Scope Of Legal Authority Of Private Security Personnel
If you have issues viewing or accessing this file contact us at NCJRS.gov.Scope of legal Authorityof Private SecurityPersonnel146908U.S. Department of JusticeNational Institute of JusticeThis document has been reproduced exactly as received from theperson or organization originating it. Points of view or opinions stated inthis document are those of the authors and do IIOt necessarily representthe oHicial position or policies of the National Institute of Justice.Permission to reproduce this . , itlidi8d material has beengr t l!5lJ.ic Domain/LEAAU.S. Department of Justiceto the National Criminal Justice Reference Service (NCJRS).Further reproduction outside of the NCJRS system requires permissionof the . owner.A REPORT PREPARED BY THEPRIVATE SECURITY ADVISORY COUNCIL,LAW ENFORCEMENT ASSISTANCE ADMINISTRATION,U.S. DEPARTMENT OF JUSTICE.'If
SCOPE OF LEGAL AUTHORITY OF PRIVATE SECURITY PERSONNELPrepared by thePRIVATE SECURITY ADVISORY COUNCluto theLAW ENFORCEMENT ASSISTANCE ADMINISTRATIONUNITED STATES DEPARTMENT OF JUSTICEAugust 1976Points of view or opinions expressed in this document are thoseof the Private Security Advisory Council, and do not necessarilyrepresent the official position or policies of the Law Enforcement Assistance Administration, U.S. Department of Justice.
PRIVATESECURITY ADVISORY COUNCIL of theUnited States Department of JusticeLaw Enforcement Assistance AdministrationSeptember 27, 1976Mr. Richard W. Ve1deAdministratorLaw Enforcement Assistance AdministrationU.S. Department of Justice633 Indiana Avenue, N.W.Washington, D.C. 20531Dear Mr. Ve1de:As Chairman of the Private Security Advisory Council,it gives me pleasure to forward the attached report, Scopeof Legal Authority of Private Security Personnel, developedby the Council for the Law Enforcement Assistance Administration.This document is the culmination of many hours of volunteer ffort by members of the Council and tI"!-e members' of the LawEnforcement/Private Security Relationships Committee.In its continuing effort to improve the crime preventionand reduction capabilities of private security, the Counciland its Law Enforcement/Private Security Relationships Committeefeel that the sources of legal authority and restraints uponprivate security activities must be identified and shared withboth pri va'te security and public law enforcement. Essentially,this report addresses those areas of legal involvoment in whichprivate security personnel may perform activities similar tothe law enforcement functions of crime prevention and reduction.Finally, the Advisory Council recommends that the LawEnforcement Assistance Administration giv.e the widest possibledissemination to this document.With best personal regards,OSi :l j a(J;tf hu. BilekChai anPrivate Security Advisory CouncilAJB:smbEnclosure
LAW ENFORCEMENT ASSISTANCE ADMINISTRATIONRichard W. Velde, AdministrationHenry F. Mcquade Deputy AdministratorsPaul K. WormeliPRIVATE SECURITY ADVISORY COUNCILChairmanViceChairman,Arthur J. BilekHoward L. MaiMembersSaul ArringtonJim L. BridgesWalter BurnsRichard Ca Cl ementRichard F. CrossJackie Lo CurrieJoseph. F. DohertyJames W. FerrimanEugene L. FussHarold W. Gray, Jr.Edward W. HydeDavid B. KellyFritz A. SchumacherGoeffrey C. ShepardHoward C. ShookGeorge A. Smith, Jr.John L. SwartzC. W. ThompsonJames H. YoungLaw Enforcement/Private Security Relationships CommitteeChairmanGaris F. DistelhorstMembersRobert L. ArkoDale G. CarsonGeorge A. DeBonJoseph M. JordanJoseph F. McCorryHerbert C. YostCounci 1 U ai son MembersRichard C. ClementHoward C. ShookJohn L. SwartzFederal RepresentativeIrving SlottSince its inception, the Private Security Advisory Council has achieveda balanced persprective by the representative nature of its membership. Allmembers of the Council and its six Committees are appointed 'by the Administratorof LEAA and serve without compensation. Members of the Council and its Committeesinclude leaders and executives from both proprietary and contractual privatesecurity; public law enforcement; federal, state and local governments; as wellas attorneys, insurance and business executives.
