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  • #16
    Originally posted by SecTrainer View Post
    So, then, you're a Walmart SO cruising the lot and you spot an expired license plate or a car with one headlight...you have to report it?
    According to statute, yes. Of course, keep in mind there is no mandatory training in this state, and from talking to security personnel... the level of training varies between employee to employee.

    I had one employee tell me that he was a "state officer" because he had a security license, for example. Considering "State Officers" are Wisconsin Peace Officers, that was probably illegal.
    Some Kind of Commando Leader

    "Every time I see another crazy Florida post, I'm glad I don't work there." ~ Minneapolis Security on Florida Security Law

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    • #17
      Originally posted by N. A. Corbier View Post
      According to statute, yes. Of course, keep in mind there is no mandatory training in this state, and from talking to security personnel... the level of training varies between employee to employee.

      I had one employee tell me that he was a "state officer" because he had a security license, for example. Considering "State Officers" are Wisconsin Peace Officers, that was probably illegal.
      Very interesting. I could certainly understand it if the requirement were limited to, say, felonies and serious misdemeanors, but loud mufflers and bald tires seems unreasonable - and could even interfere with the security mission. I'm presuming, though, that this requirement isn't actually practiced or enforced?
      "Every betrayal begins with trust." - Brian Jacques

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      • #18
        Originally posted by SecTrainer View Post
        The short answer is that the client has substantial latitude to decide what, and even if any, enforcement of public laws will be carried out by SOs on the client's premises, as well as what precise form such enforcement will take (for instance, apprehension versus reporting). In some jurisdictions the nature or gravity of the crime is a factor.
        In some respects I agree, however, as you know Title 17 has a substantive predicate which, by virtue of eon's of court rulings, knowingly, willingly and deliberately restricts the manner that others (clients and employers included) may interfere or prevent an s/o in KCMO from exercising their police and arrest powers regardless of the fact that the s/o operates under contract with a client on private property. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463 (finding discretion to be constrained by “substantive predicates").

        To do otherwise, can quickly constitute a criminal act on the part of the client, the employer and / or the s/o, pursuant, in part, to 575.020 RSMo (2006) (concealing an offense) and 575.030 RSMo (2006) (hindering prosecution), as well as a violation of public policy. See Fidelity & Deposit Co. of Maryland v. Grand Nat. Bank of St. Louis, 69 F.2d 177, 180 (8th Cir. 1934) ("An agreement to stifle a prosecution, suppress evidence, compound an offense or conceal a crime which has been committed is . . . contrary to public policy").

        The state also takes it a step further in that of authorizing "private" security officers to access criminal records, warrants for arrest, DMV records and other personal info on the suspects we contact, to empower private security in furthering the states own ends in the delivery of public police services and fighting crime by enforcing laws.

        These things are, however, the execption rather than the rule (per se) in lieu of the fact that there are s/o's elsewhere in the state and throughout the U.S that do not have such legal authority.

        Originally posted by SecTrainer View Post
        We seem to keep needing to make this point: Security is not law enforcement, either by law or by mission, and this principle applies at least broadly even to public LE officers who are "moonlighting" on private property as SOs, although this seems to vary from one court's jurisdiction to another. One of the facts which seems to distinguish some of the cases in deciding whether a moonlighting LE is an "LE" or an "SO" (while he is moonlighting) is whether, in a particular department, an officer is ever considered to be "off duty" as a matter of formal policy.
        I believe it is important not to mislead others and to be mindful that there are states that have enacted laws that make s/o's de facto police officers, Missouri, as you know is among the 30 states that has done this very thing. And the federal courts of appeal from the 4th, 5th, 6th, 7th and 8th Circuits categorically do not agree with your legal assessment.

        In fact, the 6th Circuit specifically pointed out in Romanski v. Detroit Entertainment, L.L.C., 428 F.3d 629, 636 (6th Cir. 2005) (citing Dean v. Olibas 129 F.3d 129 F.3d 1001, 1007 (8th Cir. 1997) that the U.S. Supreme Court deliberately left the door wide open for the federal courts to make their own determination as to the capacity in which private security operates when having statutory police and arrest powers. To-wit, at least theses federal courts have unequically ruled over and over again that s/o's with this kind of legal authority are in fact de facto police officers. And even the legal department from the KCPD has argued over and over again, that person's having a "private" security license are essentially police officers because they have statutory police and arrest powers to-wit was specifically enacted by the state, for "private" s/o's to assist the KCPD in fighting crime - NOT to be a private malitia for the client or employer.

