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  • #31
    I may have skimmed past someone making this point previously, but I've always been oppsed to contract LP simply due to the fact that their 'loyalty' is not inherently proprietary.

    Cost-effectiveness in a contract LP situation may not necessarilly lead to a contract staff "full" of dedication.
    You can educate dumb, but you can't fix stupid.

    Comment


    • #32
      Lynch Mob

      And yet, despite even your best effort to argue the matters, the 4th, 5th, 6th, 7th, and 8th federal courts of appeal; the Missouri Supreme Court and even the U.S. District Court for the District of Missouri (in a case from many years back) and the legal department for the KC Police do not agree with your so-called legal analysis. So knock yourself out in believing what you want. I have previously cited ample case laws in this fourm; I'll not spend the time re-citing them just to appease you - do the research.

      What I know to be a legal fact is that here in KCMO, just like in the other parts of the country that also have the same laws, every day "private" s/o's with a Class A license exercise police powers in the capacity of being a de facto police officer.

      Merely because you do not understand the laws or do not like the laws does not mean the laws do not exist - but as I said, knock yourself out in believing whatever you want - the greatest fact is that your beliefs chage nonthing at all in what exists every single day.

      Comment


      • #33
        Originally posted by SecTrainer
        Your analysis is correct, LM. There is no special employment status extended to private security officers merely by the grant of limited police powers. Nor does the grant of such powers preclude the employer from exercising the right to determine the scope of the officer's duties--notwithstanding the bizarre "personal interpretations" (read, "wishful thinking") with respect to certain statutes and court cases, some of which are quite off-point, that have been cited repeatedly here by some.

        So spare yourself the research suggestion given to you (unless you just happen to like wild goose-chases for some reason).
        As I stated previously - knock yourself out in believing whatever you want but the fact remains that your beliefs change nothing in what occurs in KCMO and other cities like KCMO, on a daily basis. But who are we to argue with the great and powerful SecTrainer - oh wait, that's right, you dropped out of law school - yep, that sure qualifies you to be a "legal expert" (sic) in matters of statutory and constitutional law - get real.

        Comment


        • #34
          The first item on the agenda is to define the operational mission, which, if done in detail, defines the critical capabilities and characteristics that the uniformed service must satisfy, whether an in-house or a contract service. Ultimately, these criteria might find their way into a formal RFP or RFQ, of course, but they have their real utility in making the first-cut decision as to whether to go forward with the proprietary-versus-contract analysis and the contracting process (which itself can be an arduous undertaking if done properly) in the first place.

          This decision - whether to even consider outsourcing - would depend on there being at least a reasonable belief by corporate management that one or more security vendors are available that might, at least, be capable of meeting the critical criteria. Sometimes it's simply a slam-dunk: There is no service available that can meet our critical criteria.

          This is where the security manager's knowledge about security vendors operating in his area can be invaluable as a consultant to corporate management. Hopefully, he will have strong contacts with other security managers in the area, with the police and sheriff's departments, with emergency management officials, will be attending local ASIS and other appropriate meetings, etc., and will have his ear to the ground in many other ways. He should have good sources of "inside" information about the vendors in his area, meaning about the level and type of services that they actually provide as opposed to what they promise to provide.

          It should be mentioned, incidentally, that many security clients have discovered to their dismay that the apparent cost savings that "the spreadsheet" showed for outsourcing never materialized, were much less than expected...or diminished significantly in the later years of the contract. It has been debated whether any properly-constructed vendor arrangement can ultimately reduce the cost to the client of officer longevity and retention, for instance.

          And, in any case, cost should never drive the decision initially. There are many important considerations to work through before you get to the question of the cost-benefit analysis. I believe it was Dennis Dalton who wrote that he had over 100 "decision points" in his analytical model on this subject.
          Last edited by SecTrainer; 06-10-2007, 12:37 PM.
          "Every betrayal begins with trust." - Brian Jacques

          "I can't predict the future, but I know that it'll be very weird." - Anonymous

          "There is nothing new under the sun." - Ecclesiastes 1:9

          "History, with all its volumes vast, hath but one page." - Lord Byron

          Comment


          • #35
            Originally posted by Christopherstjo View Post
            Lynch Mob

            And yet, despite even your best effort to argue the matters, the 4th, 5th, 6th, 7th, and 8th federal courts of appeal; the Missouri Supreme Court and even the U.S. District Court for the District of Missouri (in a case from many years back) and the legal department for the KC Police do not agree with your so-called legal analysis. So knock yourself out in believing what you want. I have previously cited ample case laws in this fourm; I'll not spend the time re-citing them just to appease you - do the research.