TABLE OF CONTENTSPREFACEiTHE PRIVATE SECURITY ADVISORY COUNCILI.II.INTRODUCTION1SOURCES OF LEGAL AUTHORITY FOR PRIVATESECURITY PERSONNEL3A.B.4C.D.E.III.iiConstitutional LawCriminal LawTort LawContract LawRegulato'ry Laws3456MAJOR LEGAL ISSUES AFFECTING PRIVATESECURITY PERSONNEL8A.8Arrest1.2.3.Elements of ArrestArrest With a WarrantArrest Without a Warranta.b.c.B.C.88910Detention and False Imprisonment121. . Common Law Rule2.Statutory Modifications12Search141.2.D.Under Common Law RuleUnder Statutory ProvisionsUnder Deputization Powers88Power to SearchEvidence Obtained From SearchesInvestigations and Interrogations13141617
Table of Contents - ContinuedPageE.Use of Force1.2.3.4.5.IV.In Self-Defense and Defense of OthersIn Defense of PropertyIn ArrestIn Prevention of CrimeSelf-Defense and Deadly Force181819191920F.Use of Firearms21G.Invasion of23H.Defamation rivacyFOOTNOTES2730APPENDIX A - Summary of Private SecurityStatewide LegislationA-IAPPENDIX B - Statewide Private SecurityRegulatory Boards and AgenciesB-1APPENDIX Cl - Private Citizen ArrestAuthorityCl-1APPENDIX C2 - Private Citizen ArrestAuthorityC2-1APPENDIX D - Analysis of Shoplifting DetentionStatutesC-l
PREFACEThis document, ScoEe of Legal Authority of Private SecurityPersonnel, was developed by the Private Security Advisory Counciland its Law Enforcement/Private Security Relationships Committeeto create a greater awareness on the part of private security ofthe sources of legal authority and legal restraints upon the conductof private security personnel. Although sources of legal authorityand restraints upon private security are generally identified anddiscussed in this document) it is particularly important for thereader of this report to thoroughly research applicable legalprovisions within their respective jurisdictions.The major effort in developing this document was performedby the Law Enforcement/Private Security RAlationships Committee,and special acknowledgement and apprecia. tOn is due the Chairmanand members of that Committee: Garis F. Distelhorst (Chairman),Robert L. Arko, Dale G. Carson, George A. DeBon; Joseph M. Jordan,Joseph F. McCorry, Herbert C. Yost, and the three Council liaisonmembers: Richard Clement, Howard C. Shook, and John L. Swartz.This Committee was assisted in preparing this report by membersof the Council's staff support contractors: PRC Public ManagementServices, Inc., and William C. Cunningham, Todd H. Taylor, DavidWeinstein, and Deborah Galvin of Hallcrest Systems, Incorporated.The Advisory Council owes a debt of gr titude to Irving Slott,Federal Program Monitor to the Council, for his encouragement inthe development of this document.Arthur J. BilekChairmanPrivate Security Advisory Council-i-
------- .THE PRIVATE SECURITY ADVISORY COUNCILThe Private Security Advisory Council was chartered by theLaw Enforcement Assistance Administration CLEM) in 1972 toimprove the crime prevention capabilities of private security andto reduce crime in public and private places by reviewing therelationship between private security systems and public lawenforcement agencies, and by developing programs and policiesregarding private protection services that are appropriate andconsistent with the public interest.The Council wag an outgrowth of a meeting of private securityrepresentatives, called by LEAA in December 1971, to discuss theresearch and development efforts of LEAA that related to theprivate sector and the role of private security in the nationaleffort to reduce crime. During the initial meeting, the representatives from private security overwhelmingly recommend.ed that LEAAestablish a national advisory committee, made up of persons withexpertise in private security, to provide LEAA with continuingadvice on matters of appropriate concern. LEAA followed thatrecommendation, and the Private Security Advisory Council wascreated shortly thereafter.In September of 1974, the membership of the Council wasbroadened to include representation from the public law enforcementagencies and from consumers of private security services. Sinceits beginning, the Council has worked on a number of tasks relatedto security services provided by the private sector. Since itsinception, the goals and objectives of the Council have been:aTo act as an advisory to LEAA on issues of nationalimportance which impact, or are impacted by, theprivate security industry; To raise the standards and increase the efficiencyof the private security industry; To increase cooperation and understanding between theprivate security industry and public law enforcement;and To provide a viable national forum and point of leadership for matters relating to private security.To achieve those goals, six committees of the Council havebeen established: Alarm Committee, Armored Car Committee,-ii-