        Hence, by virtue of states enacting such laws (whether we like it or not) these laws have divided the private security industry into two sections - one being the traditional form and one being a law enforcement form.

        Yes, the powers are restricted to the properties for, which the s/o is assigned, at least here in KCMO, though, in KCMO, they also extend into the city streets under two conditions. The first is that the suspect flees off property and the second is that of the city contracting security services to patrol city streets for, which KCMO does do.

        What I can personally state from direct knowledge and conversations is that I have yet to have one single city and state official and police officer, here in KCMO, dispute any of these facts, including the licensed attorney's who origianlly amended Title 17 in 1999.

        I can also state with certainty that sworn LEO's, here in KCMO, remain LEO's when operating in the capacity of a private security officer. In fact, the KCPD policy speicifically authorizes their LEO's to work "off duty" in such capacities on the premise that they are there only to enforce laws and shall not engage in enforcing client rules and regulations. This is why LEO's, here in KCMO are not required by law to obtain a private security officer license under Title 17 - whereas private s/os' are because private s/o's play both roles, i.e. enforcing laws in the capacity of a de facto police officer and enforcing client rules / regulations as a private s/o.
        Last edited by Christopherstjo; 06-06-2007, 01:33 AM.

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        • #19
          Originally posted by SecTrainer View Post
          So, then, you're a Walmart SO cruising the lot and you spot an expired license plate or a car with one headlight...you have to report it?
          While I understand you point, I believe Nathan is referring to more serious crimes.

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          • #20
            Originally posted by SecTrainer View Post
            Very interesting. I could certainly understand it if the requirement were limited to, say, felonies and serious misdemeanors, but loud mufflers and bald tires seems unreasonable - and could even interfere with the security mission. I'm presuming, though, that this requirement isn't actually practiced or enforced?
            I don't think the police know about it, I've never heard of a state investigator up here, companies do not have to train you in anything to get a license...

            Nope.
            Some Kind of Commando Leader

            "Every time I see another crazy Florida post, I'm glad I don't work there." ~ Minneapolis Security on Florida Security Law

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            • #21
              Contract Security

              I have always been, and remain, opposed to using contract security for shoplifter apprehensions, unless the size of the store/company leave absolutely no alternative. Using contract security does not relieve the store of responsibility for their actions or civil liability resulting from their actions. When all is said and done, and the required store supervision and review of their training and knowledge of store policies and procedures, coupled with the problems of quality and turnover, cost economies rarely meet expectations. Use of uniformed contract security for special events, physical security, and other non-confrontational assignments with minimal customer and public contact is usually not a problem, but such use still requires close supervision. A final note: always check the license, insurance, references etc of contract service and reserve right to final approval of officers used on your site as well as right to require removal and replacement of officers at your option for any or no reason.

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              • #22
                Welcome John.
                Retail Security Consultant / Expert Witness
                Co-Author - Effective Security Management 6th Edition

                Contributor to Retail Crime, Security and Loss Prevention: An Encyclopedic Reference

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                • #23
                  John H. Christman I have always been, and remain, opposed to using contract security for shoplifter apprehensions, unless the size of the store/company leave absolutely no alternative. Using contract security does not relieve the store of responsibility for their actions or civil liability resulting from their actions. When all is said and done, and the required store supervision and review of their training and knowledge of store policies and procedures, coupled with the problems of quality and turnover, cost economies rarely meet expectations. Use of uniformed contract security for special events, physical security, and other non-confrontational assignments with minimal customer and public contact is usually not a problem, but such use still requires close supervision. A final note: always check the license, insurance, references etc of contract service and reserve right to final approval of officers used on your site as well as right to require removal and replacement of officers at your option for any or no reason.

