Miranda Rights

Private_Security_and_the_Law_Chapter5.pdf

5 Criminal Liability

of Security Personnel

CHAPTER OUTLINE

Introduction: The Problem of Criminal Liability ......................................................................... 191

Criminal Liability under the Federal Civil Rights Acts.............................................................192

Criminal Liability and the Regulatory Process.........................................................................193

Criminal Acts..............................................................................................................................196

Defenses to Criminal Acts: Self-Help........................................................................................... 200

Personal Self-Defense................................................................................................................201

Use of Force in Self-Protection ................................................................................................202

Protection of Other Persons ....................................................................................................203

Defense of Property ................................................................................................................205

Procedural Questions ................................................................................................................207

Private Security and Miranda Warnings ...................................................................................208

Summary........................................................................................................................................ 212

Discussion Questions.................................................................................................................... 213

Notes.............................................................................................................................................. 213

Introduction: The Problem of Criminal Liability Although civil liability problems are natural risks in the security industry, the pano-

rama of liability extends beyond the civil realm and into the criminal context. While

the term “liability” is acceptable in criminal settings, the more accurate term might

be “culpability.” In short, how can and does the security operative become responsible

for and culpable under criminal constructions? Can the security industry, as well as

its individual personnel, suffer criminal liability? Can security personnel, in both a

personal and professional capacity, commit crimes? Are security corporations, busi-

nesses, and industrial concerns capable of criminal infraction, or can these entities

be held criminally liable for the conduct of employees? Are there other criminal con-

cerns, either substantive or procedural, that the security industry should be vigilant

about?

As the privatization of once historic criminal justice functions continue, corresponding

civil and criminal liability questions will remain and even accelerate. Security profes-

sionals engage the public in so many settings and circumstances that it is a sure bet that

criminal conduct will be witnessed.

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 2020-10-05 11:43:10.

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While the content of the chapter will glance at procedural issues raised in Chapter 3,

its main thrust shall be on criminal codification and analysis of criminal definition.

Criminal Liability under the Federal Civil Rights Acts

Although security operatives may directly act in a criminal manner, or either aid or abet

others, or even neglect duties and responsibilities resulting in liability based on omis-

sion, their particular actions, under diverse statutory and codified laws, may give rise

to criminal culpability. In the area of the federal Civil Rights Act, the prosecutorial

authority has the latitude to charge a criminal action. While the majority of litigation

and actions under 42 U.S.C. }1983 have been, and continue to be, civil in design and scope, Congress has enacted legislation that attaches criminal liability for persons or

other legal entities acting under color of state law, ordinance, or regulation who are

a. Willfully depriving any inhabitant of a state of any right, privilege or immunity

protected by the Constitution or the Laws of the United States, or

b. Willfully subjecting any inhabitant to a different punishment or penalty because

such an inhabitant is an alien because of his race or color, then as prescribed for the

punishment of citizen1

n n n

The body of case law and literature relative to section 1983 is now legion in size. Visit http://

library.findlaw.com/1999/Jan/1/126485.html.

n n n

While criminal liability can be grounded within the statutory framework, advocates

of this liability must still pass the statutory and judicial threshold question—that is,

whether or not the processes and functions of private justice can be arguably performed

under “color of state law.” As discussed previously, either the state action or the color of

state law advocacy requires evidential proof of private action metamorphosing into a

public duty or function or of governmental authorities depriving a citizen of certain con-

stitutional rights. The U.S. Supreme Court argued in Evans v. Newton2 that

[c]onduct that is formally “private” may become so entwined with governmental

policies or so impregnated with governmental character as to become subject to

the constitutional limitations placed upon state action . . . when private indivi-

duals or groups are endowed by the State with powers or functions governmental

in nature, they become agencies and instrumentalities of the State and subject to

its Constitutional limitations.3

Contemporary judicial reasoning has yet to reach the point where private security

practices are synonymous with public activities, though litigators are not shy about

alleging this claim. Courts are less willing to entertain the argument as a basis for a case

in chief or as an argument for remedy. This judicial reticence has precipitated often

192 PRIVATE SECURITY AND THE LAW

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scathing criticisms by practitioners and academics. The Hofstra Law Review, when

assessing the constitutional ramifications of merchant detention statutes concludes:

By judicial decision and statute a “super police” has been created. The merchant

detective has the same privileges as public law enforcement agents without the

same restraints to neutralize the effect of a violation of constitutionally protected

rights. The merchant detective is treated as a private citizen for purposes of defining

his constitutional liabilities and yet he is granted tort immunity as though he were

a public law enforcement agent. 4

While this argument may have intellectual support, it generally disregards the practi-

cal realities of operating retail or other commercial establishments. Retail establish-

ments and industrial units—whose chief justice function is asset protection—would

find most public policing protections incompatible with their fundamental mission.

Criminal liability can also be imposed under the federal Civil Rights Act if, and when,

a victim of illegal state action shows that the injurious action was the product of a con-

spiracy. The relevant provision as to conspiracy states:

a. A conspiracy by two or more persons;

b. For the purposes of injuring, oppressing, threatening or intimidating any citizen in

the free exercise or enjoyment or past exercise of any right or privilege secured to

him by the Constitution or laws of the United States.5

Various factual scenarios illustrate this statutory application:

• Public police and private security personnel are engaged in a joint venture,

cooperative effort, or alliance.

• Public police solicit, request, entice, or encourage the activity of private law

enforcement interests, knowing full well their activity is not legally sound.

• State officials, administrative heads, and agency policymakers hire, contract, or

otherwise utilize the services of a private entity they know will make possible

constitutional violations.

In sum, the pressing crossover question in the world of private security still remains

whether or not private justice agents can be held to public scrutiny.

Criminal Liability and the Regulatory Process

Since the private security industry is subject to the regulatory oversight of governmental

authorities, there is always a chance that criminal culpability will rest or reside in the

failure to adhere to particular guidelines.

A repetitive theme originating with the RAND Study,6 through the National Advisory

Committee on Criminal Justice Standards and Goals, to the recent Hallcrest Report II, is

the need for regulations, standards, education and training, and qualifications criteria

for the security industry.7 The National Advisory Committee on Criminal Justice Standards

Chapter 5 • Criminal Liability of Security Personnel 193

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and Goals, citing the enormous power wielded by the private security industry, urges,

through the adoption of a National Code of Ethics, professional guidelines. See Figure 5.1.

The National Advisory Committee further relates:

Incidents of excessive force, false arrests and detainment, illegal search and seizure,

impersonation of a public officer, trespass, invasion of privacy, and dishonest or

unethical business practices not only undermine confidence and trust in the private

security industry, but also infringe upon individual rights.8

In short, the commission recognizes that part of the security professional’s measure has

to be the avoidance of every criterion of crime and criminality. The regulatory and

administrative processes involving licensure infer a police power to punish infractions

of the promulgated standards.

A recent Arizona case, Landi v. Arkules,9 delivers some eloquent thoughts on why

licensing and regulation are crucial policy considerations. In declaring a New York secu-

rity firm’s contracts illegal because of a lack of compliance, the court related firmly:

The statute imposes specific duties on licensees with respect to the confidentiality

and accuracy of information and the disclosure of investigative reports to the

client.10 A license may be suspended or revoked for a wide range of misconduct,

FIGURE 5.1 Ethical code for managers.

