Private Security and the Law Fourth Edition Private Security and the Law Fourth Edition Charles P. Nemeth, J.D., Ph.D., LL.M AMSTERDAM (cid:129) BOSTON (cid:129) HEIDELBERG (cid:129) LONDON NEW YORK (cid:129) OXFORD (cid:129) PARIS (cid:129) SAN DIEGO SAN FRANCISCO (cid:129) SINGAPORE (cid:129) SYDNEY (cid:129) TOKYO Butterworth-Heinemann is an imprint of Elsevier AcquiringEditor:RickAdams DevelopmentEditor:DavidBevans ProjectManager:DanielleS.Miller Designer:DennisSchaefer Butterworth-HeinemannisanimprintofElsevier 225WymanStreet,Waltham,MA02451,USA TheBoulevard,LangfordLane,Kidlington,Oxford,OX51GB,UK #2012Elsevier,Inc.Allrightsreserved. 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Inusingsuchinformationormethodstheyshouldbemindfuloftheirownsafetyandthesafety ofothers,includingpartiesforwhomtheyhaveaprofessionalresponsibility. Tothefullestextentofthelaw,neitherthePublishernortheauthors,contributors,oreditors, assumeanyliabilityforanyinjuryand/ordamagetopersonsorpropertyasamatterofproducts liability,negligenceorotherwise,orfromanyuseoroperationofanymethods,products, instructions,orideascontainedinthematerialherein. LibraryofCongressCataloging-in-PublicationData Nemeth,CharlesP.,1951- Privatesecurityandthelaw/CharlesNemeth.–4thed. p.cm. ISBN978-0-12-386922-7 1.Privatesecurityservices–UnitedStates.2.Police,Private–UnitedStates.I.Title. KF5399.5.P7N462011 344.7305’289–dc23 2011038001 BritishLibraryCataloguing-in-PublicationData AcataloguerecordforthisbookisavailablefromtheBritishLibrary. ISBN:978-0-12-386922-7 ForinformationonallButterworth–Heinemannpublications visitourWebsiteatwww.elsevierdirect.com PrintedintheUnitedStatesofAmerica 12 13 14 15 10 9 8 7 6 5 4 3 2 1 Dedication To Smiling John and Mighty Joe, twin sons who continue to be not only gifts, but also young men I am deeply proud of. Twenty-two years later, these twin sons continue down a remarkable path—both of them men of honor and decency, both of them the sons fathers always hope for. To Saint Thomas Aquinas It is lawful for any private individual to do anything for the common good, provided itharmnobody:butifitbeharmfultosomeother,itcannotbedone,exceptbyvirtueof the judgment of the person to whom it pertains to decide what is to be taken from the parts for the welfare of the whole. Summa Theologica, II–II, Question 64, Article 3 v Acknowledgments ThefourtheditionofPrivateSecurityandtheLawtracesamostremarkablegenealogyin the life and times of the private security industry. At the third edition, Imarveled at the industry’s staying power and ability to adapt to an evolving law enforcement market- place. As this text commences the fourth edition, I continue to marvel at its staying power. Onward and upward the industry goes with further assumption of once exclu- sively public law enforcement functions. From street and community protection to the protection of assets, buildings, and even people, the private sector shows no signs of beingstuckinthestatusquo.Infact,thecompleteoppositeistrue.Privatesectorjustice will just keep gobbling up once sacrosanct policing functions. Whole neighborhoods and communities are now part of the delivery system. Dramaticgrowth everywhere—prisons,courts,policing,community services—allare drawn into the world of privatization. Fortheseandahostofotherreasons,theplacelawandlegalanalysisplaysinprivate sector justice continues unabated as well. Despite the evolution of many legal princi- ples, the state of legal application in the world of private security remains remarkably consistent. While there are always efforts to impute new and novel legal protections to those claiming an entitlement or procedural protection, private security finds itself in remarkablysimilar shapeoverthepast 50years.This is notto say thatcourtsand legis- lators, regulators, and policymakers do not tinker or intervene—to be sure, there is a hard court press used at making the private into the public domain. And that is the thrust of this fourth edition—to show recent case law and statutory constructions rele- vant to private security as well as the maze of regulatory initiatives that seek to deliver oversight to this industry. As in the other editions, the project relies on a wide range of people. At Elsevier, Iappreciatethelong-standinginterestofitseditor,PamChester.Formorethantwodec- ades, thisworkfinds thewelcome matout for furtherpublication.On theeditorialside, the project heavily depended on the skill and acumen of David Bevans. The editorial insights and contributions of Dr. James Pastor were deeply appreciated. Jim is clearly a gracious man whose