Moonlighting in Private Security

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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

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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

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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

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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 is much 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 generally more 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

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5. Malicious Prosecution:

• Initiation of legal proceedings

• Without probable cause

• With malice

• Favorable termination of legal proceedings regarding defendant 22

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

devastating. It is difficult to get an exact figure on how many 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 nature

Results in fines, imprisonments, and orders

of restitution

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A review of common civil wrongs that regularly influence and affect security practice

follows, along with illustrative case examples.

Intentional Torts

Intentional torts imply an understanding or willingness to act or cause a specific end.

Intentional acts are not driven by carelessness, accident, or mistake, but a clear inten-

tionality. In civil law, the specificity and clarity of mind and intent is less rigid than

the criminal counterpart, although proof of intent remains a fundamental element.

Criminal law insists on more intentionality with terms like “premeditation,” “willfully,”

and “purposely.” In assessing criminal behavior, the law requires that the person choose

consciously to perform a certain act and not be under duress, coercion, or suffering

from any other impediment that influences volition.

Civil intent partially mirrors criminal intent. “Evil motive or the desire to cause injury

need not be the end goal; intent to cause the actual result is sufficient.”26 In the law of

torts, intention can be strictly “without malice or desire to harm but with full knowledge

to a substantial certainty that harm would follow.”27 Specific examples of intentional

torts commonly applicable in security settings are highlighted in this chapter.

Assault Since security personnel commonly deal with situations requiring detention and

restraint, the potential for assault is not unexpected. An analysis of assault requires

proof of the following elements:

• An act

• Intent to cause harmful or offensive contact or to cause the apprehension of harmful

or offensive contact

• The apprehension must be imminent

• The defendant must cause the apprehension

Noticeably absent from this element list is an absolute requirement of offensive contact

or actual touching. In most jurisdictions, an assault is considered to be an incomplete

battery. Instead, the act of touching is in its threatened stage, symbolized by its tenta-

tiveness and lack of execution. Movement or an act of the defendant toward a prospec-

tive victim may consist only of eye movement or a slight jerk of the body. The plaintiff

must reasonably anticipate, believe, or have knowledge that this potential action against

the body is harmful. The proposed injury is imminent, immediate, or without any signif-

icant delay. Consider this factual scenario:

One evening in February 1976, George I. Kelley entered a Safeway store in southeast

Washington, D.C. to shop for groceries. He noticed that an automatic exit door was

not working properly and that it was necessary to exert pressure on the door to push

it open. According to Kelley’s testimony, he completed his shopping and later

advised the cashier that he wanted to make a complaint about the broken door.

The cashier suggested that Kelley talk to the Assistant Manager, Mr. Wheeler. When

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Kelley did so, the Assistant Manager responded that the door would be fixed in two

to three months and that Kelley was always making trouble for him. Kelley testified

that he had never made a complaint to Mr. Wheeler before that night and also

stated that the Assistant Manager said to him “boy, if you don’t get out of this store

I’m going to have you arrested.” Kelley responded, “Well call the Police, I want to file

a complaint.” Holding his bag of groceries, Kelley stood in front of the store to await

the police. The Assistant Manager beckoned to a Security Guard, Larry Moore, who

was assigned to the store by Seaboard Security Systems, Ltd. At the same time, the

Assistant Manager asked someone in the back of the store to call the police. Within

a few minutes, Officer Knowles of the Metropolitan Police Department arrived.

According to Kelley, Knowles first spoke to the Assistant Manager, who called him

over and then approached Kelley and said “the Manager wants you to leave the

store.” Kelley testified that he was about to respond to the Officer when the Security

Guard approached from the rear, and grabbed him around the throat. Simulta-

neously, the Police Officer stuck his knee into Kelley’s chest. The two pushed

him to the ground and handcuffed him. Without any resistance from Kelley, the

Officer and the Security Guard took Kelley to the back of the store where he stood

in handcuffs in view of store customers. After ten or fifteen minutes, a police car

arrived and transported him to the precinct where the police charged him with

unlawful entry.28

Using the elements of an assault or a battery action, does the plaintiff have a reason-

able basis for filing a claim against Safeway and its employees? Clearly, a harmful or

offensive contact took place, but was there a reasonable apprehension of harm? In

upholding the assault and battery determination the court held:

Kelley alleges that although he offered no resistance, the Seaboard Guard grabbed

him from behind, around the throat and pushed him to the ground before

handcuffing him. Although witnesses were present each told different versions of

the events. We find there was sufficient evidence upon which a jury could properly

have found Safeway liable for assault and battery. Accordingly we affirm the jury

finding liability on that account.29

The plaintiff’s claim of assault was correctly struck down when the sole basis for the

tort was a 45-minute detention, in a state with merchant privilege, says Josey v. Filene’s. 30

Even the assaults of third parties, bystanders, onlookers, and intermediaries are

a security liability according to Charles Sennewald, founder and former president of

the International Association of Professional Security Consultants. Sennewald highlights

the pressing realty:

Before stores were sued primarily for what they did. Now they are held accountable

for acts of third parties against customers, such as muggings or purse snatchings in

a store’s parking lot.

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This trend requires consultants to assess whether a store provides a reasonable

level of security for invitees.

No matter the trends, the more enlightened retail security executives see the need

for periodic outside objective advice. Firms that have failed to stay current, by not

tapping into available consulting resources, have the most to lose. And some do!31

Battery Closely aligned to assault is the battery action. A battery requires an actual touching

or offensive contact to another person without right, privilege, or justification. Proof of

a battery requires a demonstration of the following:

• A specific act or movement

• The intention to cause the contact or to possess knowledge of the consequences

• Actual physical impairment, pain, or illness to the body

• Conduct that is personally offensive based on reasonable standards

• Causation between the defendant’s act and the actual injury to the plaintiff

The primary concern in battery analysis is whether the touching or contact is offensive.

While the term “offensive” possesses a certain amount of relativity, most courts have held

that offensive does not mean “that the contact must be violent or painful.”32 Offensive

contact can be touching, tapping, poking, spitting, and even indecent gestures. Given

the constant interaction with customers in retail settings, battery is a predictable reality

for security firms.33 Security professionals should weigh and evaluate restraint techniques

and detention policies, and use of force regimens as they carry out their many responsibil-

ities, always acting in a preventive way and anticipating potential liability problems.

Clients and suspects will shape those policies. For example, the suspected shoplifter

should be treated with far more restraint than the suspected rapist. Reflect further on

the delicate balance that must be maintained between a proprietor’s right to protect his

or her property interest and the right of a consumer not to be accused, confronted, or

accosted without substantial cause. Creative legal minds easily conjure up a battery case

under diverse factual scenarios, “since it is not necessary that the defendant intend to

cause specific harmful injury, only that the contact itself was intended.”34 In the area of

retail security, such as detention of a shoplifter, any security action has a battery prospect.

Security specialists often walk the fine line of professional restraint and excessive force.

Courts look to the totality of circumstances when assessing the difference.35

False Imprisonment To prove a prima facie case of false imprisonment, the following elements need

demonstration:

• An act that completely confines a plaintiff within fixed boundaries

• An intention to confine

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• Defendant is responsible for or the cause of the confinement

• Plaintiff or victim was conscious, aware, and knowledgeable of the confinement

or was harmed by it

Industrial and retail settings provide fertile grounds for cases of false imprisonment.

Evaluate the following facts:

A United Security Guard detained the Plaintiff as she was leaving the store and

accused her of taking a gold necklace which she was wearing around her neck.

The Plaintiff responded that the necklace had been given to her by her parents.

The Guard escorted her to the Assistant Manager’s Office and told the Assistant

Manager that she had witnessed the Plaintiff taking the necklace. The Plaintiff

again stated that the necklace was a gift from her parents and expressed a desire

to leave so that she could contact her Mother who was waiting in the parking lot

outside. After the guard procured the necklace, the Assistant Manager accompanied

the Plaintiff outside the store to meet her Mother. The latter confirmed the Plaintiff’s

story as to where the necklace had come from, and all three proceeded back to the

store office. There, the Security Guard produced a release form which she said would

have to be signed. The Mother refused, and the Assistant Manager informed her that

the store’s policy was not to prosecute minors. The Mother replied that she intended

to prosecute the store whereupon the necklace was returned to her and both the

Plaintiff and her Mother were allowed to leave. The Plaintiff also introduced

evidence showing that the store did not stock necklaces of the same quality as the

one the Plaintiff was wearing when she was detained.36

While there may be room for disagreement about the intentions of the security

personnel, a close review of the facts reveals fulfillment of this tort’s fundamental

elements. First, the plaintiff was confined to a specifically fixed boundary. Second, it

was the intention of the defendant to confine that party. Third, the defendant was clearly

responsible for causing the confinement. Lastly, the plaintiff was conscious of it and, in

her view, was harmed by it.

It is only natural that false imprisonment cases arise in the retail environment. Even

good faith efforts to restrain suspected shoplifters are subject to mistakes. As a result,

proprietors have been granted, in select jurisdictions, immunity in the erroneous

detention of suspected shoplifters under merchant privilege laws. Merchant privilege

laws usually provide that

[w]henever the owner or operator of a mercantile establishment . . . detains, arrests,

or causes to be detained or arrested any person reasonably thought to be engaged in

shoplifting and, as a result . . . the person so detained or arrested brings an action

for false arrest or false imprisonment . . . no recovery shall be had by the plaintiff

in such action where it is established by competent evidence: (1) That the plaintiff

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had so conducted himself or behaved in such manner as to cause a man of reason-

able prudence to believe that the plaintiff, at or immediately prior to the time of

the detention or arrest, was committing the offense of shoplifting . . . or (2) That the

manner of the detention or arrest and the length of time during which such

plaintiff was detained was under all the circumstances reasonable.37

n n n

Read the federal case at http://ftp.resource.org/courts.gov/c/F3/413/413.F3d.175.04-2251

.html, and explain why the court concluded that the merchant privilege defense, while

relevant, was not essential to a jury finding.

n n n

Though there is some variance in merchant privilege laws, most state laws adhere

to a formula that blends the presumption of detention with a right of the merchant to

protect his or her goods and services. 38

A typical construction might be as follows:

of any store or other mercantile establishment, either on the premises or outside

the premises of such store, shall be prima facie presumed to have so concealed such

property with the intention of depriving the merchant of the possession, use or

benefit of such merchandise without paying the full retail value thereof within

the meaning of subsection (a), and the finding of such unpurchased property con-

cealed, upon the person or among the belongings of such person, shall be prima

facie evidence of intentional concealment, and, if such person conceals, or causes

to be concealed, such unpurchased property, upon the person or among the belong-

ings of another, such fact shall also be prima facie evidence of intentional conceal-

ment on the part of the person so concealing such property.

(d) Detention—A peace officer, merchant or merchant’s employee or an agent

under contract with a merchant, who has probable cause to believe that retail theft

has occurred or is occurring on or about a store or other retail mercantile establish-

ment and who has probable cause to believe that a specific person has committed

or is committing the retail theft may detain the suspect in a reasonable manner

for a reasonable time on or off the premises for all or any of the following purposes:

to require the suspect to identify himself, to verify such identification, to determine

whether such suspect has in his possession unpurchased merchandise taken from

the mercantile establishment and, if so, to recover such merchandise, to inform a

peace officer, or to institute criminal proceedings against the suspect. Such deten-

tion shall not impose civil or criminal liability upon the peace officer, merchant,

employee or agent so detaining.39

Use of language like “reasonableness,” “prudence,” and “honest belief” manifests the

legislative desire to assure protection from illegitimate claims of false imprisonment.

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Judgments for false imprisonment are not granted unless the plaintiff shows evidence of

willful conduct, maliciousness, or wanton disregard.40 Appellate courts commonly apply

the standard of “reasonableness” in determining civil liability. A Wisconsin case,

Johnson v. K-Mart Enterprises, Inc.,41 dismissed an action for false imprisonment after

evaluating the total duration of imprisonment consisting of 20 minutes. The gentle-

manly demeanor and behavior exhibited by the retail store’s security personnel,

coupled with a polite and formal apology given upon verification of the facts, favorably

impressed the court:

The Appellate Court concurred in the dismissal noting that Wisconsin has a statute

protecting merchants from liability where they have probable cause for believing

that a person has shoplifted. Under the statute a merchant may detain such a sus-

pect in a reasonable manner and for a reasonable length of time. The Court held

that the K-Mart security guard did have probable cause to detain Johnson.42

While the facts thus enunciated arguably prove the elements, security professionals

should be aware that professionalism and courtesy during detention influence judicial

reaction. A case in point is Robinson v. Wieboldt Store, Inc., 43

whose facts are summar-

ized here:

On November 21, 1977, at about 6:30 p.m., the 66-year-old Plaintiff was shopping

at the Evanston Wieboldt Store. She purchased a scarf . . . with her credit card.

Plaintiff chose to wear the scarf, removed the price tag, and handed it to the sales

clerk. The sales clerk did not object when Plaintiff put the scarf around her neck.

The clerk handed Plaintiff a copy of the sales receipt, which Plaintiff put in her

pocket. The Plaintiff then took the escalator to the 3rd floor of the store. As Plaintiff

stepped off the escalator a security guard grabbed her by the left arm near her

shoulder. The guard gave his name and showed his badge. He asked her where

she got the scarf and requested her to accompany him to a certain room. She told

him she purchased the scarf on the 1st floor and had the receipt in her pocket. Dur-

ing the entire confrontation the guard was holding tightly onto Plaintiff’s upper

arm. Plaintiff, who was black, described the guard as white, weighing about 200

pounds, having dark hair and wearing a dark brown suit. The guard grabbed the

receipt from the Plaintiff’s hand, continued to hold her upper arm, and Plaintiff

struggled to get the receipt back from the guard. Plaintiff testified that she felt very

sick, as if her head was blown off and her chest was sinking in. She said she was

frightened and that it seemed that the incident lasted forever. The guard took Plain-

tiff down to the scarf department on the 1st floor. Plaintiff removed the scarf from

her neck and noticed a small tag on the corner. This tag gave instructions on the

care of the scarf. This was apparently what the security guard had seen before grab-

bing the Plaintiff. The sales clerk told the guard the Plaintiff had purchased the

scarf a short time earlier. The guard told the sales clerk that she had caused Plaintiff

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a lot of trouble and had embarrassed her. He then walked away without apologiz-

ing to the Plaintiff.44

By the guard’s actions, the plaintiff, for a period of time, was confined to a fixed

boundary. Developing a restriction of this sort was the security agent’s intention. The

cause of the confinement can only be attributed to the security guard. Since the plaintiff

was conscious of the confinement and certainly felt harmed by it, a prima facie case

has legal support. Not surprisingly, the defendant security officer and the employing

firm relied on the statutory defense of a merchant privilege.45 Given the facts of

Robinson v. Wieboldt,46 can a trier of fact conclude that the security official acted rea-

sonably in this case? Were the actions of the security guard, especially in terms of the

force exerted, reasonable in light of the age and stature of the plaintiff? The court held:

A review of the record reveals Plaintiff’s assertions do in fact present a case of false

imprisonment. She testified that the security guard grabbed her tightly on her upper

arm while they were on the 3rd floor of Defendant’s store, restricting her freedom of

motion. Even after presenting the guard with a sales receipt she was forced to travel

to the 1st floor of the store further restricting her liberty and freedom of locomotion.

To claim that Plaintiff could have refused to go to the 1st floor and unilaterally

ended the confrontation ignores the realities of the situation.47

False imprisonment cases can arise from distinct and differing contexts. For example,

in a claim based on civil rights violations, the test is “objective reasonableness” of the

security officer’s conduct during that detention. The “reasonableness of an officer’s

conduct comes into play both ‘as an element of the officer’s defense’ and ‘as an element

of the plaintiff’s case.’”48 For this reason, many courts have struggled with the applica-

tion of qualified immunity.

Review the facts of Lynch v. Hunter Safeguard:49

Defendant Donald Hunter, a ShopRite security guard, followed Plaintiff out of the

store to her car, stopped her, took her keys and refund authorizations, and then

escorted her back into the supermarket. Hunter then took Plaintiff to a storage room,

restrained her wrists in handcuffs . . . and fastened the handcuffs to a metal stairway.

The handcuffs were so tight that they cut Plaintiff’s skin, numbed her hands and

fingers, and caused them to swell and darken. Plaintiff begged Hunter to allow her

to use a bathroom . . . . She finally lost control and urinated on herself. Hunter laughed

and then photographed Plaintiff in her wet clothing. Plaintiff repeatedly asked

Hunter to allow her to telephone her 69-year-old mother. . . . Hunter ignored Plain-

tiff’s requests. Plaintiff remained shackled to the stairway for three to four hours. . . .

Hunter directed other ShopRite employees to search Plaintiff’s pocketbook . . . [and]

Plaintiff’s car . . . two ShopRite managers, supported and encouraged Hunter’s

actions. “For a considerable length of time, neither Defendants . . . telephoned the

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police or told anyone else to telephone the police about Plaintiff’s detention, hand-

cuffing or the shoplifting accusation against her.”

“Someone from the store” eventually telephoned the Philadelphia Police Department,

and Officers . . . responded to the call . . . Officer John Doe III immediately ordered

Hunter to remove the handcuffs. Hunter . . . told the two police officers that Plaintiff

had shoplifted items from the supermarket, and asked them to arrest her. . . . Officers

John Doe III and Jones-Mahoney placed Plaintiff under arrest. . . .

At the police station, Plaintiff was placed in a “small, filthy, insect-infested cell

with five other women, four of whom would not allow Plaintiff to sit down on a

bench for several hours. Repeatedly, Plaintiff was inappropriately touched by one

of these women.” Plaintiff was incarcerated for twelve hours. . . . She was not

allowed to telephone her mother and “was not able to drink from the water

fountain. . . .” After seven hours, she was given food. Plaintiff was charged with

Retail Theft . . . but the charge was later dropped.50

In this case, the debate on false imprisonment is easily resolved after a cursory

review of the security methods employed. It is likely that the conditions of the detention

itself would elicit juror sympathy.