                  Comment


                  • #24
                    Originally posted by John H. Christman View Post
                    I have always been, and remain, opposed to using contract security for shoplifter apprehensions, unless the size of the store/company leave absolutely no alternative. Using contract security does not relieve the store of responsibility for their actions or civil liability resulting from their actions. When all is said and done, and the required store supervision and review of their training and knowledge of store policies and procedures, coupled with the problems of quality and turnover, cost economies rarely meet expectations. Use of uniformed contract security for special events, physical security, and other non-confrontational assignments with minimal customer and public contact is usually not a problem, but such use still requires close supervision. A final note: always check the license, insurance, references etc of contract service and reserve right to final approval of officers used on your site as well as right to require removal and replacement of officers at your option for any or no reason.
                    I am not sure I agree with giving the client a contractual right to remove someone for no reason, as such can quicky get into serious gray areas of one being removed for illegal / unlawful reasons.

                    Again, there are some 30 states that have enacted laws that give private s/o's police powers. If a client does not like an s/o enforcing laws on their property and elects to have that s/o removed for doing so, it can be quickly argued that the removal was retaliatory in violation of the law. This, in turn, places the s/o's employer in liablity if they remove the s/o from the post and might violate both state and federal laws.

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                    • #25
                      Originally posted by John H. Christman View Post
                      John H. Christman I have always been, and remain, opposed to using contract security for shoplifter apprehensions, unless the size of the store/company leave absolutely no alternative. Using contract security does not relieve the store of responsibility for their actions or civil liability resulting from their actions. When all is said and done, and the required store supervision and review of their training and knowledge of store policies and procedures, coupled with the problems of quality and turnover, cost economies rarely meet expectations. Use of uniformed contract security for special events, physical security, and other non-confrontational assignments with minimal customer and public contact is usually not a problem, but such use still requires close supervision. A final note: always check the license, insurance, references etc of contract service and reserve right to final approval of officers used on your site as well as right to require removal and replacement of officers at your option for any or no reason.
                      My curosity has been peaked. What would you suggest for a solution where there is confrontation? Off duty law enforcement officers?
                      Some Kind of Commando Leader

                      "Every time I see another crazy Florida post, I'm glad I don't work there." ~ Minneapolis Security on Florida Security Law

                      Comment


                      • #26
                        Originally posted by Christopherstjo View Post
                        I am not sure I agree with giving the client a contractual right to remove someone for no reason, as such can quicky get into serious gray areas of one being removed for illegal / unlawful reasons.

                        Again, there are some 30 states that have enacted laws that give private s/o's police powers. If a client does not like an s/o enforcing laws on their property and elects to have that s/o removed for doing so, it can be quickly argued that the removal was retaliatory in violation of the law. This, in turn, places the s/o's employer in liablity if they remove the s/o from the post and might violate both state and federal laws.
                        Some things you are off base on.

                        - The client always maintains the right to determine the scope of work and responsibilities of the contract security company. I am hiring you, I can decide what your role is.
                        - Even when granted police powers by the state, it does not mean that they have they right to utilize those powers while employed for company ABC. Police powers are typically relegated to authority to make arrests, not a requirement to make arrests. Police always have the ability to decide whether to arrest or not in any given situation. They are not mandated to arrest people for crimes, even when on-duty as a police officer. A security officer is never mandated to arrest.
                        - Asking for someone to be removed would not fall under any laws of protection, except for the same ones that are already illegal for employment reasons, such as race, religion, etc. Asking for someone to be removed from your premises because they refuse to abide by your policies is not only legal but completely appropriate. It could never be deemed retaliatory. There are no laws that prohibit this.
                        - It would be bad business for any security company to try to insist that the hiring company does not have full latitude in determining the role and responsibilities of the contracted guards. That would be a really, really, really dumb way to operate a business and would ultimately result in losing many contracts.
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                        • #27
                          Originally posted by N. A. Corbier View Post
                          My curosity has been peaked. What would you suggest for a solution where there is confrontation? Off duty law enforcement officers?
                          I am generally opposed to using LEOs for shoplifter apprehensions. Their mind set is different and they, legitimately, take a LE approach with less regard for company policies than most prefer. Whether to use LEOs is a company decision and I've simply stated my position, based upon experience. One has only to observe the national adverse publicity Dillard's has received over their use (almost exclusively) of LEOs to see the problems presented. My position is that properly trained and supervised proprietary LP personnel are the best choice for shoplifting detection/apprehension.