194 PRIVATE SECURITY AND THE LAW

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including acts of dishonesty or fraud, aiding the violation of court order, or solicit-

ing business for an attorney.11

The Legislature’s concern for the protection of the public from unscrupulous and

unqualified investigators is woven into the legislative or regulatory intent of these

controls. This concern for the public’s protection precludes enforcement of an unli-

censed investigator’s fee contract.12 The courts will not participate in a party’s cir-

cumvention of the legislative goal by enforcing a fee contract to provide regulated

services without a license.13

Hence, security professionals may incur criminal liability for failure to adhere to regu-

latory guidelines. States have not been shy about this sort of regulation. A California

statute prohibiting the licensure of any investigator or armed guard who has a criminal

conviction in the last 10 years was upheld.14 A Connecticut statute for criminal convic-

tion was deemed overly broad.15

As states and other governmental entities legislate standards of conduct and require-

ments criteria in the field of private security, the industry itself has not been averse to

challenging the legitimacy of the regulations. Antagonists to the regulatory process urge

a more privatized, free-market view and balk at efforts to impose criminal or civil liabil-

ity for failure to meet or exceed statutory, administrative, or regulatory rules and guide-

lines.16 Some fascinating legal arguments have been forged by those challenging the

right of government to regulate the security industry. The argument that state law pre-

empts any local control of the security industry has failed on multiple grounds.17 Other

advocates attack regulation by alleged defects in due process.18 Litigation has success-

fully challenged the regulatory process when ordinances, administrative rules, regula-

tions, or other laws do not provide adequate notice, are discriminatory in design, or

have other constitutional defects.19 A legal action revoking an investigator’s license

was overturned despite a general investigator’s criminal conviction since he merely pled

nolo contendere rather than “guilty.”20 A plea in this manner is no admission, the court

concluded, and thus failed the evidentiary burden of actual criminal commission. Other

challenges to the validity and enforceability of the regulatory process in private security

include the argument that such statutory oversight violates equal protection of law,21 or

that the regulatory process is an illegal and unfounded exercise of police power,22 or an

unlawful delegation of power.23 As a general observation, these challenges are largely

ineffective.24

Given the minimal intrusion inflicted on the security industry by governmental entities,

and the industry’s own professional call for improvement of standards, litigation challeng-

ing the regulatory process should be used only in exceptional circumstances. The reper-

cussions and ramifications for failure to adhere to the minimal regulatory standards are

varied, ranging from fines, revocation, and suspension to actual imprisonment.

n n n

Regulations, so says the state of Georgia, are in the “public interest.” See http://www.sos.ga

.gov/plb/detective.

n n n

Chapter 5 • Criminal Liability of Security Personnel 195

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In State v. Guardsmark,25 the court rejected the security defendant’s contention that

denial of licenses tended to be an arbitrary exercise. The court, accepting the statute’s

stringent licensure requirements and recognizing the need for rigorous investigation of

applicants and testing, found no basis to challenge.26 In Guardsmark, the crime cited

under Illinois law was “engaging in business as a detective agency without a license.”27

Similarly, State v. Bennett28 held the defendant liable in a prosecution for “acting as a

detective without first having obtained a license.”29

The fact that a security person, business, or industrial concern is initially licensed

and granted a certificate of authority to operate does not ensure absolute tenure. Gov-

ernmental control and administrative review of security personnel and agencies are

ongoing processes. Revocation of a license or a certificate to operate has been regularly

upheld in appellate reasoning. In Taylor v. Bureau of Private Investigators and Adjus-

tors,30 suspension of legal authority and license to operate as a private detective was

upheld since the evidence clearly sustained a finding that the investigators perpetrated

an unlawful entry into a domicile. The private detective’s assertion that the regulation

was constitutionally void because of its vagueness was rejected outright.31

License to operate or perform the duties indigenous to the security industry has also

been revoked or suspended because of acts committed that involved moral turpitude. In

Otash v. Bureau of Private Investigators and Adjustors,32 the court tackled the definition

of moral turpitude and explained that it could be best described as a conduct that was con-

trary to justice, honesty, and morality. Inclusive within the term would be fraudulent behav-

ior with which the investigator was charged.33 In ABC Security Service, Inc. v. Miller,34 a plea

of nolo contendere to a tax evasion charge was held as sufficient basis for revocation and

suspension.35 An opposite conclusion was reached in Kelly v. Tulsa,36 in which an offense

of public drunkenness was found generally not to be an act of moral turpitude that would

result in a denial of application, loss, suspension, or revocation of licensing rights.

In summary, it behooves the security industry to stick to the letter of regulatory pro-

cess. Failure to do so can result in actual criminal convictions or a temporary or perma-

nent intrusion on the right to operate.

Criminal Acts

Both corporations and individuals in the security industry may be convicted of actual

criminal code violations, though in the former instance, this is an exceedingly rare event.

This liability can attach in either an individual or a vicarious sense. By vicarious we

mean that the employer is responsible for the conduct of its employees. Most jurisdic-

tions, however, do impose a higher burden of proof in a case of vicarious liability since

“the prosecution must prove that the employer knowingly and intentionally aided,

advised or encouraged the employee’s criminal conduct.” 37

n n n

Visit the Yale Law Journal’s recent treatment of corporate criminal liability at http://www

.yalelawjournal.org/images/pdfs/729.pdf.

n n n

196 PRIVATE SECURITY AND THE LAW

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Other legal issues make difficult a prosecution against corporations for criminal

behavior. A broad critique corporate criminal intent can be summarized as follows:

How can a corporation formulate specific or general intent, the mens rea necessary

for a criminal conviction?

More particularly, in violent acts of criminality such as rape, murder or robbery,

to whom or on whose authority within the corporate structure would the

responsibility lie?

Both queries pose difficult legal dilemmas. While it is common to hear a sort of class

warfare critique of the corporate heads of state, this type of “them versus us” will simply

not do. To be culpable requires knowledge of the crime and its purpose. In the evolving

analysis of corporate crime, a trend toward corporate responsibility has emerged.38 Does

a corporate officer and director who has actual knowledge of criminal behavior on

the part of subordinates within the corporation bear some level of responsibility? Is a

corporation responsible, as principal, for the acts of its agents both civilly and crimi-

nally? While “officers may be held criminally responsible on the presumption that it

authorized the illegal acts,”39 that judgment will depend on the facts and circumstances

of each case.

There are other rationales for imposing criminal culpability on the corporate officers

and directors. Criminal charges are regularly brought forth and eventual liability some-

times imposed for failure to uphold the rules and regulatory standards promulgated by

government agencies, such as these:

• Occupational Health and Safety Act (OSHA)

• The Food and Drug Administration (FDA)

• National Labor Relations Board (NLRB)

• Environmental Protection Act (EPA)

• Homeland Security Administration (HSA)

• National Transportation Safety Board (NTSB)

Government agencies are empowered to charge and assess criminal penalties and fines.

OSHA is the classic federal agency with these sweeping powers.

n n n

Review the penalty power and authority under criminal prosecution for OSHA at http://www

.ktvu.com/news/23874131/detail.html.

n n n

Other common corporate areas of criminality in business crime include securities

fraud, antitrust activity, bank fraud, tax evasion, violations against the Racketeer Influ-

enced and Corrupt Organizations Act (RICO), and acts involving bribery, international

travel, and business practices.40 Finding corporations criminally responsible for particu-

lar actions is not the insurmountable task it once was.