The security industry is paying dearly in false imprisonment cases. Here are a few

illustrations:

• A retail customer was awarded $20,850 in damages in a false imprisonment case. The

security manager refused to listen to the customer’s explanation.51

• An award of $30,000 in punitive damages as well as $20,000 in compensatory

damages was the result of a false imprisonment case upheld after the trier believed

security personnel were loud, rude, and unpleasant.52

• A customer was detained for over two hours in a security office and was searched and

questioned, even though he had a receipt, which accounted for every item in his

possession. Judgment for $85,867.85 plus costs was upheld.53

The method of detention weighs heavily on the court when reaching legal conclu-

sions about false imprisonment. Detention is scrutinized and adjudged in light of many

factors:

1. If physical force itself is used to cause the restraint;

2. If a threat of force was used to effect the restraining;

3. If the conduct of the retail employee reasonably implied that force would be used to

prevent the suspect from leaving the store.54

All of these liabilities could have been avoided with sound security policies. As

Leo F. Hannon suggests in his article “Whose Rights Prevail?,” “The bottom line seems

to be that you can’t beat common sense.”55

Security professionals should design a system of detention and restraint that does not

trigger, by its shortcomings, a false imprisonment action. For example, to confine does

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not require walls, locks, or other barriers. Since confinement can be the result of an

emotional coercion or threat, establish a polite, cordial environment when detaining.

Confinement is defensible if performed by an official that is legally empowered to act.

While some protection is afforded in jurisdictions that have merchant privilege statutes,

any action taken by private security personnel without that limited privilege will be

subject to a false imprisonment claim. Other security professionals urge regularity and

professionalism as the preventive steps to thwart off liability suits based on false

imprisonment. John Francis’ The Complete Security Officer’s Manual corroborates this

suggestion:

A security officer is expected to be businesslike, alert, and helpful. He should treat

people as he would like to be treated. He will more than likely be asked the same

questions numerous times. He should remember the person standing in front of

him is asking the question for the first time. He will be bombarded with questions

all during his shift, and he must realize the people asking these questions have their

own personal pride and they are certainly not going to ask for information that is

otherwise easily obtainable to them. An officer should be sure when a person

approaches him that he attempts to help them. If he cannot help them, because it

is against facility rules/regulations, that should be explained. At least leave them

with the knowledge that an attempt was made to help them. A simple word or a

phrase: “Let me see if I can help you. Here are the rules and they cannot be changed.

You will have to check with the person in charge, or call this number to get the

assistance you need.” Rather than saying, “This can’t be done, it’s against the rules,

and you’re not going to do it.” Rudeness is no help to a person who needs help. An

officer must be courteous. There is a saying that if, “courtesy is contagious, rudeness

is epidemic.” Security officers are expected to be courteous to people every day. By

being rude to one employee in a facility, the word is spread throughout the facility

that all the security officers are rude and inconsiderate.56

n n n

Even job announcements for positions in the private sector stress professionalism and

appropriate demeanor. Examine the Guardian Security Announcement at http://www

.guardiansecurityinc.com/employment/job.asp.

n n n

In contract guard settings, particularly when the company employing the security

service defends itself as an independent contractor, the falsely imprisoned will argue lia-

bility on behalf of both the agent and the principal if the latter ratifies the former’s conduct.

“The liability of a principal for a wrongful restraint or detention by an agent or employee

depends on whether the act was authorized or subsequently ratified, or whether the

act was within the scope of the agent’s or employee’s employment or authority.”57

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Infliction of Emotional or Mental Distress Often coupled with claims of assault, battery, and false imprisonment is the claim of

intentional or negligent infliction of emotional or mental distress. Mental distress is

the psychic portion of an injury—the pain and suffering portion of a calculable claim.

Since only the minority of jurisdictions recognizes the negligent aspects of this tort,

no further consideration will be given.58 Most American jurisdictions do recognize the

tort of intentional infliction of mental distress.59 Many require that the tort be strictly

parasitic in nature—that is, a cause of action resting uon another tort that causes actual

physical injury or harm, like assault and battery. Critics of the cause of action have long

felt that without an actual physical injury that can be objectively measured, mental and

emotional damages are too speculative to quantify. That position has now become a

minority view since most jurisdictions recognize, or at least give some credence to, the

soft sciences of psychiatry and psychology in matters of damage.

For the security industry, the individual consumer, employee, or other party who is

accosted, humiliated, or embarrassed by false imprisonment, battery, or assault will

often attempt to collect damages tied to the emotional strain of the event. However, in

an effort to provide quality control to mental damages, the elements of this tort are

rather rigorous. Consider its basic elements:

• The act is deemed extreme or outrageous.

• The intention is to cause another severe emotional distress.

• The plaintiff actually suffers severe emotional distress.

• The defendant is the actual cause of that distress.

The general consensus regarding extreme and outrageous conduct is that it is behavior

that the ordinary person deems outrageous. The borders of extreme and outrageous

behavior encompass harsh insults, threats, handcuffing, physical abuse, and humiliation.60

At best, the term “emotional distress” is a series of “disagreeable states of mind that

fall under the labels of fright, horror, grief, shame, humiliation, embarrassment, worry,

etc.”61 The behavior complained of must be so extreme and outrageous as “to be

regarded as atrocious, and utterly intolerable in a civilized community.”62 Furthermore,

the emotional distress allegedly suffered must be serious.63 A mere insult or petty

bickering does not qualify.

The private security employee’s very position may make seemingly innocent conduct

outrageous or extreme.64 The issue of emotional damages came to the forefront in

Montgomery Ward v. Garza.65 In assessing the damages of a plaintiff in a false imprison-

ment case, the court considered testimony by the plaintiff that he was embarrassed

and humiliated:

His son testified that Garza seemed confused, embarrassed, and frightened. He

withdrew from his friends and he changed his eating habits after the incident.

A psychiatrist testified that Garza was incapable of overcoming the emotional

impact resulting from the false arrest, that Garza’s epileptic condition could be

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aggravated by the event and that psychiatric treatment would be desirable. Garza’s

personal physician testified that Garza suffered from acute anxiety and depression

and stated that he suffered an increased number of epileptic convulsions since his

detention. The doctor has had to increase his medication and to add another tran-

quilizer in an effort to control Garza’s attacks. Based on this evidence the Court

found that the award of $50,000.00 was “not so excessive that it shocks our sense

of justice and the verdict was therefore affirmed.”66

In an age when psychiatric objectification is readily accepted and the judicial process

welcomes the expert testimony of psychologists, it is not surprising that the bulk of tort

actions seek emotional damages. The best preventive medicine that security profes-

sionals can ingest is to be certain, regardless of the innocence or guilt of the suspect,

not to create conditions that could be characterized or described as extreme or outra-

geous. Just as public police must maintain an aura of decorum and professionalism, it

is imperative that private justice personnel minimize the influence of emotion in daily

activities. They must treat suspects with the utmost courtesy and handle cases and

investigate facts with dispassionate insight and objectivity.67

n n n

For a brief summary of case law, see Louisiana State University’s web link at http://biotech

.law.lsu.edu/courses/tortsf01/iiem.htm.

n n n

Malicious Prosecution An unjustified claim or charge of criminal conduct or the affirmative use of the justice

system to unlawfully prosecute may give rise to a claim of malicious prosecution.

Accusations of criminality should never be made lightly, since the ramifications can be

costly in both a legal and economic sense. This tort includes the following elements:

• The initiation of legal proceedings

• Without any probable cause

• With actual malice

• Legal proceedings terminate or result in favor of the accused

Proof that a charge lacked a reasonable basis in fact or in law, was lacking in probable

cause, or was prompted by actual malice are the central issues in malicious prosecution.

Probable cause, in a sense, is a defense to a claim of malicious prosecution for its

finding imputes good faith in the action or a basis which justifies the action. To say that

something has probable cause means minimally that it is arguable. And while its finding

does not imply certainty, it is sure enough to justify the action. Probable cause deals

with probabilities not rigorous, scientific certitude. Probable cause conclusions verify

the merit of any underlying cause of action.68

More challenging in proving a malicious prosecution is the showing of malice. Malice

is the willful and intentional design to harm another.69 Malice implies an improper

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motive—namely, that the initiation of legal action has little to do with a plaintiff’s desire

to bring the accused or the defendant to justice. Instead, the accused is unduly harassed

by the improper filing of civil and criminal actions and victimized by the very processes

that have been established to ensure justice. Instead of justice, spite, ill will, politics,

hatred, or other malevolent motive govern the decision to sue. In Owens v. Kroeger Co.,70

a jury awarded $18,500 in damages in a malicious prosecution action when Mr. Owens

was prosecuted for shoplifting 99 cents worth of potatoes. The exoneration, coupled

with the aggressive prosecution of Mr. Owens, convinced the trial jury that malice was

the retailer’s sole motive. The trial judge disagreed and overturned the jury’s finding.

Some jurisdictions, such as Georgia, bar an action for malicious prosecution even when

the defendant is subsequently declared innocent if a probable cause basis triggered the

arrest. In Arnold v. Eckerd Drugs of Georgia, Inc.,71 a store customer was detained and

prosecuted for shoplifting based on probable cause. The court’s decision noted:

With regard to appellant’s claim for malicious prosecution, “[t]he overriding

question . . . is not whether [she] was guilty, but whether [appellee] had reasonable

cause to so believe—whether the circumstances were such as to create in the mind a

reasonable belief that there was probable cause for the prosecution.” We have held

that, under the undisputed evidence, appellee’s agent had reasonable grounds to

believe appellant to be guilty of shoplifting at the time of her arrest. Appellant

produced no evidence that, subsequent to her arrest, appellee acquired further

information tending to show that its earlier assessment of the existence of probable

cause was erroneous.72

In Butler v. Rio Rancho Public School,73 the U.S. District Court reiterated the need

to prove the defendant’s motivations, especially when the defendant misuses legal

processes to accomplish illegal and unlawful ends.

Defamation The cumulative effect of false imprisonment, intentional infliction of mental distress,

assault and battery, and other related torts in security detention and restraint situations

often leads to the tort of defamation. Defamation requires proof of the following

elements:

• Defamatory statement by a defendant

• Statement concerns of the plaintiff

• Publication

• Demonstration of actual damages

• Causation

When private security personnel make the accusation that “you have stolen an arti-

cle” or “you are under suspicion for shoplifting,” the potential for a defamation case

exists.74 An accusation of any criminal behavior may suffice. However, the defamatory

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remark must be “a statement of fact which in the eyes of at least a substantial and

respectable minority of people would tend to harm the reputation of another by lower-

ing him or her in the estimation of those people or by deterring them from associating

with him or her.”75 If a security professional makes no accusation, at least in terms of

verbal comment, or couches his or her interchange with the client in neutral, investiga-

tive jargon, few problems will arise. Again, common sense demands that security

personnel be courteous and noncommittal and that they investigate all the facts

necessary to come to an intelligent conclusion concerning the events in question.

Defamation is not mere insult or “casual insults or epithets . . . because such actions

are not regarded as being sufficiently harmful to warrant invocation of the law’s

processes.”76

Another issue in the proof of a defamation action relates to the statement’s verity. No

action in defamation can be upheld if the statement, in fact, is true, and the defendant

cannot demonstrate falsehood. The fact that a statement has been made is, of course,

important. To whom the statement has been made is also a legal consideration, for

the statement must be published or announced to others to be actionable. This is called

the requirement of publication.77 “Thus a derogatory statement made by a Defendant

solely to the Plaintiff is not actionable unless someone else reads or overhears it.” 78

Since many retail and industrial situations involving security personnel are in the public

eye, it behooves security practitioners, when they make a claim, to do so discretely.

Making accusations at the cash register or in other public settings is not intelligent dis-

cretion. Security personnel must be sensitive to the public nature of defamatory

remarks. Beyond public comment, the tort arises from published comments or the dis-

semination of written material. “Preparation of and distribution of a letter to a personnel

file and to other officers may constitute publication sufficient to support cause of action

[for defamation].”79

An affirmative defense regarding defamation involves the proof of truth or falsity of

the assertion. Truth defends the defamation as announced in Nevin v. Citibank80 when a

security guard alleged “‘a black female was making large purchases with a Citibank Visa

card’ and that, ‘she makes purchases, she puts the merchandise in her vehicle and returns

to the store.’”81 Since these facts were true, the cause of action was dismissed.

Invasion of Privacy Since much of the activity of private security is clandestine and investigatory in nature,

the tortious conduct involving invasion of privacy can sometimes occur. Corporate

spying—the practice of using security firms to monitor employee conduct—manifests

the fine line between invading privacy and conducting a legitimate investigative tactic.

Alleged spying on prospective union organizers illustrates this tension. A Chicago firm

enlisted to surveil union organizers “violated Illinois’ privacy law by gathering informa-

tion on employees’ opinion about unions as well as such seemingly unrelated details as

where a worker shopped, an employee’s off-duty fishing plans, and a female worker’s liv-

ing arrangement.”82 The case elucidates the fine line between a privacy violation and

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legitimate corporate oversight. The use of such spies is widespread in American business

and especially common among retailers with razor-thin profit margins: “Employee theft

accounted for an estimated $11 billion of the $27 billion in shortages reported by U.S.

retailers in 1992. . . . Drug abuse is the other major reason for covert investigations.”83

These sorts of economic pressures on the profit margin prompt extraordinary measures.

The legal concept of invasion of privacy as an actionable civil remedy is a recent legal

phenomenon spurred on by modern concerns for civil and constitutional rights.84 Also

supporting this legal remedy are recent efforts “expressed in federal and state statutes,

in proposed legislation, and in judicial decisions.” 85

The private justice sector’s use of

investigative technology and intrusive methodologies and practices further supports this

legal remedy. When reviewing information gathering and investigative practices, security

professionals should keep a few points in mind:

Do not permit security personnel to use force or verbal intimidation or abuse in

investigations of employees and customers; collect and disclose personal infor-

mation only to the extent necessary; inform the subjects of disclosures to the greatest

extent possible; avoid the use of pretext interviews; avoid the use of advanced

technology surveillance devices whenever possible; know the standards adhered to

by the consumer reporting agencies and other parties with whom you exchange

personal information; train your employees in privacy safeguards; periodically

review your information practices with appropriate personnel and counsel.86

There are four distinct types of the invasion of privacy:

• Invasion of privacy—Intrusion

1. An act which intrudes into someone’s private affairs

2. The action is highly offensive to a reasonably prudent person • Invasion of privacy—Appropriation

1. The unauthorized utilization of a Plaintiff’s name, trademark, or personality for

the defendant’s own benefit • Invasion of privacy—Public Disclosure of Private Facts

1. Actual publicity

2. Concerning the private life of a plaintiff

3. Which is highly offensive to a reasonably prudent person. • Invasion of privacy—False Light

1. Publicity which places plaintiff in a false light and which is highly offensive to a

reasonable person.

Each of these types targets conduct that is an affront to public sensibility and per-

sonal integrity. In other words, to what extent or extremes can a party go to gain access

to information or divulge the same? For example, how far can a media critic or news-

paper reporter go when divulging the secret lives of the rich and famous? Are there

not some activities that are uniquely personal and beyond the rabid publicity of a media

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without checks and balances? When, at least in this crazed age, does a public disclosure

of a private fact in a private life offend individual and collective sensibilities? Politicians

often complain about the intrusive stories concerning their sexual dalliances. Propo-

nents of the disclosure hold that any public figure is fair game, as are that person’s

personal, moral, and sexual habits. Critics say that these disclosures are offensive to

the average person.

n n n

For an excellent summation of invasion of privacy and corresponding case law, visit http://

www.cas.okstate.edu/jb/faculty/senat/jb3163/privacytorts.html.

n n n

A recent American Law Reports annotation, “Investigations and Surveillance,

Shadowing and Trailing, as a Violation to the Right to Privacy,”87 addresses this very

topic. Recognizing the increased use of private detective agencies and other investiga-

tory boards, the annotation states:

Those instances in which the surveillance, shadowing or trailing is conducted in an

unreasonable and obtrusive manner, intent on disturbing the sensibility of the ordi-

nary person, without hypersensitive reactions, is usually held . . . an actual invasion

of the right to privacy.88

In the business of security, there are many private actions that become publicly

disclosed. In divorce proceedings, private sector investigators delve into highly charged

conduct that touches privacy:

Where the surveillance, shadowing and trailing is conducted in a reasonable manner,

it has been held that owing to the social utility of exposing fraudulent claims, because

of the fact that some sort of investigation is necessary to uncover fictitious injuries, an

unobtrusive investigation, even though inadvertently made apparent to the person

being investigated, does not constitute an actual invasion of his privacy.89

Drug screening, testing, and related monitoring programs have been challenged on

privacy grounds. For the most part, private sector businesses and other entities are

largely free to conduct such tests. The American Management Association recently

reported that 63 percent of companies surveyed do test for drugs. Some 96 percent will

not hire individuals who test positive. SmithKline Beecham Clinical Laboratories reports

that 11 percent of 1.9 million people tested produced a positive test. This figure reflects

a four-year decline in applicant test-positives.

Reid Psychological Systems continues to see increasing applicant drug use. In a study

of more than 17,000 applicants in four major industries, 12 percent admitted to drug use

on a written questionnaire.90 Pinkerton Security and Investigation Services, Inc., and

Environmental Narcotics Detection Service (ENDS) have instituted a partnership, whose

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singular purpose is to screen accurately and efficiently report drug testing results. ENDS

helps employers detect traces of illegal drugs in the workplace. Pinkerton Security and

Investigation Services collects test samples, and the Woburn, Massachusetts-based

Thermedics analyzes them. Clients receive results within 48 hours.91

Both alcohol abuse and drug abuse in the workplace remain a substantial problem.

The Bureau of Justice Statistics paints a distressing picture of workforce drug usage.

A study that focused on findings from the 1994 and 1997 National Household Survey

of Drug Abuse reported:

• 70 percent of illicit drug users, age 18 to 49, were employed full-time.

• 1.6 million of full-time workers were illicit drug users.

