Florida Security Policy: Conflicting Laws?

[N. A. Corbier]

In Florida, security officers have no more (or less) authority as a private citizen, as they are, in fact private persons subject to the jurisidiction of the State of Florida. As such, they are afforded basic rights under the State Constitution, including the right to defend themselves from attack.

Florida Statute 776.013 provides that use of force is justifable against another when certain circumstances are met, in the defense of others. The statute is listed below, from Florida Statutes 2005 Edition.

"776.031 Use of force in defense of others.--A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be."

As stated above, a security officer is a person subject to the state's jurisdiction. Therefore, one can safely assume that they are accorded the justifcation to use force to prevent or terminate the other's trespass on, or other tortious or criminal interference with real property in the posession of a person who's property he or she has a legal duty to protect.

The person does not have a duty to retreat if the person is in a place where he or she has a right to be. The security officer's contractual obligation to the client would create the "right to be."

Licensed Contract Security Officers are governed by additional statute, Chapter 493 of Florida State Statutes. Any armed security officer is required to be licensed under the chapter, as well as any security officer working for a contract security company, which additionally must also be licensed.

Chapter 493.6118 provides for grounds for disciplinary action, which the chapter authorizes the Department of Agroculture and Consumer Services to levy fines, revoke professional licensing, or file a misdemeanor charge against the individual under FSS 493.6120(1).

FSS 493.6118(j) reads as follows, as a grounds for disiplinary action: "Commission of an act of violence or the use of force on any person except in the lawful protection of one's self or another from physical harm."

As stated, it appears that FSS 493.6118(j) makes it a misdemeanor violation, as well as grounds for revocation of professional license, to use force or an "act of violence" to terminate or prevent trespass or interference with property.

Florida is a state that issues a duty for all residents of the state to quell a breach of the peace, and enables them to detain for such breaches of the peace so that the violator may be brought before a magistrate. Florida also uses the "felony detainment doctrine," in which a private person may make a detainment of another who commits a felony in their presence for the purposes of remanding them to the custody of a competent law enforcement officer in the jurisdiction.

Both of these instances have been used by law enforcement officers in the performance of their duties, outside their juristictions, rendering them private persons, in the apprehension of DUI suspects who were creating a breach of the peace by their dangerous and reckless operation of a motor vehicle - endangering the public. While the crime DUI is not a felony, it is a breach of the peace, allowing the officers acting as private persons to effect the detainment.

However, FSS 493.6118(i) specifically lists an "impersonation of government employee or law enforcement officer" clause, which imposes a greater restriction on the contract security officer than 843.08, which governs impersonating a law enforcement officer. 493.6118(i) is listed below.

"Impersonating, or permitting or aiding and abetting an employee to impersonate, a law enforcement officer or an employee of the state, the United States, or any political subdivision thereof by identifying himself or herself as a federal, state, county, or municipal law enforcement officer or official representative, by wearing a uniform or presenting or displaying a badge or credentials that would cause a reasonable person to believe that he or she is a law enforcement officer or that he or she has official authority, by displaying any flashing or warning vehicular lights other than amber colored, or by committing any act that is intended to falsely convey official status."

In this clause, it can be argued that a contract security officer wearing a similar uniform to a police officer, which is common, as both professions wear military-style uniforms with sam-browne belts festoon with equipment, or garrison belts without equipment, and hard or soft badges, and conveying that he has the official authority to detain an individual would be in violation of 493.6118(i), and therefore guilty of a misdemeanor.

This becomes worse when the officer is armed, as it is now a compounding felony.

The question becomes even more muddled when you ask, "If an agency trains their employees to detain or use force to protect their property, so much as holding out a hand or standing in front of someone to bar their entry, will they face revocation of their agency license for conspiracy to violate 493.6118(j)? Will the Class DI security officer school instructors who teach that detainment for breach of the peace, felony in presence, or force to protect property lose their licenses, as well, for teaching tactics which violate 493.6118(j)?"

Also, the wearing of "police-style" uniforms comes into question. If the element of the crime of impersonation, under 843.08 requires "intent to decieve," yet 493.6118(i) requires only a uniform or badge which causes the reasonable person to believe that the wearer has official authority. Being confused with, for example, a Division of Capital Police employee (state employee with official authority) is grounds for discipline, or confusment with a park ranger (who has official authority.) Attempting to effect a detainment may also lead to a claim of "official authority," which the security officer does not have.

This is a perplexing quandry, and one that the security industry in other states are well to ensure that stop-gap regulation does not occur at home.

