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  • Christopherstjo
    replied
    Originally posted by N. A. Corbier View Post
    Rarely have I seen a state require that a law enforcement officer tell someone to leave before it becomes trespassing. This would mean that a property owner could not remove someone from their property (as they are not trespassing till the police tell them to leave), nor could they bar access to anyone.

    These are fundamental property rights that owners have.
    While I do not debate your point, as such is valid. I do know that in Denver, Colorado the police tend not to do anything such as arrest or issue a summons until after the suspect has been told to stay off property. The premise being is that it is then a 'lawful order' by a sworn peace officer, rather than a private order. But then, Denver has a particular mentality that believes it is a state unto itself.

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  • HotelSecurity
    replied
    In Canadian provinces without a provincial Trespass to Property Act (like Québec) we can not arrest for simple trespass, nor can the police. You can "use the force necessary" to remove them but I have done this all night long with one homeless person. He simply kept walking back into the hotel. The only way he could be arrested was if he "actively" resisted being thrown out, then it's Assault by a Trespasser.

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  • N. A. Corbier
    replied
    Rarely have I seen a state require that a law enforcement officer tell someone to leave before it becomes trespassing. This would mean that a property owner could not remove someone from their property (as they are not trespassing till the police tell them to leave), nor could they bar access to anyone.

    These are fundamental property rights that owners have.

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  • John H. Christman
    replied
    My reading of the California Penal Code § 602 (n) makes refusing to leave property not open to the general public after being requested to leave by a (1) peace officer OR (2) the owner, his/her agent (e.g., a security guard hired to protect the property) or a person in lawful possession a misdemeanor. Under PS § 837 a private person may make an arrest for a public offense committed or attempted in his presence. Thus, as I read these statutes a security officer, provided his employler authroizes such action, may arrest a trespasser upon that persons refusal to leave after being requested to do so. These same statutes are utilized to issue "Banning Notices" given to some shoplifters by store security agents noticing them they are subject to arrest for trespassing if they return to the store within a stated period of time.

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  • Lynch Mob
    replied
    Originally posted by Andy Taylor View Post
    A lot has to do with who you work for, what post you are assigned to, and in what jurisdiction you operate in.

    For instance I have worked a post that was clearly marked "No Tresspassing". If a tresspasser were on the property I was to give them one warning then if they did not leave imediatly I was to arrest them for said crime. Those were my post orders and under California law completely legal. This may not be have been legal in some other states.
    Isn't that what Mr. Christman said? You had post orders to arrest. If you did not have those orders you should not have been arrresting, right?

    By the way, you giving a tresspass warning does not constitute a legal warning under California law. A tresspass warning much be issued by a law enforcement officer. So arresting prior to the person receiving the warning could make the arrest illegal.

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  • Andy Taylor
    replied
    Originally posted by John H. Christman View Post
    I was always under the impression that almost universally, except when there is imminent danger of death or serious bodily injury, a security officers guard is to observe and report, except when specifically assigned to duties such as anti-shoplifting duties when he is then guided by the directions of the company employing his services.

    A lot has to do with who you work for, what post you are assigned to, and in what jurisdiction you operate in.

    For instance I have worked a post that was clearly marked "No Tresspassing". If a tresspasser were on the property I was to give them one warning then if they did not leave imediatly I was to arrest them for said crime. Those were my post orders and under California law completely legal. This may not be have been legal in some other states.

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  • Christopherstjo
    replied
    I do not dispute that state laws give police the discretionary right to arrest or not arrest - clearly they do.

    What I am saying is that for security officers there is a different standard of law applied, in part because the U.S. Supreme Court took away our right of qualified immunity - making those of us with police and arrest powers more liable than police are held - and in lieu of this fact and the Missouri Public Policy Doctrine and the Doctrine of Wilful Blindness, among many other laws, there are imposed duties to act. And in this, there are times when crimes present themselves that impose a duty to intervene, detain and arrest the person involved. To-wit, the case involving the 8 year old child is one of the many examples.

    Here's another concept that I know you won't agree with - Security Officers who have the legal authority to exercise police and legal arrest powers, under color of state law, also have a legal obligation to read suspects their Miranda rights if they engage in a custodial interview / interrogation of the suspect about the crime.

