4 Civil Liability of Security Personnel
CHAPTER OUTLINE
Introduction………………………………………………………………………………………………………………….. 117
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.
n n n
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 centers 7
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.Thepresentrateofchangeinemploymentfrom1980to2000isapproximately 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. Soon after, Mr. X was confronted by a security officer ina hostile fashion. Mr. X
was handcuffed after engaging in a physical altercation with 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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