employees are not held to the same constitutional restrictions as the public police

The U.S. Constitution and the Bill of Rights were adopted to protect the people against government actions

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In the landmark U.S. Supreme Court case of Burdeau v. McDowell (1921) the Court held that the provisions of the Fourth Amendment did not apply to subjects who were arrested or searched by private parties or non-governmental employees

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“Since the government has not participated in the actions removing McDowell’s papers, there was not violation of the Fourth and Fifth Amendments”

The general rule is the Fourth Amendment applies only to arrests and searches and seizures conducted by government officials

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Legal Powers of Private SecurityArrests

Private security officers have the same “Common Law” rights as any citizen and therefore, the same rights as any private citizen in effecting an arrest

How is this addressed in NYS?

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The NYS Penal Law, Article 35, Defense of Justification 35.30 Justification; Use of Physical Force in

Making an Arrest or in Preventing an Escape(4) A private person acting on their own account may use physical force, other than deadly physical force, upon another person when and to the extent that they reasonably

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believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom they reasonable believe to have committed an offense and who in fact has committed such offense; and may use deadly physical force for such purpose when they reasonably believe such to be necessary

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For a citizen or private security arrests to be legal and proper, they most be found to have been warranted by probable cause, reasonable and consistent

This doctrine holds that even if it is later found that no crime took place, the detention is proper if based on the following conditionsDetention, Probable cause,

Reasonableness, Consistency

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The International Association of Professional Security Consultants (IAPSC) recommends that a retail security officer’s best practice for establishing the probable cause standard in shoplifting cases is to follow al of the following six steps:

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1. Observe the customer approach the merchandise

2. Observe the customer select the merchandise3. Observe the customer conceal the merchandise4. Keep the customer under constant and

uninterrupted observation5. See the customer fail to pay for the

merchandise6. Detain the customer outside the store

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In some cases, retail stores use “Civil Recovery” or “Civil Demand Programs” against shopliftersIn this event the store instigates “Civil

Court” proceedings against thieves to recover monetary damages

In this way the store can gain some control of the process to recover lost revenues and deter future thefts

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Legal Powers of Private SecuritySearch and Seizure

Private citizens are also permitted to search persons they have arrested or detained for safety purposes and to retrieve stolen property

In Burdeau v. McDowell the Supreme Court refused to extend the “Exclusionary Rule” to private sector searches

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Legal Powers of Private SecuritySearch and Seizure

The Miranda ruling and the use of Miranda warnings apply only to government agencies and not to private employers

Private security officers are also not required by the U.S. Constitution to give Miranda Warnings before questioning (read the case W. Virginia v. Muegge et al, page 99)

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Legal Powers of Private SecurityUse of Force

State statutory laws generally specify the type of physical force that citizens can use to detain or arrest a person

Private security employees are bound by these “Citizen Use of Force” statutes

Public police are generally allowed more discretion in the use of force than are private citizens or private security officers

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Legal Liability of Private SecurityCivil Liability

The Hallcrest Report II: Private Security Trends reported that one of the largest indirect costs of economic crime was the increase in civil litigation and damage awards involving claims of inadequate or improperly used security to protect customers, employees, tenants and the public from crimes and injury

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Nemeth says there are three main classes of “Civil Liability”Intentional TortNegligenceStrict Liability

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“Intentional Torts” are based on acts that people intend to do that are not the result of pure carelessness, accident of mistake (intent)

“Negligence” is behavior that inflicts individual harm or injury form mistake or accident

“Strict Liability” are similar to “Intentional Torts” but no intention is required

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Another legal concept is “Vicarious Liability” which means that the employers will also be held legally accountable for their employees’ actions or forms of behavior

“Vicarious Liability” generally involves employers, supervisors or managers who control or are responsible for employees

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In order to prove a case of negligence, the claimant must demonstrate the following are present:A dutyA breach of that dutyProximate causation (the negligence

caused the harm or injury)

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Some Examples of Civil Liability:Negligent HiringNegligent RetentionNegligent Assignment and

EntrustmentNegligent SupervisionNegligent Training

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Legal Liability of Private SecurityCriminal Liability

Some Examples of Criminal Liability:False Arrest AssaultBatteryFalse ImprisonmentMalicious prosecutionUnlawful Detention

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Legal Liability of Private SecurityLiability Problems Involving the Use of

Police Officers as Security OfficersTo whom is the officer responsible? Who is responsible for the police officer’s

liability in the event the officer makes a mistake?

Should a police department continue to pay an officer who is injured while working off duty?

In each case is the private security firm responsible or the police department?

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Legal Liability of Private SecurityLiability Problems Involving the Use

of Police Officers as Security OfficersRead the Court cases on Premises

Liability and Private Security, page 105

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Courtroom Testimony and Private Security OfficersTestimony

“Direct Examination” is the initial questioning of a witness or defendant by the attorney who is using the person’s testimony to further their case

“Cross Examination” is questioning by the opposing attorney for the purpose of assessing the validity of the testimony

After this there can be “Redirect” and “Recross”

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Courtroom Testimony and Private Security OfficersTestimony

The “Cross Examination” is usually the most difficult part of testifyingThe opposing attorney will attempt to

cast doubt on the witness’s “Direct Testimony” in an effort to make their case more credible

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Chapter Four Private Security Law 1. Law “Law” can be generally defined as a system of standards...

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