Chapter 5 • Criminal Liability of Security Personnel 197

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The nature and functions of security practice provides a ripe ground for violations of

the criminal law. Evaluate the common scenarios below:

Assault41

a. A security officer can easily create an apprehension of bodily harm in a detention

case.42

b. A security officer, in a crowd control situation, threatens, by a gesture, a private

citizen.43

c. An industrial security agent, protecting the physical perimeter, unjustly accosts a

person with license and privilege to be on the premises.44

Battery45

a. A security officer in a retail detention case offensively touches a suspected

shoplifter.46

b. A security officer uses excessive force in the restraint of an unruly participant in a

demonstration.47

c. A security officer utilizes excessive force to affect an arrest in an industrial location.48

False Arrest or Imprisonment49

a. A security officer, in a jurisdiction with no merchant’s privilege, arrests without

probable cause, and motivated by malice toward a particular suspect who is

eventually acquitted.

b. A security officer restrains and detains a suspected shoplifter without probable

cause.

c. A security officer restrains and detains a suspected intruder on an industrial

premises and does so in an abusive and physically harmful manner.

n n n

See how a security guard was held responsible under sexual assault statutes at http://www

.ktvu.com/news/23874131/detail.html.

n n n

Unlawful Use of Weapons

a. A security officer is not properly trained in the usage of weapons.

b. A security officer does not possess a license.

c. A security officer inappropriately utilizes weaponry best described as excessive force.

Theft50

a. Security personnel steal, take by deception, fraud, or through simple unlawful

acquisition property from their place of employment.

b. Security personnel aid and abet outside individuals in conducting an inside theft.

Manslaughter51

a. A security officer negligently drives an auto that in turn kills either a pursued

suspect or an innocent bystander.

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b. The security officer handles his or her weaponry in a grossly negligent way,

thereby causing a fatality.

c. The security officer reacts with excessive force in a property protection case

causing the death of the suspect or an innocent bystander.

d. A security officer in hot pursuit shoots a fleeing felon and injures an innocent

bystander.52

Murder53

a. A security officer kills another without proper investigation and with an

extraordinary and wanton disregard of human life.

b. Private military mercenaries kill without justification or right in a war zone.54

Misprision

a. A security officer fails to report crimes or take actions necessary to prevent it.

b. Security personnel purposely conceal a major capital offense.

Compounding

a. A security officer makes a deal with a suspect in a theft or other criminal case

for an agreement not to pursue the investigation.

b. A security officer decides not to cooperate, for internal or economic reasons,

with the prosecutorial staff assigned to the case.

Solicitation55

a. Security officers or investigators entice, encourage, or solicit others to perform

criminal acts.

b. The security officer or private investigator encourages, solicits, or induces

another to commit an illegal act for the purpose of acquiring a specific piece

of evidence.

c. Security investigator devises a plan that will ensnare a criminal; however such

tactics or plan may be construed as a case of entrapment.56

Criminal Conspiracy57

a. The security agent, investigator, or officer enters into an agreement with one or

more individuals for the purposes of committing a criminal act such as internal

theft.

b. The security officer engages in conduct or in concert with other business entities

that seek to illegally eavesdrop and investigate the personal backgrounds of

prospective job applicants.

c. The security company, in concert with other business interests, performs

polygraph examinations on prospective applicants in direct violation of

state law.

d. The security professional performs an overt act toward the commission of any

crime which assists the principal perpetrator in effecting a successful criminal

plan.58

The range and extent of individual security crime is only limited by the roles, tasks, and

duties undertaken by the industry’s participants.

Chapter 5 • Criminal Liability of Security Personnel 199

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Defenses to Criminal Acts: Self-Help The idea of self-help and self-protection is as old as Western tradition itself. Since the

time of the Romans and the Greeks, God’s Chosen people, the Jews, and other early

societies, there has always been a recognition that protection of self and property is a

matter of right.

Roman law, such as the Code of Justinian or the Corpus Juris Civilis, could not be

more unequivocal about the right of individuals to rightfully defend oneself. The code

notes, in part:

We grant to all persons the unrestricted power to defend themselves (liberam resis-

tendi cunctis tribuimus facultatem), so that it is proper to subject anyone, whether

a private person or a soldier, who trespasses upon fields at night in search of plun-

der, or lays by busy roads plotting to assault passers-by, to immediate punishment

in accordance with the authority granted to all (permissa cuicumque licentia

dignus ilico supplicio subiugetur). Let him suffer the death which he threatened

and incur that which he intended.59

Most religious groups rely on dogmatic teaching or texts, such as the Koran or the

Bible, for instruction on the rights and limitations of self-help and self-defense. The

Book of Exodus, by way of illustration, lays out a refined systematic defense of property

rights when it notes:

1. If a man steals an ox or a sheep, and kills it or sells it, he shall repay five oxen for

an ox, and four sheep for a sheep. 2. If a thief is found breaking in and is struck so

that he dies, there shall be no bloodguilt for him, 3. but if the sun has risen on him,

there shall be bloodguilt for him. He shall surely pay. If he has nothing, then he

shall be sold for his theft. 4. If the stolen beast is found alive in his possession,

whether it is an ox or a donkey or a sheep, he shall pay double. 5. If a man causes

a field or vineyard to be grazed over, or lets his beast loose and it feeds in another

man’s field, he shall make restitution from the best in his own field and in his

own vineyard. 6. If fire breaks out and catches in thorns so that the stacked grain

or the standing grain or the field is consumed, he who started the fire shall make

full restitution. 7. If a man gives to his neighbor money or goods to keep safe, and

it is stolen from the man’s house, then, if the thief is found, he shall pay double.

8. If the thief is not found, the owner of the house shall come near to God to show

whether or not he has put his hand to his neighbor’s property. 9. For every breach of

trust, whether it is for an ox, for a donkey, for a sheep, for a cloak, or for any kind of

lost thing, of which one says, ‘This is it,’ the case of both parties shall come before

God. The one whom God condemns shall pay double to his neighbor. 10. If a man

gives to his neighbor a donkey or an ox or a sheep or any beast to keep safe, and

it dies or is injured or is driven away, without anyone seeing it, 11. an oath by

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the Lord shall be between them both to see whether or not he has put his hand to

his neighbor’s property. The owner shall accept the oath, and he shall not make res-

titution. 12. But if it is stolen from him, he shall make restitution to its owner. 13. If

it is torn by beasts, let him bring it as evidence. He shall not make restitution for

what has been torn. 14. If a man borrows anything of his neighbor, and it is injured

or dies, the owner not being with it, he shall make full restitution. 15 If the owner

was with it, he shall not make restitution; if it was hired, it came for its hiring fee.60

Thus, cultural and common law traditions, as well as religious and spiritual standards,

provide a strong basis for the defense of person and things.

Personal Self-Defense

Much activity in the security industry is geared toward the protection of the person.61 As

a result of this orientation, security professionals must understand defense tactics. If

one unreasonably responds in a protection situation, allegations of criminal conduct

may be in the offing. For the defender of using excessive force, an assault or even a mur-

der or manslaughter may be charged. In protection of person cases, “the obvious human

instinct to meet physical aggression with counter force . . . [must be balanced with] . . .

desirability in a civilized society . . . of encouraging the resolution of disputes through

peaceful means.”62 Since the preservation instinct is strong, conduct delineations

regarding reasonable and justifiable force are critical policy questions. The Hallcrest

Report I63 fully delved into practitioner perception regarding the appropriate use of

force as outlined in Table 5.1.64

Table 5.1 Use of Force Reported by Private Security Employees

(N¼110) Proprietary

(N¼78) Contractual Guard Alarm

Incidence of Use

In self-defense 54% 13% 53%

Evict a trespasser 39% 15% 12%

Deal with vandalism 18% 10% 44%

Prevent an assault 39% 8% 27%

Carry out a lawful search 37% 6% 31%

Detain someone 47% 12% 50%

Arrest someone 56% 4% 46%

Expectations of Use (Guard & Alarm)

Protect yourself 96% 92%

Protect company property 43% 28%

Detain someone 40% 18%

Arrest someone 51% 9%

Search someone 6%

Chapter 5 • Criminal Liability of Security Personnel 201

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Use of Force in Self-Protection Imperative in security training is the topic of force in the application of self-defense

principles, excessive force, and self-protection.65 Professional bodies and groups, asso-

ciations, and the internal policies of agencies and organizations all seek a clear and con-

sistent policy on the defense of self. Think tanks such as the American Law Institute, by

and through its Model Penal Code (MPC), propose a well-respected statutory design for

the party acting in self-defense.66

1. Use of Force Justifiable for Protection of the Person. Subject to the provision of this

Section and of Section 3.09 the use of force upon or toward another person is

justifiable when the actor believes that such force is immediately necessary for the

purpose of protecting himself against the use of unlawful force by such other person

on the present occasion.

