Private Sector Issues

1. Private Sector Issues Chapter Four Private Security Law

2. Private Security Law • Law • “Law” can be generally defined as a system of standards and rules of human conduct that impose obligations and grant corresponding rights, as well as a system of institutional rules on the creation, modification and enforcement of these standards • “Law” defines, for society, behavior that is proscribed (forbidden) and prescribed (mandated)

3. Law • History of Law • Most societies throughout history have developed methods of governing relationships among their members and resolving conflicts • The primary heritage of the U.S. legal system is England’s “Common Law” • “Common Law’ refers to a traditional body of unwritten legal precedents, created through everyday practice and supported by court decisions during the Middle Ages in English Society

4. Law • History of Law • “Common Law” is sometimes referred to as “Judge Made Law” • Because there were no written statutes in England at the time, the English judges formalized the customs and mores of the times into court decisions and applied the same rules throughout the entire country • These decisions served as precedent for rulings in future court cases

5. Law • History of Law • An example of “Common Law” • Persons stealing from businesses or employers are prosecuted using the statutory law of theft, but the power to use these laws and retailer rights in this area are based on the “Common Law” tradition of the “Shopkeepers or Merchant’s Privilege”

6. Law • History of Law • An example of “Common Law” • Also under this theory, a shopkeeper could reasonable detain and question an individual if the shopkeeper had a justified suspicion that an illegal act, such as theft, has taken place on the property

7. Law • Types of Law • Law has been traditionally divided into: • Public Law • Private Law

8. Law • Types of Law • Public and private laws establish the rules of behavior that govern our relationship with each other are called ”Substantive Law” • Penal Law • Criminal Law (CJ 103)

9. Law • Types of Law • Public and private laws that specify the methods to be followed in adjudicating “Substantive Law” cases to ensure they are conducted in a way that protects the rights and duties of the participants are call “Procedural Law” • Code of Criminal Procedure • Constitutional Law (SS 104)

10. Law • Types of Law • “Public Law” concerns the structures, powers and operations of a government, the rights and duties of citizens in relation to the government, and the relationships of nations • Constitutional Law • Administrative Law • Criminal Law • International Law

11. Law • Types of Law • “Criminal Law” consists of laws that impose obligations to do or forbear from doing certain acts, the infraction of which is considered to be an offense not merely against the immediate victim, but also against society • “Criminal Laws” are backed up by punishments: • Felonies • Misdemeanors

12. Law • Types of Law • “Private Law” governs the relationships between individuals in the course of their private affairs • Contracts • Property • Wills • Torts (a tort is a legal injury one person has caused another) • A traffic accident that involves injury or property damage

13. The U.S. Legal System • The U.S. Legal System • The system of law used in the U.S. is known as the “Adversarial System” • The “Defense” and the “Prosecution” both offer evidence, examine witnesses, and present their respective sides of the case as persuasively as possible • Attorneys representing their client argue their case before a neutral and mostly passive judge

14. The U.S. Legal System • The U.S. Legal System • The underlying assumption of the “Adversarial Process” is that the truth is most likely to emerge as a byproduct of the vigorous conflict between intensely partisan advocates, who each has a goal to win

15. The U.S. Legal System • The U.S. Legal System • In countries with a “Civil Law System” the “Inquisitorial System” is used • In the “Inquisitorial System” the Court, together with the prosecution and the defense investigate the case before it • The Court staff and the judge gather evidence and conduct investigations and the judge’s decision of guilt or innocence is based on the investigation

16. The U.S. Legal System • The U.S. Legal System • The Criminal and Civil processes are very similar but there is a difference • The main difference is the punishment; • In a civil suit the punishment is monetary compensation • In a criminal action the punishment is confinement or fine

17. The U.S. Legal System • The U.S. Legal System • Another difference is the “Burden of Proof” • “Burden of Proof” is the requirement of a litigant to persuade the trier of the facts (judge or jury) that the allegations made against the other party to an action are true