    The premise is very simple: Because s/o's in KCMO and other cities like KCMO, act under color of state law in exercising police and legal arrest powers, state action is categorically involved and thereby invokes a Fourth and Fifth Amendment right of the suspect. See Miranda v. Arizona, 384 U.S. 436 (1966); Dickerson v. United States 530 U.S. 428 (2000). See also Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-26 (1961) (holding that “private conduct abridging individual rights does no violence . . . unless to some significant extent the State in any of its manifestations has been found to have become involved in it). And when acting under color of state law, rule, regulation, statute, or a custom or usage having the power of law in the state specifically in the deliverly of state operations, i.e. police services - the state is most assuredly involved.

    The point being here is that there are many legal aspects, theorys and submissible causes of action that come to bear when we enact laws that give private citizens (security officers) the legal right to act in place of the government officials, under color of law. This is a fact that will not go away merely becase a selected potion of people find this fact inconvenient or distasteful.

    It is also a fact that the concept of these laws is difficult for people and expecially security officers, to grasp because they strictly think in terms of the "traditional" manners that the laws are applied and the way our industry has been run. Yet, even the 6th Circuit Court pointed out in 2005, that there are not enough case laws to fully understand the effects these laws have on the people and their rights.

    Hence, it is a fact that we are only just beginning to unravel the legal rammifications that these kinds of laws present.

    By enacting these kinds of laws, states have effectively split our industry into two categories; the traditional forum of private citizen arrests and the observe and report duties, and that of the new forum involving legal arrests and police powers, under color of law.

    The fact that some forum members here refuse to even consider the idea, let alone the fact that these laws have legal implications that we have yet to discover or are only just beginning to discover in our courts, is, in my opinion, the absolute most narrow way of thinking.

    It is very much like turning blind eyes because in this way of thinking, those who apply such, fail or refuse to recognize or admit that states are enacting laws that we do not fully comprehend in terms of their field applicaiton and the resulting legal rammifications.

    States are effectively creating a new body of law in the area of criminal and civil rights, and employment law, which the courts have not adequately addressed. But what is known is that because security officers operating under these kinds of laws have lost the right of qualified immunity, this substantially changes the equasion even more - placing upon them a duty to act in order to avoid being held legally liable. Another concept I know will be disagreed with. . .
    Last edited by Christopherstjo; 06-14-2007, 05:56 AM.

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  • Christopherstjo
    replied
    Originally posted by Lynch Mob View Post
    Read the statute again. It says, "except those officers of a political subdivision or municipality having a population of less than two thousand persons". This statute applies to the entire state EXCEPT for the small places. That would apply to KC.
    Except that in KCMO, police and security officers are regulated under Chapter 84 of the Missouri Revised Statutes. The Board of Police Commissioners is a state agency that operates under RSMo-Chapter 84, and therefore KCMO police are not subject to the purview of the state law you cited. If they were, then our leglislator's would have included the state law you cited in 84.440 RSMo (2006) but they did not. Hence, while you want to disagree the fact remains that you cited the incorrect statute. But what do I know - I only live and work in KCMO.
    Last edited by Christopherstjo; 06-14-2007, 06:01 AM.

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  • SecTrainer
    replied
    Originally posted by Lynch Mob View Post
    Read the statute again. It says, "except those officers of a political subdivision or municipality having a population of less than two thousand persons". This statute applies to the entire state EXCEPT for the small places. That would apply to KC.

    Nice try, but you have failed again to demonstrate that I am wrong about this. Also, good try on the may means shall in some circumstances. It doesn't, but your attempts to claim it does was quite humorous.
    The power of warrantless arrest, meaning unless an officer is in possession of or has reasonable knowledge of the existence of a warrant commanding an individual's arrest, and sometimes in certain special cases such as parole violation, is ALWAYS discretionary. This is why the laws pertaining to the power of warrantless arrest, to the best of my knowledge (I haven't time to read them for all 50 states, but checked a number of them), are written in every state using the words "MAY arrest" or words to that effect. Legislatures are way too smart to turn these powers into mandates and wind up with 99% of the police officers and civil governments in the state in court, and the law up before the Supreme Court...which is where it would surely wind up.