            What I know to be a legal fact is that here in KCMO, just like in the other parts of the country that also have the same laws, every day "private" s/o's with a Class A license exercise police powers in the capacity of being a de facto police officer.

            Merely because you do not understand the laws or do not like the laws does not mean the laws do not exist - but as I said, knock yourself out in believing whatever you want - the greatest fact is that your beliefs chage nonthing at all in what exists every single day.
            That was a rather long winded response to say you did not have any court cases to cite.

            You keep saying that "every day "private" s/o's with a Class A license exercise police powers in the capacity of being a de facto police officer." I never argued that. I said that when they worked for a company, the company had the right to restrict their powers, regardless of what the state provided them, just as they have the same right with actual police officers.

            I think you are the only one who does not understand the law here. As I said, show me one case where the hiring company was held in civil or criminal contempt for taking employment action against a security guard for execising his state granted powers. I am saying you will not find one case that supports your claims. You now have the chance to prove me wrong.

            Can you?
            www.plsolutions.net
            www.customerloyaltysolutions.com

            Comment


            • #36
              Originally posted by souperdave View Post
              I may have skimmed past someone making this point previously, but I've always been oppsed to contract LP simply due to the fact that their 'loyalty' is not inherently proprietary.

              Cost-effectiveness in a contract LP situation may not necessarilly lead to a contract staff "full" of dedication.
              Why does getting your paycheck directly from the company increase loyalty on the individual? I don't think that there is much loyalty in the security world, regardless of being employed in-house or contracted.

              If you are saying that a person is only loyal to the company giving the paycheck, then loyalty should not matter, as they will be putting forth their best effort to fulfill their obligations to their employer. The contract company tells their employee to do A, B, and C and the employee will do it because they are loyal to that company. In reality, it was the hiring company that outlined what A, B, and C is, so the employee is really just doing what the hiring company wanted. They are just as effective due to loyalty to the paycheck writer.

              Personally, I don't believe loyalty is based upon paychecks. It is based upon how the person is treated. If someone is treated well by both the contract company and the hiriing company, they will be loyal.

              If you are saying the contract company cannot be loyal because their efforts are not proprietary, then I would have to disagree. A contract company will often, not always, actually be more loyal because the only way they maintain that contract is through loyalty. At least, any decent company should be operating in this fashion.

              All in all, how much loyalty is needed to do a good job as a security officer anyway? A good work ethic, yes. Loyalty? I am not sure that is even a necessity for doing a good job. In my opinion, the loyalty factor is a non-issue in the comparision of in-house or outsourcing.
              www.plsolutions.net
              www.customerloyaltysolutions.com

              Comment


              • #37
                Originally posted by Lynch Mob View Post
                Personally, I don't believe loyalty is based upon paychecks. It is based upon how the person is treated. If someone is treated well by both the contract company and the hiriing company, they will be loyal.

                If you are saying the contract company cannot be loyal because their efforts are not proprietary, then I would have to disagree. A contract company will often, not always, actually be more loyal because the only way they maintain that contract is through loyalty. At least, any decent company should be operating in this fashion.
                I agree whole-heartedly with both points. Quoting from Dalton in his discussion of the three myths about outsourcing (lower quality of workforce, lower degree of loyalty, greater level of turnover): "Whether an organization uses uses contract labor or not, loyalty is built on trust, acceptance and integration....Astute security managers can provide opportunities for the supplier's employees to develop a strong identity with the client organization." (Security Management: Business Strategies for Success, p. 199).

                He goes on to say this: "Developing the loyalty of a contract employee is both easy and inexpensive....Through a series of properly managed target incentives and activities, contract employees can develop a strong identity with the client organization and therefore a high level of loyalty" (p. 200).

                In any case, "loyalty" is largely subjective and, for purposes of practical security management, is not determinable anyway. What matters at the end of the day is whether or not, within the parameters of his job as they are defined, the officer is efficient and effective in performing his duties. "Loyalty" is certainly not unimportant, as it has a significant impact on such things as retention, but it is not a measurable performance metric.

