Conclusions and Future Issues
This book was written to explain both the legal exposures related to crime and the security methods designed to prevent crime. The examples of case law and suggested security methods presented here are meant to illustrate several important points. First, security law cases are very fact-specific. The cases discussed in this book demonstrate the logic and standards used by courts to assess liability. I believe that reading court opinions is essential to understanding security liability. As the reader considers the unique facts of each case, he or she has the opportunity to see how the court approaches the various issues and thus begins to learn how to assess security liability as a court would.
Second, the security methods presented are designed to provide a road map for ways to limit, or even negate, security liability. These suggested methods are by no means all encompassing. Instead, they should be viewed as a set of principles for the implementation of viable and appropriate security. Just as with security cases, each environment is unique. Each environment has certain characteristics that beget specific security methods. Such characteristics include a myriad of factors such as, structural and physical features, the terrain, the nature of the business or industry, the culture of the firm, the characteristics of the community surrounding the firm and the location of the firm, coupled with the existing policies and procedures of the organization. These factors, and others, must be considered in light of the security methods presented. In this way, the suggested security methods should be critically examined in light of the particular characteristics of the environment.
Based on this analysis, the reader should apply the legal standards and principles discerned from case law along with the security methods and principles reflected in the suggested best practices. Since security exposures and security liability are both a security and legal consideration, it is necessary to blend security and legal principles into a cogent, critical analysis. Hopefully, this book served to accomplish this difficult, but necessary, goal. To my knowledge, this attempt has not been accomplished by any previous book. Only time and discernment will tell if this dual goal was accomplished. I encourage feedback from readers on this note.
Beyond this considerable intellectual desire, another aspect of this book is to look ahead into an uncertain security environment. Much of this uncertainty relates to the level of threat posed by terrorism. Some may argue that the threat of terrorism is overstated. This argument is, at least partly, based on the lack of direct action on American soil since the tragic events of 9/11. In this thinking, the threat of terrorism is a guise, often based on a political agenda. On the other hand, others view terrorism as a real and significant threat. One such person, James M. Poland, argues that “terrorism is becoming the defining issue of the twenty-first century.”1 I happen to agree with this thinking. However, these divergent viewpoints beg obvious questions: who is right, and what implications does terrorism pose?
As to the former question, time will only tell who is right. Is terrorism overrated? Was 9/11 a “lucky and isolated act,” as is often implied in the political discourse. Conversely, are we being lulled to sleep again, such as what we fell into after the initial World Trade Center bombing and after the Oklahoma City bombing? Is terrorism really a pervasive threat, or were these attacks just isolated and unrelated events? Do ideologies and mind-sets sufficient to support a sustained terrorist movement actually exist? Are widely accepted ideologies even necessary to make terrorism a real threat?
These are provocative and debatable questions. To me, however, there is no genuine question as to whether terrorism is a real threat. I answer this question in the affirmative. Indeed, I strongly assert, as did Poland, that terrorism is the defining issue of the twenty-first century. Unfortunately in this country, terrorism appears to be more of a political issue than a legitimate reality. Stated another way, terrorism has become the “defining political issue” in American society. Liberals tend to view the issue much differently than conservatives. Gone are the days following 9/11 where the country was united around a common cause—and a common foe. My concern is that the common cause now appears to be the rhetoric of your particular political party. My fear is that the common foe is the other political party.
Those who study terrorism will recognize that divisiveness is, in fact, a clearly defined goal of terrorism. Indeed, terrorism cannot succeed without causing divisions, either between respective political camps or between “the people” and their government. Either such division is dangerous. I see many trends that portend these divisions as real and growing. I hope and pray that I am wrong. If I am not wrong, then this country is going to face difficult times ahead.