[Mr. Security]

[QUOTE=N. A. Corbier][size=2]"Impersonating... law enforcement officer or official representative, by wearing a uniform or presenting or displaying a badge or credentials that would cause a reasonable person to believe that he or she is a law enforcement officer...

Typical legislative tactic - keep it ambiguous so that it needs to be hashed out in the judicial branch for clarity.

[gixxer32404]

What came of the new proposed law allowing security to detain in Florida???

[willb61]

Florida Security

Florida is a strange state when it comes to certain laws. Did they not just change the law recently pertaining to an assault on a Security Officer. Its more of a crime now than it would be on a regular citizen?

[mike booth]

Florida statutes and Department of Agriculture, Division of Licensing regulations have loop holes you can drive a truck through, K turn and pull out. It is all how you write the report.

[bigdog]

Florida is a strange state when it comes to certain laws. Did they not just change the law recently pertaining to an assault on a Security Officer. Its more of a crime now than it would be on a regular citizen?

Actually it was change in 2006 but yes, a crime against a security officer(assault, battery, aggravated assault aggravated battery) is now prosecuted as if committed on a law enforcement officer. Which is one degree higher than if committed against a regular citizen.
Link to statute

http://flsenate.gov/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=784.07&URL=CH0784/Sec07.HTM

[bigdog]

What came of the new proposed law allowing security to detain in Florida???

It died in the legislature cause someone in the organization that was proposing it suggested that we could steal the contract that off duty Leos get if we get the authority and the police associations heard about the comment and killed it.

[gixxer32404]

That doesn't make sense. So now we continue to let them go and the Deputy might show up in 45 minutes.

[bigdog]

That doesn't make sense. So now we continue to let them go and the Deputy might show up in 45 minutes.

Remember you may arrest as a private citizen under common law for breach of peace in presence( with element of violence or a felony.
You may also use reasonable force to accomplish arrest. Case law allowing use of force for citizens arrest is below

455 So.2d 608
Torr NELSON, a minor child, By and Through his natural guardian and next of kin, Algerian BOWENS, Appellant,
v.
Mitchell HOWELL, Appellee.
No. 83-1856.
District Court of Appeal of Florida,
Second District.
Sept. 7, 1984.
Page 609
Martin J. Jones, St. Petersburg, for appellant.
Barry M. Salzman of Chambers & Salzman, P.A., St. Petersburg, for appellee.
DANAHY, Judge.
The question before us is whether a private citizen is justified in using deadly force to prevent the escape from the citizen's custody of a person who committed a felony in the citizen's presence. We hold that the use of such force is justifiable if it appears to the citizen to be reasonably necessary to prevent the felon's escape, and remand this case for determination by a jury whether the use of force in this case was reasonably necessary under the circumstances.
This is a civil action brought by the alleged felon to recover damages for injuries sustained when the appellee shot him in the back in an effort to prevent his escape after he committed a burglary in the presence of the appellee.
The facts are essentially undisputed. The appellee is the owner of a seafood store in a shopping center. He knew the appellant well and suspected the appellant of being the person who had broken into the store on several occasions. On the day in question, a Sunday, the appellee was in the back of his store hoping to catch the person who had been breaking in. The appellee heard a noise and looked out front. There he saw the appellant inside the store walking toward the back. The appellee grabbed the appellant, who began struggling with him. The appellee told the appellant to settle down and that he was going to call the police. As the appellee started to release the appellant, the appellant turned and ran out the rear of the store.
The appellee gave chase and grabbed a gun as he left the rear of the store. The appellant went out the back door with the appellee following him and yelling at him to stop or that he would shoot. The appellee fired a warning shot and then, realizing that he was not going to be able to catch up with the appellant on foot, fired his gun and shot the appellant in the back.
The trial judge entered a summary judgment for the appellee, ruling that a private citizen has a common law right to arrest a person who commits a felony against him
Page 610
and in his presence and thus is justified in using whatever force is necessary to effectuate such an arrest. We agree with the statement of law, but disagree with the trial judge's tacit ruling that, as a matter of law, force was necessary in this case. Florida follows the common law rule that a private citizen may arrest a person who commits a felony in his presence. Collins v. State, 143 So.2d 700 (Fla. 2d DCA 1962). The right to arrest a person includes the right to try to prevent his escape. The question is whether the private citizen may use force to effectuate the arrest or to prevent the escape. Although there is some conflict of authority on this question, the prevailing view seems to be that where a private citizen has in his custody a person who has committed a felony in the citizen's presence and the felon attempts to flee, the citizen may use such force in preventing the escape as is necessary, or as appears to him in the exercise of reasonable discretion to be necessary, even to the extent of taking life. Annot., 32 A.L.R.3d 1078 (1970). We align ourselves with the prevailing view. 1
The crucial issue in this case is whether it was necessary under the circumstances, or reasonably believed by the appellee to be necessary under the circumstances, to shoot the appellant to prevent his escape. We believe this is a judgment call which should be made by a jury. Accordingly, we reverse the summary judgment for the appellee and remand for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
HOBSON, A.C.J., and BOARDMAN, J., concur.