                Some studies suggest that loyalty by employees to any organization tends to be weak or even nonexistent. Loyalty usually attaches to a leader first, and to the employee's peers second. The organization comes in dead last. (An interesting exception to this is the Marine Corps, by the way, where loyalty seems to attach most strongly to the Corps itself first, then to the small fighting unit or team that the Marine belongs to (his peers), and only lastly to any individual. The FBI and the CIA were once also exceptions, but may no longer be.)
                Last edited by SecTrainer; 06-10-2007, 02:12 PM.
                "Every betrayal begins with trust." - Brian Jacques

                "I can't predict the future, but I know that it'll be very weird." - Anonymous

                "There is nothing new under the sun." - Ecclesiastes 1:9

                "History, with all its volumes vast, hath but one page." - Lord Byron

                Comment


                • #38
                  A good percentage of contract security companies have is a very high turnover rate and pretty much hire most any bod that waltzes in the door with a pulse rate and no felony history....oh, and a body temp of 98.6.

                  Their 'loyalty' is to that paycheck.....thinking otherwise is a tad foolish.
                  You can educate dumb, but you can't fix stupid.

                  Comment


                  • #39
                    I like your picture.
                    Retail Security Consultant / Expert Witness
                    Co-Author - Effective Security Management 6th Edition

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

                    Comment


                    • #40
                      Given that I started this thread, I suppose addressing your questions is well within the purview of my right to do so.

                      Originally posted by Lynch Mob View Post
                      I said that when they worked for a company, the company had the right to restrict their powers, regardless of what the state provided them, just as they have the same right with actual police officers.
                      As I have explained time and time again in the past -

                      In Title 17 CSR, Sec., 10-2.030(1)(A) of the Missouri Code of State Regulations, there is a provision that states that the security officer "shall have the authority to detain or apprehend. . . ."

                      By and through these words, the state has knowingly and deliberately invoked what is called a "substantive predicate."

                      Throughout eon's of state and federal court rulings, a substantive predicate is an intentional constraint (limitation) on the decisioin making authority of others (in this case private employers and the clients) to restrict their rights and authority over another, in this case the private security officer.

                      In other words, the state of Missouri has invoked its' countervailing right called a "compelling state interest" to deliberately limit the right and authority of the employer and client to make decisions in the private security officer's legal authority to detain and arrest suspects by imposing the substantive predicate through the words of "[shall have] the authority to detain or apprehend . . ."

                      To ascertain whether or not a substantive predicate exists, courts generlaly inquire into whether the "statute or regulation places substantial limits on the . . . exercise of . . . discretion," See Bituminous Materials v. Rice County, 126 F.3d 1068, 1070 (8th Cir. 1997). See also Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463 (finding discretion to be constrained by “substantive predicates").

                      The words [shall have] is the mandatory language that creates the state imposed substantive predicate to knowingly and deliberately limit the legal rights and authority of the employer and the client to hinder, obstruct or prevent a security officer from exercising his or her police and arrest powers unless the exercising of such legal powers would be criminal or a violation of the constitutional rights of the people.

                      The rationale for this is very simple:

                      First, because granting private security officers the legal authority to exercise police and arrest powers by statutory laws or regulaitons, is given exclusively for the sole purpose of furthering the states own ends. The state knowingly and deliberately included a substantive predicate in the law for the intended purpose of restricting the rights and authority of the employer and the client to make decisions in the security officers ability to exercise his or her police and arrest powers. By doing this, the state ensures that private security officers are empowered with the legal framework necessary to further the states own ends in the delivery of public police services by enforcing laws to fight crime.

                      Second, by limiting the rights of the employer and client to make decisions in the private security officers ability to detain or arrest suspects, such is to prevent or otherwise substantially curtail the employers and clients ability to hinder, obstruct or prevent the security officer from exercising his or her legal police and arrest powers, and therein forcing, requiring or otherwise luring a security officer to commit criminal acts such as but not limited to concealing a crime (575.020 RSMo) and / or hindering prosecution (575.030 RSMo) by not arresting or detaining another who has committed a crime or is in the process of committing a crime or where probable cause exists to believe a crime was or is being committed.

                      Third, by limiting the rights of the employer and client to make decisions in the private security officers ability to detain or arrest suspects, such is also to prevent or substantially curtail the ability of employers and clients to use private security officers and their legal authority to estabish a pirvate militia or to engage in bias based policing tactics or such acts that discriminate against another becuase of their race, sex, etc..