competitive works in private security make this a rich field. Thehistoricaloverviewprovidedearlyinthetextremainsasfreshandaccurateasthe day my brother, James E. Nemeth, a historian in his own right, penned it. At California University of Pennsylvania, I was blessed with a superb, a superlative graduate student in Katherine Heinnickel, whose editorial and research skills do not match her youth. xi xii Acknowledgments Here you have a perfect example of a dedicated and dutiful worker who made life easy fortheauthor.Editorialassistance,ashasbeenthecustominsomanyofmyworks,was providedbrilliantlybyHopeHaywood.Inevertakeforgrantedthedetails,theorganiza- tional and administrative aspects of book production, and without Hope, these ideas would still be on the drawing board. Finally, I am keenly aware that university support aids in the production of these projects. Dean Len Colelli, Provost Geraldine Jones, andPresidentAngeloArmentihaveprovidedanenvironmentthatisconducivetoschol- arly development. I am always thankful. As in all my productions, family drives the enterprise. I know I owe the deepest of gratitudetomybelovedfamily:JeanMarie,mywifeandfriendfor40years,andthechil- dren we have been blessed with—Eleanor, Stephen, Anne Marie, John, Joseph, Mary Claire, and Michael Augustine. It is impossible to imagine life without these incredible blessings. Charles P. Nemeth, JD, PhD, LLM Pittsburgh, Pennsylvania 2/22/2010 1 Historical Foundations of Private Security CHAPTER OUTLINE Introduction:TheConcepts ofSelf-Help andSelf-Protection........................................................1 HistoricalFoundations......................................................................................................................3 TheMiddleAges...........................................................................................................................3 ColonialAmerica...........................................................................................................................5 LawEnforcementintheIndustrialRevolution...........................................................................6 ComingofAge:PrivateSecurity......................................................................................................8 Lackof anEffective PublicForce.................................................................................................8 MovementofGoodsandServices................................................................................................8 ThePinkertonFactor:Industrialization andUnionization.........................................................9 WesternU.S.Expansionism.........................................................................................................11 ContemporaryPrivateSecurity......................................................................................................12 DiscussionQuestions......................................................................................................................16 Notes................................................................................................................................................16 Introduction: The Concepts of Self-Help and Self-Protection Historically, the concepts of self-help and self-protection were considered foundational to the enforcement of law and the assurance of social order. The private citizen was, by most measures, the chief party responsible for the safety and security of a community. Public law enforcement is a much more novel concept. Whether private or public in design, ideas about policing and protection arise from a variety of influences. Like any other type of institution, its practices and procedures are not fixed in a day but emerge in an evolutionary sense.1 Any clear and accurate assessment of private security or public sector justice need first examine the historical underpinnings. Theseprinciples,derivedfromEnglishlawandtheAnglo-Saxontraditionandsubse- quently adapted to American jurisprudence, provide a panorama for how public and privateprotectionsystemsnotonlyemergedbutlegallyoperate.Forexample,whatwere the early parameters for protection of property? The right of self-help was first recog- nizedwithinthecommonlawandevenearlycodificationsofEnglishlaw.Aman’shome wasindeedhiscastle,ifhewasfortunateenoughtopossessone.Toprotecthisproperty andlife,apersonwasentitledtouseevendeadlyforce.Earlyemanationsofself-defense PrivateSecurityandtheLaw 1 Copyright©2012byElsevierInc.Allrightsofreproductioninanyformreserved. 