Let me articulate a few trends that are likely to appear on the horizon. Since the rationale underlying these factors are complex—and somewhat controversial—an exhaustive explanation of the “why” behind each factor seems beyond the scope of this book. In addition, being sensitive to the tenets of this book, a detailed “justification” related to each factor may be unnessary. Insead, I present these factors as did Kaplan, who also sees many secutity and crime challenges in the years ahead. In this way, these factors are presented to describe the need for the security laws and methods contained in this book. This being said, I believe:
• The threat of terrorism is not limited to A1 Qaeda, or even to Islamic fundamentalism. Indeed, as this book is being drafted the most active terrorist groups in the U.S. are single interest groups concerned with environmental “protection” (Earth Liberation Front-E.L.F.) and animal “rights” (Animal Liberation Front-A.L.F.). Other terrorist action will stem from racial, ethnic, and religious extremists. This threat, I believe, will manifest itself in widespread direct action.
• There will be a general increase—probably significant—in extremism from both the left and right wings of the American political system. These extremists will act out in response to “direct action” (violent acts) of the other. In addition, in response to such extremism, vigilante groups will likely grow in response to the generalized violence from both political extremes.
• Criminal gangs will grow increasingly violent, using more lethal weapons, with some even “graduating” to terrorist groups. The transition of the Blank Panthers to the El Rukns in Chicago is a fore runner of this development. The Hispanic gang “MS-13” is a classic contemporary example of this assertion.
• The rule of law will be increasingly questioned, even disregarded. The “legal system” will be much more widely viewed as corrupt, irrelevant, or subservient to the higher law or the higher purpose of ideological, religious, political and racial extremists. Significantly, this mindset is critical for the development of terrorist movements, as the violence contained in a terrorist campaign must be rationalized as being superior to the existing legal system.
If these occur, the challenges needed to confront and contain the violence will present a massive potential market for security firms. Just as the new asymmetric form of warfare is changing the way the military confronts and combats terrorism, so too police agencies must reinvent the way of policing. This transformation will leave a void, or at least, a gap, in how public safety services are delivered to communities. Security firms are uniquely prepared to bridge this gap. I believe that security firms will deliver needed order maintenance and related services to communities all over this country. In this sense, F. Thomas Braglia, the former president of the Illinois Association of Chiefs of Police, noted that in the current climate what was once considered a “professional relationship” between the public and private sectors has now because a “professional necessity.”2 I believe this professional necessity presents the largest increase in the potential market of security firms since the 1850s, when security personnel “policed” the American “Wild West.” This opportunity, however, is a double-edged sword, replete with pitfalls for the unwary.
As this book makes clear, security exposures and security liability have played a major role in the development of the security industry. The typical security provision has focused on client properties and interests. Of course, this usually entails protecting a particular private environment. If terrorism becomes more common, I believe that the private security industry will continue to expand, in both size and scope, as more security personnel are used to protect critical infrastructures and public places.
Making a fluid and thoughtful transition from private “protected facilities” to serving communities in the public realm will bring the activities and operations of security personnel into plain view. Just as public police officers sometimes fail in the public eye, so will private police officers overreact and/or act in an inappropriate manner. This is inevitable. The cases presented in this book illustrate this does and will occur. What is not inevitable or certain is how the security industry or its component firms will respond in the countless discretionary decisions that will occur in this expanding marketplace. If security providers act with professionalism, any deficiency can be overcome. Conversely, if security providers go into this new marketplace without developing the standards and principles to support this desire for professionalism, then the inevitable deficiencies will appear glaring or even reckless.
Going beyond the market opportunities, the desire for professionalism within private policing must center on an even more basic purpose: the safety of the individuals and communities we serve, and the stability of our way of life. It is important to remember that the threat of terrorism is designed not only to kill people and damage property, but also to destroy the very fabric of society. Those in the security industry, especially those protecting public environments, trophy buildings, and critical infrastructure, will be on the front lines of this asymmetric conflict. Advancing standards and principles of professionalism is our best defense. Hopefully this book will act as a guide toward professionalism.