                      Finely, the substantive predicate is an extremely necessary component of the law, statute, rule, regulation, custom or useage having the power of law in the state, in order to prevent renegade actions by private employers and / or the clients that serve or have the effect of serving to inflict government sanctioned "private justice" that violates the constitutional rights of the people and contributes to or causes criminal acts to occur as a direct or proximate result.

                      Originally posted by Lynch Mob View Post
                      As I said, show me one case where the hiring company was held in civil or criminal contempt for taking employment action against a security guard for execising his state granted powers. I am saying you will not find one case that supports your claims. You now have the chance to prove me wrong.
                      As the Eighth Circuit Court of Appeals pointed out “a precise factual correspondence with precedents has never been required for a . . . right to be clearly established.” See Boswell v. Sherburne County , 849 F.2d 1117, 1121 (8th Cir. 1988).

                      Therefore, “[I]f the law . . . was clearly established, the . . . defense ordinarily fails, ‘since a reasonably competent . . . official should know the law governing his conduct.’” See Sexton 210 F.3d at 910 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)).

                      I have clearly demonstrated the manner that, at least the state of Missouri has knowingly and deliberately imposed a substantive predicate to legally constrain the rights and authority of the employer and the client to make decisions in the security officer's employment and ability to exercise his or her legal authority of police and arrest powers. To-wit, is categorically supported by eon's of applicable state and federal court rulings including that of the United States Supreme Court.

                      Thus, in accordance with the aforesaid 8th circuit rulings, I have also shown you the manner that a right of the security officer is clearly established to be free of such acts, threats, intimidation or coercion by the employer and the client that hinder, obstruct or prevent the security officer from exercising his or her legal authority to exercise police and arrest powers.

                      Neither the employer nor the client can require or force a security officer to commit or participate in committing criminal acts - concealing a crime and hindering prosecution by the failure or refusal to arrest or detain a suspect committing a crime, is a criminal act by statutory laws (575.020 and 575.030 RSMo) of the state of Missouri.

                      In retrosepct, I have provided a hundred times more substanting statutory and case laws to back up every one of my claims, than anyone has provided to disprove my claims. All that I am reading are the personal opinions of others without any actual supporting documentation presented from independent sources, i.e. case and statutory laws, to legitimately argue upon legally proficient grounds why my claims purportedly lack legal merit.
                      Last edited by Christopherstjo; 06-11-2007, 04:19 AM.

                      Comment


                      • #41
                        Originally posted by SecTrainer View Post
                        I agree whole-heartedly with both points. Quoting from Dalton in his discussion of the three myths about outsourcing (lower quality of workforce, lower degree of loyalty, greater level of turnover): "Whether an organization uses uses contract labor or not, loyalty is built on trust, acceptance and integration....Astute security managers can provide opportunities for the supplier's employees to develop a strong identity with the client organization." (Security Management: Business Strategies for Success, p. 199).

                        He goes on to say this: "Developing the loyalty of a contract employee is both easy and inexpensive....Through a series of properly managed target incentives and activities, contract employees can develop a strong identity with the client organization and therefore a high level of loyalty" (p. 200).

                        In any case, "loyalty" is largely subjective and, for purposes of practical security management, is not determinable anyway. What matters at the end of the day is whether or not, within the parameters of his job as they are defined, the officer is efficient and effective in performing his duties. "Loyalty" is certainly not unimportant, as it has a significant impact on such things as retention, but it is not a measurable performance metric.

                        Some studies suggest that loyalty by employees to any organization tends to be weak or even nonexistent. Loyalty usually attaches to a leader first, and to the employee's peers second. The organization comes in dead last. (An interesting exception to this is the Marine Corps, by the way, where loyalty seems to attach most strongly to the Corps itself first, then to the small fighting unit or team that the Marine belongs to (his peers), and only lastly to any individual. The FBI and the CIA were once also exceptions, but may no longer be.)
                        Likewise, I whole-heartedly agree with your points.

                        Unlike in-house forums of security, contract security relies heavily upon the premise of making "quick money." In other words, the emphasis is on money rather than building positive working conditions and often times when contract security officers are assigned to a post, it is very much like discarding them to the side and treating them like a step-child of the security industry even though contract security officers far out number the amount of in-house security personnel.

                        One of the most damaging components is that of treating and expecting contract security officers to be a warm body or window dressing while absorbing legal liabilities in the face of having poor to to very crapy working conditions created by both their employer and the client.

