When the first English settlers came to this country, they brought with them their common law. As the United States of America formed from the original 13 colonies, much of the English common law remained.

The constitutional restrictions that apply to the activity of governmental officials do not apply to private citizens! (For more information on the most important sections of the Constitution, please go to http://www.elsevierdirect.com/companion.jsp?ISBN=9780128000038.)

Tort law is a source of authority in a negative way; it restricts rather than authorizes the activity of security personnel. It restricts by instilling the fear of a lawsuit.

For a felony charge, the grand jury proceeding must result in a vote of at least 12 jurors for the accused to be indicted. An indictment must be obtained in those jurisdictions that require it, even if it was determined that there were reasonable grounds for prosecution at the preliminary hearing stage.

If an indictment or “true bill” is voted, the next step is the appearance of the accused before a judge who is empowered to try felony cases. At this time, the accused is confronted with charge(s) and is asked to plead. If the accused pleads guilty, he or she may be sentenced without further court action. If the accused pleads not guilty, a trial date is set.

The accused is entitled to be tried by an impartial jury, but he or she may waive that right and be tried by judge. Usually juries (Figure 20.1) are composed of 12 citizens for felony crimes and six for misdemeanor ones. In determining the 12 jurors who will hear any given case, the prosecuting attorney and defense attorney will question a large number or prospective jurors. Each attorney has a fixed number of peremptory challenges by which a juror may be unseated because the attorney feels they may not be sympathetic to their cause. After the allotted number of peremptory challenges are used, either of the opposing attorneys may challenge with cause for a juror to be unseated if the judge agrees that the juror in question would not render a fair and impartial judgment. The purpose of this sometimes lengthy process is to be reasonably assured that an impartial and fair jury has been seated who will listen to the evidence and arrive at a fair and reasonable decision.

After the attorneys for both sides have presented their opening statements, the prosecuting attorney presents the state’s case against the accused. The prosecuting attorney will present evidence, witnesses, and testimony. The defense attorney may cross-examine any and all of the witnesses called by the prosecution.

After the prosecution has presented all of its case, the defense attorney may ask for a directed verdict of not guilty on the grounds that the prosecution has not proven the defendant is guilty beyond a reasonable doubt. If the judge does not rule in favor of the defense, the trial continues. The defense attorney will usually present evidence to refute the evidence presented by the prosecutor. The prosecuting attorney is permitted to cross-examine any of the witnesses called by the defense. During this cross-examination process, both opposing attorneys attempt to discredit the witnesses by attempting to show confusion with their account of the incident.

The accused is not obligated to testify during the trial. This right is protected by the Fifth Amendment to the U.S. Constitution. After the defense has completed presenting its case, the prosecution is permitted to present additional information to rebut the defense. The defense is also permitted to present additional information after the prosecution’s rebuttal.

After both sides have rested their cases, closing arguments are presented. After the closing arguments, the judge provides instructions to the jury prior to their deliberations.

In most states, for felony cases, all 12 jurors must unanimously agree on decision. If the jury is unable to arrive at a verdict and the judge believes that additional deliberations will not change the deadlock, a mistrial will be declared as a result of the hung jury. The prosecution must then decide whether it wants to prosecute the case again. In misdemeanor cases, four of six jurors must agree on a verdict.

If the jury decides the defendant is not guilty, he or she will be immediately freed and the matter is dismissed. If the defendant is found guilty, an appeal is usually made. Depending upon the circumstance, a defendant may be released on bail pending appeal.

If the jury finds the defendant guilty, they will often be asked to determine the penalty for the crime (fine, imprisonment, or both) if the defendant is on trial for murder or rape.

If the original verdict is affirmed then the original conviction remains intact. If the verdict is reversed, the defendant is freed pending whether a new trial is ordered. During some appeals, the reviewing court will issue an order to retry the case. This is often the case when evidence presented in the original trial has been ruled inadmissible.

In civil lawsuits, the defendant can be found guilty of the alleged offense by a preponderance of the evidence as opposed to guilt beyond a reasonable doubt in criminal cases. The difference is that in civil cases, the jury may decide the case if they give slightly more credibility to one side of the other. In a criminal case, a jury must determine that there is virtually no doubt that the defendant is guilty. In civil cases, the jury needs only to determine that the defendant is probably guilty based upon the evidence presented.

In recent years, as more and more cases are filed in civil court, arbitration has become more popular. Arbitration bypasses a true civil court case and allows the two disputing parties to have their case settled by an objective, independent arbitrator (usually an attorney). By agreeing to this type of court procedure, the parties can normally obtain a decision in a fraction of the time it requires for a case to be tried in civil court.

Charges of vicarious liability are usually made in an effort to determine who has the “deepest pockets”. Thus, although a security officer may be personally sued for their actions and may have to make financial payments to the injured party, a defendant’s attorney will usually attempt to sue the security officer’s employer because liability insurance must be purchased by every security company in most states.

Defenses to the charge of vicarious liability include limits to the scope of employment. Scope of employment addresses whether or not the actions of the security officer were within the requirements and responsibilities of their job and duties. In other words, were the actions of the security officer consistent with his or her job duties? Or, did the security officer’s actions exceed the scope of employment? If the employer can prove the security officer’s action exceeded the scope of employment, the charge of vicarious liability will usually be disproved.