[BritMike]

The JOB

When a client seeks a relief in his desire to keep his staff, or goods, secure from injury, or in the case of goods, theft, he has a right to hire who ever he desires to effect this relief.

Since 2006 October, the self defense of person law was radically changed, we the Industry IMHO are protected in exactly the same way "If our Security Officer feels physically threatened, or some one he is paid to protect is threatened, then force, and up to deadly force can be used"

If I am wrong in this opinion please explain.

Law enforcement of a public nature, The Police, are paid to keep the peace, by taxes, circa Sir Robert Peel, father of the Police as we know them today.

We however are paid to do a specific task, arranged by a balance of law, and contractual obligations.

The Police do not receive any training in Security work, none.

The fact that a issue would come to light, that would even be discussed, of a off duty Officer having a say in anything to do with our much lower paid industry, is appalling, and must be addressed forthwith. Plus, when this off duty Officer goes out to the mall to work that gig, he is in his full uniform, with a radio to the Police dispatch, a huge conflict of interest, and a unfair business advantage, with equipment paid for with our taxes.

[travis061986]

Florida is a strange state when it comes to certain laws. Did they not just change the law recently pertaining to an assault on a Security Officer. Its more of a crime now than it would be on a regular citizen?

In the State of Florida, battery on a Security Officer is a felony. It is basically the same as hitting a LEO.

[kjtw]

As with most states, FL has its share of conflicting and confusing laws regarding the security industry. However, as was mentioned before, it comes down to the ambiguity (sp?) that is built in so that it will be dealt with later.

I think what it really comes down to is how the laws have traditionally been enforced (or not enforced). That is the ultimate way to determine how to handle certain situations. Although it states what it does in that section, I don't believe that you would have any problem physically removing a trespasser from a property. I know I have done it and not had any problem. Where a problem would arrise is if you used EXCESSIVE force to remove the person. Simply grabbing someones arm and escorting a person off the property would likely not be a problem. However, taking out an ASP baton and striking them would be much.

The better question to ask is why is the trespass law handled the way it is by law enforcement? The law states that an owner or agent of the owner has the right to ask someone to leave. If that person refuses to leave, or returns without permission, that person is trespassing (not exact wording). However (at least in the Tampa area), if you want someone trespassed, you have to call local law enforcement to come and issue a trespass warning. There is nothing in the trespassing law that provides for this and, frankly imo, violates the property owner's rights. Normally, this type of call takes the absolute LOWEST priority and, as such, you will be lucky to see a LEO within an hour or two. By that time, the person has either left or you are in trouble for detaining them.

I was fortunate to have a good working relationship with the local LEOs and had many of their direct cell numbers, so I could often times get trespass warnings issued when I needed them. However, if I were to stop and ID someone on the property then decide to trespass them from the property, I would have to wait and the clock was ticking. That fine line of detention is easy to cross if you are not careful.

If I had my way, the trespassing law would be changed to specifically state that the property owner or agent has the right to issue trespass warnings without the need to contact local law enforcement. Afterall, if you are simply trespassing someone, why tie up a LEO? Also, I would add a specific citizen's arrest statute (similar to MN or MS*) that allows citizens to actually have statutory authority to make these arrests, not just common law as has been adopted in FL (felonies in presence etc).

My view...my opinion...I didn't say it was right!

*Both MN and MS have laws that allow private citizens to make arrests for misdemeanors committed in their presence and for probable cause that the person committed a felony.

[mjw064]

The Police do not receive any training in Security work, none.

The fact that a issue would come to light, that would even be discussed, of a off duty Officer having a say in anything to do with our much lower paid industry, is appalling, and must be addressed forthwith. Plus, when this off duty Officer goes out to the mall to work that gig, he is in his full uniform, with a radio to the Police dispatch, a huge conflict of interest, and a unfair business advantage, with equipment paid for with our taxes.

Are you serious? Who are you?