                        Some clients, however, see this serious problem and make the effort to overcome this by such things as extending certain employment benefits offered to their own employees, to that of the contract security personnel assigned to their property because of the fact that a large number of the contract security companies do not offer employment benefits to their security officers.

                        However, when contract security officers are required or forced into such working conditions that pose safety risks, such as having to work in extreme weather conditions and without the proper attire; being assigned to dangerous or very dangerous posts without the necessary back up, communication devices, duty gear and other tools of the trade. Or where the contract security officer is isolated from the "team" concept and practice, there is a natural cause and effect that erodes and ultimtely destroys the "loyalty" factor in the employment relationship.

                        All of these things substantially contribute to the high turnover rates wherein it has been esitmated that contract security officers generally stay with their employer only three months before looking elsewhere for employment on the hope of finding better working conditions and postive professional recognition.
                        Last edited by Christopherstjo; 06-11-2007, 04:30 AM.

                        Comment


                        • #42
                          Originally posted by Christopherstjo View Post
                          Given that I started this thread, I suppose addressing your questions is well within the purview of my right to do so.



                          As I have explained time and time again in the past -

                          In Title 17 CSR, Sec., 10-2.030(1)(A) of the Missouri Code of State Regulations, there is a provision that states that the security officer "shall have the authority to detain or apprehend. . . ."

                          By and through these words, the state has knowingly and deliberately invoked what is called a "substantive predicate."

                          Throughout eon's of state and federal court rulings, a substantive predicate is an intentional constraint (limitation) on the decisioin making authority of others (in this case private employers and the clients) to restrict their rights and authority over another, in this case the private security officer.


                          To ascertain whether or not a substantive predicate exists, courts generlaly inquire into whether the "statute or regulation places substantial limits on the . . . exercise of . . . discretion," See Bituminous Materials v. Rice County, 126 F.3d 1068, 1070 (8th Cir. 1997). See also Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463 (finding discretion to be constrained by “substantive


                          As the Eighth Circuit Court of Appeals pointed out “a precise factual correspondence with precedents has never been required for a . . . right to be clearly established.” See Boswell v. Sherburne County , 849 F.2d 1117, 1121 (8th Cir. 1988).

                          Therefore, “f the law . . . was clearly established, the . . . defense ordinarily fails, ‘since a reasonably competent . . . official should know the law governing his conduct.’” See Sexton 210 F.3d at 910 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)).

                          I have clearly demonstrated the manner that, at least the state of Missouri has knowingly and deliberately imposed a substantive predicate to legally constrain the rights and authority of the employer and the client to make decisions in the security officer's employment and ability to exercise his or her legal authority of police and arrest powers.
                          Neither the employer nor the client can require or force a security officer to commit or participate in committing criminal acts - concealing a crime and hindering prosecution by the failure or refusal to arrest or detain a suspect committing a crime, is a criminal act by statutory laws (575.020 and 575.030 RSMo) of the state of Missouri.

                          In retrosepct, I have provided a hundred times more substanting statutory and case laws to back up every one of my claims, than anyone has provided to disprove my claims. All that I am reading are the personal opinions of others without any actual supporting documentation presented from independent sources, i.e. case and statutory laws, to legitimately argue upon legally proficient grounds why my claims purportedly lack legal merit.


                          There sure is a lot of fluff here. Do you think that using such detailed legal language muddies the waters so much that one cannot decipher what is being said here? I know that strategy works on most, but it does not work with me. Let's break things down so it is nice and simple for everyone to understand.

                          Title 17: Yes, it does give authority to detain or apprehend. It does not say that it is a requirement for security officers or police officers to do so. It also does not say that the authority supercedes all other authority, such as the authority of employers to determine a scope of work and responsibility for people they employ.

                          Substantive Predicate: Your definition is incorrect. It is not "an intentional constraint (limitation) on the decisioin making authority of others (in this case private employers and the clients) to restrict their rights and authority over another," as you stated. A Substantive Predicate is essentially a clear declaration. Now, there could have been a substantive predicate that declared what you described as the defintion, but you have failed to show where this substantive predicate was ever made regarding the specific subject we are discussing.

                          Compelling State Interest: A compelling state interest is not a right states get to declare to restrict constitutional rights. It is a defense to use when they are brought to trial for restricting constitutional rights. They can attempt to make the arguement that the compelling state interest was more important than the individual's rights, such as yelling fire in a crowded theater. This is an example of when the defense of compelling state interest held up as a valid defense.