• 1.6 million of these full-time workers were both illicit drug and heavy alcohol users in

the past.92

The picture is further edified by simply looking at data on arrests for drug crimes,

displayed in Figure 4.3,93 which presents a most unfortunate upward incline that

shows no sign of abating.94 Even emergency room data reflect this grim reality (see

Figure 4.4).95

While most courts uphold the right to conduct such tests, any condemnation that

does occur usually relates to the reliability of the methodology employed and the fair-

ness relating to the test itself. Privacy questions need be balanced with the negative

impact, the social and human costs that drugs cause in the workplace. Most American

businesses allow a first offense, and upon individual rehabilitation will reinstate the

employee. See the agreement at Figure 4.5. If employees complain about activities that

invade their privacy, formally document their statement. See Figure 4.6.

1980 1990 2000 20071970

Source: FBI, The Uniform Crime Reports (UCR)

[D]

500,000

1,000,000 Adult

Juvenile

Drug arrests by age, 1970-2007

1,500,000

2,000,000

FIGURE 4.3 Drug Arrests by Age.

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500 500

400

300 275

162

205

274

20 19

367 404412

444

Rates of ED visits per 100,000 population involving nonmedical use of pharmaceuticals, by age and gender, 2007

456445

R at

e of

E D

v is

its p

er 1

00 ,0

00 p

op ul

at io

Male Female

286

200

100

400

300

R at

e of

E D

v is

its p

er 1

00 ,0

00 p

op ul

at io

200

100

SOURCE: Office of Applied Studies, SAMHSA, Drug Abuse Warning Network, 2007 (08/2008 update)

0- 5

6- 11

12 -1

18 -2

21 -2

25 -2

30 -3

35 -4

45 -5

55 -6

65 +

FIGURE 4.4 Rates of Emergency Room visits from the use of drugs.

FIGURE 4.5 Employee Reinstatement Agreement.

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Evaluate the fact patterns that follow to discern whether or not an arguable invasion

of privacy has taken place:

• Assume a merchant publicly posts lists of persons whose checks aren’t acceptable due to

past bounce experience. Could a damage action for $7,500 in actual damages as well as

$50,000 in punitive damages be sustained under an invasion of privacy act?96

Answer: Maybe, but probably not. • If a merchant posts a sign informing customers of surveillance of fitting rooms, is this

action an invasion of privacy?97

Answer: No.

FIGURE 4.6 Employee Privacy Complaint.

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• Can a retail department store search lockers as well as an employee’s private

personal property for purposes of reducing shoplifting problems? Does such

an act constitute an invasion of privacy?98

Answer: No. For legitimate theft reduction, employers may conduct such

searches as a condition of employment.

n n n

Most companies and nonprofits have implemented various policies and work conduct

expectations. Find out about a recommended toolkit that works for employers and

employees at http://www.nonprofitrisk.org/tools/workplace-safety/public-sector/topics/dfw/

policy-ps.htm.

n n n Negligence In contrast to intentional conduct, civil law encompasses remedies based on negligent

conduct—harms caused by errant conduct, carelessness, and mistake. Instead of the

intended harm, such as witnessed in assault and battery, defamation, or false imprison-

ment, the negligent actor causes his or her harm without intentionality and does not

intend the end or result. The negligent actor acts without the due care owed another

but lacks the malevolence and willfulness that intentional torts require.

Negligence theory examines harm that arises from accident or careless behavior and

measures the damages. Negligence is the stuff of everyday life that people fail to do with

due care. Forgetting to engage auto turn signals, failing to file documents such as a tax

return, misreading a right of way, or missing an important court date all illustrate the

nature of negligence. Negligence evaluates acceptable levels of human conduct and

expectation searching for what most people do in similar circumstances. The whole the-

ory of negligence depends on how the average man or woman would conduct them-

selves in traditional circumstances. Put another way, what would the “reasonable

person” do? What should we expect from the average person in his or her dealings with

others? Perfection? Infallibility? The reasonable person is an amalgam of human behav-

ior, a predictable player on the world’s stage. While mistakes are part of the human

equation, the law of negligence, despite the predictability of human error, holds the neg-

ligent actor accountable. The law is even less tolerant of behavior that is either gross or

reckless in design. And these expectations will additionally depend on the actor’s level of

preparation, education, and expertise. We surely expect more from doctors and lawyers

than we do from janitors or construction workers. So in this sense, the average, reason-

able person acts reasonably under the circumstances they live and labor under.

How the legal system holds the reasonable person accountable will also depend on

the particular industry the actor is employed in. What is certain is that the security

industry will be held to its own standard of professional conduct and that injuries

that result will be scrutinized in accordance with these expectations of professional

performance and due care owed. Security’s reasonable person will have to carry out

the industry’s diverse responsibilities without harm to others.99

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To prove a case of negligence, the claimant must demonstrate the following

elements:

1. A duty

2. A breach of duty

3. Proximate causation

Hence, negligence analysis initially considers human conduct in a global sense and then

moves to the particular reality of a specific party whose level of obligation will trigger a

corresponding expectation of due care and conduct. Here the ideas of duty and due care

coalesce. To prove the principal elements of negligence, a duty must be demonstrated

and a standard expectation of due care delineated; a harm, connected to the breach

itself, then must occur due to a breach of said due care. The harm caused can then result

in a finding of proximate causation.

NATURE OF DUTY

What is duty, and to whom is it owed? When does the duty arise, and what is the stan-

dard in which there must be some level of uniformity and conformity? Duty depends

not only on station and occupation, level of expertise, and sophistication of field, but

also whether that particular duty is relevant in the events and conditions that surround

the harm and injury. That duty must be more than a remote association, as was evident

in Armor Elevator v. Hinton,100 where a security officer, who had just ridden an elevator

and experienced some malfunction, failed to warn other passengers of the defect. Here

the court did not reach a conclusion of negligence since the scope and extent of the

duty owed was unlikely to include warnings about elevators. While a “legal duty can

arise not only by operation of law but by a contract between the parties,”101 in the mat-

ter of elevator warnings, the security firm had no significant duty. That same analysis

must be tailored to what the average person does or does not do in an occupation.

In short, what does the average pediatrician do in these circumstances? Negligence

never measures duty by the best and most sophisticated expert, but instead employs

the average practitioner as a guide. For an attorney, the same rule applies, that he or

she owes a duty of competent, intelligent, and ethical representation to his client, as

other attorneys in his or her same situation would offer. It does not require the highest

level of advocacy, only a reasonable level of advocacy. Other examples of duty abound,

including a parent to a child, a teacher to a student, and an engineer to a construction

company. What standards of duty should apply in the assessment of security companies

and security personnel in regard to clients or the general public? Is it not reasonable to

expect that security personnel be competent in basic legal applications or that they

generally understand what techniques ensure the protection of people and property?

And what is a reasonable expectation of duty owed the consumer when entering

a commercial premise? The duty of the premises owner is to provide a safe, secure envi-

ronment. Even criminal conduct suffered by customers opens the doors to negligence

actions.

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The results have staggering personal and economic costs for companies and clients.

An eight-year study by Liability Consultants, Inc., found the average jury verdict for a

rape on a business premises to be $1.8 million. For a death, jurors awarded $2.2 million.

The Framingham, Massachusetts, security consulting company compiled the survey

results from verdicts voluntarily reported by attorneys to a national group of plaintiffs’

lawyers.102

DUTY AND FORESEEABILITY

Another essential factor in the analysis of duty is whether or not the harm suffered was

reasonably foreseeable. By foreseeable, one means could the actor have predicted the result?

Was it possible for the actor to have predicted harm and injury would have resulted from

the breach of that duty? In negligence law, the question is not only the defined duty, as well

as its corresponding conduct expectation, but also the predictability and foreseeability of

the injuries inflicted. In the case of security practice, the issue of duty is bound to its fore-

seeability. A recent case in a McDonald’s restaurant confronts the duty question in light of

foreseeability.103 Restaurant management used security forces to prevent loitering and other

problems in the parking lot and surrounding area. Sweeps of the area were dutifully per-

formed every half hour. Despite this attention, trouble festered in the parking lot and

a person was shot. The decedent’s family called an expert criminologist who testified as

to the paucity of protection and the failure of the McDonald’s to provide a safe environ-

ment. In order to find negligence, the proof will evaluate the scope and extent of duty owed

to the patrons of the McDonald’s restaurant to its consumer base, and whether the res-

taurant chain breached that duty. How much safety and security does the proprietor owe

the patron? How foreseeable were the events that led up to the wrongful death? What addi-

tional steps could the proprietor have taken to prevent harm? The appellate court analysis

could find little evidence of foreseeability in these facts and exonerated McDonald’s:

We are of the opinion that McDonald’s was not negligent in either failing to assist Kelly

at the time of the encounter by not providing an armed security guard or by the Assistant

Manager’s failing to interject himself into the fray rather than call the police.104

Foreseeability, the ability to project and predict, relates to the duty of the security

specialist. Here the security firm is unable to know, to see, and to predict and thus could

not be held to a standard of duty and obligation it could not discern or foretell. If the

criminal conduct was regular and continuous, or if the proprietor had advance notice,

the story would be different. Due diligence, due care, and reasonable precaution

cannot take place without some level of knowledge. The interplay between duty

and foreseeability is somewhat more obvious in a decision from the Oregon Court of

Appeals.105 The facts include a 76-year-old shopper who exited the J.C. Penney’s

store at 7 p.m. and simply walked to her car in the parking lot. She was accosted,

assaulted, and a victim of theft. A jury awarded her a verdict of over $20,000. The Oregon

Court of Appeals held that the retail establishment is under no affirmative duty to

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provide security and protection in its parking lot unless it has reason to know of pro-

blems or conditions that make visitation troubling or potentially dangerous. In other

words, if the retail establishment is put on notice of conditions that may cause harm

to others, as was true in these facts, the duty standard is clear. The court held:

Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no

duty to exercise any care until he knows or has reason to know that the acts of the

third person are occurring or about to occur. He may, however, know or have reason

to know, from past experience, that there is a likelihood of conduct on the part of

third persons in general which is likely to endanger the safety of the visitor, even

though he has no reason to expect it on the part of any particular individual.

If the place or character of his business or his past experiences is such that he should

reasonably anticipate careless or criminal conduct on the part of third persons,

either generally or at some particular time, he may be under a duty to take

precautions against it and to provide a reasonably sufficient number of servants

to afford reasonable protection.106

If the facts lead a reasonable trier to conclude that harm could occur unless

precautions were taken, negligence will be found. Again, an act of negligence is a breach

of duty owed to others and a failure to exercise due care. “Judges face the questions of

lawsuits where the customer already has been injured by the supposedly unforeseeable

danger. The approach tends to exclude accurate predictions about what dangers are

foreseeable.”107 Crafting a benchmark of duty and foreseeability is difficult. Some

commentators merely suggest that merchants, business and industrial leaders, and other

parties take extra preventive precaution to protect against liability.108 Companies cannot

be held to a duty threshold when events are utterly unpredictable.109 “The Courts have

placed a public trust upon store owners, retailers must treat their security measures as

public property or risk paying a financial penalty in the event of injury to a member of

the public.” 110

The task of the security specialist is avoidance of these and every type of claim based

on the theory of negligence. The costs are simply too high.111 Foresee and foretell, pre-

dict and evaluate are professional expectations that security firms and their clients have

rightfully come to expect and demand. Consider third-party criminal conduct carried

out in a hotel or motel on an innocent customer. How does the hotel proprietor predict

or foresee this event?112

Certainly, past regular criminal conduct at the facility puts the owner on notice of

this criminal propensity. In an action by a motel patron against a motel to recover for

a sexual assault, rape, and robbery that occurred after she opened her motel room

door, a judgment in the patron’s favor was upheld. The court concluded that motel

owners’ negligence was the proximate cause of the guest’s injuries. The court relied on a

series of evidentiary deductions including the hotel’s highway intersection being a high-

crime area, coupled with five armed robberies having occurred in the motel next door.113

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On the other hand, reasonable minds could differ on this and lack the type of

knowledge that leads to foreseeability. In Satchwell v. LaQuinta Motor Inns, Inc.,114 the

court retorted the foreseeability claim since there was

no evidence of any significant criminal activity against motel guests within five

miles of location of motel. . . . Appellant called no expert witness, and did not pres-

ent evidence of reasonable precautions that motel operator . . . should have taken . . .

nor did appellant establish how the facts and circumstances of this case gave rise to

the appellee’s actual or constructive knowledge of any danger to motel guest from

third party criminal assaults.115

Other settings, like apartment complexes and other facilities with public traffic, mani-

fest the foreseeability dynamic for security firms. In Abraham v. Raso116 the court

granted protection based on status. Invitees—that is, consumer/customers—get more

security than the unwelcome trespasser, though this principle is not without limitation.

“Generally, ‘the proprietor of premises to which the public is invited for business pur-

poses of the proprietor owes a duty of reasonable care to those who enter the premises

upon that invitation to provide a reasonably safe place to do so that which is within the

scope of the invitation.’117. . . ‘Whether a duty exists is ultimately a question of fairness.

The inquiry involves a weighing of the relationship of the parties, the nature of the risk,

and the public interest in the proposed solution.’”118,119 Gate attendants at an apartment

complex were held not accountable for criminal conduct by third parties since the

security service was strictly defined in the contract between the provider and owner.

In Whitehead v. USA-One, Inc.,120 the court held:

[I]t is clear both from the contract here as well as from the deposition testimony . . .

that the employees of USA-One were at Sharpsburg Manor for the benefit of [the

owner]. We are unpersuaded by the plaintiffs’ . . . that USA-One voluntarily assumed

a duty to protect them. Here, the fact that the gate attendants patrolled the grounds of

Sharpsburg Manor “more frequently” after the second assault is insufficient to estab-

lish that USA-One undertook to protect the residents of the apartment complex.121

Another locale of heightened interest to the security industry, at least in matters of

duty and foreseeability, is the commercial parking lot. Tortious as well as criminal con-

duct are more commonly witnessed in these facilities. A landowner or commercial prop-

erty owner has a duty to “take affirmative action to control the wrongful acts of third

persons which threaten invitees where the [owner] has reasonable cause to anticipate

such acts and the probability of injury resulting therefrom.” 122

Such affirmative action

would seem to mean that the owner or possessor of a parking facility should take rea-

sonable security measures, such as adequate lighting and the presence of security

guards, and, if practical, additional measures, such as strategically placed television

cameras or alarm systems, warnings, and the availability of escort services.123

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Discerning past and present criminal incidence rates is crucial to the owner’s knowledge

of what might occur. An important matter that should be investigated is the availability

of any statistics concerning crime in the neighborhood where the crime occurred and,

more specifically, in the parking lot facility itself. Some local police departments have

computerized crime records that are kept in accordance with guidelines issued by the U.S.

Department of Justice. It may be possible to have the department run a computer check

of the parking facility address for up to three years preceding the crime in question.124

The following factors bear on the safety of the parking facility and the foreseeability

of criminality:

• Occurrence of the crime

• Prior episodes of theft, vandalism, or attack

• Attraction of facility to criminals

• Design that makes concealment possible

• Remoteness of facility as inviting attack

• Foreseeability of event

• Duty of landowner to use reasonable care to guard against attack

—Breach of duty by landowner

—Causation unbroken by third-party criminal attack

—Inadequate security at ramp

—No warning of danger

—Subsequent remedial events125

While the trend has been pro-victim in many jurisdictions, holding most criminal con-

duct by third parties preventable and foreseeable, there are more cases now challenging

this conventional wisdom. To be sure, everywhere and everyplace sees crime. In Ann

M. v. Pacific Plaza Shopping Center,126 California altered its previous stand of assuming

negligence when crimes occurred. Citing random, endemic, universal crime, the opinion

takes a pro-defendant approach:

Under the more pro-victim standard used in California prior to the recent

ruling, evidence of all previous crimes, whether similar or dissimilar, could be

considered by a jury as it decided whether a property owner should have known

of the danger. Additional factors, such as lighting and other safety features, also

could be considered. Courts applying this standard reason that the first victim

of a particular kind of crime shouldn’t be denied recourse merely because no

analogous crime occurred previously. But with the recent ruling, California’s

high court is suggesting such an approach is no longer practical. For one thing,

the court said, these days almost every property has been the site of all sorts

of crimes.127

Negligence exerts extraordinary economic costs on all facets of the American experi-

ence. Clearly, someone must pay damages. While damages make whole, provide

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compensation and consequence, and reimburse for loss, the bill for said damages

trickles everywhere in the lives of ordinary consumers, from the price of goods to insur-

ance costs. Operationally, the security industry grapples with these liabilities, and the

effects on the balance sheet are never positive. What security agents and businesses

must be even more concerned with are punitive damages, those costs above the conse-

quential damages. Punitive damages punish the negligent party for egregious cases of

professional incompetence and severe injury.

But this is not a conclusion without fail. Whether or not a security company knows or

could have known that crimes could be committed on location is a question subject to

multiple interpretations. To be sure, at common law, without knowledge, there was no

obligation to make safe the locale. When awareness and understanding occurs, the

obligation is ratcheted up a bit. In Bowler v. Kings Plaza Shopping Center,128 the court

provides a well-reasoned template for determining when liability inures to the security

firm. While in a jewelry store, a customer was punched by an unruly customer. The

injured customer sued the jeweler for a failure to provide security. The court correctly

concluded:

Further, at common law, when a criminal act is unforeseeable, such as the assault

on the plaintiff in the instant case, the owner of the premises has no duty to protect

persons from attack. . . . Plaintiff . . . [f]ails to demonstrate that the defendants knew

or had reason to know from past experience that there is a likelihood of conduct on

the part of third persons . . . which is likely to endanger the safety of the plaintiff.129

Negligence and Security Management The analysis of negligence and its impact on security practice from a managerial point

of view is an exercise worth serious energy. Negligent behavior on the part of lower ech-

elon security personnel can give rise to multiple causes of action, both individually and

vicariously. More telling is the negligent behavior of management and policymakers of

security companies. Supervision, training, personnel, policy making, and performance

standards are the primary responsibility of security managers, and the failure to carry

out these professional obligations competently is a fertile ground for negligence actions.