    In fact, as a matter of basic legal principle, the law first contemplates that NO arrest shall be made except on the issuance of a warrant, but then grants to police officers the discretionary power to arrest without a warrant when circumstances are such (in the judgment of the officer) that the requirement for a warrant would create an unreasonable risk that the individual would flee, would unreasonably expose others to the risk of harm, etc.

    As for negligence, the issue is one - as always, in negligence - of a duty owed to the plaintiff that has been breached (as well as such breach being the proximate cause of harm to the plaintiff). As odd as it might seem, under the "doctrine of general public duty", a police officer has NO duty toward any specific individual in society. There is nothing here, then, that would give rise to a theory of negligence based on an officer's failure to arrest, even if failure to arrest is a proximate cause of harm to that individual because the element of duty does not exist. Don't let the fact that this sounds odd fool you...there's a good reason for the doctrine of public duty, or how often you might have heard the phrase "Officer, do your duty". The duty owed by a police officer is to the public, not to individual members of the public.

    An interesting unpublished opinion out of North Carolina discussing this may be read here. In that opinion, reference is made to Hull v. Oldham, 104 N.C. App. 29, 407 S.E.2d 611, disc. review denied, 330 N.C. 441, 412 S.E.2d 72 (1991). In that case, the sheriff's department not only failed to arrest someone. They failed to even respond to calls advising that a mentally disturbed man carrying a gun was threatening family members. The man then went on public shooting spree ending in three deaths and yet the doctrine of public duty barred suit.

    As discussed in the case cited, what gives rise to negligence is intentional misconduct. If, for instance, it could be shown that the failure to arrest an individual had been done with the deliberate intent of allowing him to flee, liability might well attach. Absent such showing of bad intent in an officer's exercise of his discretion not to arrest an individual, negligence would not attach because there is no other duty owed by a police officer toward any individual than to avoid intentional misconduct.

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  • bigdog
    replied
    Originally posted by John H. Christman View Post
    I was always under the impression that almost universally, except when there is imminent danger of death or serious bodily injury, a security officers guard is to observe and report, except when specifically assigned to duties such as anti-shoplifting duties when he is then guided by the directions of the company employing his services.
    It actually has to do with company policy.
    some companies SOPs dictate security officers will protect persons from harm not just great bodily harm.

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  • John H. Christman
    replied
    I was always under the impression that almost universally, except when there is imminent danger of death or serious bodily injury, a security officers guard is to observe and report, except when specifically assigned to duties such as anti-shoplifting duties when he is then guided by the directions of the company employing his services.

    Leave a comment:


  • Lynch Mob
    replied
    Originally posted by Christopherstjo View Post
    Lynch Mob

    I hate to burst your bubble but the statutory law you cite (as it is clearly cited in the statute) applies when there is a population of less than two thousand persons - Now, do you really think that KCMO has [less than] two thousand people living here?

    There is a whole lot about matters of law that you clearly and obviously do not understand or want to admit, so I agree, I think it is best that you no longer try to debate issues that far exceed your ability to make legitimate claims of dispute. And citing one statutory law, which you knew or should have known was irrlevant in the first place, hardly rises to having proved your claim.
    Read the statute again. It says, "except those officers of a political subdivision or municipality having a population of less than two thousand persons". This statute applies to the entire state EXCEPT for the small places. That would apply to KC.

    Nice try, but you have failed again to demonstrate that I am wrong about this. Also, good try on the may means shall in some circumstances. It doesn't, but your attempts to claim it does was quite humorous.

    Leave a comment:


  • Christopherstjo
    replied
    Lynch Mob

    I hate to burst your bubble but the statutory law you cite (as it is clearly cited in the statute) applies when there is a population of less than two thousand persons - Now, do you really think that KCMO has [less than] two thousand people living here?

    Pursuant to 84.720 RSMo (2006) Title 17 CSR, Sec., 10-2 et seq (1999) comes to life by virtue of the statutory language of - "The police commissioners of any city with a population of three hundred fifty thousand or more . . ."

    Thus, it is plainly evident that the statutory law you cite does not apply in KCMO because we have [more than] two thousand people living here.

    The fact that you have cited an irrelevant statutory law shows your lack of understanding in the applicablility of the law. For the statute you should have cited is that of 84.440 RSMo (2006), which also uses the words "may cause the arrest."