2. Limitations on Justifying Necessity for Use of Force.

a. The use of force is not justifiable under this Section:

(i) to resist an arrest which the actor knows is being made by a peace officer,

although the arrest is unlawful . . .

b. The use of deadly force is not justifiable under this Section unless the actor

believes that such force is necessary to protect himself against death, serious

bodily harm, kidnapping or sexual intercourse compelled by force or threat, nor is

it justifiable if:

(i) the actor, with the purpose of causing death or serious bodily harm, provoked

the use of force against himself in the same encounter; or

(ii) the actor knows that he can avoid the necessity of using such force with

complete safety by retreating or by surrendering possession of a thing to a

person asserting a claim of right thereto, or by complying with a demand that

he abstain from any action which he has no duty to take, except that:

(1) the actor is not obliged to retreat from his dwelling or his place of work

unless he was the initial aggressor . . .

(2) a public officer justified in using force in the performance of his duties, or

a person justified in using force in his assistance or a person justified in

using force in making an arrest or preventing an escape is not obliged to

desist from efforts to perform such duty, effect such arrest or prevent such

escape.67

Readily apparent from a first read of the MPC are the explicit restrictions on the use

of force, 68

compelling the employer of force to think about its potential ramifications

and limitations. First, force is not a permissible activity against law enforcement officers,

though a few states accept extraordinary situations. Second, force is only tolerated in

environments of heightened necessity or immediate need, when a victim of physical

harm can objectively point to real and immediate bodily harm. Third, force is only to

be employed in situations where a reasonably prudent person believes that he or she

could suffer serious bodily harm, death, kidnapping, or sexual assault:

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The requirement that the defendant be operating under the reasonable belief that

he is in imminent danger of death, great bodily harm, or some felony, involve

two elements: (1) the defendant in fact must have acted out of an honest, bona fide

belief that he was in imminent danger, and (2) the belief must be reasonable in light

of the facts as they appeared to him.69

Security professionals, during the typical career, will likely confront the tension

between the defense of self and the parameters for the use of force. Some cases will be

easier than others. Violent aggression by suspects can be met by some level of proportion-

ate response. Indeed, a slingshot should not be met with a rapid-fire weapon. The poten-

tial for abuse and disproportionate reaction is a natural risk in private policing for, as the

Hallcrest Report I notes, “one inescapable fact is that firearms tend to be used when they

are carried.”70 The report further explains that firearms training, proper care, and usage

thereof in the security industry are often abysmal and frighteningly inadequate exercises.

Weigh and Evaluate:

• A security investigator catches a thief in the act. The thief reaches into his side

pocket. Before he could remove the object, the security official fired a weapon,

inflicting a fatal injury. Would this be a case of excessive force in the protection

of self?

• A security officer comes upon a crime scene and sees a juvenile, with stolen goods

in hand, riding his bike from the scene of a crime. As the juvenile accelerates his

bicycle, he directs the path of the bike toward the security officer. The officer, in

order to protect his life, even though he has an easy retreat and an opportunity to

move in another direction, inflicts a fatal injury on the juvenile. Is this a case of

excessive force?

Which of these two cases is contrary to the Model Penal Code’s demand that the force

exerted by a defender be proportionate to that being exhibited by the aggressor? Which

case relies on the objective reality the actor believes to be true when in fact it may or

may not be? In these cases, judgment calls are common and gauged by an officer’s rea-

sonable belief.

Protection of Other Persons Another typical task in the security industry is the protection of other persons. Persons of

social importance such as entertainers, politicians, business executives, religious leaders,

and other highly public and visible individual personalities rely heavily on the expertise of

the security industry. Executive protection has become a multimillion-dollar business.

n n n

To learn more about the protocol of executive protection, visit http://www.cisworldservices

.org/employment/executive_protection.html.

n n n

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What level of protective action is permissible in the protection of other persons?71

The Model Penal Code again provides some general guidance:

(1) Subject to the provisions of this Section and of Section 3.09, the use of force upon or

toward the person of another is justifiable to protect a third person when:

(a) the actor would be justified under 3.04 in using such force to protect himself

against the injury he believes to be threatened to the person whom he seeks to

protect; and

(b) under the circumstances as the actor believes them to be, the person whom he

seeks to protect would be justified in using such protective force; and

other person.72

At its heart, the MPC provides for a transferal of authority in the protection of self. In

essence, one is permitted to defend another person entrusted to their care or oversight,

as if defending oneself. In private sector justice, we witness this reality with great regu-

larity. Indeed, the entire infrastructure of executive protection needs these parameters to

know what defense can be exerted. In short, one may exert such force as is proportion-

ate, reasonable, and necessary as the party entrusting this authority would be capable

of. What the defender believes is also crucial. However, belief should not be governed

by hypersensitivity and delusion, and it must be the product of a reasoned, well-defined

justification. There should be

a threat, actual or apparent to the use of deadly force against the defender.

The threat must have been unlawful and immediate. The defender must have

believed that he was in imminent peril of death or serious bodily harm and that

his response was necessary to save himself. These beliefs must not only have been

honestly entertained, but also objectively reasonable in light of the surrounding

circumstances.73

“In addition, one acting in defense of another, when in the dwelling or workplace of the other,

is no more obliged to retreat than he would be if he were in his own dwelling or workplace.”74

The issue of self-defense for both the public and private justice system is a recurring

policy consideration for management. The Case Western Reserve University School of

Law, in its publication, the Private Police Training Manual,75 admonishes the public

and private sector to prepare for a further influx of this type of activity since:

1. Confrontations between the police and the public are far more frequent.

2. Violence against officers has increased greatly.

3. Public clamor has been toward nonlethal weapons in the hands of police.

4. Police study groups are researching alternatives to violence.76

Certainly, as community pressure increases and civil and criminal litigation con-

tinues its influence on police and security planning, the role of self-defense of the

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person and the parameters, obligations, and standards of self-defense will become

increasingly relevant.

The role of self-defense is further influenced by the evolution of defense technology

and occupational hardware. Review the following list as only a partial example of defen-

sive equipment available to public and private police systems:

1. Revolvers

2. Shotguns

3. Rifles

4. Machine guns

5. Flair guns

6. Armored vehicles

7. Helmets

8. Bullet-proof vests

9. Combat shields

10. Tear gas

11. Grenade launchers

12. Batons

13. Water cannons

14. Military vehicles

Such an arsenal is bound to generate “defense” questions for industry planners and

leaders.

n n n

For recent law review commentary on guns and potential liability, see http://www.saf.org/

journal/16/RecentLegalScholarship.pdf.

n n n

Defense of Property The value placed on personal property versus human life is markedly distinguishable.