PERSONNEL PRACTICES

The security industry’s costs of poor human relations and personnel practices are signif-

icant, and in hiring, supervision, and discipline, the industry needs to take its responsi-

bility seriously.130 “Private security companies or businesses which hire their own

security forces should exercise great care in choosing security employees.”131 Hiring

an individual without investigating the person’s background or improperly placing an

individual in a position that requires higher levels of expertise than the applicant

possesses can lead to possible negligence cases. In Easly v. Apollo Detective Agency,132

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the court found a security guard company negligent in the hiring of a security guard

entrusted with a pass key for an apartment building:

Such negligence usually consist of hiring, supervising, retaining, or assigning the

employee with the knowledge of his unfitness, or failing to use reasonable care to

discover the unfitness, and is based upon the negligence of the employer to a third

person entirely independent of the liability of the employer under the doctrine of

respondeat superior.133

While on duty the security guard entered, without license or privilege, a tenant’s quar-

ters with criminal intent. “The evidence showed that the company did not check any of

the prior addresses or personal references listed by the guard on his application, nor did

it require the guard to take any intelligence or psychological tests.”134 A company that

appoints or hires an individual should be assured not only of competence but of personal

character too.135 In Violence in the Medical Care Setting, hospital administrators are urged

to not only carefully select, but also adequately train all security personnel:

Pre-employment testing and evaluation, post-employment training and evaluation

and adequate supervision corresponding to carefully drafted guidelines and policies

are the new protective shields. Failure to take these minimal precautions in the

highly explosive medical care environment leaves the employee the negligent super-

visor and the entity facing liability unnecessarily.136

The entire company, its employees and responsible policymakers must deal with the

quality of employees. Employees should be enlisted to assure a safe, secure workplace

inhabited by safe and secure personnel. “From the mail room to the executive suite,

successful security awareness programs leave their mark. Once a luxury, awareness pro-

grams are evolving as a necessity to help curb security’s high costs. Changing workplace

demographics call for awareness training at all employee ranks.” 137

NEGLIGENT RETENTION

When security management knows that present employees are professionally inept but

willingly chooses to retain them despite these employee flaws, the argument of negligent

retention has legitimate merit. Case law and common sense dictate that retention of any

troubled employee inevitably leads to larger problems for the firm and the client served.

Like negligent hiring, the courts have found liability under a theory of negligent

retention when employers know or should have known, in the exercise of ordinary care,

that their employees had violent tendencies. Employees with a history of sexual offenses

such as rape and sodomy prompt strict scrutiny of the negligent retention. In addition,

employees with checkered histories that include convictions of theft, larceny, embezzle-

ment, and extortion are all prime candidates for a claim of negligent retention when

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offenses occur at the work location. Any employee with a propensity for violence should

not be a candidate for employment without a risk.138

Any personnel program must comprehensively examine the background of any

prospective employees by the analysis of these variables:

• Identification information

• Records of conviction

• Proof of civil actions and other litigation

• Credit and financial history

• Educational records

• Neighborhood information

• Personal and business references

• Previous and current employment

• Opinions of previous and current employers

• The candidate’s financial data 139

When security employees engage in misconduct, the company should give notice to

the employer, specifying the exact nature of the misdeed. See Figure 4.7.140 If wrongful

behavior persists, a warning formalizing future consequences for said behavior is war-

ranted. See Figure 4.8. If all corrective steps are futile, a discipline or termination report

assures a significant record in the event of a challenge based on wrongful termination.

Any legal action asserted by a third party for negligence in the handling of personnel

can be rebutted by the due diligence these documents memorialize. See Figure 4.9.

NEGLIGENT ASSIGNMENT AND ENTRUSTMENT

As personnel histories unfold, security firms can err in judgment at various stages: first,

at initial hiring; second, at continued retention even when aware of employee problems

as severe as criminal backgrounds; and finally, at the assignment and reassignment

stage, knowing full well that the assignment may cause difficulties for others. Once

put on notice of employee problems, the employer should take remedial steps to assure

that the employee is not assigned to any position or delegated tasks likely to create con-

flicts. With this knowledge, the employer will be negligent since he or she foreseeably

knows the nature of the employee and realizes the real injury is likely. In Williams v.

the Brooklyn District Telephone Company,141 the security company was held liable for

assigning a guard to a sensitive position that allowed easy access to larcenable items.

“Rejecting the company’s contention that it was not liable for the guard’s theft because

his act was outside the course and scope of his employment, the court held that the

company was bound to exercise reasonable care in the selection of its guards and there-

fore could not be permitted to say that it had no responsibility for the unlawful acts of

its guards.”142

Allegations of negligence have even greater credibility when the claimant can dem-

onstrate actual knowledge on the part of security management or administration.

Assigning security officers who suffer from a bona fide alcohol or drug problem

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FIGURE 4.7 Employee Misconduct Notice.

(Continued)

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FIGURE 4.7—Cont’d

FIGURE 4.8 Employee Warning Notice.

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constitutes a negligent assignment or entrustment case.143 The U.S. Court of Appeals,

Fifth Circuit, issued a strongly worded ruling in Aetna v. Pendelton Detectives,144 where

a company’s substandard performance severely impacted a package delivery company.

Indeed, the unprofessional security services caused the firm to fail in its core operations.

Security was to assure delivery although the lack of it assured failure. The court

objectively listed a series of variables that proved the negligent assignment:

Merchants presented the following evidence of Pendleton’s negligent security prac-

tices: (1) guards slept on the job; (2) guards watched T.V. on the job; (3) guards drank

on the job; (4) guards entertained guests of the opposite sex on the job; (5) guards left

the gate to the warehouse open; (6) Pendleton’s admission of failing to perform suffi-

cient background checks on its guards; (7) the private investigator’s conclusion that

night shift employees were responsible for the losses; (8) several of Merchants’ night

shift employees’ confessions to stealing large amounts of food; (9) Pendleton’s contrac-

tual obligation to provide security from 4 p.m. to 8 a.m. and 24 hours a day on

FIGURE 4.8—Cont’d

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FIGURE 4.9 Discipline/Termination Form.

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FIGURE 4.9—Cont’d

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weekends; (10) Merchants’ repeated reports of suspected employee theft to Pendleton;

(11) the report of a person wearing a Pendleton baseball cap selling Merchants’

products from the trunk of his car; and (12) Merchants’ security expert’s testimony

that it was more probable than not that Pendleton’s lax security practices caused

the losses.145

Few cases as clearly edify the principle of negligent assignment as Aetna.

NEGLIGENT SUPERVISION

Once hired and assigned, security managers have a continuing obligation to exercise a

duty of due care relative to employee development and performance. A security com-

pany is vicariously liable for the actions of its employees, and a lack of supervision

creates a presumption of negligence. Wayne Saiat, editorial director for Security World

Magazine,146 highlights the severe problem caused by a lack of supervision:

Although security personnel and their employers can be subjected to legal action for

a wide variety of causes, the vast majority of cases involve the action or inaction of

security guards. But the suits generally do not name only a guard as a defendant;

they will often name the guard’s supervisor, the guard company, if one is involved,

and the ultimate employer of the guard and the guard’s company.147

Supervision takes on added importance when complicated by the temptations of

technology. In National Labor Relations Board v. J. Weingarten, 420 U.S. 251 (1975),

the court fluently assessed the need for heightened supervision when security machin-

ery is in use:

There has been a recent growth of sophisticated techniques—such as closed circuit

television, undercover security agents and lie detectors—to monitor and investigate

the employees’ conduct at their place of work. These techniques increase, not only

the employees feeling of apprehension but also their need for experienced assistance

in dealing with them.148

A failure to supervise or manage can be management’s failure to hire sufficient per-

sonnel, to insufficiently or improperly train secondary managerial employees, or a

failure to allot sufficient time and energy to train employees for appropriate tasks.

NEGLIGENT TRAINING

The final theory under the negligence umbrella is negligent training. Sophisticated

training, hopefully, will upgrade the quality and efficacy of security personnel. Critics

have long argued that training presently required is superficial rather than substantive

and the industry needs greater dedication to training. In Training, The Key to Avoiding

Liability, the essential nature of training is espoused:

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The bottom line then is this: Your security officers must be adequately trained.

Moreover, the training they receive must be sufficiently practical to enable them to

demonstrate technical and legal competency commensurate with the duties they

perform. Classroom theory is fine, but it isn’t enough. Academics should be com-

bined with performance exercises so that officers can try out and become confident

with the techniques they may be required to use.149

The security industry’s response to education and training has been less than

enthusiastic and often more rhetoric than substance.150 While some strides are being

made, industry foot dragging and a lack of legislative uniformity or standards influence

the rigor and intensity of training. Saiat argues that security malpractice is on the

horizon:

While negligence implies a duty, malpractice implies reliance on the duty.

Negligence implies a failure to perform with reasonable care, malpractice implies

a failure to perform to a higher standard of care.151

Certain professional groups, such as the American Society for Industrial Security

(ASIS) International, have called for certification programs, like the Certified Protection

Program (CPP) and the Certified Protection Officer (CPO). Security liability has given

impetus to a host of educational delivery systems in the private sector, what is referred

to as “niche” training. Consider these examples:

Orleans Regional Security Institute, New Orleans, LA

• Semi-Automatic Pistol Training

• Basic Revolver Handgun Training

• Security Training Course

• CCP Course

• Basic Investigator

• Advanced Investigator

• Psychological Stress Evaluation Training

Sandia National Laboratories, Albuquerque, NM

• Physical Protection Systems Training Course

Bob Bondurant Security Services Division, Phoenix, AZ

• Drivers Training Programs in Antiterrorist/Executive Protection

• Advanced Antiterrorist Driving Course

• Motorcycle Training Course 152

ASIS International has also posted standards and guidelines for educational programs,

which in turn ensure uniform preparedness and skills acquisition, something crucially

necessary when defining acceptable or normative standards of professional conduct.153

There is a growing cadre of security service companies that present in-house training, as

noted in Chapter 2.

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Strict Liability Torts

While intentional torts require a mental decision to act, defendants in cases of strict

liability are held accountable regardless of their intentions. The act, in and of itself,

is deemed serious enough to cause absolute, unconditional liability without mental

intent. The burden of proof in strict liability cases is less rigorous than its negligence

or intentional tort counterparts since the act alone suffices for liability. Certain types

of activities, for public policy reasons, qualify for strict liability coverage. If an action

is inherently dangerous, like explosives or wild animals, a tort claim needs no proof

of intentionality. In the case of products, there is a body of strict liability case law.

The elements of a strict liability case include the following:

1. That there be a seller of a product or service

2. That the product is unreasonably dangerous to person and property

3. That a user or a consumer suffers physical harm

4. That there be causation

Strict liability law is plainly in its infancy stage when applied to the security industry

and its practices. Any ultra-hazardous action like the use of ballistics, explosives, under-

water gear, or injuries caused by wild, undomesticated, and uncontrollable animals

would qualify. Outside of the ballistics and explosives area, there has been little litigation

in the security industry.154 One exception to this general rule is that strict liability may

be imposed on security interests that operate by a “certificate of authority” issued by

the state or other governmental entity.155 “This means that such a private security com-

pany will be held liable for the acts of its employees regardless of whether the employ-

ee’s acts were negligent or intentional as long as the acts were committed while the

employee was actually on the job.”156 Alarm companies and other electronically sophis-

ticated enterprises do have to consider the defensive or hazardous propensities of their

products.

n n n

For an overview of strict liability and a refresher on all other torts, visit http://www.aug

.edu/�sbadph/mgmt2106/2106dph08.PDF. n n n

Vicarious Liability

Depending on the nature of a relationship, certain persons will be responsible or legally

accountable for another’s specific act or form of behavior even if they have not acted,

solicited, or conspired in the action. To be responsible through another is to be vicari-

ously responsible. By vicarious liability, the principal—characteristically an employer, a

security supervisor, or a management team—having the right to govern, supervise,

manipulate, and control the action of employees or agents, can be held accountable

for the agent’s actions. This legal relationship has sometimes been characterized as a

master-servant relationship governed by the doctrine of respondeat superior (let the

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master answer).157 Under the doctrine of respondeat superior, an employer is liable for

injuries to the person or property of third persons resulting from the acts of his

employee, which, although not directly authorized or ratified by the employer, are inci-

dental to the class of acts that the employee is hired to perform and are within the scope

of that person’s employment. Under the doctrine, the law imputes to the employer that

act of the employee. Although employers have been held liable under this doctrine for

the intentional and criminal acts of their employees under some circumstances, the via-

bility of the doctrine is somewhat limited because intentional and criminal actions gen-

erally are not within an employee’s scope of employment and usually are not committed

at the request of or with the approval of an employer.158 “The importance of this deter-

mination results from the general rule that a master is liable for the torts of his servants

committed within the scope of a servant’s employment, whereas the hirer of an inde-

pendent contractor is ordinarily not liable for the torts of a contractor committed in

carrying out work under the contract.”159

Much of the security industry can be divided into these two classifications:

employer/employee and independently contracted services. Private companies or

corporations hire contract firms to provide security services. The economic and legal

advantages in contract services are many, since the company is not responsible for

hiring, firing, tax liability, or any other administrative or procedural matters governing

the security force. What type of workplace climate that employer provides bears on

the question of liability.160 In other words, the employer is generally only subject to an

employee’s misconduct when foreseeable and within the scope of the employee’s

responsibilities. Couple tortious conduct with poor management, and cases of civil

liability are assured. Bruce Harman lays out the types of business climate that indubita-

bly lead to individual and vicarious liability:

• Failure to support elementary security and audit procedures

• Lack of climate for security and control consciousness

• Inept or complacent management without feedback to measure losses

• Inadequate implementation of plans and/or personnel and training procedures

• Dishonest management 161

The assumption that the independent contractor status will hold harmless the

employer from potential liability under either civil or criminal liability may be prema-

ture. By hiring independent contractors, employers hope to “convey all potential liability

to the contract security company and to protect the security manager against joinder in

a civil action that could arise out of a negligent or wrongful act by the security contrac-

tor.”162 However, while generally true, there are numerous exceptions to the rule:

1. Independent contractor status will not be upheld if the employer ratifies specific conduct.

2. Independent contractor status will not shield the employer from intentional torts.

3. Independent contractor status will not relieve the employer from strict liability

tortious conduct.

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4. Independent contractor status will not provide a defense to the employer if the duty

is nondelegable.163

The doctrine of respondeat superior, the basic principles of agency and the common

law standard on master/servant relationship make unlikely an employer’s complete

insulation and isolation from legal responsibility for the acts of employees or inde-

pendent contractors. Whether the security operative’s action, tortious or not, are within

the scope of his or her employment is a seminal question in the imposition of vicarious

liability. In Sunshine Security & Detective Agency v. Wells Fargo Armored Services Corp.,164

a bank security guard robbed his employer. “The employee’s tortious actions in con-

spiring to rob the bank he was hired by the defendant agency to guard, the court said,

represented a classic case of an employee acting outside the scope of his employment.”165

Whether the relationship exists “depends on the particular facts of each case.”166

Case law conservatively construes the definition of an independent contractor.

The American Law Institute sought to distinguish a servant from an independent

contractor by considering the following factors:

a. The extent of control which, by agreement, the master may exercise over the details

of the work;

b. Whether or not the one employed is engaged in a distinct occupation or business;

c. The kind of occupation with reference to whether, in the locality, the work is

usually done under the direction of the employer or by a specialist without

supervision;

d. The skill required in the particular occupation;

e. Whether the employer or the workman supplies the instrumentalities, tools, and the

place for the person doing the work;

f. The length of time for which the person is employed;

g. The method of payment, whether by the time or by the job;

h. Whether or not work is a part of the regular business of the employer;

i. Whether or not the parties believe they are creating the relation of master/

servant and;

j. Whether the principal is or is not in business.167

In Safeway Stores v. Kelley,168 a supermarket chain denied all liability for an abusive

arrest process claiming that its guard service contract could only be characterized as

an independent contractor relationship. In determining that the independent contractor

status could serve as an employer shield, the court determined the following factors to

be of particular pertinence:

The contract was performed at the store; the store could determine which people the

guards should investigate; the agency had no specific job or piece of work to per-

form; the agency rendered continuous service for which the store paid it weekly;

and the store could terminate the particular service whenever it chose.169

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A previously discussed case, U.S. Shoe v. Jones,170 reiterated a common principle

regarding the law’s willingness to circumvent independent contractor status. In this

case, which involved the intentional tort of false imprisonment, the court cited the

well-respected Noble v. Sears Roebuck & Co.171 decision:

Even though hirers of an independent security or protective agency have generally

been held not liable for negligent torts of agency personnel, where the hirer did

not exercise control over them, hirers have been held liable for the intentional torts

that the agency personnel committed, in the scope of the agency’s employment

against the hirer’s invitees.172

When private sector firms work oversees in military zones and operations, under the

direct supervision and control of military personnel, these officers are said to have “dual

servant” status, which negates traditional principles of vicarious liability. In this situa-

tion the employer, back in the states, is shielded from liability for the acts of his employ-

ees since his employees are now supervised by military authority.173

Principles of immunity also operate to minimize vicarious liability when a govern-

mental authority, such as the military, supervises the security firm in a war zone. The

Federal Tort Claims Act and other common law legislation provide immunity in combat-

ant situations. Courts have struggled “when defining the term ‘combatant activities.’174

Considering the types of activities of service contractors perform demonstrates how slip-

pery the concept of combatant activities can be.”175 While troop transport qualifies,176

road construction may not.177

In addition, the Alien Tort Claims Act (ATCA)178 seeks to pull in “actors responsible

for their actions even though those actions may have taken place on foreign soil.”179

To summarize, some principal points bear reiteration;

That liability for the tortious or criminal conduct of a security employee will extend

to the security employer if the following relationships exist:

• Master/servant governed by the doctrine of respondeat superior

• Principal/agent

• Employer/employee

• An independent contractor who commits intentional tortious deeds

Generally, negligent conduct by an independent contractor is not the responsibility of a

company procuring security services.180

Some courts will go to substantial extremes to maintain that status and protect

the company utilizing the services of an independent contractor. In Brien v. 18925

Collins Avenue Corp., 181

a guard “supplied to a motel for protective purposes by

a security corporation, under agreement with the owner of the motel, shot and

killed Plaintiff’s decedent whom the officer had stopped for questioning while patrol-

ling the motel property.”182 Curiously deciding that the utilization of firearms was

not an inherently dangerous activity, the court affirmed judgment in favor of the

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motel owner and essentially argued that “an owner is not ordinarily liable for the neg-

ligence of an independent contractor employed by him, noting there was nothing

pleaded that the owner of the motel was himself in any way negligent.”183 A reverse

judgment was demonstrated in Ellenburg v. Pinkerton’s Inc.184 upholding a civil action

for invasion of privacy. The security agency hired to conduct surveillance did so

improperly.