                          Bituminous Materials v. Rice County
                          [/B], 126 F.3d 1068, 1070 (8th Cir. 1997). : This is case that deals with land usage. It is good that you cherry picked language that was beneficial to your "substantive predicate" arguement, but it fails to address the issue we are discussing. A dispute over use of land is not the same as a restricting employees authority.

                          Kentucky Dep't of Corrections v. Thompson[/I][/B], 490 U.S. 454, 463: This case deals with the rights of prision officials to limit visitation to inmates. Prison officials are government employees, not employed by private companies. This case is not the same as what we are discussing.

                          Sexton 210 F.3d at 910 : This case deals with illegal wiretapping in the workplace, and employees being terminated as a result of the information acquired from the recording of phone conversations. Also, not a case that is related to what we are discussing.

                          Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). : This case deals with an individual who was discharged from the Air Force unlawfully, based upon White House aides being involved in the same activities as he was to restrict constitutinal rights of another. Again, still not related at all to private security officers.

                          Hindering prosecution.
                          575.030. 1. A person commits the crime of hindering prosecution if for the purpose of preventing the apprehension, prosecution, conviction or punishment of another for conduct constituting a crime he:

                          (1) Harbors or conceals such person; or

                          (2) Warns such person of impending discovery or apprehension, except this does not apply to a warning given in connection with an effort to bring another into compliance with the law; or

                          (3) Provides such person with money, transportation, weapon, disguise or other means to aid him in avoiding discovery or apprehension; or

                          (4) Prevents or obstructs, by means of force, deception or intimidation, anyone from performing an act that might aid in the discovery or apprehension of such person.

                          Now, clearly 575.030 (1)(2)(3) do not fit any role that an employer plays in addressing the role of a security officer. 575.030(4) is the only section that could remotely be construed to limit the authority of the employer. Here is a key distinction between the two. The employer is not restricting the authority of the security officer or police officer to prevent the apprehension. They are merely saying you cannot be in their employ when excercising such rights. More specifically, they are not stopping anything, only laying out the ground rules for that person to maintain employment, which means you are to do the job you are paid to do and nothing more. If the person chooses to make a decision to utilize their legally granted government authority, they could then be terminated for their actions.

                          This is no different than someone who has the legal authority to perform marriage cerimonies. The employer cannot stop them from doing so, but they can terminate them if they decide to perform a marriage while on the clock for that employer.

                          Vogel v. Los Angeles County, 64 Cal.Rptr. 409, 68 Cal.2d 18 (Cal., 1967) December 21, 1967

                          "There is nothing startling in the conception that a public servant's rights to retain his office or employment should depend upon his willingness to forego his constitutional rights [68 Cal.2d 32] and privileges to the extent that the exercise of such rights and privileges may be inconsistent with the performance of the duties of his office or employment.

                          The same applies to free speech. You can support a candidate for President and you have the right to campaign for that person as much as you like. You can wear buttons, put bumper stickers on your car and spread the word as much as you like. But when you come to work, your employer can tell you to take off the button and not talk to people about your political beliefs. If you choose to enforce your "rights" of free speech, you can be terminated.

                          In Garcetti v. Ceballos (US Supreme Court 05/30/2006) the Court said:

                          We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.


                          In the end, you have not proven anything. You cited unrelated court cases to build a summation that is not present in any of the cases you cited. You did not find a case directly related to the role of security officers and you did not even prove that your claim of the role of arrest for a security officer fits as a substantive predicate by the court in any situation. This is merely your claim with no backing court cases to support your views. However, there are substantial court cases, and I just cited a couple, where the employer has a wide lattitude in restricting their employees activities, despite the rights they have as citizens of the US.
                          www.plsolutions.net
                          www.customerloyaltysolutions.com

                          Comment


                          • #43
                            Lynch Mob

                            As I have said before, knock yourself out in believing whatever you want but in so doing it changes nothing in what the laws are. Whether you want to accept the law or are capable of understanding the law is immaterial to the fact that the laws exist.