Most American jurisdictions, supported by common law tradition and well-entrenched

case law precedent, have always placed a heavy burden on those seeking to employ

force in the protection of personal property. The Model Penal Code confirms that

tradition:

1. Use of Force Justifiable for the Protection of Property. Subject to the provisions of this

section and of Section 3.09, the use of force upon or toward the person of another is

justifiable when the actor believes that such force is immediately necessary:

a. to prevent or terminate an unlawful entry or other trespass upon land or a trespass

against or the unlawful carrying away of tangible, movable property, provided that

such land or movable property is, or is believed by the actor to be, in his

possession or in the possession of another person for whose protection he acts; or

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b. to effect an entry or reentry upon land or to retake tangible movable property,

provided that the actor believes that he or the person by whose authority he

acts or a person from whom he or such other persons derives title was unlawfully

dispossessed provided further, that:

(i) the force is used immediately or on fresh pursuit after such dispossession; or

(ii) the actor believed that the person against whom the force is used has no claim

of right to the possession of the property and, in the case of land, the

circumstances, as the actor believes them to be, are of such urgency that it

would be an exceptional hardship to postpone the entry or reentry until a

court order is obtained.77

Common sense and legal tradition dictate that the degree of force permissible is depen-

dent on the totality of circumstances. Factual situations that include entry into one’s domi-

cile or residence, of course, heighten the right to exert force. 78

Simple thefts or property

disputes of tangible property such as a television, a garden tool, or some other item do

not justify the exertion of life-threatening force. On its face, the MPC insists that if a party

desires to resolve a property dispute without the assistance of public law enforcement, he

or she must do so immediately, hotly pursuing the item in question:

The use of deadly force in defense of property is justifiable if there has been an entry

into the actor’s dwelling which the actor neither believes nor has reason to believe is

lawful, and the actor neither believes nor has reason to believe can be terminated by

force less than deadly force. Otherwise, the use of deadly force in defense of property

is not justifiable unless the actor believes either that the person against whom the

deadly force is used is trying to dispossess him of his dwelling without a claim of

right, or that deadly force is necessary to prevent a commission of a felony in the

dwelling.79

The most confused cases occur when a dwelling place is involved. Numerous juris-

dictions have grappled with the crosscurrents that occur in this area. Recent history

indicates a movement toward favoring the owner of a domicile in the protection of his

or her own property.80 In State v. Miller,81 a North Carolina court held:

When a trespasser enters upon a man’s premises, makes an assault upon his dwell-

ing, an attempt to force an entrance into a house in a manner such as would lead a

reasonably prudent man to believe that the intruder intends to commit a felony or

inflict some serious personal injury upon the inmates, a lawful occupant of the

dwelling may legally prevent the entry, even by the taking of the life of the

intruder.82

Applying these general standards, which of the following fact patterns signify an

excessive use of force?

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Fact Pattern 1:

A security officer, responsible for the protection of a warehouse, is responding to an

alarm. As he approaches the point of detection, he is confronted by a middle-aged

man who is attempting to pilfer some gold ingots from the storage container. The

security official professionally and respectfully requests that the thief halt and

return the object of the theft. The thief disregards the request, and the security officer

inflicts two fatal bullet wounds.

Fact Pattern 2:

A security officer in a retail establishment confronts a shoplifter. The shoplifter

alights from the store, and the officer gives pursuit. After a scuffle in the parking

lot, the suspect pulls a switchblade and threatens to seriously harm the officer.

The officer pulls his weapon and fires two projectiles into the suspect’s leg, which

cause a serious, but not critical, injury.

The initial fact pattern outlined is the best case for an excessive force charge, and the

reason is twofold: first, the utilization of excessive force did not have a basis in fact or a

belief that would lead the security officer to conclude that he or she was in imminent dan-

ger of harm; second, the force exerted was in the protection of assets or personal property,

something the law does not favor. Alternatively, protection of the gold ingots was the

responsibility of the security officer. His fault is not in his intention but his methodology.

The factual scenario outlined in the shoplifting case is a regular happenstance. The

force exerted was reasonable in light of the weaponry employed by the shoplifter. While

the weapons chosen were not strictly identical, their similar capacity to kill supports the

officer’s reasonable judgment.

Procedural Questions

Criminal process covers a good deal of territory including the materials relating to arrest,

search, and seizure already dealt with in Chapter 3. As a general rule, the constitutional

protections inherent in these basic criminal processes simply do not apply to private

sector police. The industry unreservedly defends the explicit exemption from constitu-

tional oversight. However, the abject absence of an industry application, or even a sug-

gested industry standard, is a source of constant concern for critics of the security

industry. Antagonists of the private security industry have vociferously argued that its

secondary status or minor league position, when compared to public police, will remain

a constant reality until the industry itself adopts well-defined procedural guidelines. The

National Advisory Committee on Criminal Justice Standards and Goals calls for research

and corresponding guidelines in these procedural areas:

1. General private security functions:

a. arrests

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b. detentions

c. use of force (including firearms)

d. impersonation of and confusion of public law enforcement officers and

e. directing and controlling traffic.

2. Specific investigatory functions:

a. search and seizure of private property

b. wiretapping, bugging, and other forms of surveillance

c. access of private security personnel to public law enforcement information and

procedures for the safeguarding of the information

d. obtaining information from private citizens and the safeguarding of

information and

e. interrogation.83

The National Advisory Committee and other authoritative bodies see continued resis-

tance to procedural standards somewhat similar to the public model as a negative for

the industry. In addition, procedural regularity will bring a substantial reduction in the

industry’s rate of criminal and civil liability. In time, the argument is that a more

enlightened, professional industry will make fewer mistakes, although this claim may

be more ambition than a realistic conclusion. The Hallcrest Report observes:

There are some overwhelming public safety issues which justify public concern for

adequate controls on private security. The serious consequences of errors in judg-

ment or incompetence demand controls which insure the client and the general

public of adequate safeguards. If government is to allow private security a larger

role in providing some traditional police services, then it needs to insure that suffi-

cient training and appropriate performance standards exist for the participating

security programs—both proprietary and contractual.84

While policymakers, theoreticians, and academics debate strenuously for a change in

the status quo, judicial reasoning has yet to bridge the gap between the private and pub-

lic security interest. On occasion, courts do, though with caution and trepidation, find

an actionable state case by traditional and innovative procedural interpretations of the

color of law standard. Examples of some recent jurisprudence are topically covered next.

Private Security and Miranda Warnings Constitutional protections apply to governmental action only. Extending warnings prior

to custodial interrogation in private security settings has generally not been required

though the climate for change alters according to abuses.85 There have been cracks in this

solid wall of immunity. A series of reports involving Cumberland Farm convenience stores

in Boston allege an array of abuses by security guards who charged employees with theft:

Almost without exception, employees said they were subjected to the same proce-

dure. Each was taken to a backroom, seated on an overturned milk crate, accused

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of theft and threatened with public humiliation or prosecution if they did not sign a

confession of guilt. This process continued for years, but the accused individuals

failed to take significant action because they did not know that other employees

were similarly treated. 86

A host of Cumberland employees brought a class action against the employer.87 So

extensive were the alleged abuses that certain legal commentators, like Joan E. Marshall,

made impassioned pleas in the Dickinson Law Review for extending Miranda protection

to the private sector.