Determining whether a security agency is independent largely depends on who

controls the operation. In Cappo v. Vinson Guard Service Inc.,185 a Louisiana court

denied independent contractor status in an intentional battery case. Actions by the

employer were largely imputed to by the conduct of the restaurant manager who

1. periodically checked on parking lot as part of his duties;

2. told security agent who to admit and exclude from parking lot;

3. had authority to replace security guard with other personnel; and

4. had exercised his authority over security agent on night of incident by sending

security agent home; in addition, trial court noted that security agent’s activities

during performance of his duties benefited restaurant as well.186

There are numerous contrary decisions. In Liability of Private Citizen or His Employer

for Injury or Damage to a Third Person Resulting from Firing of Shots at Fleeing

Felon,187Caroll Miller outlines cases that hold security guards, as well as their employers,

liable for the negligent operation of firearms, specifically when aimed at fleeing crim-

inals. In Giant Food v. Scherry,188 a security guard created a substantial risk to innocent

bystanders when shooting at a fleeing robber as the bullets shattered a woman’s

apartment window.

Miscellaneous Issues in Vicarious Liability NONDELEGABLE DUTY

The trend of judicial decision making in the area of vicarious liability has been pro-

plaintiff, allowing victims as many “deep pockets” as possible. Asserting that the security

services contracted were delegated provide another avenue to hold others vicariously

liable. Nondelegable duty or skill is best understood by analogy, such as the artist or

musician hired under a personal service contract or performance contract that recog-

nizes special skills or acumen. A contract between a security company and an employer

may also be viewed as a personal service or performance contract that requires special

skills and talents and is not conducive to assignment or delegation. 189

A grocery store

was liable to a customer for false arrest committed by security guards employed by an

independent contractor of the store where the store had a “nondelegable” duty to

furnish the customer with a safe place to shop, where the independent contractor was

employed exclusively by the store, and where the store provided a place in which

guards were to work and thus intentionally exposed customers to possible tortious

conduct of guards.190

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PRINCIPAL’S LIABILITY FOR PUNITIVE DAMAGES

As a general rule, punitive damages should not be assessed against principal or master

for an agent or servant’s tortious acts.191 While the principal may be liable for compen-

satory or actual damages, it is unfair to transfer or infuse the malicious, intentional,

arbitrary, or capricious mental state of the tortfeaser. Punitive damages are not regularly

awarded and are possible only on a more pronounced showing of defendant’s irrespon-

sibility. While the master is responsible for the actions of his servant, historically, he has

not been responsible for the punitive consequences of his servant’s acts.

Punitive damages have been successfully assessed against the principal in the follow-

ing types of circumstances:

• Punitive damages have been assessed when the principal ratifies the conduct. 192

• Punitive damages have been assessed when the principal actually authorizes

or participates.193

• Punitive damages have been assessed against corporations and other

business entities.194

• Punitive damages have been assessed against governmental bodies. 195

• Punitive damages have been assessed against common carriers. 196

• Punitive damages have been assessed against managerial or executive employees of a

corporation. 197

CONTRACTUAL LIMITATIONS

Efforts by companies and agencies to contractually insulate themselves from potential

liability resulting from negligent and intentional conduct are not generally successful.

Many security firms utilize contractual forms to absolve liability. Limiting liability

by contractual provisions is generally on two fronts: first, as relates to the amount of

recoverable damages; and, second, as to what the conditions, events, or circumstances

will trigger in liability. Susan Fettner, in her article, “Security System Service,” urges

counsel for security companies to draft meticulous clauses that will protect their clients.

She notes:

In summary, we have seen that judgments against providers of security services may

be had where those services failed to prevent a burglary. Liability, whether in con-

tract or tort, becomes a question of fact. Because the subject of the bargain is the

prevention of criminal intrusion or a mitigation of its results, the triers of the facts

will be likely to find either a breach of the party’s agreement or a causal relationship

in the fact patterns presented to them. However, if liability is limited by contract,

courts will enforce the limitation.198

One must pay close attention to the jurisdictional requirements of the security firm’s

area of representation and be certain to include legal language and clauses that are not

contrary to warranty, mitigation of damages, and general disclaimer laws. These widely

accepted principles will persistently evolve as new facts, conditions, and practices

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warrant. Consider the case of Gulf Oil v. Williams,199 from the Texas Court of Appeals.

The pertinent facts include the following:

When Thomas Williams stopped at a Houston, Texas, Gulf Station for gasoline, he

never expected to be mistaken for a robber and be shot by a security guard. None-

theless, he was, for no apparent reason. Gulf Oil Corporation and Empire Security

Agency, Inc. were held liable for $94,719.77 in actual damages and $50,000.00 in

punitive damages. It appeared from the evidence presented that Gulf had a written

contract with Manpower, Inc. by which Manpower furnished guards for security at

Gulf stations. Under this agreement, Gulf paid Manpower certain fees. Empire then

agreed with Manpower, under a separate contract, to furnish security guards for

Manpower’s clients such as Gulf. Empire hired and fired these guards and furnished

them to Gulf stations in accordance with this contract with Manpower. Gulf had no

contractual agreement whatever with Empire, only with Manpower.

Empire hired Robert Gury as a guard, furnished him with his uniform and

weapon, provided him training and instruction and paid him for the work. Empire

assigned him to provide security for Gulf.200

Evidence at trial, and posed on appeal, posits a contradictory stance on the control of

a gun-toting assailant. Gulf Oil Corporation failed to convince the majority panel of the

court that ruled that companies exercise “joint control” when the “evidence was suffi-

cient to sustain the joint liability.”201 The court assessed damages against both compa-

nies. In this sense, the case is a hybrid. Neither side supposedly exercised total

control, though Gulf would dispute those facts. Commentary provided by Judge Federal

indicates that the case is perplexing and certainly not illustrative:

Suffice it to say here that each fact situation must be evaluated on its own merits,

and when it appears that both security company and the retailer exercised joint

control over the guard, then the courts will rule that both are liable for the guard’s

misconduct.202

Remedies under the Civil Rights Act: 42 U.S.C. §1983 The provisions of 42 U.S.C. }1983 outline civil remedies available to certain individuals for civil rights violations. Initially, a review of this statute is in order:

Every person who, under color of any statute, ordinance, regulation, custom or usage of

any state or territory, subjects, or causes to be subjected, any citizen of the United States

or any other person within the jurisdiction thereof to the deprivation of any rights, pri-

vileges, or immunities secured by the Constitution and laws shall be liable to the party

injured in an action in law, suit in equity or other proper proceeding for redress.203

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The historical underpinnings of 42 U.S.C. }1983 sought to halt racial discrimination and prevent and eliminate slavery. Originally titled The Ku Klux Klan Act of 1871, the leg-

islation was enacted to increase the power of the federal government relative to state’s

rights. “The Act of 1871 was passed by Congress to provide civil rights protection against

inaction and the toleration of private lawlessness. While the act was intended to remedy

the deficiencies of the southern states, there is little indication that Congress sought any

way to impair the states’ political independence.”204

Like all law, the original legislative intent is sometimes altered as the enactment seeks to

find its niche in the legal culture. The act has certainly had a curious legislative history

since the time of the Civil War Reconstruction. The statute’s chief complexity rests in its

vague language, especially the term “under color of state law.”205 It was not until 1961 that

the Supreme Court, in Monroe v. Pape,206 held that public police officers abusing their dis-

cretion and authority, face possible liability under the provisions of the act. After Pape, the

floodgates of litigation opened. Wayne W. Schmidt, director for the Americans for Effective

Law Enforcement, writes in his article “Recent Developments in Police Civil Liability”:207

During the five-year period, the number of civil suits rose from a projected 1,741 in

1967 to 3,894 in 1971. Reliable estimates indicated that by 1975, the number of suits

alleging police misconduct exceeded 6,000 per year. Because an average of 111 hours

is consumed in defending a typical suit along with 97 hours of investigation, such

increases have had a dramatic affect on the ability of many law enforcement

agencies to adequately defend themselves.208

By 1971, the U.S. Supreme Court, in Bivens v. Six Unknown Federal Narcotics

Agents,209 interpreted the provisions of 42 U.S.C. }1983 to include a violation of con- stitutional rights as a basis for a civil remedy. Since much of police conduct is subject

to constitutional oversight, defendants frequently claim their Fourth Amendment rights

“as the result of an alleged unlawful arrest or search; the Fifth Amendment as the result

of an alleged improperly obtained confession or deprivation of liberty or property

without due process; the Sixth Amendment for violations of the right to counsel; or

the Eighth Amendment as the result of the incarceration of a plaintiff claiming to have

been subjected to cruel and unusual punishment.”210

An actual claim under 42 U.S.C. }1983 must demonstrate two seminal issues: (1) that a defendant (state or other governmental entity) deprives the plaintiff of some right or

privilege guaranteed by the Constitution or the laws of the United States; and (2) that

the deprivation asserted was caused or effected under color of that law.211 Examples of

state conduct under the color of state law by public affiliates are false imprisonment,

false arrest, abuse of process, assaults and batteries, malicious prosecutions, illegal

searches and seizures, and other claims.212 Tortious conduct including negligence has

also been successfully argued. Noted earlier, supervisory responsibility in the areas of

negligent hiring, assignment, retention and entrustment, supervision, and training

may also prompt a cause of action under }1983.213

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Specifically, a plaintiff must show three elements to succeed on a state-created

danger claim. First, the plaintiff must demonstrate that the state actor took affirmative

actions that “either create or increase the risk that an individual will be exposed to pri-

vate acts of violence.”214 Second, the plaintiff must show that the state actor created a

“special danger,” which can be done through a showing that the state’s actions placed

the specific victim at risk, as opposed to placing the general public at risk.215 Third,

the state actor must have known, or clearly should have known, that his actions “spe-

cifically endangered an individual.”216

Vicarious liability, with its companion principles of respondeat superior, is not as read-

ily established.217 Standing in a civil rights action is generally only granted when the

person asserting the claim has been personally aggrieved. From this it has rightfully been

decided that the respondeat superior doctrine cannot impose liability on an employer or

master in public employment. There is generally thought to be no master-servant relation-

ship between supervisors and subordinates. They are seen as different grades of employ-

ees in the service of the public, thus negating any application of traditional vicarious

liability.218 The burden of proof in this type of case is quite substantial. To be successful,

an affirmative link must be demonstrated between the supervisory activity and that of

his or her employees. 219

Finding the affirmative link between the supervisory behavior

and the act that results in discrimination is the crux of the burden. If public police were

ordered by their superiors to strip-search all shoplifters, in full view of the public, supervi-

sory accountability would be found. “Beyond such clear acts of malfeasance or misdeeds,

finding accountability becomes much more complex.”220 In Grant v. John Hancock,221 the

U.S. District Court indicated the difficulty since there must be

[a]ssessment of totality of circumstances, in which courts must consider both nature

and circumstances of guard’s conduct and relationship of the conduct to perfor-

mance of his official duties; key determinant is whether actor, at time in question,

proposes to act in official capacity or to exercise official responsibilities pursuant

to state law. 222

The legal ramifications of affirmative action press the security industry as well. Any

discriminatory practices in the hiring and firing practices of security firms may lend

themselves to a civil rights remedy under the various federal provisions enacted since the

1980s. An interesting trend has been the civil action based on the federal Employee

Polygraph Protection Act.223 Security specialists are often asked to conduct internal investi-

gations in the corporate sector to discern intentional and willful discriminatory trends. See

Figure 4.10.

“Private” Applications of }1983

It is well settled that public police functions fall under the aegis and descriptive lan-

guage of 42 U.S.C. }1983. But can the statutory protection be extended to the private jus- tice sector? In reviewing the statute, could it be argued that the economic influences and

166 PRIVATE SECURITY AND THE LAW

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FIGURE 4.10 Job Descriptions, Assignments, Promotions, and Transfers Audit Form.

(Continued)

Chapter 4 • Civil Liability of Security Personnel 167

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FIGURE 4.10—Cont’dNemeth, 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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occupational roles of private security and the obligations of private policing fall under

42 U.S.C. }1983? “As governments increasingly delegate traditional public functions to private, for-profit entities, . . . 42 U.S.C. }1983 has the potential to play an important role in encouraging private entities to respect constitutional rights when they take on public

duties.”224 However, the historic exemption as limitation as to private application, some

say, “undermines” the full protection of rights.225

Is a security guard who detains a suspected shoplifter, and who is exercising authority

granted by regulatory bodies and licensure agencies and is empowered and protected

by legislation such as a merchant’s privilege statute, acting under the color of state law?

Although some claimants have persuaded courts in the affirmative that private police

action may be under the color of state law,226 these decisions are rare.227 “Moreover, some

courts have dismissed }1983 actions based on arguments and facts virtually indistinguish- able from those previously asserted with success by other 1983 plaintiffs in the same

court. Thus, neither plaintiffs nor defendants can predict the character and extent of state

involvement necessary to establish the Section 1983 liability of private police officers.”228

FIGURE 4.10—Cont’d

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State Regulations as Providing Color of State Law

State regulation in the security industry has been amply documented.229 The National

Advisory Committee’s Report of the Task Force on Private Security recommends imple-

mentation of a state board system as shown in Figure 4.11.230

Administration

Private Security Regulatory Board

State Vocational School Agency/Board

State Public Law Enforcement Training

Agency/Board

State Higher Education Agency/Board

UniversitiesColleges Law Enforcement Training Schools

Area Vocational Schools

Proprietary Schools

Responsibilities of Administration:

Responsibilities of Coordination: Coordinate Training Activities to Maximize Physical and Personnel Resources for Private Security Training

Provide Guidance to the Private Security Regulatory Board to Fulfill Responsibilities Assigned to Board

Provide Physical Resources

Provide Personnel Resources for

— Basic Training

— Firearms Training

— Supervisory and Management Training

— Ongoing Training

Responsibilities of Delivery:

Accredit Schools

Approve Training Curricula

Certify Instructors

Company Training

Program for Employees

Coordination

Delivery

FIGURE 4.11 Recommended State Board System.

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State involvement, such as licensure, which sets certain educational requirements,

reviews past personal history and criminal records, and regulates by an administrative

process is a definite governmental regimen. For a further demonstration of a clear state

involvement, review Figure 4.12.231

This heightened call for quality control and the maximization of standards is largely

the result of the security industry’s own inability to regulate itself. Dr. Milton Cox, in his

article “Guards on Guard Training,” calls for a “city or preferably a state regulatory

agency to be appointed. This agency should have the authority and responsibility to for-

mulate private security training standards, accredit training schools, approve training

curricula, certify instructors for the private security industry, and enforce established

standards for private security personnel.”232 If this is so, an act of regulation by public

authorities may be a suitable private application to }1983. In Douglass Moore v. Detroit Entertainment, LLC,233 the court was receptive to the color of state law rationale when

finding for plaintiffs in a series of intentional tort and 1983 actions. The court found

FIGURE 4.12 State Regulatory Board Standards.

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far too much by way of public authority in this case and concluded that the security offi-

cer “possessed the power to arrest the plaintiff on casino premises for his alleged

assault”;234 was a licensed entity and exercised powers traditionally reserved to the

states.235 The dissenting opinion displays an unusual foreboding and frustration about

the majority holding:

The fact that a private person has the power to arrest does not transform the person

into a state actor. Rather, it would be the exercise of that power that would create

the state action. That is why the presence of state action is fact specific . . . deter-

mined on a case-by-case basis. It takes very little imagination to envision the havoc

that would result from the application of the majority’s holding. . . . Thousands of

everyday private actions would be distorted into state action for which plaintiffs

will seek monetary remedies from taxpayer funds and overwhelm our already bur-

dened courts.236

The Public Function Theory As pointed out earlier, many of the occupational tasks of private security parallel or

mimic public police functions. By analogy, the Supreme Court has held that certain

seemingly private activities may be better characterized as quasi-public functions. Char-

acteristic examples include the determination that a company town is really a munici-

pality237 or that the majority of services and operational qualities of a private park and

shopping center serve the public sector more than the private interests.238 Under the

public function theory, the private entity has many public attributes, such as being open

to the public and having public facilities or public restrooms despite its acclaimed pri-

vate nature.239 If segregated private clubs are subject to public control and thus charac-

terized “public,” if parks and entertainment facilities are public because they are open to

the general public, and if publicly utilized shopping places are forced to grant free

speech rights, it is hardly farfetched, by both analogy and implication, to apply constitu-

tional rights to private sector justice. The argument has been posed relative to state uni-

versities.240 This position is urged by proponents of federal expansionism. “The police

function, then, with its special powers and privilege is a discretionary monopoly of gov-

ernment, the employment of which is particularly subject to the limitations imposed on

government by the Constitution.”241 This is exactly the challenge made by People v.

Zelinski, 242

a California decision imposing constitutional protections on private security

operatives. Put another way, a public act prompts public scrutiny. On another front, the

decision of Maryland v. Collins,243 from Maryland’s Court of Appeals exhibits sympathy

for this argument in the matter of bail agents and private bondsman. But such a conclu-

sion is a rarity even when public and private police work side by side. In Crenshaw v.

Rivera,244 an Illinois appeals court was unwilling to extend remedies under 42 U.S.C.} 1983 to private security officers while it was perfectly willing to allow that remedy to be

applied against the public officers. The court held that while city of Chicago police were

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liable, the security office for Citizens Financial Bank lacked the public arrest powers to act

under the color of state law. The court concluded that “[i]mposing liability on a defendant

that has no control over the alleged wrong is an untenable position for the Court to

endorse.”245

The Nexus Theory Admittedly a nebulous standard, the nexus theory was borne in the confusion of the

public function analysis. In discerning the nexus theory, analysts and advocates look

for evidence manifesting state interest, state support, or state solicitation in an improper

activity. The court interprets the relationship as being “symbiotic.”246 The theory seeks

to connect private action to a public model because that private action is so entangled

with the public sector. The benchmark ruling under the nexus theory is Burton v. The

Wilmington Parking Authority.247 A parking authority owned by private interests serves

a public function—namely, providing parking facilities to individuals and businesses.