One critical outcome of professionalism is the desire to prevent crime, or at least, address the impact of crime. Strategies designed to address the impact of crime can and must be implemented. Certain policy initiatives, both from policing and from other areas of government, may negate any increases in crime—or deal with the effects of terrorism. However, our ability to successfully combat terrorism is still uncertain. I believe that the government cannot implement the necessary remedies to deal with crime and terrorism—including its attendant fears, without significant help from the private sector. For this reason, the role of private security and security methods is likely to increase along with rising fear. This will be in response to the threat of crime and terrorism, particularly if the “reality” of this threat continues to rise. In any event, the movement toward privatized public safety services has been forwarded—albeit slowly and silently—across this country. No less than the public safety, and even viability, of this country are at stake.
While some may still view the threat of terrorism as an unsettled question, I believe it is reasonable to conclude that terrorism will be a fact of life for years to come. If this is true, then the police agencies that deal with the carnage of terrorist attacks will themselves become prime targets of the violence. Studies of terrorism inevitably point to this conclusion.3 Indeed, we have seen this assertion borne out in the horrendous violence inflicted on Iraqi police and civil defense forces.
The potential impact of terrorism on the operations of police departments could be enormous and will likely include many police fatalities. The hard realities of security forces, who are both first-line responders and potential targets, are bound to give rise to an environment that is extraordinarily complex in operational, psychological, and human terms.
A second likely ramification of terrorism is that it will foster the demise of community policing. This policing model has dominated policing for the past decade or two. While this statement may be subject to criticism from academic and political circles, the fact is that the federal funding used to support community policing programs are now largely exhausted. Without additional monies to support this policing model, it will slowly be de-emphasized into extinction. Significantly, the federal monies currently available are now earmarked for anti-terrorism and homeland security measures. The old adage seems appropriate: follow the money. If the money for community policing is gone, and the money is now centered on terrorism, then police agencies will re-direct their mission to account for the funding sources. Simply put, police agencies in the future will focus on the first responder mission, with community policing as we now know it, coming to an end. However, because of their responsiveness to the client (i.e., citizen), and the nature of the service provision, private police may prove to be an excellent provider of community policing services.
With the future focus of police on terrorism and violent crime—including street gangs that are likely to “graduate” to terrorism,4 the need for alternative service providers becomes paramount. Alternative service providers will be the para-professionals of police departments. These include private police, civilian employees of police agencies, and auxiliary (volunteer) officers. While it is likely that all three types of alternative service providers will co-exist in some form, the most likely and beneficial option is private police. Due to the economic and operational aspects of private police, this model is likely to predominate.
In short, we are on the cusp of a new policing model, one that will heavily rely on services from the private security industry. These services range from alarm response, crime scene and hospital security, mall security, concert and event security, traffic and parking control and enforcement, and “street corner” security and patrols. These service-oriented functions will also be supplemented by any number of technological initiatives, such as cameras in public environments used for crime deterrence, identification, and enforcement. Indeed, look for a dramatic increase in the number and functionality of cameras used by police. In addition, various access control devices, software programs, and identification technologies will be widely used by police agencies—as have become common in the security industry for decades. Overall, the functions and the hardware used by police agencies and private security firms will become more and more interrelated. In the end, these innovations will occur because of two core factors: fear and money. Just as money will drive the police away from community policing and toward a new model of policing—that I term public safety policing, so will fear motivate—or create—changes in the way public safety services are delivered. The difficulties inherent in this circumstance are echoed by Judith Lewis, former captain with the L.A. County Sheriff’s Department, who made this pointed statement:5
The expectations of law enforcement as first responders for homeland security have put an almost unachievable burden on local law enforcement. Local law enforcement is not designed organizationally to support the cooperation needed, and its officers don’t have the training and technology to do the job.... Currently, traditional law enforcement is being left behind.
Achieving public safety will require a delicate balance between individual rights and security provisions.6 This will not be easy. As can be inferred from the cases in this book, providing security within “protected facilities,” is a difficult balance to achieve. Every firm must weigh the need to efficiently do business against the need to secure the business, its employees, customers, and visitors. Usually this breaks down to conveniences and sales on one hand versus safety and security on the other.