First, to say that police officers do not receive any security training is ludicrous. I have news for you, POLICE WORK IS NOT WHAT YOU SEE ON TV. And police do receive security training as we also perform both security and protection type assignments.

Additionaly the Law Enforcement and Security fields are so closely related I would consider them like conjoined twins. Yeah we have different responsibilities, yeah some folks make more money than other folks (and it goes both ways some security officers make more than police officers) and yeah there are varying levels of authority. But when it comes right down to it, the two fields are completely related and operate with similar goals and objectives.

Next, to complain about an off-duty cop using tax-payer funded equipment on an off-duty gig is hilarious. Do you realize that when a property owner employs an off-duty police officer he is SAVING TAXPAYER MONEY? Yeah, thats right because he is handling calls for service that would otherwise have to be dispatched to on-duty officers. You shouldn't be jealous of off-duty police officers ... they provide services to a niche market. Not everyone can afford them, but those who can will generally only pay for it when they need someone with police authority to keep the peace on their property.

I don't know if you are ... but you sound bitter and jealous of the police.

[kjtw]

Are you serious? Who are you?

First, to say that police officers do not receive any security training is ludicrous. I have news for you, POLICE WORK IS NOT WHAT YOU SEE ON TV. And police do receive security training as we also perform both security and protection type assignments.

Additionaly the Law Enforcement and Security fields are so closely related I would consider them like conjoined twins. Yeah we have different responsibilities, yeah some folks make more money than other folks (and it goes both ways some security officers make more than police officers) and yeah there are varying levels of authority. But when it comes right down to it, the two fields are completely related and operate with similar goals and objectives.

Next, to complain about an off-duty cop using tax-payer funded equipment on an off-duty gig is hilarious. Do you realize that when a property owner employs an off-duty police officer he is SAVING TAXPAYER MONEY? Yeah, thats right because he is handling calls for service that would otherwise have to be dispatched to on-duty officers. You shouldn't be jealous of off-duty police officers ... they provide services to a niche market. Not everyone can afford them, but those who can will generally only pay for it when they need someone with police authority to keep the peace on their property.

I don't know if you are ... but you sound bitter and jealous of the police.

I both agree with you and disagree with you in a way. I think that public law enforcement and private security are related however, differ quite a bit. I tend to disagree that the goals are the same. Ultimately, a law enforcement officer's goals are just that; to enforce laws whereas the ultimate goal of a private security is to protect specific property (speaking in generalities).

As a result of these differing goals, the mindset of each is different. I personally can't imagine being able to instantly switch mindsets. Much like it is difficult for a LEO or Security Officer to do EP (due to mindset).

That being said, I do see where a property might want an off duty LEO to provide services. The increased authority is definately a plus in some circumstances. Unfortunately, many (not all) LEOs that take these assignments do so and have no intention of doing what they are asked to do. I have run into quite a few police officers working off duty assignments that just sit there and don't do a thing, essentially wasting the money of the client. Again, I don't claim that ALL off duty LEOs do that, but many do. At the same time, there are security agencies and officers that do the exact same thing.

What it comes down to is simple competition where both public and private have their advantages and disadvantages. A client needs to weigh the pros and cons of each before making their decision, just like they do with any purchase they make.

Let me ask this; if an off duty LEO gets into a shooting, who holds the liability? Does the officer? How about the municipality that officer works for? How about the client? If it is the client, well, I almost guarentee that the client's GL insurance won't cover unless it was specifically noted on the policy (which would make it darn expensive). If it is the individual officer, that officer is pretty much up the creek without a paddle. If it is the municipality that the officer works for, well, now there could be a problem. Having to cover something like this would be akin to the government paying a lawsuit for any other private organization. Then tax dollars go towards things other than what they really need to go towards.

BTW, I am honestly asking that last question...who is liable if something happens when the off duty LEO is working for a private business/location? I am sure that it differs based on location, but in general.

Another question I have is this; who is an off duty LEO ultimately responsible to when working an assignment? Is it the municipality or the client? It is obvious that private security is ultimately responsible to the client, but it isn't as clear with LEOs. I would assume they are ultimately responsible to the municipality.

[mjw064]

Let me ask this; if an off duty LEO gets into a shooting, who holds the liability? Does the officer? How about the municipality that officer works for? How about the client?

I can't speak for Florida, but here in the District of Columbia, if a police officer wishes to work outside employment, he must maintain his own $1,000,000 liability policy. Of course District Government would still have some liability in the case of a shooting, however $1,000,000 worth of private insurance coverage greatly reduces District Government's liability.