In this case, the parking authority’s policies and procedures discriminated against mino-

rities. The burden of proof in the nexus argument rests on the plaintiffs’ ability to show

sufficient “points of contact between the governmental entity and the action of the

defendant.”248 The nexus theory of state action does not require a }1983 claimant to convince the court that the defendant’s conduct traditionally was performed by the state

or other governmental authority, only that the state licensed or sponsored the action. In

this case, the parking authority was made possible by governmental approvals and

bonding mechanisms. The state need not be involved at all in the improper activity. In

the case of a parking authority, a sufficient nexus was shown. At no place is this argu-

ment as aggressively made as in the Blackwater setting—where private agents act in var-

ious military capacities.249

Security employees of private parcel carriers are frequently claimed de facto agents of

the government. In U.S. v. Koenig,250 a Federal Express carrier discovered a suspicious

package, opened it, and discovered drugs later identified as cocaine. The Drug Enforce-

ment Administration (DEA) instructed Federal Express to deliver the package to its

labeled location. The DEA then obtained a search warrant to seize the box at the delivery

location. In rejecting a sufficient nexus between the public and private sector, the court

remarked:

We affirm the district court’s finding that Koenig failed to prove the conditions she

concedes are necessary to convert the actions of a private employee into an action of

a governmental agent: Although the DEA may have known of Federal Express’s

security search policy, it is clear that Federal Express acted for its own private, busi-

ness purposes. We note, however, that the factors Koenig identified are not indepen-

dently sufficient to convert a private search into a governmental search. The effect

such a transformation, a defendant must prove some exercise of governmental

power over the private entity, such that the private entity may be said to have acted

on behalf of the government rather than for its own, private purposes.251

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Similarly, in State v. Jensen,252 an Oregon Court of Appeals resolved this flawed

contention:

On April 2, 1986, defendant was observed entering a fitting room in the store’s ready

to wear department by two security agents. The door to the fitting room had slats,

through which one agent watched defendant remove her own pants, try on a pair

of the store’s pants, remove those, fold them and place them in the diaper bag. Both

agents then followed defendant and her companion out of the store, where they

detained defendant and took the merchandise from her companion. Defendant

was thereupon released and arrested later at the store’s request.253

Defense efforts to extend traditional constitutional protections were summarily

dispensed:

It is axiomatic that the provision is a limit on government authority of private persons

acting on their behalf.254 However, the provision does apply when private persons act

at the behest of the state or under the mantel of its authority.255 The determinative

factor is “the extent of the official involvement in the total enterprise.” 256,257

Continuing this line of reasoning is Tin Man Lee v. State of Texas,258 where a “patted

down” defendant objected to the fruits of a negligent security guard. The Texas Court

of Appeals, relying on Burdeau, maintains the precedent:

Appellant’s argument refers only to provisions of the law that restrict searches

and seizures by police officers or other governmental officials. In the instant case,

Torres was not a police officer; he was employed as a private security guard for

the Fantasia Club. Therefore, under the circumstances presented, the officers in this

case were justified in conduction the search of appellant.259

A plaintiff employing the nexus theory, however, must reveal to the court evidence of

state support of the wrongful conduct. Some specific examples of sufficient points of

contact or other evidence manifesting a sufficient tie between the state and the illegal

activity include these factors:

• A joint venture

• Cooperation in the activity

• An alliance in policy and planning

• Tacit encouragement

• An act in concert or conspiracy with the illegal activity

• The existence of a certificate of authority, state license, or other charter

• The encouragement argument

• The authorization and approval argument

• A grant of power

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Advocates who urged the applicability of }1983 to private policing pose as further argument recent studies that find a melding of private and public police concerns.260

Both scholarly and practitioner argument is uniform on this score, urging less competi-

tion between public and private interests and, instead, a sharing of resources, skills, and

capacities.

At the international level, there has been much criticism of the private sector for

its avoidance of human rights treaties and other binding oversight documents. The

criticism, as noted at various places in this text, has been particularly acute when dis-

cussing Bosnia, Iraq, and Afghanistan. The perception, rightful or not, has been that

the member UN nations bypass human rights controls when using nongovernmental

authority in police actions, such as private sector police instead of public representatives

of a designated government.

n n n

To counter this ongoing criticism, various private security agencies and firms are being asked

to be signatories to a Code of Conduct. Visit http://www.news.admin.ch/NSBSubscriber/

message/attachments/21143.pdf.

n n n

The Police Moonlighter: A Merging of Public and Private Functions Many occupational activities in private security and public law enforcement blur their

once-distinct lines. Examples include a private security officer who has been granted a

special commission license or privilege by the state to perform clearly delineated activ-

ities. Certain jurisdictions designate individuals as “special policeman” or use other ter-

minology to grant private security personnel public arrest privileges and rights. 261

This

type of state involvement may meet the burden of 42 U.S.C. }1983’s color of state law standard. The fundamental premise behind the legislation is that the claimant must

amply demonstrate an affirmative link between the private officer’s conduct and the

state or other governmental authority that involves itself directly or indirectly in the

conduct.262

A classic merger of public and private interest occurs when public police officers

moonlight within the security industry.263 The Hallcrest Report II sees significant dual

occupational roles in the private sector:

These surveys revealed that 81% of the law enforcement administrators indicated

that their department’s regulations permit officers to moonlight in private security,

while 19% prohibited or severely restricted private security moonlighting. Law

enforcement administrators estimated that about 20% of their personnel have reg-

ular outside security employment to supplement their police salaries. Nationally,

the Hallcrest researchers estimated that at least 150,000 local enforcement officers

in the U.S. are regularly engaged in off-duty employment in private security. The

three most common methods of obtaining off-duty officers for security work, in

rank order, are: (1) the officer is hired and paid directly by the business, (2) the

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department contracts with the business firm, invoices for the officer’s off-duty work,

and pays the officer, and (3) off-duty security work is coordinated through a police

union or association.264

n n n

So common is moonlighting that the Fraternal Order of Police now offers liability coverage for

public police officers engaged in this dual role. Visit http://www.foplegal.com/files/

Moonlighting_Fillable_Application2.pdf.

n n n

The confusion of roles and functions often gives rise to ethical conundrums. What

was once clear is a bit gray. Evaluate how moonlighting impacts ethical decision-making

in the following questions:

1. Who is liable for a tortfeasor’s behavior if the individual is off duty from public

policing and working in a private security interest? How does the answer gel with a

jurisdiction that requires police to be on call 24 hours per day?

2. What influence does moonlighting have on the efficacy and productivity of police

officers?

3. What potential conflict of interest exists?

4. Should an arrest, search, or seizure by a private security officer, working part-time

while maintaining full-time public police employment, adhere to the rigorous

standards of the Fourth, Fifth, and Fourteenth amendments of the U.S. Constitution?

5. Which standard of constitutional protection should be accorded an appellant in a

criminal case who has been victimized by a law enforcement person with both

private and public connections?

6. How many hours per week should a publicly employed law enforcement officer be

permitted to work in the private security industry?

7. Should a publicly employed police officer be permitted to operate as a private

investigator, unrestrained by traditional constitutional protections granted in the

public sector?

Others have argued that moonlighting suffers from inherent conflicts and is saddled

with legal liability problems.265

Another factor courts weigh is the extent of the economic relationship. Is there a con-

tract for private services? Does the proprietor want public officers to act privately or

publicly? In Otani v. City and County of Hawaii,266 the federal district court evaluated

the question this way:

Plaintiff is correct in his assertion that “[a] private party may be liable under }1983 if he was a willful participant in joint action with state agents.”267 However, “[a]

claim of conspiracy or action in concert requires the allegation of ‘facts showing

particularly what a defendant or defendants did to carry the conspiracy into effect,

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whether such acts fit within the framework of the conspiracy alleged, and whether

such acts, in the ordinary course of events, would proximately cause injury to the

plaintiff.’”268

As the court explained, “it is possible that [the officer’s] actions could have caused

Plaintiff to be subjected to a deprivation of her civil rights while Safeway’s actions did

not; the Court merely holds that, whatever Safeway did, it did under color of state

law.”269 To hold Safeway liable for the officer’s actions, the plaintiff had to produce some

evidence that Safeway “caused her to be subjected to a deprivation of her constitutional

rights through its hiring and training policies, or the lack thereof.”270 A court is rightfully

satisfied when the contract calls for the hiring of a public police officer to direct traffic at

a construction site as a sufficient economic relationship.271

The inherent complexities moonlighting, from both an economic and legal point of

view, make rock hard rules concerning entanglement difficult to come by. Some cases

are easier than others. However, suspects of criminal behavior may be offered a menu

of potential causes of action against an officer who is both publicly and privately

employed. In Faust v. Mendoza,272 a police officer was caught in an ethical dilemma

representing two employers. The facts consisted of the following:

At 10 PM on February 9, 1975 during Mardi Gras celebration in the French Quarter

of New Orleans, Louisiana, a couple who had been enjoying the festivities and

drinking all day stopped at the ice cream parlor in the Royal Sonesta Hotel. Appar-

ently the man, John Faust, rested his head on the parlor’s counter and ignored

requests that he move. At this point, Officer John Mendoza entered to wait the

45 minutes until 11 PM when he was to begin work as a security guard for the par-

lor. He was to work until 3 AM in his police uniform at the parlor after completing

11 AM to 11 PM shift on police assignment controlling crowds around the Mardi

Gras parades. After Mendoza approached Faust, testimony on what followed con-

flicts greatly. Although particular details are unclear, it appears that Mendoza

struck both Faust and his female companion . . . Ingrid Pillar, with a billyclub,

smashed the ice cream parlor window (either accidentally or by throwing him

against it) and arrested Faust and Pillar for assault upon a police officer.273

The court held the police officer accountable. When these dual roles coalesce, some

courts suspect a public law enforcement officer’s intentional bypass of the more

demanding public standards. In Bauman v. State of Indiana,274 the court grappled with

a suspect’s right to Miranda warnings before a security officer could custodially interro-

gate. That security guard also happened to be an off-duty police officer. In affirming the

convictions, the court did not accept the argument that Miranda rights were necessary

because of the guard’s public police officer status. The court was perfectly satisfied with

the differentiation of occupational roles, holding that the security guard “was not acting

in his capacity as a police officer at the time, but rather in his capacity as a private

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citizen security officer.”275 In Leach v. Penn-Mar Merchants Assoc.,276 a county police

officer, simultaneously employed as a security guard, made while on security duty an

arrest at a traffic accident. The court construed his traffic altercation to be a public

police function distinguishable from his security work. Other cases dealing with the dif-

ferentiation of authority and the public/private status of law enforcement include the

City of Grand Rapids v. Frederick Impens277 and Cinestate Inc. v. Robert T. Farrell,

Administrator.278

Summary The chapter’s main thrust involved the law of intentional torts, negligence, strict liability

torts and civil rights, remedies, and damages. Specific causes of action were covered:

• Assault

• Battery

• False Imprisonment

• Infliction of emotional or mental distress

• Malicious prosecution

• Defamation

• Invasion of privacy

• Negligence

• Negligence and security management

• Strict liability torts

Other areas of interest dealt with vicarious inability, nondelegable duty, and the civil

remedies provided by 42 U.S.C. }1983. Also relevant to this discussion is the continual interplay between private and public security functions. In some respects, the distinc-

tions presently drawn between private and public policing are academic. As increased

funding and resources are placed in the private sector, there is a strong likelihood of

increased regulatory oversight, causing heightened legal liabilities on the part of security

personnel, agencies, and companies.

CASE EXAMPLES

False Imprisonment—Pamela Sue Peak, by her father, Francis Wilber

Peak v. W.T. Grant Company, 386 S.W. 685

Facts A security officer saw a female customer acting suspiciously and holding tightly to a

purse. Another officer grabbed hold of her arm. The customer continued to scream and the

officer reacted by covering her mouth. He dragged her by the arm across the store to a big safe

located near the stairway to the basement offices. According to one witness, the officer was

slapping her and knocking her into several counters as he dragged her along toward the

basement steps. Until this time neither of the officers had identified themselves. They were not

in any type of uniform. The officers had detained the wrong person.

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CASE EXAMPLES—Cont’d

Would the security company and its employees be liable for the false imprisonment?

Answer When an employee of a corporation is authorized to arrest and detain shoplifters, and

in endeavoring to do so mistakenly arrests and detains an innocent person, the security

corporation is liable for false imprisonment.

Malicious Prosecution—Arnold v. Eckerd Drugs of Georgia, Inc., 358 S.E.2d 632

(Ga. App. 1987)

Facts After making purchases in a drugstore, Mrs. Arnold attempted to leave the premises. The

store had posted notice of its utilization of an anti-shoplifting device. As she approached the

anti-shoplifting device, the alarm sounded. Mrs. Arnold claimed she had mistakenly put a pen

in her pocket and had then forgotten to pay for it. The store manager had observed the

appellant’s behavior after the anti-shoplifting alarm had sounded. Mrs. Arnold was arrested and

charged with shoplifting, notwithstanding her after-the-fact explanation that she had simply

forgotten about the pen. After a jury acquitted Mrs. Arnold of shoplifting, she brought a civil

action for malicious prosecution.

Does probable cause negate a claim for malicious prosecution?

Answer If there was probable cause to believe that Mrs. Arnold was shoplifting, the drugstore

cannot be held civilly liable for requiring that a jury in a criminal proceeding determine the

credibility of her explanation.

Premises Security—Opal Frederick, v. TPG Hospitality, Inc., et al., 56 F. Supp. 2d 76

(United States District Court for the District of Columbia 1999)

Facts On October 21, 1994, Mr. John Frederick and his wife Opal were visiting Washington, D.C., and

they checked in to the EconoLodge on New York Avenue for the night. In the very early morning

hours of October 22, 1994, Mr. Frederick passed through the lobby on his way out to the garage. He

spoke with the security guard on duty, Mr. Henry Gilmore, who was sitting in the lobby. Mr. Frederick

then proceeded outside to the garage. When he got to his car, there was a light shining from

underneath the car, and when he bent down to look under the car he was struck in the face and

robbed. Mr. Frederick suffered massive facial trauma from the attack and recently has passed away.

Plaintiffs have provided evidence that two elderly patrons of the EconoLodge were attacked

in the EconoLodge garage approximately six months before Mr. Frederick was attacked. The

plaintiffs contend that the EconoLodge is located in a high-crime area and that a number of

other attacks had taken place in the vicinity in the months prior to the attack on Mr. Frederick.

Finally, it is established that the guards worked long shifts at the hotel; on the morning Mr.

Frederick was attacked, Mr. Gilmore was nearing the end of a 14-hour shift.

Was the hotel negligent?

Answer No. All plaintiff’s arguments were dismissed.

Vicarious Liability—Shaffer v. Wells Fargo Guard Services, etc. (1988 Fla. App. D3), 528 So. 2d

389, 13 FLW 562

Facts A guard service company was hired to protect bank assets and assist in transportation.

The security firm’s contract lists explicitly this obligation. What if a bank employee was injured

by third-party conduct? Under what theory would the case succeed or fail? Would the security

firm be liable?

(Continued)

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Discussion Questions 1. Compare and contrast the nature of a civil wrong with a criminal act.

2. Which type of tort category would the private security industry most often come in

contact with?

3. In a jurisdiction with a merchant privilege protection, what would be the defense in a

false imprisonment or false arrest case?

CASE EXAMPLES—Cont’d

Answer No, since it could not be fairly said that the guard service company contemplated

protecting bank employees from hazards totally unconnected to activities or the business of the

bank.

Negligence and Foreseeability—Rosabel Brown v. J.C. Penney Company, Inc.,

667 P.2d. 1047 (1983)

Facts Plaintiff and her husband, while shopping at a mall, were seriously accosted by assailants

in the parking lot. The plaintiffs attempted to show that their injuries should have been

foreseen in this particular public parking. They did so by producing a computer printout from

the local police department that listed the criminal incidence rate. Plaintiff sued shopping

center on a theory of negligence.

Issue Should defendants reasonably have anticipated that careless or criminal conduct on the

part of third persons would likely endanger the safety of business invitees?

Negligence and the Environment—Ruth Nicoletti v. Westcor, Incorporated,

639 P.2d. 330 (1982)

Facts Plaintiff was employed by a department store that required all employees to park at a

temporary facility during the holiday season. As a result of this parking location, plaintiff and

some other employees chose to take another direct route to the special parking lot. This

shortcut took plaintiff through a highly shrubbed area, causing her to become tangled and to

severely injure herself.

Issue Could defendant company have foreseen these injuries?

State Action Theory—Nicole Anderson v. Randall Park Mall Corporation,

571 F. Supp. 1173 (1983)

Facts Ayoung woman attending a movie with friends at a mall was asked by security guards to quit

speaking too loudly. As a result of a continuing disturbance, this young woman was among many

others asked by security guards to leave the shopping mall. She was told that the mall was private

property, that she was loitering, and that she would be arrested if she refused. Her refusal to leave

the mall resulted in an arrest where she spent a short period of time in custody before being

released. As a result of this 15-minute detention, she sued the Randall Park Mall Corporation on a

claim that her civil rights were violated by its employees, the private security guards.

Issue Are a private citizen’s civil rights violated when deprived of a right to remain in a

shopping mall? Does this fact pattern qualify for an action under 42 U.S.C. }1983?

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4. What causes of action must employers be concerned about in hiring, retaining,

disciplining, and terminating personnel?

5. Businesses often feel that the hiring of security companies as independent

contractors will shield them from potential liability. Is this belief generally

dependable?

6. Name the types of remedies that exist under 42 U.S.C. }1983. 7. Does moonlighting give greater strength to a plaintiff’s or claimant’s argument that

civil rights have been violated under 42 U.S.C. }1983? Explain.

Notes 1. Elizabeth E. Joh, The Paradox of Private Policing, 95 J. Crim. L. & Criminology 49-50 (2004).