                            While you argue that because Title 17 does not specifically say there is a duty to arrest and therein you claim that no duty exists. The Doctrine of Pari Materia requires that statutes relating to the same subject matter are to be construed together even though they are found in different chapters or were enacted at different times. See Dupont v. Mills, Del., 196 A.168, 9 W.W.Harr. 42, 119 A.L.R. 174 (The purpose of "pari materia" rule is to ascertain and to carry into effect the Legislature's intention). See also Derossett v. Alton and Southern Ry. Co., 850 S.W.2d 109, 112 (Mo.App. E.D 1993) (Missouri courts recognize doctrine of "pari materia," a rule of construction wherein statutes relating to same subject matter are considered together).

                            Therefore, a submissible cause of action exists in that when a person is authorized by statute, rule, regulation, or a custom or usage having the power of law in the state to exercise police powers and even "agressive policing" tactics, as Title 17 CSR expressly permits, and the power to arrest another with or without a warrant. The knowing failure or refusal to do so is not only a criminal offense, pursuant, in part, to 575.020 and 575.030 RSMo, but it is also 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) (holding that “An agreement to stifle a prosecution, suppress evidence, compound an offense or conceal a crime which has been committed is . . . contrary to public policy”).

                            In terms of public policy and employment matters, Missouri Courts have consistently ruled that public policy imposes a duty to act, because "no one can lawfully do that which tends to be injurious to the public or against the public good." See Boyle, 700 S.W.2d at 871, quoting Brawner v. Brawner, 327 S.W.2d 808, 812 (Mo. 1959), cert. denied, 361 U.S. 964, 80 S. Ct. 595, 4 L. Ed.2d. 546 (1960). And the knowing failure or refusal by a Security Officer with a class A license, to detain or arrest a supsect who is known or reasonably believed to have committed a crime, is against public policy and therein a clear violation of the Security Officers' duty to act, which not only violates public policy but is a criminal offense.

                            A private employer is legally prohibited from terminating an employee who refuses to commit a criminal act. See Lynch v. Blanke Baer and Bowey Krimko, Inc., 901 S.W.2d 147, 150 (Mo. App. 1995). Thus, an employer has no right whatsoever to fire a Security Officer with a class A license for refusing to obey an order not to arrest when the Security Officer knows that in so doing, he or she commits a criminal offense of concealing a crime; hindering prosecution and / or failure to execute an arrest warrant, and therein violates public policy.

                            The rationale for the public policy, as expalined by the Missouri Courts, is that "while there may be a right to discharge an employee at-will for no reason, "'there can be no right to terminate . . . for an unlawful reason or purpose that contravenes public policy.'" See Petersimes v. Crane Co., 835 S.W.2d 514, 516 (Mo. App. 1992).

                            Finely, the United States Supreme Court has also ruled that "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." See United States. v. Classic, 313 at 326; accord Parratt v. Taylor, 451 U.S. 527, 535 (1981). Thus, for a Security Officer with a class A license to knowingly fail or refuse to exercise his or her police and arrest powers when he or she knows or has probable cause to believe a suspect has committed or is in the process of committing a crime necessitating their arrest. The Security Officer violates 42 U.S.C. § 1983 and can also be held criminally liable under Title 18 U.S.C. § 242.

                            To the extent that the employer would fire a Security Officer with a class A license for disobeying and order not to arrest (unless the arrest is othewise criminal or a violaiton of the persons' constitutional rights) Missouri Courts have held that "[w]hen the discharge of an at-will employee violates a clear mandate of public policy, this court has determined that the employee has a wrongful discharge claim. See Petersimes v. Crane Co., 835 S.W.2d 514, 516 (Mo. App. 1992).

                            No one has the inherent right to knowingly commit a criminal offense, except under very limited circumstances in that of preventing a greater crime from occurring. And the state of Missouri expressly authorized Security Officers with a class A license to exercise police and arrest powers for the sole purpose of assisting the police in fighting crime. See Kansas City Firefighters, Local 42 v. City of Kansas City Public Case No. R 2000-046 (Mo. State Board of Mediation 2000) (“person’s holding private security officer licenses are vested with police powers to supplement the Kansas City Police Department’s effort to fight crime." Argument by Attorney for the Kansas City Police Department, Dale Close).

                            The legal argument cannot be legitimately made that Dale Closes’ claims are wholly confined only to Security Officers who are employees of the government when there is absolutely no distinction whatsoever in 17 CSR, Sec., 10-2 et seq (1999) that separates “private” Security Officers from that of “public” Security Officers; as all are licensed under the same laws and thus, the law applies to everyone regardless of who is employed by the government verses that of a private entity.