                          With regard to the question of reserving the right to remove contract SOs without any given reason, I've never fouind this to be a problem. It may come down to an issue of simply not presenting the image the company deisres or something like a subtile "hitting on" certain customers. The company should have the final word on who is asigned to their store.

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                          • #28
                            Lynch Mob

                            Rather than my addressing your comments one at a time, I am simply going to say that you are factually and legally incorrect in your interpretations of law (sic) as held time and time again by the federal courts.

                            I realize that the concept of s/o's having police powers is one that many s/o's have a difficult time understanding and some refuse to understand due to their own resentment for one reason or another. Yet, as I have said, by states enacting such laws, the security industry has been divided into two sections; one being the traditional "observe and report" and one being "law enforcement."

                            Whether there is a mandate for one to exercise his or her police powers is entirely dependent upon the specific language used in the state law and any specific legal cases involving that law.

                            Separate from the aforesaid, as I have addressed many times before, here in KCMO, the law is expressly clear in imposing a substantive predicate. Courts define the phrase "substantive predicate" to mean - language used in the law that has the intent or effect to limit the rights or authority of another.

                            For example, when language such as "shall have the authority to detain or apprehend" is used, the state is intentionally and expressly taking away the right of the client, employer and others to hinder, obstruct or prevent an s/o from exercising his or her police / arrest powers. Hence, exercising these powers is the exclusive right and authority of the s/o to do as the law requires - rather than what the client or employer wants. Because to permit otherwise only enables clients and employer's to use s/o's with police powers as their own private army (malitia) to inflict damage against others in bias, illegal and unlawful ways.

                            The state has the legal right to take away these rights of the client and the employer under what is called a "compelling state interest" which generally exempts the state from federal constitutional laws, such as taking the right of free speech away from citizens when doing so is for the public / state good. Hence, the state inserted the substantive predicate in order to forbid clients, employers and others from harming the state and public police in the delivery of public police services by and through private security officers.

                            These assertions are shown to be true in eon's upon eon's of court rulings on both the federal and state levels.

                            When it comes to "good business practices" it is not wise, nor is it legally permissible to surrender all control over to a client because the employer maintains certain legal obligations nevertheless. For example, the employer is legally liable for incidents of sexual harassment that occur on a client's property wether committed by the s/o or against the s/o. An employer is also legally liable for labor laws regardless whether or not there is a contract in place. Because of these things, only a complete idiot for an employer would surrender total control over their s/o's to a client.

                            All contracts for s/o services are legally required to abide by the law in place which governs private s/o licenses. And NO contract has the legal authority to re-write or overrule the law or to force the s/o to commit criminal or civil violaitons of law.

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                            • #29
                              Originally posted by John H. Christman View Post
                              With regard to the question of reserving the right to remove contract SOs without any given reason, . . . It may come down to an issue of simply not presenting the image the company deisres or something like a subtile "hitting on" certain customers. The company should have the final word on who is asigned to their store.
                              Here, you present two "reasons" for removing an s/o from client property that would be absolutely legitimate. Removing an s/o for "no reason," however, quickly gets into legal gray areas that can bring about high risks of serious legal liabilities for both the client and the employer.

                              Again, the example that I use is if the s/o exercises his/her police powers and is then suddenly removed from client property for doing so, this likely would constitute retaliatory conduct that would open the doors for the client / employer to be successfully sued by the s/o.

                              Another situation that I have seen is that retail clients want to dictate when a contract s/o can and cannot pull his / her firearm, most often saying that the s/o can only pull their firearm when they actually see another with a gun. Yet, failing or refusing to acknowledge that a contract s/o can also pull his / her firearm when other weapons are pulled or when a person uses their vehicle as a weapon to run over the s/o or another person. But retail clients tend to be ignorant about these things and about the laws for, which govern contract s/o's and their licenses. At least based on my experiences with retail clients.