2. James S. Kakalik & Sorrel Wildhorn, The Private Police Industry: Its Nature and Extent (1972).

3. William C. Cunningham & Todd H. Taylor, The Hallcrest Report, Private Security and Police in America 4 (1985).

4. Industry Output and Employment Projections to 2018, Monthly Labor Rev., Nov. 2009, at Table 2.7, available at http://www.bls.gov/emp/ep_table_207.htm; see also William C. Cunningham, John J. Strauchs, & Clifford W. VanMeter, Private Security Trends 1970 to 2000: The Hallcrest Report II 237 (1990).

5. Note, Security Indicators, 28 Sec. 10 (1991); see also Elevating the Practice of Strategic Risk Management (2010) available at http://marsh-africa.com/documents/MarshExcellenceinRisk ManagementReport_April2010.pdf.

6. Cunningham, et al., supra note 4, at 34-35.

7. Id. at 37-38.

8. Charles P. Nemeth, Private Security and the Investigative Process 1 (3rd ed. 2010).

9. Cunningham, et al., supra note 4, at 233.

10. Morgan O. Reynolds, Using the Private Sector to Deter Crime—NCPA Policy Report No. 181, at Exec- utive Summary (National Center for Policy Analysis, 1994) at http://www.ncpa.org/pdfs/st181.pdf, visited Aug. 27, 2009; see also Nemeth, supra note 8, at Ch. 1.

11. Chamberlain, Understanding Your Exposure to Liability Increases Your Chance of Avoiding Liti- gation, 20 Sec. World 26 (1983); see also Victor E. Kappeler, Critical Issues in Police Civil Liability Ch. 1 (2001); Victor E. Kappeler, Police Civil Liability: Supreme Court Cases and Materials Ch. 1 (2002).

12. W. O. Dyer, D. S. Murrell, & D. Wright, Training for Hospital Security: An Alternative to Training Neg- ligence Lawsuits, in Violence in the Medical Care Setting, A Survival Guide 1 (James T. Turner, ed., 1984); see also Kappeler, Critical Issues, supra note 11, at Ch. 1 (2001); Kappeler, Supreme Court Cases, supra note 11, at Ch. 1.

13. Dennis Walters, Training—The Key to Avoiding Liability, 29 Sec. Mgmt. 79 (1985); see generally D. Carter & A. Sapp, Higher Education as a Policy Alternative to Reduce Police Liability, 2 Police Liability Review 1-3 (1990); H. E. Barrineau, Civil Liability in Criminal Justice (2nd ed. 1994).

14. For a pre-liability assessment tool, visit Triton Global Services Website at http://tritonglobalservices .com.

15. Stephen C. George, Playing the Liability Game 29 Sec. 56 (1992); see generally E. J. LittleJohn, Civil Liability and the Police Officer: The Need for New Deterrents to Police Misconduct 58 Univ. Detroit Urban L. 365-370 (1976); D. L. Ross, Emerging Trends in Police Failure to Train Liability 23 Policing: Internat’l J. Police Strategies & Mgmt. 169-193 (2000).

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16. Keenoy v. Sears Roebuck & Zeis, 642 S.W.2d 665 (Mo. App. E.D. 1982).

17. In fact, this case resulted in a $75,000.00 damage award given to the accosted customer at a large department store.

18. Arthur J. Bilek, John C. Klotter, & R. Keegan Federal, Legal Aspects of Private Security 158 (1980); see also Barrineau, supra note 13.

19. For an overview of the distinctions between crimes and torts, see the Cornell University Legal Information Institute comparison at http://topics.law.cornell.edu/wex/tort.

20. William P. Statsky, Torts: Personal Injury Litigation 1 (1982).

21. Bilek, et al., supra note 18, at 158; see also Barrineau, supra note 13.

22. See generally Roger T. Weitkamp, Crimes and Offenses, 16 Ga. St. U. L. Rev. 72, 73 (1999); Gloria F. Taft & Valeree R. Gordon, Criminal Law (Legislative Survey—North Carolina), 21 Campbell L. Rev. 353, 353 (1999).

23. Wayne Saiat, The Need for Security and the Limits of Liability, 19 Sec. World 23 (1982); see also Barrineau, supra note 13.

24. See generally R. Keegan Federal & J. Jennifer L. Fogleman, Avoiding Liability in Retail Security: A Casebook (1986); Kappeler, Supreme Court Cases, supra note 11.

25. William L. Prosser, Handbook of the Law of Torts (1971); see generally Barrineau, supra note 13; Federal & Fogleman, supra note 24; Kappeler, Supreme Court Cases, supra note 11.

26. Bilek, et al., supra note 18, at 158; Barrineau, supra note 13; John E. Douglas, Crime Classification Manual (1997).

27. Charles Friend, Police Rights: Civil Remedies for Law Enforcement Officers 93 (1979); Ross, supra note 15; Will Aitchison, The Rights of Law Enforcement Officers, (4th ed. 2000).

28. Safeway Stores v. Kelly, 448 A.2d 856, 858 (D.C. 1982).

29. Id. at 864; see also Note, Tort Liability for Threatening or Insulting Words, 54 Canad. B.J. 563 (1976).

30. 187 F. Supp. 2d 9 (D. Conn. 2002).

31. Charles Sennewald, Trends in Retail Security, 30 Sec. 57 (1993); John E. Douglas, Crime Classifica- tion Manual (1997).

32. Friend, supra note 27, at 94 (1979); Barrineau, supra note 13; Will Aitchison, supra note 27.

33. See generally Keane v. Main, 76 A. 269 (Conn. 1910); J. Terry Griffith, Respondent Superior and the Intentional Tort: A Short Discourse on How to Make Assault and Battery a Part of the Job, 45 U. Cin. L. Rev. 235 (1976); see also General Motors Corp. v. Piskor, 340 A.2d 767 (Md. App. 1975).

34. Friend, supra note 27, at 94; see also Kappeler, Supreme Court Cases, supra note 11; Kappeler, Crit- ical Issues, supra note 11.

35. Threlkeld v. White Castle Systems, 201 F. Supp. 2d 834 (N.D. Ill. 2002).

36. U.S. Shoe v. Jones et al., 255 S.E.2d 73 (Ga. App. 1979).

37. Ga. Code Ann. }51-7-60 (2010). See also Walker v. May Department Stores, 83 F. Supp. 2d 525 (E.D. Pa. 2000).

38. Curtis Baillie, How litigation shapes retailers’ security and loss prevention strategies Security Technology Executive, Mar. 19, 2010, at http://www.securityinfowatch.com/Features/how- litigation-shapes-retailers-security-and-loss-prevention-strategies.

39. 18 Pa. Cons. Stat. }3929 (2009).

40. See Westview Cemetery v. Blanchard, 216 S.E.2d 776 (Ga. 1975); Standard Oil v. Mt. Bethel Church, 196 S.E.2d 869 (Ga. 1973).

41. 297 N.W.2d 74 (Wis. App. 1980); see also Dawson v. Payless Shoes, Inc., 598 S.W.2d 83 (Ark. 1980).

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42. Americans for Effective Law Enforcement, Inc. 102 Liability Reporter 9-10 (1981).

43. 433 N.E.2d 1005 (Ill. App. 1982).

44. Id.

45. Hampton v. Dillard Dept. Stores, 247 F.3d 1091 (10th Cir. 2001).

46. Robinson, 433 N.E.2d at 1005.

47. Id. at 1009.

48. Katz v. U.S., 194 F.3d 962, 967 (9th Cir. 1999); see also as to qualified immunity, Corcoran v. Fletcher, 160 F. Supp. 2d 1085, 1089 (C.D. Ca. 2001).

49. Civil Action No. 00-CV-1331, 2000 U.S. Dist. LEXIS 13248 (E.D. Pa. 2000).

50. Id.

51. Wal-Mart Stores, Inc. v. Yarborough, 681 S.W.2d 359 (Ark. 1984).

52. Daley v. Wanamaker, Inc., 464 A.2d 355 (Pa. Super. 1983).

53. Landry v. Schwegmann, 416 So. 2d 341 (La. App. 4 Cir. 1982); see also Cobb v. Standard Drug Co. Inc., 453 A.2d 110 (D.C. 1982).

54. James Cleary, Prosecuting the Shoplifter, A Loss Prevention Strategy 215 (1986).

55. Leo F. Hannon, Whose Rights Prevail?, 27 Sec. Mgmt. 27, 35 (1983).

56. John Francis, The Complete Security Officer’s Manual and Career Guide 8 (1992).

57. Peak v. W. T. Grant Co., 386 S.W.2d 685, 689 (Mo. App. 1965).

58. See Charles P. Nemeth, Psychological Injuries: Civil Remedies for Police Officers, Police J. (1983); Douglas, supra note 31; Kappeler, Supreme Court Cases, supra note 11.

59. See generally Prosser, supra note 25, at }12 at 52.

60. See generally Restatement of Torts }46 (1965).

61. Statsky, supra note 20, at 510; Douglas, supra note 31; Kappeler, Supreme Court Cases, supra note 11.

62. Yeager v. Local Union 20, 453 N.E.2d 666, 671 (Oh. 1983) quoting Res. 2d of Torts }46, cmt. D (1965).

63. Neuens v. City of Columbus, 169 F. Supp. 2d 780, 790 (S.D. Oh. 2001).

64. Bilek, et al., supra note 18, at 161.

65. 660 S.W.2d 619 (Tex. App. 13 Dist. 1983).

66. Federal & Fogleman, supra note 24, at 98; Kappeler, Supreme Court Cases, supra note 11.

67. Robert L. Conason, Paul M. Deutsch & Frederick A. Raffa, Intentional Infliction of Emotional Dis- tress, in Damages in Tort Actions (2010).

68. See Adams v. Williams, 407 U.S. 143 (1972) (an excellent discussion of probable cause). For an excellent analysis and overview of this tort, see Attorney Tim Rabel’s well-reasoned analysis at http://www.querrey.com/assets/attachments/216.pdf.

69. See Van Hull v. Marriott Courtyard, 87 F. Supp. 2d 771 (N.D. Oh. 2000).

70. 430 So. 2d 843 (Miss. 1982); Damages for Injury to Feelings in Malicious Prosecution and Abuse of Process, 15 Clev. L. Rev. 15 (1966).

71. 358 S.E.2d 632 (Ga. App. 1987).

72. Id. at 634.

73. 245 F. Supp. 2d 1203 (D.N.M. 2002).

74. Morris v. Dillard Dept. Stores, 277 F.3d 743 (5th Cir. 2001).

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75. Statsky, supra note 20, at 540.

76. Friend, supra note 27, at 149; Will Aitchinson, supra note 27.

77. For an interesting look at how defamation is now possible by online or Internet publication, see E. Casey Lide, ADR and Cyberspace: The Role of Alternative Dispute Resolution in Online Commerce, Intellectual Property and Defamation, 12 Ohio St. J. Disp. Resol. 193 (1996-1997).

78. Charles Friend, Police Rights: Civil Remedies for Law Enforcement Officers 150 (1979); Will Aitch- inson, The Rights of Law Enforcement Officers (4th ed. 2000).

79. Michaelson v. Minnesota Mining & Mfg. Co., 474 N.W.2d 174, 181 (Minn. App. 1991).

80. 107 F. Supp. 2d 333 (S.D.N.Y. 2000).

81. Id. at 337.

82. David Dishneau, Kmart Case Tests Limits of Corporate Spying, Trib. Rev., Jan. 9, 1994 at H7.

83. Id.

84. Greg Trout, Invasion of Privacy: New Guidelines for the Public Disclosure Tort, 6 Cap. U. L. Rev. 95 (1976); Aitchinson, supra note 27.

85. Robert R. Belair, Awareness of Privacy Rules Is Crucial for Security Pros, 23 Sec. Mgmt. 14 (1979).

86. Id. at 19.

87. 13 A.L.R.3d 1025, Investigations and Surveillance, Shadowing and Trailing, as a Violation of Right and Privacy.

88. Id. at 1026; see also Pinkerton v. Steven, 132 S.E.2d 119 (Ga. App. 1963); Schulz v. Frankfort, 139 N.W. 386 (Wis. 1913); see contra Tucker v. American Employers Ins. Co., 171 So. 2d 437 (Fla. App. 1965); Forster v. Manchester, 189 A.2d 147 (Pa. 1963).

89. 13 A.L.R., supra note 87, at 1027.

90. Rebecca D. Russell, Substance Abuse Police Takes Hold, Gains Acceptance, 28 Sec. 49 (1991).

91. Note, Partnership Offers Site Drug Screening, 29 Sec. 51 (1992).

92. Bureau of Justice Statistics, Drugs and Crime Facts—Drug Use, at http://www.ojp.usdoj.gov/bjs/ dcf/du.htm.

93. Bureau of Justice Statistics, Drug Arrests by Age, at http://bjs.ojp.usdoj.gov/content/glance/drug.cfm; see also Federal Bureau of Investigation, Uniform Crime Report, Drug Arrests by Age, 1970-2007.

94. BJS, supra note 93; FBI, supra note 93.

95. BJA, supra note 92; see also the American Council on Drug Education’s foreboding analysis on the impact of drugs in the workplace at http://www.acde.org/employer/DAwork.htm.

96. Mason v. Williams Discount Center, 639 S.W.2d 836 (Mo. App. E.D. 1982).

97. Lewis v. Dayton Hudson Corp., 339 N.W.2d 857 (Mich. App. 1983).

98. K-Mart v. Trotti, 677 S.W.2d 632 (Tex. App. 1 Dist. 1984); see also Note, Uninvited Entry into Another’s Living Quarters as Invasion of Privacy, 16 Clev. Mar. L. Rev. 428 (1967).

99. For an excellent overview of reasonableness, see the Capsule provided by Lexis/Nexis at http:// www.lexisnexis.com/lawschool/study/outlines/html/torts/torts03.htm.

100. 443 S.E.2d 670 (Ga. App. 1994).

101. Id. at 672-673.

102. Note, Premises-Liability Suits Become Tougher for Business to Defend, Wall St. J., Sept. 1, 1993 at B1.

103. Kelly v. McDonald’s Restaurant, 417 So. 2d 556 (Miss. 1982).

104. Id. at 561.

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105. Brown v. J.C. Penney, 667 P.2d 1047 (Or. App. 1983).

106. Id. at 1049, quoting Restatement (Second) of Torts }344, comment f (1965); see also Tritch v. Bur- lington Northern, Inc., 458 N.W.2d 471 (Neb. 1981).

107. Mark B. Rosen, Limiting Liability, 20 Sec. World 47 (1983); see also Peters, Determining Liability: There Are No Hard and Fast Rules, 29 Sec. Mgmt. 44 (1984).

108. Fontaine v. Ryan, 849 F. Supp. 190 (S.D.N.Y. 1993).

109. Hunley v. DuPont, 174 F. Supp. 2d 602 (E.D. Mich. 2001).

110. Rosen, supra note 107, at 47.

111. Stephen R. Perry, Cost-Benefit Analysis and the Negligence Standard, 54 Vanderbilt L. Rev. 893 (2001).

112. Negligence & Foreseeability: Doctrine of Law or Public Policy (1999), at http://www.supremecourt .tas.gov.au/__data/assets/pdf_file/0003/53760/Negligence99.pdf.

113. Murros v. Daniels, 364 S.E.2d 392 (N.C. 1988).

114. 532 So. 2d 1348 (Fla. App. 1988).

115. Satchwell v. LaQuinta Motor Inn. Inc., 532 So. 2d 1348, 1350 (Fla. App. 1988).

116. 997 F. Supp. 611 (N.J. 1998).

117. Butler v. Acme Markets, Inc., 445 A.2d 1141, 1143 (N.J. 1982).

118. Goldberg v. Housing Auth. of the City of Newark, 186 A.2d 291, 293 (N.J. 1962) quoting Butler v. Acme Markets, Inc., 445 A.2d 1141, 1148 (N.J. 1982).

119. Abraham v. Raso, 997 F. Supp. 611, 613 (N.J. 1998).

120. 595 So. 2d 867 (Ala. 1992).

121. Id. at 871-872.

122. Taylor v. Centennial Bowl, Inc., 416 P.2d 793 (Cal. 1966).

123. Charles S. Parnell, Tort Liability of Owner or Operator of Public Parking Facility, 46 Am. Jur. Trials 17-18 (1993).

124. Id. at 29.

125. Id. at 51.

126. 863 P.2d 207 (Cal. 1993).

127. Junda Woo, Suing Crime-Scene Owner Is Made Harder, Wall St. J., Sept. 1, 1993 at B13.

128. 2008 NY Slip Op 51202U, 2008 N.Y. Misc. LEXIS 3517 (N.Y. Sup. Ct. 2008).

129. Id. at *6.

130. Mitsubishi paid 34 million in a sexual harassment case—the award partly was based on the negli- gent failure to have a published policy. Jennifer R. George, Put in a Policy or Pay the Price, Sec. Mgmt. Online (July 2001) at http://www.securitymanagement.com/library/001075.html.

131. Bilek, et al., supra note 18, at 164 (1980); Aitchison, supra note 27.

132. 587 N.E.2d 1241 (Ill. App. 2 Dist. 1979); see also Stein v. Burns International, 430 N.E.2d 334 (Ill. App. 1981).

133. Phoebe Carter, Employer’s Liability for Assault, Theft, or Similar Intentional Wrong Committed by Employee at Home or Business or Customer, 13 A.L.R.5th 217, 230.

134. Security Guard Company’s Liability for Negligent Hiring, Supervision, Retention or Assignment of Guard, 44 A.L.R. 4th 620; see also Association News, 19 Sec. World 69 (1982).

135. Dyer, Murrell & Wright, Training for Hospital Security: An Alternative to Training Negligence Law- suits, Violence in the Medical Care Setting, A Survival Guide 7 (James T. Turner, ed., 1984); see also Kirschenbaum, Security Companies Are Liable for Their Employees, 24 Sec. Mgmt 36 (1984).

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136. Dyer, et al., supra note 135, at 9.

