Security Officer and Employer Liability
Guards can be subject to civil and criminal lawsuits. In some cases, the guard's employer can also be charged. Often, persons who feel they have been wronged by a security guard will press civil rather than criminal charges as there are monetary rewards in a civil case and it takes less evidence to convict a person or company in civil court.
A company, a guard and a guard's supervisor can be found guilty in a civil court for:
Failing to take steps to prevent crimes that occur on the premises.
Inadequately screening security guard applicants.
Failing to train a security guard before the guard started to work.
Being negligent in supervision and training of guards.
Failing to maintain policies and procedures for safety and physical security programs.
A guard can be found guilty in criminal court for crimes such as false arrest, assault and battery and illegal detention. If a guard is found guilty of a criminal offense, they will have a criminal record and not be able to work as guard ever again.
A convicted guard loses their job and income.
A guard can be charged with both a criminal and civil offense for the same action. If found guilty, a guard could face time behind bars and be ordered to pay damages to the civil court.
Examples of Civil and Criminal Security Guard Lawsuits
If a guard enters an area they are not authorized to enter, they could be charged with trespassing under the same rules as a private citizen. A guard should only patrol areas they are authorized to by their employer.
A guard can be found guilty of criminal or civil battery for even slightly touching another person, if the touching was not authorized. Avoid touching a subject unless you are physically attacked first and need to physically defend yourself.
A guard can be found guilty of criminal or civil assault, if the guard made a threatening gesture and the subject thought the gesture would result in harm. A gesture is considered to be actions, tone of voice and physical movements. A guard should remain professional and calm at all times to avoid threatening a subject.
A guard can be found guilty of the civil charge of intentionally inflicting emotional distress on another person. A guard must pay special attention when interacting with children, the elderly, the sick, the handicapped and pregnant women. Society views treatment of these individuals differently than for the general population. Also, the actions of a security guard are viewed differently than those of a private person. A security officer should always remember that his actions will be reviewed at a later time when emotions are not running high like they might have been during an incident. It could be ruled that a guard acted in a severe or outrageous manner.
A guard can be charged with false imprisonment for the unlawful confinement, detention or restriction of a person's freedom. Illegal detention is the only requirement to prove false imprisonment. Even a brief instant of illegal detention will get a security guard in legal trouble. Words, gestures, threats or the perception that a person is not free to go, not just illegal physical detention, constitutes false imprisonment.
Merchant Law allows some store owners and their employees and agents, such as security guards, some protection against false imprisonment claims, if there is reasonable belief the person has unpaid merchandise in their possession. If a shoplifter consented to the detention, a false imprisonment claim cannot be proven. However, a guard should still be extremely cautious when interacting shoplifters. A guard should follow the exact wording given to them by their supervisor or the mall owner when confronting a possible shoplifter.
Libel / Slander
Written or spoken defamation can take the form of words, pictures, speech, signed language or any other form of communication between people. The communication must be published or posted in some manner that it could be heard, read or received by a person other than the victim. If a guard says loudly in the middle of Macy's, "I caught this shoplifter with a leather coat," and the person turns out to be a sales clerk returning the coat to the rack, the guard is guilty of defamation.
A guard causing injury to a person or property by using unreasonable force or taking unreasonable risk can be charged with negligence. The guard's employer can also be charged with negligence due to the guard's actions. Failure to act on the part of the guard or the guard's employer can also be negligence. A guard operating a company vehicle in reckless manner is also considered negligence.
Invasion of Privacy
If a guard intrudes on a person's privacy or physical solitude or discloses private information about a person, the guard could be found guilty of invasion of privacy. Phone tapping or unauthorized entry into a person's vehicle are examples of invasion of privacy.
Premise liability suits are when the owner of the property is held accountable for a crime committed on the property. Crimes in parking lots result in lawsuits against property owners more often than crimes in other parts of the property. Apartment and condominium complexes are sued most often, followed by office buildings, restaurants, hotels and retail stores. Lawsuits occur most often in the states of CA, NY, TX and FL
RIGHT TO PRIVACY
Many of the rules regarding searches are set forth in the area of the Shopkeeper's Privilege. Remember, reasonableness rules! The number one rule to follow is reasonableness. If the search may not be considered reasonable, don't do it!
Search for weapons
California Penal Code Section 846 governs the rights of private persons to search for weapons after making a lawful arrest. "Any person making an arrest may take from the person arrested all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken."
This code section is narrowly construed and does not allow the search to be expanded. For example, in the case of People v. Sjosten (1968) 262 Cal.App.2d 539, the court explained only offensive weapons may be taken from a person pursuant to a lawful citizen's arrest. A search for contraband incidental to arrest or a search of premises is not allowed.
Generally, a security officer has only the authority to conduct a search that is specifically allowed. Namely, a security officer may search the specific items set forth in the shopkeeper's privilege and search for weapons pursuant to an arrest. Both searches must be reasonable. A weapons search should be limited to a "pat down" on the outside of the clothing only.
Also, the security officer must be aware of how the timing effects the ability to search. Note that the search for weapons is made after an arrest. A security officer cannot search for weapons during the investigation into whether a crime has been committed.
Example of a sequence regarding a shoplifting incident allowing for weapons search:
1. Security officer observes unlawful activity.
2. Security officer has probable cause to detain.
3. Security officer detains individual.
4. Security officer continues investigation.
5. Security officer may search shopping bags, packages, purses, etc. pursuant to Shopkeeper's Privilege.
6. Security officer finds stolen item(s).
7. Security officer arrests individual pursuant to citizen's arrest.
8. Now, the security officer may search for weapons.
Care and safety of all those in the vicinity must be taken into account in the search for weapons.
The general rule is that Miranda warnings are not required before a private security officer questions another individual. Miranda warnings are applicable to a custodial interrogation by a police officer. A security officer is not a police officer, and as such, the Miranda requirements do not apply. Any confessions or incriminating statements made to security officer may be admitted in a trial. Consequently, any statements made by the individual should be set forth in the report or logs.