Private Security and the Law

Charles Nemeth

• Publisher: Butterworth-Heinemann
• Year: 2011
• Edition: 4
• eBook ISBN:
  9780123869234
• Topic: Business
• Subtopic: Information Management
• Index: Business

Private Security and the Law, Fourth Edition, is a unique resource that provides a comprehensive analysis of practices in the security industry as they relate to law, regulation, licensure, and constitutional questions of case and statutory authority. It is an authoritative, scholarly treatise that serves as a solid introduction for students regarding the legal and ethical standards that shape the industry. The book takes you step-by-step through the analysis of case law as it applies to situations commonly faced by security practitioners. It describes the legal requirements faced by security firms and emphasizes the liability problems common to security operations, including negligence and tortious liability, civil actions frequently litigated, and strategies to avoid legal actions that affect business efficiency. It also examines the constitutional and due-process dimensions of private security both domestically and internationally, including recent cases and trends that are likely to intensify in the future. New features of this edition include: a chapter on the legal implications of private contractors operating in war zones like Afghanistan; updated coverage of statutory authority, as well as state and federal processes of oversight and licensure; and special analysis of public-private cooperative relationships in law enforcement. A historical background helps readers understand the present by seeing the full context of recent developments. This book will appeal to: students in physical security, security management, and criminal justice programs in traditional and for-profit schools; security professionals; and those working in law enforcement. - Authoritative, scholarly treatise sheds light on this increasingly important area of the law - Historical background helps readers understand the present by seeing the full context of recent developments - National scope provides crucial parameters to security practitioners throughout the US - NEW TO THIS EDITION! A chapter on the legal implications of private contractors operating in war zones like Afghanistan, updated coverage of statutory authority, updated coverage of state and federal processes of oversight and licensure, special analysis of public-private cooperative relationships in law enforcement

1

Historical Foundations of Private Security

Chapter outline

Introduction: The Concepts of Self-Help and Self-Protection

Historical Foundations

The Middle Ages

Colonial America

Law Enforcement in the Industrial Revolution

Coming of Age: Private Security

Lack of an Effective Public Force

Movement of Goods and Services

The Pinkerton Factor: Industrialization and Unionization

Western U.S. Expansionism

Contemporary Private Security

Discussion Questions

Notes

Introduction: The Concepts of Self-Help and Self-Protection

Historically, the concepts of self-help and self-protection were considered foundational to the enforcement of law and the assurance of social order. The private citizen was, by most measures, the chief party responsible for the safety and security of a community. Public law enforcement is a much more novel concept. Whether private or public in design, ideas about policing and protection arise from a variety of influences. Like any other type of institution, its practices and procedures are not fixed in a day but emerge in an evolutionary sense.¹ Any clear and accurate assessment of private security or public sector justice need first examine the historical underpinnings.

These principles, derived from English law and the Anglo-Saxon tradition and subsequently adapted to American jurisprudence, provide a panorama for how public and private protection systems not only emerged but legally operate. For example, what were the early parameters for protection of property? The right of self-help was first recognized within the common law and even early codifications of English law. A man’s home was indeed his castle, if he was fortunate enough to possess one. To protect his property and life, a person was entitled to use even deadly force. Early emanations of self-defense and self-protection can be traced to the earliest civilizations. For example, the maintenance of law and order in the Greek and Roman empires was primarily the function of the military and its command structure. Order was maintained in the empire not because of some formal entity, but because the power base was rooted in military authority. “Although the word ‘police’ has a classical origin—the Greek politeuein ‘to act as a citizen of a polis’—the metropolitan police forces we are accustomed to did not exist in the ancient world. A few cities had some form of institutionalized keepers of the peace—‘magistrates of the peace’—but municipal police forces are a nineteenth century phenomenon: the British ‘bobbies’ named for the Prime Minister Robert Peel appear in the 1830s.”²

Upholding the law and the protection of private and communal property was, and is still considered, the responsibility of the individual and the community. The law is most effectively served by those who serve themselves. “An unwritten tenet of democracy places enforcement of the law within the domain of ordinary citizens … under the principles of common law any man still possesses wide authority to protect himself, his family, and to some degree the general peace of the land.”³ Coupled with this reality, in a free and capitalist society, some would argue, are the market forces that dictate what things have value and what needs protection based on that value. To be sure, self-help directly ties its undergirding to a philosophy of ownership and personal protection. In other words, the society’s decision on how to parse up its enforcement model, whether it be public or private in design, is inexorably tied to demand.⁴

Although self-help in the protection of one’s life and property was socially acceptable, other factors often dictated the practice as the only viable form of law enforcement. For the majority of European and American history, sparsely populated areas, rugged geography, and a strong distrust of any proposed national police organization forced individual citizens and communities to enact and enforce the law through the best available means. Oftentimes, private individuals acting on their own, or at the behest of communal interests, would be forced to take the law into their hands. This was best demonstrated in the tribal “blood feuds” of the Dark Ages. Order and protection was threatened by nomadic bands of rogues and barbarians, territorial fiefdoms, and blood feuds. Anguished communities were held captive by hordes of intruders.⁵ Primitive justice centered on the retribution of wrongs:

An injury done was primarily the affair of the party injured and of his kindred. It was for him and them to avenge the wrong on the wrongdoer and his kin, and to prosecute a “blood feud” against them until the wrong originally done was wiped out by retaliation.⁶

Although the self-help protection philosophy gave no clear-cut parameters as to what was fair and equitable justice, the origins of common law did develop from a notion of reasonable, nonlethal force in the protection of one’s property. When criminal action threatened only property, the law did not condone the use of deadly, retaliatory force. The law rightfully considered human life more precious than mere property.⁷

The issue of self-protection did not, however, exclude the use of deadly force in the protection of life. To be a legitimate use of deadly force, the use of force had to be justifiable and not disproportionate to the force threatened.⁸ A person, with justifiable cause, could use force in defense of family and self, and also in the defense of others.⁹ Under the feudal system, the relationship between lord and vassal resembled the present-day system of contract security.

