Civil Liability and Private Police - Essay Example

?Civil Liability and Private Police Paper Private police seems to have been increasing in number and expanding its areas, from simple security protection from thieves and robbers to intricate investigation of criminal as well as civil cases, areas which used to be handled by public law enforcement agencies only. However, as the number and areas increase, the probability of committing mistakes during the performance of its function also increases. Thus, the potential for civil liability becomes more open, either institutionally or individually. The Private Security Advisory Council, in recognizing the complexity of laying the limits of a private police, explained: “In order to perform effectively, private security personnel must, in many instances, walk a tightrope between permissible protective activities and unlawful interferences with the rights of private citizens.” The two (2) basic types of liability often incurred by private police are the following: (1) negligence of the security company or its employees (also known as torts); and (2) criminal acts committed by the security company or its employees. The major source of liabilities of the private police is the tort law which is rooted on negligence rather than on malice or evil intent. Following are the usual torts committed or imputed to private police: battery, assault, infliction of mental distress, false imprisonment, malicious prosecution, trespass to land, trespass to personal property, negligence, defamation, and invasion of privacy. Hence, any mistake committed by a private police may be the subject of a tort lawsuit. The Fourth Amendment provides protection to the citizens against unreasonable searches and seizures and arbitrary arrest and detention. A reading of the provision creates an impression that it is geared towards the protection of citizens against public authorities. In fact, even the Courts have some apprehensions in applying the said provision against private entities and individuals. In the case of Burdeau vs. McDowell (256 U.S. 465 [1921]), the Supreme Court Civil Liability and Private Police Paper ruled unequivocally that the provision is not applicable to complainants arrested or searched by private parties. Due to the said ruling, the private police continued to avoid all restrictions imposed upon their public counterparts. On the issue of arrests, private police enjoy the protection afforded to private individuals on the argument that they act for and in behalf of the person, business entity or corporation that hired them; thus, their employer practically transferred the latter’s basic right of protection of their persons and properties against unreasonable searches, seizures, and arrests. This is so in spite of the general knowledge that the function of private police is akin to that of the public law enforcement agencies, albeit limited to the interest of their employers. However, the conclusion is still the same – that unless the private police are deputized or commissioned through a valid law, they do cannot enjoy the powers given to the public authorities. Hence, private police, when it comes to the issue of arrests and seizures, must be confined within the ambit of the theories of self-defense, defense of another or the property of another, crime prevention, and citizen’s arrest. Similarly, in cases of invasion of privacy or defamation, the private police may rely only on exercise of reasonable limitations. On the other hand, in cases of negligence, the possible defences are contributory negligence and assumption of risk by the complainant. Considering that private police are usually engaged in situations requiring restraint or detention, most often for investigation purposes, the possibility of being held liable for assault is high. Following are the elements of assault: (1) an act; (2) intent to harm or make offensive contact or to cause apprehension; (3) apprehension must be imminent; and (4) apprehension is caused by the defendant. Perusal of the above-enumerated elements show the apparent absence of actual touching. Here, the emphasis of the act is the presence of imminent threat or danger of being harmed or apprehended. Thus, the potential complainant in assault cases is not limited to Civil Liability and Private Police Paper possible suspects but may also include third parties such as bystanders, onlookers, or even a witness. Contrary to assault, the crime of battery involves actual touching or infliction of harm to the complainant. This may result to both civil and criminal liabilities on the part of the private police. The primary issue in battery is whether or not the contact or touching is offensive. This is a serious concern to the private police since majority of their tasks involve some acts that tend towards battery. The boundary between the duty to protect the proprietary interest of the employer vis-a-vis the right of a customer not to be accused, confronted or accosted without substantial cause. Specifically, in the case of a private security of a department store, a little exaggeration of how a suspected shoplifter was accosted may easily expose the security guard to an accusation of battery. On the other hand, non-performance of actions such as body check may totally result to futility of setting up private security guards in the store. Corollary to the above example, the private police may also be easily accused of false imprisonment when, upon finding sufficient evidence to indict the suspected shoplifter, the other is temporarily detained or restricted of liberty pending the arrival of public police. Based on jurisprudence, the manner and other circumstances of detention play important roles in determining whether or not the private policy is liable for false imprisonment. In his article Whose Rights Prevail?, Leo F. Hannon explained, “The bottom line seems to be that you can’t beat common sense.” The private police must learn to invent guidelines on how to effect detention and restraint, which will surely prevent any false imprisonment case. For example, an indirect statement enumerating the rights of the accused may be made so as to remind the suspect of his rights so as to avoid feeling left alone without any means of asking for legal assistance. Another example is to bring the suspect to an office instead of a room which looks more of a detention Civil Liability and Private Police Paper cell rather an office of a guidance counsellor. According to John Francis’ The Complete Security Officer’s Manual, a private police should be businesslike and avoid the appearance of a public police or interrogator. He must be kind, polite, and treat the suspects the way he wants to be treated as a person. Rudeness must be replaced with courteousness. The potential for incurring these liabilities may be mitigated through appropriate orientation of the private police on their specific responsibilities, the limitations of their power or authority, and the extent of their liabilities. Absent sufficient knowledge on the same, their companies will most likely be crippled by lawsuits. Usually, liabilities of private police arise due to exaggeration of or false assumption of authority akin to that of the government police of investigators which the private police do not enjoy. Unlike the public police, those in the private police are usually deployed armed only with the objective of protecting the persons or properties of their employers or clients. They are not given sufficient orientation as to the manner of handling suspected criminals, extracting useful statements, and preserving evidence. Thus, private police are clearly prone to civil and criminal liabilities. Private security systems should undertake reasonable care in the recruitment of their personnel. They should see to it that their security personnel are not just physically capable of guarding their clients’ persons and/or property, but in the same vein, these personnel must be knowledgeable of or capable of understanding the intricacies of security and protection duties. They should understand the purpose of their job, the manner of handling it, and the weight of their objective vis-a-vis the right of the probable suspects. They should likewise provide intensive on-the-job training for their security personnel. Practically, theories without actual application is nothing. Hence, all members of the private police must have some sort of actual experience by assisting professional security personnel before they are deployed individually. Civil Liability and Private Police Paper There should also be a definite framework that unmistakably outlines protections, powers or authority, licensing standards, and accountability principles. These will surely minimize, if not totally eradicate private security company’s liability for potential civil and criminal liabilities. In the end, it is not just the security entity that should undertake steps to protect itself and its personnel against unwarranted lawsuits but also the security personnel themselves. It must be borne in mind that in cases of violations where a criminal case is filed, the criminal liability shall be suffered not by the security agency but the individual security personnel himself. Reference list: Bird, W.J., et al.”The Law and Private Police” (Volume IV. The Rand Corporation. 1971. Nemeth, Charles, “Private Security and the Law” (Third Edition). Elsevier Butterworth-Heinemann, Inc. 2005. Yinger, John M. “Case: Private Police” Syracuse University, The Maxwell School of Citizenship and Public Affairs. Retrieved from http://faculty.maxwell.syr.edu/jyinger/classes/PPA735/cases/case2.htm Read More