Security officers may be charged with the tort of negligence when:

Failure to provide security and/or failure to protect or come to the aid of a person are examples of negligence. Failure to escort an employee to their vehicle in a high-crime area may be grounds for a charge of negligence. Failure to contact the police or fire department when an emergency is developing at a facility is another possible claim where negligence made be asserted. A charge of negligence may be made against a security company for hiring a person to work as a security officer without having properly checked into the background of the person. If the would-be security officer was found to have been a convicted felon, the security company may face a charge based upon their negligent hiring practices.

The elements of a false arrest or false imprisonment charge in most states include the following:

The essential element that must be proven to create liability for false imprisonment is that the detention is unlawful. A false imprisonment charge may be claimed even if the detention was brief. A person does not have to be physically restrained to claim they were falsely imprisoned by a security officer. Words, gestures, or threats or the perception that the person did not have freedom of movement may constitute false imprisonment.

Defenses to charges of false arrest or imprisonment include consent. If the person who is now bringing the charge originally consented to the detention, the charge may be dismissed.

In most states, statutory authorization exists, which allows a merchant, the merchant’s employee(s), or agent(s) to detain another person believed to have stolen merchandise. In addition, this statue allows the merchant, employees, or agents to have an arrest of the suspected shoplifter by a law enforcement officer. Most states have extended this authority to the employees of a library, museum, or archival institution to detain—not only for theft, but also for damage to property.

If a security officer were to groundlessly initiate criminal proceedings against another person, the officer could be sued in a civil lawsuit for malicious prosecution. If a security officer were to detail and then file a criminal complaint against a personal alleging that the person violated some type of law, the security officer could be held financially liable for these actions.

Assault and battery can also be considered a criminal offense levied against a security officer, as well as a civil charge, or intentional tort.

In most states, a charge of assault and battery can be made when the following elements are present:

Battery occurs when an unauthorized touching or contact occurs. It is not necessary to prove that any real harm resulted but only that the contract was not authorized. Assault requires that a least some threatening gesture occurred. In addition, the victim must have thought the gesture would result in harm.

Excessive force is a claim that is often the result of a charge of assault and battery having been made against a security officer. Security officers are permitted to use force in carrying out their duties to protect themselves, others, and property. However, when force is used by a security officer against another person, the level of force used must have been reasonable. For example, a security officer who weighs 200 pounds and stands 6 ft tall who strikes a 12-year-old boy suspected of shoplifting will have a difficult time in proving that the force used in this situation was reasonable.

The law permits a security officer to use reasonable force to defend himself from an attack. However, for a claim of self-defense to be valid, the security officer could not have been the aggressor in the conflict. A security officer cannot start a fight and then claim self-defense. A general principle used to judge whether force was justified is not is: would a reasonable person in the same situation believe that the security officer’s action were reasonable and justifiable? Or, would a reasonable person believe the actions of the security officer were unnecessary or excessive? Ultimately, if a charge of assault and battery is leveled against a security officer as a result of a claim of excessive force, a judge or jury will determine whether the force used was reasonable and justifiable.

Security officers must be extremely cautious when confronting individuals because this is when situations begin to develop that could ultimately lead to force being used. Security officers should pay particular attention to the following types of situations, which often result in the use of force:

To prove defamation, a person (plaintiff) would have to show that the following elements of the tort occurred:

Provided security officers are careful about what they discuss with other persons regarding the actions or behavior of others, it is unlikely a claim of defamation would ever be successfully proven. However, security officers will often make statements to third persons about another person, which may ultimately lead to a claim of defamation. Because security officers are often involved in sensitive and confidential matters involving events such as theft investigations, surveillance, and suspected drug or alcohol abuse by persons, caution must be exercised at all times by security officers. Having conversations with persons who are not part of the security organization about incidents that have taken place or may occur shows extremely poor judgment.

Truth is always a defense against a claim of defamation. In addition, the alleged defamatory statement must have been heard by someone other than the alleged victim. In short, a statement made by one person to a second person that questions the reputation of the second person is not considered to be defamation, unless another or third person also heard the remark. A key element involved in a defamation claim is who published or made known public the alleged untrue statement. Therefore, defamatory remarks exchanged within earshot of only the two people involved will not constitute defamation. Some remarks are considered privileged and may be excluded from being considered in a charge of defamation.

Once again, the ultimate judge of whether the actions of the security officer were outrageous will be a judge or jury. Security officers must pay careful attention when dealing with people at all times, especially in dealing with juveniles, individuals with developmental disabilities, pregnant women, the elderly, etc. The actions of a security officer are viewed differently than those of a private citizen. A uniformed security officer gives the appearance of authority and many people may mistake them for a law enforcement officer. It is therefore critical that a security officer conduct himself or herself in a manner that is judged at all times to be proper and reasonable.

Security officers must always remember that most of their actions pertaining to dealing with others will always be reviewed and reexamined if a question occurs to the conduct of the security officer. Security officers should realize that their actions are observed much like watching a fish in a fishbowl. The actions or behavior of security officers that are considered unreasonable will undoubtedly develop into an unpleasant and possibly costly ordeal for the officers. However, security officers who maintain their composure at all times and rely upon the skills developed in this training manual will usually not be subjected to civil lawsuit alleging a tort.