------------ -------Environmental Security Committee, Guards and InvestigatorsCommittee, Law Enforcement/Private Security Relationships Committee,and the Prevention of Terroristic Crimes Committee. Eachcommittee has been assigned specific objectives related to accomplishment of Council goals.The responsibilities and duties of the Private SecurityAdvisory Council are advisory in nature. It cannot prescribe orpromulgate rules or regulations. Its findings or recommendationsare not official; they can be accepted or rejected by LEAA.The Council operates pursuant to the provisions of theFederal Advisory Committee Standards Act, Public Law 92-463, LEAANotice NI300.2, OMB Circular No. A-63, and any additional ordersand directives issued in implementation of the Act, The Councilwas established under the authority of Section 517 of the OmnibusCrime Control and Safe Streets Act of 1968 (Public Law 90-351)as amended by Public Law 91-644 and the scope of its functions islimited to the duties specified in its charter.The Council has published a number of other advisories toLEAA on a variety of issues. These include: A Report on a Model Hold-Up and Burglar Alarm BusinessLicensing and Regulatory s.tatute; A Report on the Regulation of Private Security GuardServices, including a Model Private Security Licensingand Regulatory Statute; Terroristic Crimes: Potential Secondary Impacts of the Crime PreventionThrough virorimenta1 Design Concept; An Annvtated ,Bibliography;Private Security Codes of Ethics for Security Manageand Security Employees; ! Law Enforcement and Private Security Sources and Areasof Conflict; Prevention of Terroristic Crimes: Security Guidelinesfor Business, Industry, and Other Organizations;The Private Security Advisory Council: Its History,Organization:-Goa1s, and Accomplishments; Reports on the Private Security Advisory Council Meetings'CiT June, 1"""974; "September, } 974; De ceiii'ber , 1974; February,1975; J ll, 1975; October, 1975; November, 1975; andApril 1976.-iii-
- - --ICopies of these Council reports are available withoutcost from LEAA.In addition to the above reports, the Private SecurityAdvisory Council and its Committees are preparing other advisoryreports to LEAA on the need for, and requirements of, a nationalstudy of the false alarm problem; the requirements of a comprehensive manual on countermeasures against terroristic crimes; trainingcurricula for private security guards; standards for privateinvestigators; and crime impact and residential security statementsas environmental security techniques.-iv-
I.INTRODUCTIONThe scope of legal authority for private security is notclearly delineated in anyone body of law. It is foundindirectly in the various forms of law -- constitutional,judge-made, statutory and administrative rule-making; and it isimplicit in the substantive areas of law -- criminal, tort andcontract. Law does not serve as a detailed "book of reference"concerning the exact parameters of legal authority. Rather,law establishes precedents to be used as guidelines for preventinginjuries and damages that may result in lawsuits or state actions.Since the law, then, is quite often a source of authority ratherthan a definition of authority, it is essential to identify thesources of authority and restraints upon the conduct of privatesecurity personnel. This document will: outline the bodies of law associated with the scopeof authority of private security personnel; examine the major categories and the cases of privatesecurity legal involvement pertaining to their degreeof authority; review possible legal sources of privileges andimmunities for law enforcement and private securitypersonnel. discuss and analyze problem areas related to legalrestraint of private security personnel.Most frequently, the private security employee, under thelaw, has the equivalent power of a private citizen to arrest, todefend himself and others, to investigate, and to carry firearms.Usually he does not have special police powers, ,nor is he subjectto the constitutional and statutory limitations of public lawenforcement. Thus, most law delineating the scope of legalauthority of private security is found in private citizens' rightsand limitations. What follows, in summary form, is a discussionof the major bodies of law affecting private security, which arebriefly described in a section preceding the significant issuesin private security legal involvement.This document has been prepared primarily to address tho5eareas of legal involvement in which private security personnelperform activities similar to the police functions of crimeprevention and reduction, and in which they interact with public-1\
law enforcement and other components of the criminal justicesystem. Improvement of effective working relationships in theseareas has been the major objective of the Law Enforcement andPrivate Security Relationships Committee of the Private SecurityAdvisory Council. There are other legal issues of concern toprivate security for example, liability in the protection ofpatrons, customers and visitors from hazards, and the renderingof emergency medical assistance. However, these issues andothers which are not of notable importance to the work of thePrivate Security Advisory Councilor its Committees have beenexcluded from analysis in this document. The issues affectingprivate security personnel which have been selected for analysisinclude: arrest and detention;ofalse imprisonment; search; investigations and interrogations; use of force; use of firearms; invasion of privacy; defamation.-2-