137. Brenda Moss, Security Awareness at Work 28 Sec. 35 (1991).

138. Carter, supra note 133, at 231-232.

139. Nemeth, supra note 8, at 307.

140. Edward T. Guy, John J. Merrigan, Jr., & John A, Wanat, Forms for Safety and Security Management 34 (1981).

141. 33 N.Y.S. 849 (1895).

142. Security Guard Company’s Liability, supra note 134, at 629; Aitchison, supra note 27; Barrineau, supra note 13; V. E. Kappeler, S. F. Kappeler & R. V. del Carmen, A content analysis of Police Civil Liability Cases: Decisions of the Federal District Courts, 1978-1990 (1993).

143. Walters, supra note 13, at 80; Carter & Sapp, supra note 13, at 1-3; Ross, supra note 15, at 169-193; Jeff Maahs & Craig Hemmens, Train in Vain: A Statutory Analysis of Security Guard Training Requirements 22 Internat’l J. Comp. and Applied Crim. J. 91-101 (1998).

144. 182 F.3d 376 (5th Cir. 1999).

145. Id. at 378.

146. Saiat, supra note 23, at 23; Aitchison, supra note 27.

147. Saiat, supra note 23, at 24; Ross, supra note 15, at 169-193; Maahs & Hemmens, supra note 143, at 91-101.

148. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265 at fn. 10 (1975).

149. Walters, supra note 13, at 82; Ross, supra note 15, at 169-193; Maahs & Hemmens, supra note 143, at 91-101.

150. See Chapter 2.

151. Saiat, supra note 23, at 25; Ross, supra note 15, at 169–193; Jeff & Craig, supra note 143.

152. Note, Officer Liability Spurs Niche Training, 29 Sec. 69 (1992).

153. Wayne B. Hanewicz, New ASIS Program Guidelines—A Preview, J. Sec. Admin. & Pri. Police 37-46 (1978).

154. See generally Annotation, Liability of One Contracting for Private Police of Security Service for Acts of Personnel Supplied, 38 A.L.R.3d 1332; Annotation, Liability of Hiring Private Investigator or Detec- tive for Tortious Acts Committed in Course of Investigation, 75 A.L.R.3d 1175.

155. Ill. Rev. Stat. Ch. 11 }2622 (10).

156. Products Liability: Modern Cases Determining Whether Product Is Defectively Designed, 96 A.L.R.3d 22.

157. See generally Principal’s Liability for False Arrest or Imprisonment Caused by Agent or Servant, 92 A.L.R.2d 15; Brill, The Liability of an Employer for the Willful Torts of his Servants, 45 Chic.-Kent. L. Rev. 1 (1968); Liability of One Hiring Private Detective, 13 A.L.R.3d 1175.

158. Carter, supra note 133, at 229.

159. Hiring Private Detective, supra note, 157, at 1178.

160. Howard v. J.H. Harvey Co., Inc., 521 S.E.2d 691 (Ga. App. 1999).

161. John Chuvala, Boss on Board: Get Your CEO Involved, 28 Sec. 19 (1991).

162. Walters, supra note 13, at 80; see generally Ross, supra note 15, at 169-193: Maahs & Hemmens, supra note 143.

163. Walters, supra note 13, at 80; see generally Liability for Acts of Security Guards, 38 A.L.R.3d 1332; see also as to ratification: Dillon v. Sears-Roebuck Co., 235 N.W. 331 (Neb. 1934).

164. 496 So. 2d 246 (Fla. App. 1986).

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165. Carter, supra note 133, at 272.

166. Moorehead v. District of Columbia, 747 A.2d 138 (D.C. 2000).

167. Restatement 2d of Agency }220 (2) (1958).

168. 448 A.2d 856 (D.C. 1982).

169. Id. at 861.

170. 255 S.E.2d 73 (Ga. App. 1979).

171. 33 Cal. App. 3d 654 (1973).

172. Id. at 661; see also Greenbaum v. Brooks, 139 S.E.2d 432 (Ga. App. 1964).

173. John P. Figura, The 2008 Randolph W. Thrower Symposium: Legal Science: An Interdisciplinary Examination of the Use and Misuse of Science in the Law: Comment: You’re in the Army Now: Bor- rowed Servant, Dual Servants and Torts Committed by Contractors’ Employees in the Theaters of U. S. Military Operations, 58 Emory L. J 513 (2008); see also Office of the Inspector Gen., U.S. Dep’t of Def., Rep. No. D-2004-057, Acquisition: Contracts Awarded for the Coalition Provisional Authority by the Defense Contracting Command-Washington 15 (2004); U.S. Dep’t of Def., Instruction No. 3020.41, Contractor Personnel Authorized to Accompany the U.S. Armed Forces }6.3.3 (2005), avail- able at http:// www.dtic.mil/whs/directives/corres/pdf/302041p.pdf; Major Lisa L. Turner & Major Lynn G. Norton, Civilians at the Tip of the Spear, 51 A.F. L. Rev. 1, 37 (2001) (summarizing issues confronting civilian contractors in contingency operations but not addressing the borrowed ser- vant or dual servant doctrines); Major Karen L. Douglas, Contractors Accompanying the Force: Empowering Commanders with Emergency Change Authority, 55 A.F. L. Rev. 127, 135 (2004).

174. See Donald L. Doernberg, Sovereign Immunity or the Rule of Law 74 (2005) (quoting William Black- stone, Commentaries on the Laws of England 235 (1765)); United States v. Lee, 106 U.S. 196, 205 (1882); Erwin Chemerinsky, Federal Jurisdiction 610-611 (4th ed. 2003); Federal Tort Claims Act, 28 U.S.C. }}1346(b), 2671-2680 (2008); 28 U.S.C. }2680(j)(2008).

175. Andrew Finkelman, Suing the Hired Gun: An Analysis of Two Federal Defense to Tort Lawsuits Against Military Contractors, 34 Brook. J. Int’l L. 395, 426 (2009).

176. McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1336-1338 (11th Cir. 2007).

177. See Hornstein, Protecting Civilian Logisticians on the Battlefield, 38 Army Logistician 14 (2006); Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486, 1493 (C.D. Cal. 1993); Johnson v. United States, 170 F.2d 767, 770 (9th Cir. 1949); Chia Lehnardt, Private Military Companies and State Responsibil- ity, in From Mercenaries to Market: The Rise and Regulation of Private Military Companies 139, 147-148 (Simon Chesterman & Chia Lehnardt eds., 2007).

178. See Charles Tiefer, The Iraq Debacle: The Rise and Fall of Procurement-Aided Unilateralism as a Par- adigm of Foreign War, 29 U. Pa. J. Int’l L. 1, 13-19 (2007).

179. Matthew C. Dahl, Soldiers of Fortune: Holding Private Security Contractors Accountable: The Alien Tort Claims Act and its Potential Application to Abtan, et al. v. Blackwater and Training Center, Inc., et al., 37 Denv. J. Int’l L. & Pol’y 119, 120 (2008); E. L. Gaston, Note, Mercenarism 2.0? The Rise of the Modern Private Security Industry and its Implications for International Humanitarian Law Enforcement, 49 Harv. Int’l L.J. 221, 221, 234-35 (2008); Jeremy Scahill, Blackwater: The Rise of the World’s Most Powerful Mercenary Army xxi-xxii (2007).

180. See Griffin v. Pinkerton’s, Inc., 173 F.3d 661 (8th Cir. 1999); Philip Purpura, Security and Loss Pre- vention: An Introduction 79 (2008).

181. 233 So. 2d 847 (Fla. App. 1970).

182. Acts of Security Guards, supra note 154, at 1342; see also Principal’s Liability for False Arrest or Imprisonment Caused by Agent or Servant 92 A.L.R.2d 15.

183. Acts of Security Guards, supra note 154, at 1342.

184. 188 S.E.2d 911 (Ga. App. 1972).

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185. 400 So. 2d 1148 (La. App. 1981).

186. Id.

187. 29 A.L.R.4th 144; see also Peachtree v. Pandazides, 327 S.E.2d 188 (Ga. 1988).

188. 444 A.2d 483 (Md. App. 1982).

189. See Nash v. Sears, 163 N.W.2d 471 (Mich. App. 1968); Adams v. F. W. Woolworth, 257 N.Y.S. 776 (N.Y. Sup. 1932); Hendricks v. Leslie Fay, Inc., 159 S.E.2d 363 (N.C. 1968); Webbier v. Thoroughbred Racing, 254 A.2d 285 (R.I. 1969).

190. Dupree v. Piggly Wiggly Shop Rite Foods, Inc. 542 S.W.2d 882 (Tex. Civ. App. 1976).

191. See generally 22 Am. Jur. 2d, Damages }}257, 260, 293.

192. See Principal’s Liability for Punitive Damages, 93 A.L.R.3d 826 at 832.

193. Id. at 831.

194. See Craven v. Bloomington, 64 N.E. 169 (N.Y. 1902); Thomas v. F. & R. Lazarus Co., 57 N.E.2d 103 (Oh. App. 1941).

195. For example: Kieninger v. New York, 384 N.Y.S.2d 11 (N.Y.A.D. 1976).

196. Clairborne v. Chesapeake & O.R. Co., 33 S.E. 262 (W. Va. 1899).

197. Standard Oil Co. v. Davis, 94 So. 754 (Ala. 1922).

198. Susan Fettner, Security System Service, 89 Case & Comment 12 (1984); see also Federal & Fogleman, supra note 24, at 209-216; Kappeler, Supreme Court Cases, supra note 11.

199. Gulf Oil v. Williams, 642 S.W.2d 270 (Tex. App. 6 Dist. 1982).

200. Federal & Fogleman, supra note 24, at 231.

201. Id. at 232.

202. Id. at 233.

203. 42 U.S.C. }1983 (1970). Civil Rights Act of 1871; Also pertinent: 28 U.S.C. }1343 (1970) conferring federal jurisdiction in the federal courts.

204. Barrineau, supra note 13.

205. See Screws v. U.S., 325 U.S. 91 (1945).

206. 365 U.S. 167 (1961).

207. Wayne W. Schmidt, Recent Developments in Police Civil Liability, 4 J. Pol. Sci. Admin. 197 (1976); see also Wayne W. Schmidt, Survey of Police Misconduct Litigation 1967-1971 (1971); Kappeler, supra note 11.

208. Schmidt, supra note 207, at 197; R. V. del Carmen, Civil and Criminal Liabilities of Police Officers, in Police Deviance (T. Barker & D. L. Carter, eds., 1994).

209. 403 U.S. 388 (1971).

210. Jeffrey Higginbotham, Defending Law Enforcement Officers against Personal Liability in Constitu- tional Tort Litigation, 54 FBI L. Enf. Bull. 24 (1985).

211. Allen v. Columbia Mall Inc., 47 F. Supp. 2d 605 (D. Md. 1998); Orin v. Barclay, 272 F.3d 1207 (9th Cir. 2001); see generally M. S. Vaughn & L. F. Coomers, Police Civil Liability Under Section 1983: When Do Police Officers Act under Color of Law, 23 J. Crim. Justice 395-415 (1995).

212. Barrineau, supra note 13, at 35-53.

213. Id. at 57-68; see also Comment, City of Canton v. Harris. Municipal Liability under 42 U.S.C. Section 1983 for Inadequate Police Training, 12 George Mason L. Rev. 757-774 (1990).

214. Kallstrom, 136 F.3d 1055, 1066 (6th Cir. 1998) (citing Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 913 (6th Cir. 1995).

215. Id.

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216. Neuens v. City of Columbus, 169 F. Supp. 2d 780, 786 (S.D. Oh. 2001).

217. Steven D. Rittenmayer, Vicarious Liability in Suits Pursuant to 42 USC 1983: Legal Myth and Reality, 12 J. Pol. Sci. & Admin. 260 (1984); see also Comment, City of Canton v. Harris. Municipal Liability under 42 U.S.C. Section 1983 for Inadequate Police Training, 12 George Mason L. Rev. 757-774 (1990).

218. Rittenmayer, supra note 217, at 261.

219. See Rizzo v. Goode, 423 U.S. 362 (1975).

220. Rittenmayer, supra note 217, at 264; see also Jordan v. Kelly, 223 F. Supp. 731 (W.D. Mo. 1963); Ritch- ard v. Downie, 216 F. Supp. 621 (D. Ark. 1963); Patrum v. Martin, 292 F. Supp. 370 (W. Ky. 1968).

221. 183 F. Supp. 2d 344 (D. Mass. 2002).

222. Grant v. John Hancock, 183 F. Supp. 2d 344, 345 (D. Mass. 2002).

223. 29 U.S.C. }2001 et seq. See Graham v. Beasley Enterprises, 180 F. Supp. 2d 760 (E.D. N.C. 2001).

224. Richard Frankel, Regulating Privatized Government through }1983, 76 U. Chi. L. Rev. 1449 (2009).

225. Id.

226. See Smith v. Brookshire Brothers, Inc. 519 F.2d 93 (5th Cir. 1975); DeCarlo v. Joseph Horne, 251 F. Supp. (W.D. PA. 1966); see also M. S. Vaughn & L. F. Coomers, Police Civil Liability under Section 1983: Who do Police Officers Act under Color of Law? 23 J. Crim. Justice 395-415 (1995).

227. An instructive case of the U.S. Supreme Court, Wilson v. Layne unanimously deduced “private action” of media working side-by-side with the police. Wilson v. Layne, 526 U.S. 603 (1999).

228. Vroman, The Potential Liability of Private Police Under Section 1983 of the Civil Rights Act, 4 L.F. 1185, 1186 (1976).

229. See Chapter 2.

230. National Advisory Commission on Criminal Justice Standards and Goals, Private Security Task Force Report (1976).

231. Burhema & Frank Horvath, Security Regulation: A State-by-State Update, 28 Sec. Mgmt. 40-41 (1984).

232. Milton Cox, Guards or Guard Training, 28 Sec. Mgmt. 73, 77 (1984).

233. 755 N.W. 2d 686 (Mich. App. 2008).

234. Id. at 698.

235. Id.

236. Id. at 711.

237. Marsh v. Alabama, 326 U.S. 501 (1946).

238. Evans v. Newton, 382 U.S. 296 (1966); Amalgamated Foods v. Logan Valley Plaza, 391 U.S. 308 (1968).

239. Vroman, supra note 228, at 1192; see also Note, State Action Theories for Applying Constitutional Restrictions to Private Activity, 74 Colum. L. Rev. 656 (1974).

240. Commonwealth v. Kneer, 743 A.2d 942 (Pa. Super. 1999).

241. Note, Private Assumption of the Police Function under the Fourth Amendment, 51 Bost. U. L. Rev. 464-482 (1971).

242. 24 Cal. 3d 357 (1979).

243. 790 A.2d 660 (Md. 2002).

244. Crenshaw v. Rivera, No. 2:05-CV-440-PRC, slip op. (N.D. Ind. 2009).

245. Id. at 9.

246. Michael J. Dittener, Blackwater and Beyond: Can Potential Plaintiffs Sue Private Security Companies for the Due Process Violations via Exceptions to the State Action Doctrine, Including Through 1983 Actions, 33 Nova L. Rev. 627, 641 (2009).

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247 365 U.S. 715 (1961).

248. Vroman, supra note 228, at 1198.

249. Dittener, supra note 246, at 641; see Jonathan Finer, Recent Development, Holstering the Hired Guns: New Accountability Measures for Private Security Contractors, 33 Yale J. Int’l L. 259, 259 (2008); E. L. Gaston, Note, Mercenarism 2.0? The Rise of the Modern Private Security Industry and Its Implica- tions for International Humanitarian Law Enforcement, 49 Harv. Int’l L.J. 221, 224 (2008); Jennifer K. Elsea et al., Private Security Contractors In Iraq: Background, Legal Status, And Other Issues 3 (Cong. Research Serv., CRS Report for Congress Order Code RL32419, Aug. 25, 2008), available at http://www.fas.org/sgp/crs/natsec/RL32419.pdf.

250. 856 F.2d 843 (7th Cir. 1988).

251. Id. at 849; see also Forbes v. City of New, 2008 U.S. Dist. LEXIS 63021 (August 12, 2008).

252. State v. Jensen, 730 P.2d 1282 (Or. App. 1986).

253. Id. at 1283.

254. State v. Olsen, 317 P.2d 938 (Or. 1957); State v. Okeke, 728 P.2d 872 (Or. App. 1986).

255. Okeke, 728 P.2d at 872.

256. State v. Lowry, 588 P.2d 623, 630 (Or. App. 1978), rev. den. 285 Or. 195 (1979).

257. Jensen, 730 P.2d at 1283.

258. Tin Man Lee v. State of Texas, 773 S.W.2d 47 (Tex. App. 1989).

259. Id. at 49.

260. See James S. Kakalik & Sorrel Wildhorn, The Private Police Industry: Its Nature and Extent (1971).

261. See People v. Omeel, 166 N.W.2d 279 (Mich. App. 1968); Williams v. U.S., 341 U.S. 97 (1951); Tarref v. State, 512 P.2d 923 (Alaska 1973).

262. See Ohio Rev. Code Ann. }}4973.17.

263. Payton v. Rush-Presbyterian-St. Luke’s Medical Center, 184 F.3d 623 (7th Cir. 1999).

264. Cunningham, et al., supra note 4, at 290.

265. Private Delivery of Public Services, The Lipman Report, 1-4 (1989).

266. 126 F. Supp.2d 1299 (Haw. 1998).

267. Ibarra v. Las Vegas Metropolitan Police Dept., 572 F. Supp. 562, 564 (D. Nev. 1983).

268. Id. at 565, (quoting Hoffman v. Halden, 268 F.2d 280, 298 (9th Cir. 1959)).

269. Id.

270. Id.

271. Otani v. City and County of Hawaii, 126 F. Supp. 2d 1299, 1306 (Haw. 1998).

272. 415 So. 2d 371 (La. App. 1 Cir. 1982).

273. Federal & Fogleman, supra note 24, at 172.

274. 468 N.E.2d 1064 (Ind. App. 4 Dist. 1985).

275. Federal & Fogleman, supra note 24, at 179.

276. Leach v. Penn-Mar Merchants Assoc., 308 A.2d 446 (Md. App. 1973).

277. 327 N.W.2d 278 (Mich. 1982).

278. 290 S.E.2d 366 (N.C. 1982).

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