Despite historical reasons for allowing merchants to practice so-called self-help in

the protection of their property, the example of employee abuse by Cumberland

Farms shows the need for new legislation to prevent the Fifth Amendment from

becoming an anachronism. While some civil action may lie for harassment, the

employee who is essentially robbed of his cash, his job, and his reputation is

unlikely to feel vindicated even if victorious. Allowing evidence obtained in back-

room interrogations to be turned over to the State for prosecution directly contra-

dicts the Fifth Amendment guarantee that coerced confessions cannot and will

not be used against an individual in a court of law.

Clearly, courts will exclude confessions if they were not, “voluntarily” given fol-

lowing “reasonable” efforts by private security. Not all merchants, however, are

interested in prosecuting their employees. Testimony from former Cumberland

Farms’ employees shows that there is a great deal of money to be gained by threat-

ening employees. Private security guards in uniform carry visible authority. The

courts and legislatures must recognize that this authority may be abused, particu-

larly given the minimal restrictions placed in private security guards.88

The authority for this plea has limited precedential support. In Williams v. United

States,89 the court found that a private detective who held a special police officer’s card

and badge granted, authorized, and licensed by the state and who was accompanied by a

city police officer in obtaining evidence was acting under color of state law.90 The decision,

though chronologically pre-Miranda, set some persuasive authority for Tarnef v. State.91 In

Tarnef, a private investigator, working under the direction of local police, was required to

advise defendant of his constitutional rights before eliciting a statement. Cases in which

private security are acting in consort with, under the authority of, or at the encouragement

or enticement of the public sector forge the nexus necessary for Miranda rights.92 Cases

involving moonlighting police officers and off-duty deputy sheriffs have held that Miranda

rights are generally not required.93 The California Supreme Court in a retail setting, held the

Miranda rights inapplicable under the following reasoning:

1. Store detectives do not enjoy the psychological advantage of official authority when

they confront a suspected shoplifter.

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2. Store detectives believe that they must act with greater circumspection to avoid

costly civil suits than do police officers. Thus, the compelling atmosphere inherent in

custodial interrogation is diminished.

3. Store detectives may only detain those who shoplift in their presence, limiting any

motivation they might otherwise have to vigorously seek confessions.

4. If a store detective engages in psychological or physical abuse or provides improper

inducements, any resulting statements by a defendant would be involuntary and an

exclusionary remedy would be available.94

Consequently, the California court concluded that the traditional standards governing

admissibility of voluntary statements were sufficient to protect the suspect’s Fifth

Amendment rights when confronted by a store detective, so it was not necessary to

extend the greater protections established in Miranda.95

Some security companies and interrogator’s employ Miranda-type documents to

ensure future admissibility in the event of subsequent challenge. A voluntary statement

is presented in Figure 5.2. The form memorializes a knowing and volitional statement. A

second suggestion is to allow the person giving the statement to write out, in his or her

hand, the substance of the statement. When public police are involved, either as inves-

tigators or participants, use Figure 5.3.

FIGURE 5.2 Voluntary Statement Form.

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For a curious ruling, covering a bevy of legal problems, including the sufficiency of

probable cause determinations in private police action, see Abraham v. Raso,96 where

the court remarks:

This Court recognizes that N.J.S.A. 2C: 3-7 provides in pertinent part that the use of

deadly force is justifiable where the officer reasonably believes that the crime for

which the arrest is being made was homicide, kidnapping, certain enumerated

sex offenses, arson, robbery, burglary of a dwelling, or an attempt to commit one

of these crimes, and where the officer believes that there is an imminent threat of

deadly force to a third party or that the use of such force is necessary to prevent

an escape. It is unclear to this Court, however, that this statutory provision defines

the entire universe of situations in which an officer is privileged to use deadly force

in the sense that the use of such force will not expose her to civil liability.97

FIGURE 5.3 Voluntary Waiver of Miranda Rights.

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Summary This chapter advises the security professional and practitioner on potential criminal

liabilities. Although most liability problems are civil in scope and design, criminal

charges can be and are lodged against security personnel, agencies, businesses, and

industrial concerns.

Individuals and corporations, either through their officers and directors or another

entity, can be held criminally culpable for specific conduct. Also, the regulatory pro-

cesses imposed at the state and local levels can, if not adhered to, result in criminal

penalties such as fines and forfeiture of occupational rights. Loss of license, revocation

and suspension, criminal conviction, and any other remedy legislated are acceptable

means of enforcement. Arguments asserting due process violations or a failure of equal

protection are not judicially favored. If the industry is ever to attain professional status

or equal footing with its public counterparts, some have argued, it will have to stress

higher standards and higher levels of procedural conduct.

The chapter also gave a schematic outline of the types of criminal behavior most

frequently brought forth in a security setting and provided factual patterns for evalu-

ation. Criminal defenses most often seen in the security sector were analyzed,

CASE EXAMPLES

THIRD-PARTY CRIMES

Facts

A 40-year-old individual was shot during a robbery while waiting for an elevator in a city-owned

building where he maintained residence. Injuries resulted in paralysis and substantial loss of

earnings. The plaintiff alleged that the defendant’s failure to maintain locks and lighting in the

lobby and failure to provide adequate security personnel caused the injury.

Issue

Should a plaintiff be able to collect money damages from a municipality or other governmental

entities for failure to provide protection against third-party criminal acts?

MIRANDA RIGHTS—TARNEF V. STATE, 512 P.2D. 923 (1973)

Facts

A private arson investigator working at the behest of local police and who had promised to turn

all evidence acquired, both testimonial and tangible, over to public law enforcement vigorously

interrogated a defendant. Without any regard for constitutional guidelines, the investigator

eventually acquired a great deal of information that was incriminating and subsequently turned

it over to the local police.

Issue

Is a private security officer, working at the request and on behalf of public law enforcement,

required to advise a defendant of his or her Miranda rights?

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including self-defense and defense of others. Finally, some discussion was provided

on the requirement of Miranda warnings, a procedural requirement firmly

entrenched in the public sector but as of yet, unless a sufficient nexus is shown

between public and private functions, is not a requirement in private security custo-

dial interrogation.

Discussion Questions 1. What criminal penalties can result from failure to follow the regulatory and licensing

processes?

2. What level of due process is required for the imposition of penalties or the

termination of licensure by governmental authority?

3. Name four common circumstances in which a security officer might be criminally

charged.

4. Discuss, in depth, the standards outlining the right to use force in self-protection.

5. In the protection of property, force is not a favored exercise. Explain.

6. Defendants in criminal cases initiated by the private security industry have few

procedural rights. Explain.

7. Are Miranda rights required in cases that involve private security?

Notes 1. 18 U.S.C. }242 (2010); see also Center for Criminal Justice, Private Police Training Manual (1985);

Rolando V. del Carmen & David L. Carter, An Overview of Civil and Criminal Liabilities of Police Offi- cers, Pol. Chief, Aug. 1985, at 46; 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).

2. 382 U.S. 296 (1966).

3. Id. at 299.

4. Note, Shoplifting Law: Constitutional Ramifications of Merchant Detention, 1 Hofstra L. Rev. 295, 310 (1973).

5. 18 U.S.C. }241 (2010).

6. James S. Kakalik & Sorrel Wildhorn, Private Police in the United States: Findings and Recommenda- tions (1971).

7. Report of the Task Force on Private Security National Advisory Committee on Criminal Justice Stan- dards and Goals (1976). See also William C. Cunningham, John J. Strauchs & Clifford W. VanMeter, Private Security Trends 1970 to 2000: The Hallcrest Report 322 (1990).

8. Report of the Task Force, supra note 7, at 121; see also H. E. Barrineau, Civil Liability in Criminal Jus- tice (2d ed. 1994); Katheryn K. Russell, The Color of Crime (1998).