    Notwithstanding the words "may cause" the arrest of one committing a crime, there nevertheless are times when "may" turns into "shall" becuase of the crime committed. Again I point to the case I was involved in where a mother was beating the crap out of her 8 year old son with closed fists to his head, face and shoulder areas.

    If we accept your argument - what do you think the chances are that I could have been charged criminally for culpable negligence, willful blindsnes, reckless endangerment of a child, or negligent homiside if the child had died as a result of being seriously beaten and I did not arrest the mother when I had the opportunity? I'd say the chances are very good.

    Moreover, if we accept your argument then the police need never arrest anyone, including people like Charles Manson, Ted Bundy and those like them. Now wouldn't that be the kicker of all kickers - for a police officer to flat out refuse to arrest a person like Ted Bundy because of the words "may cause." Just how long do you think the police officer would keep his or her job if they relied upon this claim? And you know the point that I am making here.

    Hence, while the discretionary right falls into the lap of the officer under the words of "may cause" that discretionary right is subject to many different factors in matters of law, for example.

    Under the Doctrine of Wilful Blindness and the Model Penal Code, Section 2.02(7), and that of 575.020 and / or 575.030 RSMo, a person is criminally liable when (1) he knew or should have known a criminal violation of law existed; (2) he could have done something to prevent the crime from being committed or further carried out, and (3) but he knowingly chose to do nothing instead and therein permitted the crime to be achieved.

    The legal predication for this is that wilfull blindness equates to knowledge of the crime when a party has suspicions that a crime is being committed but then deliberately omits to take action to prevent the crime from being carried out or from bringing those committing the crime to justice.

    There is a whole lot about matters of law that you clearly and obviously do not understand or want to admit, so I agree, I think it is best that you no longer try to debate issues that far exceed your ability to make legitimate claims of dispute. And citing one statutory law, which you knew or should have known was irrlevant in the first place, hardly rises to having proved your claim.
    Last edited by Christopherstjo; 06-12-2007, 01:51 AM.

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  • N. A. Corbier
    replied
    The only words that statutes use to command are "shall" and "must."

    Look at how warrants are written: The Sheriff of __________ County or his deputies shall arrest and bring before me...

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  • Lynch Mob
    replied
    Okay, let's put an end to this nonsense. You live in Missouri. You keep saying what is okay in Missouri. I do not live in Missouri but I can look up Missouri power of arrest laws.

    Powers of arrest, arrest without warrant on suspicion persons violating any law of state including infractions, misdemeanors and ordinances, exception--power of municipal officer in unincorporated area.

    544.216. Any sheriff or deputy sheriff, any member of the Missouri state highway patrol, and any county or municipal law enforcement officer in this state, except those officers of a political subdivision or municipality having a population of less than two thousand persons or which does not have at least four full-time nonelected peace officers unless such subdivision or municipality has elected to come under and is operating pursuant to the provisions of sections 590.100 to 590.150, RSMo, may arrest on view, and without a warrant, any person the officer sees violating or who such officer has reasonable grounds to believe has violated any law of this state, including a misdemeanor or infraction, or has violated any ordinance over which such officer has jurisdiction. Peace officers of a municipality shall have arrest powers, as described in this section, upon lands which are leased or owned by the municipality in an unincorporated area. Ordinances enacted by a municipality, owning or leasing lands outside its boundaries, may be enforced by peace officers of the municipality upon such owned or leased lands. The power of arrest authorized by this section is in addition to all other powers conferred upon law enforcement officers, and shall not be construed so as to limit or restrict any other power of a law enforcement officer.

    Notice where I highlighted the word MAY. If the obligation to arrest existed the law would state MUST. It says MAY which means that there are options available that do not require arrest. Cite all the case law you want, you can't argue that MAY actually means MUST. It doesn't.

    As much as I enjoy the debate, to say that any law enforcement officer or security is under obligation to arrest in all cases where violations of law are observed is just completely ignorant of the law and the criminal justice system. To say that by NOT arresting, the police officer or security officer is violating the law is beyond belief. I have given you Missouri law. I have given you case law directly related to employers rights to restrict actions from employees. If you still insist on citing land use cases as your position, there is nothing more to be said. You can try to be a psuedo lawyer and pull all the case you that you BELIEVE to be related, but has not shown to be related, or you can look at the clear cut facts.

    Either way, I am done. I have nothing more to add on this.

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