2 PRIVATE SECURITYAND THE LAW and self-protection can be traced to the earliest civilizations. For example, the mainte- nance of law and order in the Greek and Roman empires was primarily the function of themilitaryanditscommandstructure.Orderwasmaintainedintheempirenotbecause of some formal entity, but because the power base was rooted in military authority. “Althoughtheword‘police’hasaclassicalorigin—theGreekpoliteuein‘toactasacitizen of a polis’—the metropolitan police forces we are accustomed to did not exist in the ancient world. A few cities had some form of institutionalized keepers of the peace— ‘magistratesofthepeace’—butmunicipalpoliceforcesareanineteenthcenturyphenom- enon:theBritish‘bobbies’namedforthePrimeMinisterRobertPeelappearinthe1830s.”2 Upholdingthelawandtheprotection ofprivateandcommunal property was,andis stillconsidered,theresponsibilityoftheindividualandthecommunity.Thelawismost effectively served by those who serve themselves. “An unwritten tenet of democracy places enforcement of the law within the domain of ordinary citizens ... under the principles of common law any man still possesses wide authority to protect himself, hisfamily,andtosomedegreethegeneralpeaceoftheland.”3Coupledwiththisreality, inafreeandcapitalistsociety,somewouldargue,arethemarketforcesthatdictatewhat things have value and what needs protection based on that value. To be sure, self-help directly ties its undergirding to a philosophy of ownership and personal protection. In other words, the society’s decision on how to parse up its enforcement model, whether it be public or private in design, is inexorably tied to demand.4 Althoughself-helpintheprotectionofone’slifeandpropertywassociallyacceptable, otherfactorsoften dictated thepractice astheonlyviableform oflawenforcement.For the majority of European and American history, sparsely populated areas, rugged geography, and a strong distrust of any proposed national police organization forced individual citizens and communities to enact and enforce the law through the best available means. Oftentimes, private individuals acting on their own, or at the behest of communal interests, would be forced to take the law into their hands. This was best demonstrated in the tribal “blood feuds” of the Dark Ages. Order and protection was threatened by nomadic bands of rogues and barbarians, territorial fiefdoms, and blood feuds. Anguished communities were held captive by hordes of intruders.5 Primitive justice centered on the retribution of wrongs: An injury done was primarily the affair of the party injured and of his kindred. It was for him and them to avenge the wrong on the wrongdoer and his kin, and to prosecute a “blood feud” against them until the wrong originally done was wiped out by retaliation.6 Althoughtheself-helpprotectionphilosophygavenoclear-cutparametersastowhat was fair and equitable justice, the origins of common law did develop from a notion of reasonable, nonlethal force in the protection of one’s property. When criminal action threatened only property, the law did not condone the use of deadly, retaliatory force. The law rightfully considered human life more precious than mere property.7 Chapter 1 (cid:129) Historical Foundations of Private Security 3 The issue of self-protection did not, however, exclude the use of deadly force in the protectionoflife.Tobealegitimate useofdeadlyforce,theuseofforcehadtobe justi- fiableandnotdisproportionatetotheforcethreatened.8Aperson,withjustifiablecause, could use force in defense of family and self, and also in the defense of others.9 Under the feudal system, the relationship between lord and vassal resembled the present-day system of contract security. Historical Foundations The Middle Ages Although modern law enforcement, security organizations, and policing/security func- tions were not initiated during the Middle Ages, an idea of the need and design for law enforcement and security did originate. It is important to understand the chaos and circumstances of medieval England and Europe that led to the establishment of private, self-policing forces. The vassal-lord relationship had developed a reciprocal self-helpapproachtothesecurityofone’slifeandproperty.Lifeinfeudaltimescentered on the manors and villages, each responsible for its own protection. Small villages provided their own citizen-police, centering on the ancient “hue and cry” by which the able-bodied men could be summoned to lend assistance when criminal acts occurredorafelonneededtobeapprehended.10Thismethodprovedeffective,butonly within the limited range of the feudal territory or lord’s domain. WitheachlordhavinghisownsystemofsecurityandnocodifiedsystemofEnglishlaw, the issue of national or regional security was a muddled mess of self-interests and conflicting jurisdictions. As the small manors of feudalism evolved into towns, villages, andeventuallycities,theoldsystemofself-helpcouldnotkeepupwiththerisingcrimerate. From1000to1300A.D.,thedevelopmentalseedsofanorderedsystemoflawenforce- mentbeganinEngland.Thekingwasabletoappointshire-reeves,whohadlawenforcement responsibilitiesinEnglishcountiesorprecincts.