                              Having worked LP in the past, I agree that only LP should perform such duties as typically contract s/o's are not properly trained.

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                              • #30
                                Originally posted by Christopherstjo View Post
                                Lynch Mob

                                Rather than my addressing your comments one at a time, I am simply going to say that you are factually and legally incorrect in your interpretations of law (sic) as held time and time again by the federal courts.

                                I realize that the concept of s/o's having police powers is one that many s/o's have a difficult time understanding and some refuse to understand due to their own resentment for one reason or another. Yet, as I have said, by states enacting such laws, the security industry has been divided into two sections; one being the traditional "observe and report" and one being "law enforcement."

                                Whether there is a mandate for one to exercise his or her police powers is entirely dependent upon the specific language used in the state law and any specific legal cases involving that law.

                                Separate from the aforesaid, as I have addressed many times before, here in KCMO, the law is expressly clear in imposing a substantive predicate. Courts define the phrase "substantive predicate" to mean - language used in the law that has the intent or effect to limit the rights or authority of another.

                                For example, when language such as "shall have the authority to detain or apprehend" is used, the state is intentionally and expressly taking away the right of the client, employer and others to hinder, obstruct or prevent an s/o from exercising his or her police / arrest powers. Hence, exercising these powers is the exclusive right and authority of the s/o to do as the law requires - rather than what the client or employer wants. Because to permit otherwise only enables clients and employer's to use s/o's with police powers as their own private army (malitia) to inflict damage against others in bias, illegal and unlawful ways.

                                The state has the legal right to take away these rights of the client and the employer under what is called a "compelling state interest" which generally exempts the state from federal constitutional laws, such as taking the right of free speech away from citizens when doing so is for the public / state good. Hence, the state inserted the substantive predicate in order to forbid clients, employers and others from harming the state and public police in the delivery of public police services by and through private security officers.

                                These assertions are shown to be true in eon's upon eon's of court rulings on both the federal and state levels.

                                When it comes to "good business practices" it is not wise, nor is it legally permissible to surrender all control over to a client because the employer maintains certain legal obligations nevertheless. For example, the employer is legally liable for incidents of sexual harassment that occur on a client's property wether committed by the s/o or against the s/o. An employer is also legally liable for labor laws regardless whether or not there is a contract in place. Because of these things, only a complete idiot for an employer would surrender total control over their s/o's to a client.

                                All contracts for s/o services are legally required to abide by the law in place which governs private s/o licenses. And NO contract has the legal authority to re-write or overrule the law or to force the s/o to commit criminal or civil violaitons of law.
                                Sorry Christopherstjo, you are off base. You continue to mix police powers with police responsibility. There is a difference. You will have to show me the case law that shows there is no difference. Show me a case where an employer got in trouble for implementing policies and restricting the decision making of security officers in enforcing criminal laws. I am betting you will not find one.

                                As for your comments about the security company maintaining legal obligations, well of course they do. You cannot use sexual harassment as an example because it is a workplace law and both the contracting company and security company have a responsibility to protect every person, employees and customers, from sexual harassment of any kind. I already said that a company can implement policies and make employment decisions as long as they are not based on illegal practices. It has nothing to do with the police powers of a security officer.

                                Finally, this statement is WAY off base.

                                "The state has the legal right to take away these rights of the client and the employer under what is called a "compelling state interest" which generally exempts the state from federal constitutional laws, such as taking the right of free speech away from citizens when doing so is for the public / state good."

                                A state does not have the authority under any circumstances to become exempt from federal constitutional laws. That is the entire point of the Constitution. It is the RIGHTS of American citizens that the governement does not have the right to take away from us. Period. There are no "compelling state interest" issues that allow states to become exempt from contitutional laws.

                                To further my point, while the governement cannot take away constitutional laws, the laws may not apply to private companies. As the example of free speech, free speech is not something any employer is required to allow. This right does not apply in the workplace. So, it shows that companies can set their own boundaries and restrict rights of individuals while they work for them that the government does not have the authority to restrict. This is what applies for companies employing security officers. The state grants them powers and the company is not legally bound to allow the individual to utilize the full scope of their powers while in their employ.
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