9. 835 P.2d 458 (Ariz. App. 1992).

10. A.R.S. }32-2425 (2010).

11. A.R.S. }32-2427 (2010).

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12. Shorten v. Milbank, 11 N.Y.S.2d 387 (N.Y. Sup. 1939), aff’d 12 N.Y.S.2d 583 (1939).

13. Landi, 835 P.2d at 467.

14. Schanuel v. Anderson, 546 F. Supp. 519 (S.D. Ill. 1982), aff’d 708 F.2d 316 (C.A.7 Ill.).

15. Smith v. Fussenich, 440 F. Supp. 1077 (D.C. Conn. 1977).

16. See generally John C. Williams, Regulation of Private Detectives, Private Investigations and Security Agencies, 86 A.L.R.3d 691 (2010); Jeff Maahs & Craig Hemmens, Train in Vain: A Statutory Analysis of Security Guard Training Requirements, 22 Int’l J. Comp. & Applied Crim. Just. 91-101 (1998); Courses and Seminars, Int’l Security Rev., Nov.-Dec. 1997, at 12.

17. See Stewart v. County of San Mateo, 54 Cal. Rptr. 599 (1966).

18. State v. Zittel, 462 P.2d 944 (Wash. 1969); N.C. Assoc. of Licensed Detectives v. Morgan, 195 S.E.2d 357 (N.C. Ct. App. 1973); Norwood v. Ward, 46 F.2d 312, aff’d. 283 U.S. 800, 75 L. Ed. 1422, 52 S. Ct. 494 (1930).

19. See generally People v. Ro’Mar, 559 P.2d 710 (Colo. 1977); Martin v. Conlisk, 347 F. Supp. 262, (D.C. Ill. 1972); Wackenhut Corp. v. Calero, 362 F. Supp. 715 (D.C. Puerto Rico 1973).

20. 86 A.L.R. 829 (Supp. p. 49); see also People v. Corry, 181 N.E. 603 (Ill. 1932).

21. See ABC Security Service, Inc. v. Miller, 514 S.W.2d 521 (Mo. 1974); cf. Schulman v. Kelly, 255 A.2d 250 (N.J. 1969).

22. State v. Guardsmark, 190 N.W.2d 397 (Iowa 1971).

23. In Re Application of Hitchcock, 166 P. 849 (Cal. App. 1917); In Re Berardi, 129 A.2d 705 (N.J. 1957).

24. See Williams, supra note 16.

25. Guardsmark, 190 N.W.2d.

26. See Williams, supra note 16.

27. Guardsmark, 190 N.W.2d, at 399.

28. 14 S.W. 565 (Mo. 1890).

29. Id.

30. 275 P.2d 579 (Cal. App. 1954).

31. Id.; see also Donkin v. Director of Professional and Vocational Standards, 49 Cal Rptr. 495 (1966).

32. 41 Cal. Rptr. 263 (1964). See also Agency for Investigation and Detection, Inc. v. Department of State, 266 N.E.2d 310 (N.Y. 1965).

33. 41 Cal. Rptr. 263 (1964).

34. 514 S.W.2d 521 (Mo. 1974).

35. In Re Berardi, 129 A.2d 705 (N.J. 1957); see also People v. King, 194 N.E.2d 131 (N.Y. 1963).

36. 569 P.2d 455 (Okl. 1977).

37. Schnabalk, The Legal Basis of Liability, Part II, 27 Sec. Mgmt. 29 (1983). See also Lawrence Friedman, In Defense of Corporate Criminal Liability, 23 Harv. J. L. & Pub. Pol’y 833 (2000); William A. Simpson, Corporate Criminal Intent (August 5, 2009), available at http://ssrn.com/abstract¼1444543; County of Santa Clara v. Southern Pacific Railroad Company 118 U.S. 394 (1886); Arthur Andersen LLP v United States 544 U.S. 696 (2005); New York Cent. & H.R.R. Co. v. U.S., 212 U.S. 481 (1909); U.S. v. Bank of New England, N.A., 821 F.2d 844 (C.A.1 Mass. 1987).

38. See W. T. Grant Co. v. Superior, 23 Cap. App. 3d 284 (1972); N.Y. Central & Hudson Railroad v. U.S., 212 U.S. 481 (1908); People v. Canadian Fur Trappers Corp., 161 N.E. 455 (N.Y. 1928); see generally Shirley Baccus-Lobel, Criminal Law 52 S.M.U. L. Rev. 881, 910-911 (1999); Rolando V. del Carmen, An Overview of Civil and Criminal Liabilities of Police Officers and Departments, 9 Am. J. Crim. L. 33 (1981); Rolando V. del Carmen, Civil and Criminal Liabilities of Police Officers, in Police Deviance

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(T. Barker & D. L. Carter eds., 1994); Rolando V. del Carmen & Victor E. Kappeler, Municipal and Police Agencies as Defendants: Liability for Official Policy and Custom, 10 Am J. Police 1-17 (1991).

39. Arthur J. Bilek, John C. Klotter, & R. Keegan Federal, Legal Aspects of Private Security 144 (1980).

40. Schnabalk, supra note 37.

41. See Charles P. Nemeth, Criminal Law 183-187 (2004); 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); Keith D. Harries, Serious Violence: Patterns of Homicide and Assault in America (1990).

42. For a representative statute see Ga. Code Ann. }16-5-20(2) (West 2010).

43. See Model Penal Code }211.1(c) (Proposed Official Draft 1962).

44. See Ga. Code Ann. }16-5-20(1) (West 2010); MPC, supra note 43, at }211.1(a).

45. Also called “assault and battery” or “aggravated assault” in some jurisdictions.

46. See State v. Humphries, 586 P.2d 130 (Wash. App. 1978).

47. See MPC, supra note 43, at }211.1(2).

48. See Id.

49. See Nemeth, supra note 41, at 178-179. See also Neb. Rev. Stat. }38-314 (2010); MPC, supra note 43, at }212.3; 18 Pa. Cons. Stat. Ann. }2903 (West 2010); Colo. Rev. Stat }18-3-303 (2010).

50. See Nemeth, supra note 41, at 254-263; Weitkamp, supra note 41, at 73; Taft & Valeree, supra note 41, at 353; James Gibson, How Much Should Mind Matter? Mens Read in Theft and Fraud Sentencing, 10 Fed. Sentencing Rep. 136, 137 (1997).

51. See Nemeth, supra note 41, at 128-132; see also Pamela K. Lattimore & Cynthia A. Nahabedian, The Nature of Homicide: Trends and Changes (1997); Marvin E. Wolfgang, Patterns in Criminal Homi- cide (1975).

52. Jeremy Horder, Provocation and Responsibility (1992); Joshua Dressler, Provocation: Partial Justifi- cation or Partial Excuse?, 51 Mod. L. Rev. 467 (1988); Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. Crim. L. & Criminology 421 (1982); Finbarr McAuley, Antici- pating the Past: The Defense of Provocation in Irish Law, 50 Mod. L. Rev. 133 (1987); Andrew von Hirsch & Nils Jareborg, Provocation and Culpability in Responsibility, Character, and the Emotions 241 (Ferdinand Schoeman ed., 1987).

53. See Nemeth, supra note 41, at 115-128; see also 2 Francis Wharton, Wharton’s Criminal Law (Charles E. Torcia ed., 15th ed. 1993); Baccus-Lobel, supra note 38, at 910-911; John Rockwell Snowden, Sec- ond Degree Murder, Malice, and Manslaughter in Nebraska: New Juice for an Old Cup, 76 Neb. L. Rev. 399, 410 (1997).