II.SOURCES OF LEGAL AUTHORITYFOR PRIVATE SECURITY PERSONNELOur legal system attempts to strike a balance between therights of persons and private organizations to protect lives andproperty from outside interference and the rights of privatecitizens to be free from the power or intrusions of others. Theattempt to balance competing and conflicting interests is nowheremore apparent than in the field of private security. On the onehand, the private sector uses in-house (proprietary) or contractualsecurity employees to protect their own lives and property andthat of their customers from the mugger, th shoplifter, thepickpocket, the hijacker, the embezzler, the arsonist, the vandal,and other troublesome people. On the other hand, all citizensare entitled to be free from assault and battery by others,unlawful detention or arrest, injury to reputation, intrusion intopersonal privacy and solitude, and illegal invasions of one'sland, dwelling or personal property.In order to perform effectively, private security personnelmust, in many instances, walk a tight-rope between permissibleprotective activities and unlawful interferences with the rightsof private citizens. The precise limits of the authority ofprivate security personnel are not clearly spelled out in anyoneset of legal materials. Rather, one must look at a number ofsources in order to define, in even a rough way, the dividing linebetween proper and improper private security behavior. Thesesources are discussed briefly below.A.CONSTITUTIONAL LAWThe United States Constitution places many limitations on theconduct of governmental officials, including police and quasipolice agencies and other components of the criminal justicesystem. But, the Constitution says little about the rights ofprivate citizens in their relationship to other citizens. Mostconstitutional rights of an individual relate to governmental orstate action and not to activities of other private persons orcorporations.Since state action is usually required to enforce constitutional restrictions, such restrictions do not generally pertainto private security activities. In six specific instances, however,constitutional restrictions could apply to private security whenprivate security personnel: (1) act as agents for public lawenforcement agencies; (2) act in concert with public law enforcement officials; (3) obtain evidence as agents for law enforcement-3-
------ ----------personnel for use in a prosecution; (4) act with deputized policepowers; (5) act with limited police powers granted by a licensingor regulatory body; and (6) are employed by a public authority.The first three instances are addressed in later sections accordingto the appropriate areas of legal involvement; a discussion ofthe latter three instances follows.Except in cases of deputization, only in rare instances willprivate security actions be classified as state action, and therefore subject to constitutional restraints. But there are circumstances when actions of private security personnel may be classifiedas state action. The question of whether or not the licensingof private security personnel constitutes state action is raised inWeyadt v. Mason's Store, Inc., 279 F. Supp. 283, W.D. Pa., (1968).In this case the Court held that although a private detective ofa store was licensed under the Pennsylvania Private Detective Actand was acting under H co 1or of the 1aw,1I the law is not a cleputization law and does not invest the licensee with authority ofstate law. Thus, the private detective of the store was onlyacting with the authority of a "private citizen." When privatesecurity personnel are hired on a contractual basis by a publicauthority, they are in fact acting with authority of state lawand are subject to constitutional restrictions upon the exerciseof power. Williams v. United States, 341 U.S. 97, (1951).B.CRIMINAL LAWCriminal codes are sources of restraint for the privatesecurity officer. In criminal law, an action is defined as a"social harm" to which the offender is a.nswerable to society(not to an individual, as in torts) and is punishable by law. 2Generally, criminal law acts only as a deterrent to improperactivity by private security officers; that is, criminal lawoperates as a deterrent to the extent that the law is known, thatthe probability of being convicted is sufficient, and that thecriminal justice system operates effectively in imposing sanctions.Because intent to commit a crime is required, crimes are narrowlydefined and the prosecution must prove guilt beyond a reasonabledoubt. The criminal law can best be seen as establishing outerlimits on the behavior of private security employees rather thanas a day-to-day regulatory device.C.TORT LAWThe law of torts is found in both legislation and courtdeveloped common law. There is no one body of tort law; it variesfrom state to state, although there is an ongoing attempt to achievesome conformity through various model laws and the Restatement ofTorts which is published by the American Law Institute. Tort lawis defined as a body of law that governs the civil relationshipsbetween people. 3 It defines and creates causes of actions permitting-4-
---------------------- --------------------one person to remedy the wrongs committed against him by another,and has the effect of restraining conduct by creating remedialavenues for the one
ffort by members of the Council and tI"!-e members' of the Law Enforcement/Private Security Relationships Committee. In its continuing effort to improve the crime prevention and reduction capabilities of private security, the Council and its Law Enforcement/Private Security Relationships Committee .
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