                            To the contrary, for 17 CSR, Sec., 10-2.010(4)(C) requires that employees of any political subdivision of the state, meeting the criteria found in Section 84.720 RSMo (2006), are to be licensed as "private" security officers. And 17 CSR, Sec., 10-2.030(1)(A) 4 (1999) expressly incorporates the Air Port police, who are licensed as “private” security officers even though they are recognized by both the state and federal governments as being bone fide police officers and a bone fide police department.

                            If we accept your so-called legal argument (sic) that employers and clients have the sole and exclusive right to dictate if and when private Security Officers are permitted to exercise their police and arrest powers. Then we must also accept that the sole and exclusive reason for enacting Title 17 CSR was to authorize private employers and clients to establish their own private militia's for the exclusive reason of enforcing "private justice" against the people and therefore, have the legal authority to discriminatingly enforce the laws, at will.

                            This very argument has caused several private employers to land in court in civil suits brought against them, see e.g. Ridge v. Metropolitan Patrol, Inc., No. 0616-CV30330 (Jackson County, Mo. Cir. Ct. 2006); Gerle et al v. Sunset Security et al No. 01CV217626 (Jackson County, Mo. Cir. Ct. 2001); and Meszaros et al v. KCPI Security, Inc., et alNo. 0516-CV12683 (Jackson County, Mo Cir. Ct. 2005).

                            The 8th Circuit Court of Appeals pointed out in Larkin v. St. Louis Housing Authority Development Corp., 355 F3d 1114 (8th Cir. 2004), a private employer who employs Security Officers that act under Title 17 CSR, can be sued under 42 U.S.C. § 1983 (which pertains to those acting under color of law) when (1) the employers conduct is so likely to result in a violation of constitutional rights that . . . is patently obvious.” Id. (quoting Thelma D., 934 F.2d at 934). Or (2) “a pattern of misconduct indicates that the . . . responses to a regularly recurring situation are insufficient to protect the [people’s] constitutional rights.” Id. (quoting P.H. v. School Dist. of Kansas City, 265 F.3d 653, 660 (8th Cir. 2001).

                            Hence, an employer does NOT have the legal authority to use Title 17 CSR to establish a private milita and cherry pick who will and will not be detained or arrested for criminal acts committed to inflict "private justice" against the people. And yet, this is exactly what your argument predicates employers and clients have a legal right to do, in claiming that the employer and client have the exclusive right to hinder, obstruct or prevent a Security Officer from exercising his or her police and arrest powers. And yet, you neglect to remember that neither the private employer nor the client may engaged in such conduct that seeks to threaten, intimidate or coerce a Security Officer to commit a criminal act in concealing a crime; hindering prosecution or failing to execute an arrest warrant, by hindering, obstructing or preventing the Security Officer's legal right to exercise his or her police and arrest powers.

                            What is overwhelming clear is that while you want to argue matters of law you conveniently fail or refuse to admit or you simply do not understand that in order to fully comprehend what the law is and is not, one has to look beyond that of the mere statute or regulation and examine other statutory and case laws that are applicable, in whole or in part.

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                            • #44
                              It's a Draw

                              Since neither member will concede - it's a draw. This thread has been reduced to a did too-did not-did too.
                              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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                              • #45
                                Originally posted by Security Consultant View Post
                                Since neither member will concede - it's a draw. This thread has been reduced to a did too-did not-did too.
                                If you consider two people bringing various points and citing references to support their views "did too - did not - did too" then yes, you are correct. I don't quite see it that way.

                                Although I disagree with Christoper, his presentation of his point of view is much more articulate and thought out than most anyone else I have sparred with on message boards.

                                I agree that neither will concede because the disagreement is based upon one key sticking point. Christopher claims that security officers have an obligation to arrest for crimes and are mandated by law to do so, I say they are not. Police are not mandated, security officers are not mandated, nobody is mandated to make an arrest for crimes. Police officers use discretion in determining whether to arrest, issue citations or provide warnings all the time. Failing to arrest or take appropriate legal action is NOT illegal. As long as Christopher believes it is illegal to fail to take action, we will never agree. As long as he does not realize their is a difference between given an authority act and being given a mandate to act, we will never agree.

                                You are right that there is no more reason to discuss this. Christopher is clearly proficient at finding case law that provides tib bits of decisions that help support his claims, but he still fails to present one case that clearly shows what he claims is correct.
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