54. Jeffrey S. Thurnher, Drowning in Blackwater: How Weak Accountability over Private Security Con- tractors Significantly Undermines Counterinsurgency Efforts, 2008 Army Law. 64 (2008); Craig S. Jor- dan, Who Will Guard the Guards? The Accountability of Private Military Contractors in Areas of Armed Conflict, 35 N.E. J. Crim. & Civ. Con. 309 (2009); Oliver R. Jones, Implausible Deniability: State Responsibility for the Actions of Private Military Firms, 24 Conn. J. Int’l. L. 239 (2009); Gable F. Hack- man, Lipping Through the Cracks: Can We Hold Private Security Contractors Accountable for Their Actions Abroad?, 9 Loy. J. Pub. Int. L. 251 (2008).

55. See Nemeth, supra note 41, at 377, 378-379; see also William L. Clark & William L. Marshall, A Trea- tise on the Law of Crime (6th ed 1958); People v. Burt, 288 P.2d 503 (Cal. 1955).

56. Ex parte Moore, 356 U.S. 369 (1952).

57. See Nemeth, supra note 41, at 377, 385-391; J. F. McSorley, Portable Guide To Federal Conspiracy Law: Developing Strategies For Criminal And Civil Cases (1996).

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58. See Bilek et al., supra note 39, at 152; Sears v. U.S., 343 F 2d 139 (5th Cir. 1965); State v. St. Christopher, 232 N.W.2d 798 (Minn. 1975).

59. Code Just. 3.27.1 (Valentinian, Theodosius & Arcadius 391). See also Will Tysse, The Roman Legal Treatment of Self Defense and the Private Possession of Weapons in the Code of Justinian, 16 J. Firearms & Pub. Pol’y, available at http://secondamendmentlibrary.com/JFPPIndexhtmlpdf.htm.

60. 22 Exodus 2:1.

61. National Institute of Justice, Crime and Protection in America, A Study of Private Security and Law Enforcement Resources and Relationships (1985). See Nemeth, supra note 41, at 389-407; Russell L. Christopher, Mistake of Fact in the Objective Theory of Justification: Do Two Rights Make Two Wrongs Make Two Rights . . . ?, 85 J. Crim. L. & Criminology 295 (1994); Kent Greenawalt, The Per- plexing Borders of Justification and Excuse, 84 Colum. L. Rev. 1897 (1984); George P. Fletcher, The Right and the Reasonable, 98 Harv. L. Rev. 949 (1985); 2 Paul H. Robinson, Criminal Law Defenses, }3-3, Model Codifications, app. A (1984).

62. George E. Dix & Michael M. Sharlot, Basic Criminal Law Cases and Materials 527 (1980).

63. William C. Cunningham & Todd H. Taylor, The Hallcrest Report, Private Security and Police in America 92 (1985).

64. Site Surveys of Security Employees, Baltimore County, Maryland and Multnomah County (Portland), Oregon metropolitan areas. Hallcrest Systems, Inc., 1982. Stoneham, MA: Butterworth– Heinemann.

65. Shlomit Wallerstein, Justifying the Right to Self-Defense: A Theory of Forced Consequences, 91 Va. L. Rev. 999 (2005).

66. MPC, supra note 43, at }3.04.

67. MPC, supra note 43, at }3.04 (1 & 2).

68. For more information on the subject see Nemeth, supra note 41, at 401-407; see also Christopher, supra note 61; Greenawalt, supra note 61; Fletcher, supra note 61; Robinson, supra note 61.

69. Summary of Pennsylvania Jurisprudence 2d, Criminal Law }7.19.

70. Cunningham & Taylor, supra note 63, at 94.

71. See Nemeth, supra note 41, at 407-408; see Christopher, supra note 61; Greenawalt, supra note 61; Fletcher, supra note 61; Robinson, supra note 61.

72. MPC, supra note 43, at }3.05(1).

73. U.S. v. Peterson, 483 F. 2d 1222, 1223 (1973); see also State v. Goodseal, 183 N.W.2d 258 (Neb. 1971); Commonwealth v. Martin, 341 N.E. 885 (Mass. 1976); Commonwealth v. Monico, 366 N.E.2d 1241 (Mass. 1977).

74. Pennsylvania Jurisprudence, supra note 69, at }7:26.

75. Center For Criminal Justice, Private Police Training Manual 200 (1985).

76. Id.

77. MPC, supra note 43, at }3.06 (1).

78. See Nemeth, supra note 41, at 408-409; see Christopher, supra note 61; Greenawalt, supra note 61; Fletcher, supra note 61; Robinson, supra note 61.

79. Pennsylvania Jurisprudence, supra note 69, }7:36.

80. The State of New Jersey recently expanded the right of the homeowner to protect his or her interests with deadly force.

81. 148 S.E. 2d 279, 281-282 (N.C. 1966).

82. Id.; see also Law v. State, 318 A.2d 859 (Md. App. 1974); People v. Givens, 186 N.E.2d 255 (Ill. 1962).

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83. Task Force on Private Security, supra note 7, at 127; see also Will Aitchison, The Rights of Law Enforcement Officer (4th ed. 2000); Rolando V. del Carmen, Criminal Procedure For Law Enforce- ment Personnel (5th ed. 2001); del Carmen & Kappeler, supra note 38, at 1-17; S. M. Ryals, Discovery and Proof In Police Misconduct Cases (1995).

84. Cunningham & Taylor, supra note 63, at 264.

85. People v. Oxnell, 166 N.W. 2d 279 (1968); see also Aitchison, supra note 83; del Carmen, Criminal Procedure, supra note 83; del Carmen & Kappeler, supra note 38, at 1-17; Ryals, supra note 83.

86. Joan E. Marshall, The At-Will Employee and Coerced Confessions of Theft: Extending Fifth Amend- ment Protection to Private Security Guard Abuse, 96 Dickinson L. Rev. 37, 40 (1991).

87. Curly v. Cumberland Farms, Inc., 13 F.R.D. 77 (D. N.J. 1991).

88. Marshall, supra note 86, at 57; see also Aitchison, supra note 83; del Carmen, Criminal Procedure, supra note 83; del Carmen & Kappeler, supra note 38, at 1-17; Ryals, supra note 83.

89. 341 U.S. 97 (1951).

90. Williams v. U.S., 341 U.S. 97 (1951); City of Grand Rapids v. Impens, 327 N.W.2d 278 (Mich. 1982).

91. 512 P.2d 923 (Alaska 1973).

92. See Griffin v. Maryland, 378 U.S. 130 (1964); People v. Jones, 288 N.W.2d 385 (Mich. App. 1979).

93. See People v. Faulkner, 282 N.W.2d 377 (Mich. App. 1979).

94. R. Keegan Federal & Jennifer L. Fogleman, Avoiding Liability in Retail Security, A Casebook 168-169 (1986), quoting Metigoruk v. Anchorage, 655 P.2d 1317 (Alaska App. 1982).

95. Substantial authority concurs with the judgment of both the California and Alaska Supreme Courts regarding Miranda rights though given the Cumberland case, opinion may shift. See Jelks v. State, 411 So. 2d 844 (Ala. Cr. App. 1982); Bowman v. State of Indiana, 468 N.E.2d 1064 (Ind. App. 4 Dist. 1984).

96. 15 F. Supp. 2d 433 (N.J. 1998).

97. Abraham v. Raso, 15 F. Supp. 2d 433, 450 n.14 (N.J. 1998).

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