In the event that security personnel extend the scope of their duties into public areas, the fluidity of the street and the unpredictable nature of the committed terrorist, creates a very delicate balance, indeed. Of course, criminals and terrorists do not accept laws and rules, whereas government—and private security personnel—must adhere to the rule of law.7 In this sense, we must be both sensitive to our clients, and at the same time, committed to our mission. Given the difficulties inherent in this balance, one can be assured that mistakes will be made. Notwithstanding this reality, the mission must go on. We cannot fail. Our “clients” and our country are counting on us.
While this book is published at a time of relative peace and security, I contend this circumstance will not be sustainable. There is ample evidence of this assertion. It is beyond the scope of this book, however, to make this case. Instead, this book focuses on the intersection of the law and security methods. These predictions, however, are critical. If terrorism and group and gang violence become widespread, the delicate balance between security provisions and legal standards will become ever so more difficult to achieve. Whether or not this becomes a reality, this book may prove to be a useful guide—even in a relatively “calm” environment.
Simply stated, our political and legal systems will need to address the liability exposure related to terrorism. Laws such as the Terrorism Risk Insurance Act and the SAFETY Act will be of some help. However, as evidenced by the World Trade Center Litigation, the common-law notion of foreseeability will serve to generate a great deal of liability stemming from terrorism. Of course, this liability does not even assess the profound human, organizational, and operational impact of terrorism. To those businesses that struggle with these implications, this statement by David H. Nozensky, corporate security for the FPL Group, Inc., may be of some insight:8 It is still true that you can “secure yourself out of business,” but ... the boardroom now understands that security represents the ultimate bottom line—survival.
Finally, I will end this book with an old Chinese adage that goes something like this: may you live in interesting times. This saying was not considered a blessing but rather was meant as a warning, or a vengeful admonition. I believe we live in interesting times—replete with many challenges. The challenges facing this country are many. Security is, or will be, one of the most significant challenges that lie ahead. More pointedly, the real challenge is larger than security. The ultimate challenge will be how, or if, we are able to balance security needs with individual rights. For those who intellectually or operationally struggle with this balance, my prayers and respect are with you.
NOTES
1. Poland, James M. (2005). Understanding Terrorism: Groups, Strategies, and Responses. Upper Saddle River, NJ: Pearson/Prentice Hall.
2. Braglia, Thomas (2004). Public-Private Law Enforcement: A Win-Win Partnership. Command, Winter.
3. See examples of the number of police personnel killed in terrorist attacks in Dobson, Christopher and Ronald Payne (1982). The Terrorists: Their Weapons, Leaders, and Tactics. New York: Facts on File, Inc.
4. For an excellent piece on the potential for terrorism from streets gangs, see Aidi, Hisham (2005) Jihad’s in the Hood: Race, Urban Islam, and the War on Terror, Violence, and Terrorism, 05/06 edited by Thomas J. Badey, Dubuque, IA: McGraw-Hill/Dushkin.
5. Quote cited in Stephens, Gene (2005). Policing the Future: Law Enforcement’s New Challenges. The Futurist. Vol. 39, March/April at 2.
6. This assertion has been examined by a number of authors, including Pastor, James F. (2003). The Privatization of Police in America: An Analysis and Case Study. Jefferson, NC: McFarland and Company, Inc.; and Simon, Steven (2004). The New Terrorism: Securing the Nation Against a Messianic Foe, The New Era of Terrorism: Selected Readings. Gus Martin (ed.), Thousand Oaks, CA: Sage Publications.
7. Laqueur, Walter (2004). The Terrorism to Come. Policy Review, No. 126, taken from www.policyreview.org/aug04/laqueur_print.html on November 1, 2004.
8. Horowitz, Sherry L. (2003). The New Centurions: Terrorism and Other Global Forces are Reshaping Corporate Security, Creating Challenges and Opportunities for Those Who Oversee It. Security Management, January.