18. The U.S. Legal System • The U.S. Legal System • In “Civil Law” the burden of proof is the “Preponderance of the Evidence” standard • A majority of the evidence must support the plaintiff’s allegations against the defendant • In “Criminal Law” the burden of proof is the “Proof Beyond a Reasonable Doubt” standard • Factual Guilt and Legal Guilt

19. Evidence • Evidence • “Evidence” includes all the means by which an alleged fact, the truth of which is submitted to scrutiny, is established of disproved • To control “Evidence” there are “Rules of Evidence” that govern the admissibility of the evidence • Remember the “Exclusionary Rule?”

20. The Private Justice System • The Private Justice System • The “Private Justice System” is a concept that holds that businesses and corporations might prefer to deal with crime using their own internal systems and controls instead of having crime dealt with through the cumbersome and lengthy formal Criminal Justice System • Firing an employee who has committed theft rather than contacting the police

21. The Private Justice System • The Private Justice System • Why use the “Private Justice System” • Private security focuses on focus on loss prevention(deterrence) to prevent crimes • Pursuing prosecution through the criminal justice system is time consuming and expensive (legal staff, gathering evidence, collecting depositions, employee time loss…) • Confession, restitution, new security procedures …

22. Legal Powers of Private Security • Legal Powers of Private Security • The Courts have generally held that private security personnel obtain their legal authority from the same basic authority that an employer would have in protecting their own property • The authority of private security personnel is an extension of private or citizen rights in the U.S.

23. Legal Powers of Private Security • Legal Powers of Private Security • In most states, a citizen can only make an arrest for a crime committed in their presence and the crime must actually have occurred, meaning that if the actions for which the citizen made the arrest were not a crime, then the arrest was illegal and the citizen may be sued for false arrest

24. Legal Powers of Private Security • Legal Powers of Private Security • Private security employees are not held to the same constitutional restrictions as the public police • The U.S. Constitution and the Bill of Rights were adopted to protect the people against government actions

25. Legal Powers of Private Security • Legal Powers of Private Security • In the landmark U.S. Supreme Court case of Burdeau v. McDowell (1921) the Court held that the provisions of the Fourth Amendment did not apply to subjects who were arrested or searched by private parties or non-governmental employees

26. Legal Powers of Private Security • Legal Powers of Private Security • “Since the government has not participated in the actions removing McDowell’s papers, there was not violation of the Fourth and Fifth Amendments” • The general rule is the Fourth Amendment applies only to arrests and searches and seizures conducted by government officials

27. Legal Powers of Private Security • Arrests • Private security officers have the same “Common Law” rights as any citizen and therefore, the same rights as any private citizen in effecting an arrest • How is this addressed in NYS?

28. Legal Powers of Private Security • Arrests • The NYS Penal Law, Article 35, Defense of Justification • 35.30 Justification; Use of Physical Force in Making an Arrest or in Preventing an Escape • (4) A private person acting on their own account may use physical force, other than deadly physical force, upon another person when and to the extent that they reasonably

29. Legal Powers of Private Security • Arrests • believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom they reasonable believe to have committed an offense and who in fact has committed such offense; and may use deadly physical force for such purpose when they reasonably believe such to be necessary

30. Legal Powers of Private Security • Arrests • For a citizen or private security arrests to be legal and proper, they most be found to have been warranted by probable cause, reasonable and consistent • This doctrine holds that even if it is later found that no crime took place, the detention is proper if based on the following conditions • Detention, Probable cause, Reasonableness, Consistency

31. Legal Powers of Private Security • Arrests • The International Association of Professional Security Consultants (IAPSC) recommends that a retail security officer’s best practice for establishing the probable cause standard in shoplifting cases is to follow al of the following six steps:

32. Legal Powers of Private Security • Arrests • Observe the customer approach the merchandise • Observe the customer select the merchandise • Observe the customer conceal the merchandise • Keep the customer under constant and uninterrupted observation • See the customer fail to pay for the merchandise • Detain the customer outside the store

33. Legal Powers of Private Security • Arrests • In some cases, retail stores use “Civil Recovery” or “Civil Demand Programs” against shoplifters • In this event the store instigates “Civil Court” proceedings against thieves to recover monetary damages • In this way the store can gain some control of the process to recover lost revenues and deter future thefts

34. Legal Powers of Private Security • Search and Seizure • Private citizens are also permitted to search persons they have arrested or detained for safety purposes and to retrieve stolen property • In Burdeau v. McDowell the Supreme Court refused to extend the “Exclusionary Rule” to private sector searches

35. Legal Powers of Private Security • Search and Seizure • The Miranda ruling and the use of Miranda warnings apply only to government agencies and not to private employers • Private security officers are also not required by the U.S. Constitution to give Miranda Warnings before questioning (read the case W. Virginia v. Muegge et al, page 99)

36. Legal Powers of Private Security • Use of Force • State statutory laws generally specify the type of physical force that citizens can use to detain or arrest a person • Private security employees are bound by these “Citizen Use of Force” statutes • Public police are generally allowed more discretion in the use of force than are private citizens or private security officers

37. Legal Liability of Private Security • Civil Liability • The Hallcrest Report II: Private Security Trends reported that one of the largest indirect costs of economic crime was the increase in civil litigation and damage awards involving claims of inadequate or improperly used security to protect customers, employees, tenants and the public from crimes and injury

38. Legal Liability of Private Security • Civil Liability • Nemeth says there are three main classes of “Civil Liability” • Intentional Tort • Negligence • Strict Liability

39. Legal Liability of Private Security • Civil Liability • “Intentional Torts” are based on acts that people intend to do that are not the result of pure carelessness, accident of mistake (intent) • “Negligence” is behavior that inflicts individual harm or injury form mistake or accident • “Strict Liability” are similar to “Intentional Torts” but no intention is required

40. Legal Liability of Private Security • Civil Liability • Another legal concept is “Vicarious Liability” which means that the employers will also be held legally accountable for their employees’ actions or forms of behavior • “Vicarious Liability” generally involves employers, supervisors or managers who control or are responsible for employees

41. Legal Liability of Private Security • Civil Liability • In order to prove a case of negligence, the claimant must demonstrate the following are present: • A duty • A breach of that duty • Proximate causation (the negligence caused the harm or injury)

42. Legal Liability of Private Security • Civil Liability • Some Examples of Civil Liability: • Negligent Hiring • Negligent Retention • Negligent Assignment and Entrustment • Negligent Supervision • Negligent Training

43. Legal Liability of Private Security • Criminal Liability • Some Examples of Criminal Liability: • False Arrest • Assault • Battery • False Imprisonment • Malicious prosecution • Unlawful Detention

44. Legal Liability of Private Security • Liability Problems Involving the Use of Police Officers as Security Officers • To whom is the officer responsible? • Who is responsible for the police officer’s liability in the event the officer makes a mistake? • Should a police department continue to pay an officer who is injured while working off duty? • In each case is the private security firm responsible or the police department?

45. Legal Liability of Private Security • Liability Problems Involving the Use of Police Officers as Security Officers • Read the Court cases on Premises Liability and Private Security, page 105

46. Courtroom Testimony and Private Security Officers • Testimony • “Direct Examination” is the initial questioning of a witness or defendant by the attorney who is using the person’s testimony to further their case • “Cross Examination” is questioning by the opposing attorney for the purpose of assessing the validity of the testimony • After this there can be “Redirect” and “Recross”

47. Courtroom Testimony and Private Security Officers • Testimony • The “Cross Examination” is usually the most difficult part of testifying • The opposing attorney will attempt to cast doubt on the witness’s “Direct Testimony” in an effort to make their case more credible