“Theshire-reeveseemstohavedeveloped fromtheking’sreeve,thelocalofficialwholookedaftertheking’sbusiness.”11Hewasaroyal representative,anditwasintendedthathewouldprotecttheroyalinterestsiftheyconflicted withthelocalclaimsofanyone,includingthelordofthecounty.Aboveall,theshire-reeve wasstillthechiefofficerofthecounty.12Withinamanor,anappointedofficerknownasa “constable” was responsible for dealing with legal matters. Both the shire-reeve, later shortenedtosheriff,andtheconstableweretheforerunnersofmodernswornpoliceofficers. The system of English legal protection continued to expand and define itself more clearly. Under the Statute of Winchester of 1285, a system of “watch and ward” was established to aid constables.13 The watch and ward system was composed of a justice of the peace, a constable, constable’s assistants, and night watchmen whose primary function was the care and tending of a designated area of a town or city known as a “ward.”14 Even today, political subdivisions are often broken down into the ward struc- ture. Regular patrols of citizens were established to stand watch nightly and to arrest 4 PRIVATE SECURITYAND THE LAW criminals and strangers found wandering at night. When an offender was caught in a criminal act, the “hue and cry” was raised.15 It was then the duty of all men in the community, 15 years and older, to rally at the sceneandupholdjustice.Inaddition,theywererequiredbylawtocarryarmsandform a posse comitatus to pursue criminals.16 Maintaining the king’s peace and enforcing the law remained a public responsibility.17 Although all men had the general duty and the right to make arrests, the constables and sheriffs had additional specific peacekeepingduties and powers.Unfortunately, the officers were ill equipped to handle the urban growth that created cities with huge populations. Because constables were unpaid, ill trained, and ill equipped, English law enforcement was in dire straits. Lord Chancellor Bacon, in 1618, complained that con- stables were “of inferior stock, men of base conditions.”18 The towns and cities of England,especiallyLondon,fellintovirtualanarchybecauseofthelackandinadequacy ofpubliclyappointed and underpaid professional peacekeepers.Unfortunately thebulk ofthewatchmenandconstableslackedtheessentialqualitiesforsuccess.19Inhisbook, Hue and Cry, Patrick Pringle states: Suchisourrespectforinstitutionsthatwhenanestablishedsystembreaksdownwe are quick toblame people anddefend the system; butthe lesson of history seems to be that systems must be made for people, because people cannot be made for systems. To be effective, any system—whether political, religious, economic, or judicial—must expect people to be base and selfish and venal.20 BecauseoftherisingcrimerateandtheinabilityofthepoorlyorganizedEnglishsystem of law enforcement to effectively combat it, private persons and businesses developed their own means of protection. As towns and cities expanded, merchants and artisans bandedtogetherformutualprotection.InhisbookOnGuard,MiltonLipsonrelateshow: [g]uild members united to perform the duty of watching their contiguous property intheheartofthesemedievaltowns,servingaswatchmenthemselves,laterassign- ing theirapprentices and thereafter hiring special guards. In these practices are the visible roots of both modern insurance and private security.21 What is clear is that the American foray into law enforcement has not been as clean ortransitionallypredicableasonemighthopeand,infact,canbeproperlydescribedas a “tangled web of what are typically referred to as public and private police forces.”22 Otherforcesplayedintotheimpetusforamoreformallawenforcementsystem.The expanding trade and transportation of vital goods and services were temptations for criminals. It also demanded the need for protection of private interests, property, and self. From this arose the concepts of proprietary and contract security. Throughout the sixteenth century, different kinds of police agencies were privately formed. Individual merchants hired men to guard their property, and merchant associations created