Historical Foundations

The Middle Ages

Although modern law enforcement, security organizations, and policing/security functions were not initiated during the Middle Ages, an idea of the need and design for law enforcement and security did originate. It is important to understand the chaos and circumstances of medieval England and Europe that led to the establishment of private, self-policing forces. The vassal-lord relationship had developed a reciprocal self-help approach to the security of one’s life and property. Life in feudal times centered on the manors and villages, each responsible for its own protection. Small villages provided their own citizen-police, centering on the ancient “hue and cry” by which the able-bodied men could be summoned to lend assistance when criminal acts occurred or a felon needed to be apprehended.¹⁰ This method proved effective, but only within the limited range of the feudal territory or lord’s domain.

With each lord having his own system of security and no codified system of English law, the issue of national or regional security was a muddled mess of self-interests and conflicting jurisdictions. As the small manors of feudalism evolved into towns, villages, and eventually cities, the old system of self-help could not keep up with the rising crime rate.

From 1000 to 1300 A.D., the developmental seeds of an ordered system of law enforcement began in England. The king was able to appoint shire-reeves, who had law enforcement responsibilities in English counties or precincts. “The shire-reeve seems to have developed from the king’s reeve, the local official who looked after the king’s business.”¹¹ He was a royal representative, and it was intended that he would protect the royal interests if they conflicted with the local claims of anyone, including the lord of the county. Above all, the shire-reeve was still the chief officer of the county.¹² Within a manor, an appointed officer known as a “constable” was responsible for dealing with legal matters. Both the shire-reeve, later shortened to sheriff, and the constable were the forerunners of modern sworn police officers.

The system of English legal protection continued to expand and define itself more clearly. Under the Statute of Winchester of 1285, a system of “watch and ward” was established to aid constables.¹³ The watch and ward system was composed of a justice of the peace, a constable, constable’s assistants, and night watchmen whose primary function was the care and tending of a designated area of a town or city known as a “ward.”¹⁴ Even today, political subdivisions are often broken down into the ward structure. Regular patrols of citizens were established to stand watch nightly and to arrest criminals and strangers found wandering at night. When an offender was caught in a criminal act, the “hue and cry” was raised.¹⁵

It was then the duty of all men in the community, 15 years and older, to rally at the scene and uphold justice. In addition, they were required by law to carry arms and form a posse comitatus to pursue criminals.¹⁶ Maintaining the king’s peace and enforcing the law remained a public responsibility.¹⁷

Although all men had the general duty and the right to make arrests, the constables and sheriffs had additional specific peacekeeping duties and powers. Unfortunately, the officers were ill equipped to handle the urban growth that created cities with huge populations. Because constables were unpaid, ill trained, and ill equipped, English law enforcement was in dire straits. Lord Chancellor Bacon, in 1618, complained that constables were “of inferior stock, men of base conditions.”¹⁸ The towns and cities of England, especially London, fell into virtual anarchy because of the lack and inadequacy of publicly appointed and underpaid professional peacekeepers. Unfortunately the bulk of the watchmen and constables lacked the essential qualities for success.¹⁹ In his book, Hue and Cry, Patrick Pringle states:

Such is our respect for institutions that when an established system breaks down we are quick to blame people and defend the system; but the lesson of history seems to be that systems must be made for people, because people cannot be made for systems. To be effective, any system—whether political, religious, economic, or judicial—must expect people to be base and selfish and venal.²⁰

Because of the rising crime rate and the inability of the poorly organized English system of law enforcement to effectively combat it, private persons and businesses developed their own means of protection. As towns and cities expanded, merchants and artisans banded together for mutual protection. In his book On Guard, Milton Lipson relates how:

[g]uild members united to perform the duty of watching their contiguous property in the heart of these medieval towns, serving as watchmen themselves, later assigning their apprentices and thereafter hiring special guards. In these practices are the visible roots of both modern insurance and private secu...

Table of contents

• Cover Image
• Table of Contents
• Title
• Copyright
• Dedication
• Acknowledgments
• 1. Historical Foundations of Private Security
• 2. Regulation, Licensing, Education, and Training
• 3. The Law of Arrest, Search, and Seizure
• 4. Civil Liability of Security Personnel
• 5. Criminal Liability of Security Personnel
• 6. The Enforcement of Laws and the Collection, Preservation, and Interpretation of Evidence
• 7. Public and Private Law Enforcement
• 8. Selected Case Readings
• Appendix 1
• Appendix 2
• Appendix 3
• Appendix 4
• Index