Security Law and Methods (eBook)

Preface

This book represents a growing area of the law—both in its sophistication as a legal discipline and of its importance to this society. The sophistication relates to the diverse and wide ranging legal disciplines which form around the notion of security. The term security can apply to a wide ranging set of issues, from crime to terrorism, and other forms of less violent—but nonetheless inappropriate—behavior, such as theft and sexual harassment. In this way, the theme of this book focuses on crime and misconduct. This theme is coupled with certain suggested security methods designed to negate, or at least diminish, its consequence.

In post 9/11 America, the issue of security has taken on new implications. While crime has plagued American society for generations, there is a new, much more deadly threat associated with terrorism. This is not to imply that “normal” crime does not matter. Indeed, crime in any form can be debilitating to society—and deadly to unfortunate victims. This book is an attempt to understand both the legal exposures related to crime, and the security methods designed to prevent crime. In this way, this book breaks new ground. It is designed to explain crime prevention methods in light of legal and security principles. To my knowledge, the combination of these principles—at least in terms of this overall substance—is unprecedented.

This book is built around a collection of cases and laws from different state and federal jurisdictions. The cases were researched from various on-line data bases. I selected cases based on the following criteria. First, I sought new cases. Since this discipline is still rather new and necessarily dynamic, selecting recent cases will better illustrate the current principles and parameters of the law. Sometimes, however, more established cases have obtained a good deal of precedent and historical value. In order to account for such, I selected a few older but key cases. These older cases are useful because the decisions are particularly well written, and because they provide a comprehensive analysis of the particular area of the law.

Second, I also sought cases that were factually interesting, sometimes even controversial. For example, there is a growing body of cases surrounding security issues after 9/11. These cases are instructive, in that the delicate balance between security and liberty (i.e., rights or conveniences) is being flushed out—often within private environments or by private parties. Unlike the myriad number of cases involving this balance within policing, these cases are now being addressed within leases, contracts, and large semiprivate forums, such as shopping malls and “trophy buildings” like the Empire State Building. Indeed, the litigation related to the first World Trade Center bombings are likely to be cited and analyzed for years to come.

Finally, while most of the cases involve private parties, there is some focus on private-public policing, and on governmental employees. In this sense, security law is broader than security versus police. Indeed, the line is increasingly being blurred. Hence, the book is broader than private security because private security is now a broader topic. Particularly since 9/11, private security is not just confined to the property lines of the business. Now it is part of the public safety apparatus. Security personnel are intimately involved in the protection of critical infrastructure, mass private property (also considered semi-public environments such as shopping malls, concert and sport facilities), and even within public streets, parks and business districts. One of the strengths of this book is that these factors are currently taking shape. Hopefully it will provide insightful and useful guidance as we go forward under an uncertain legal and security environment.

Once the cases were selected, I liberally edited the court decision in order to craft the language around certain objectives. First, I omitted most of citations from the case. Most citations were deemed inappropriate due to the nature and purpose of the book (see below discussion). Second, most of the procedural aspects of the case were omitted. Since this book is geared toward security studies by law/graduate students and professionals, the use of excessive citations and procedural language does little to further the study of security law. Such procedural niceties are only useful for attorneys crafting research, or litigation tactics and strategies. They are not useful in the body of security law. For those attorneys and law students who use this book, they have ample opportunity to study civil procedure in other legal books and disciplines.

Instead, I sought to present the key factual and legal principles related to security law. This is the key benefit of this book. These cases, if critically examined, are instructive at the factual and principal level. Since no two cases are factually alike, the presentation of factual scenarios coupled with sound legal reasoning will enable the reader to understand the exposure he or she may face as a security practitioner. For attorneys, these cases will provide the framework for a niche “public safety” practice, as a personal injury litigator, or as a counsel for a large corporation. In any event, the cases focus on substance, not procedure.

The third editing objective was to commence with a brief overview of the case and the decision. In this way, the reader will know from the outset what the case is about and who won. Hopefully, this will help to focus the reader, particularly those who are unfamiliar with case law. The intention is to get a quick understanding in order to fully understand the reasoning of the decision.

Fourth, the cases were organized around certain subjects. Subjects include defamation, invasion of privacy, negligence, and the like. Sometimes there will be overlap in these areas. For example, a case listed under defamation may involve several other legal theories, such as wrongful discharge, battery, and intentional infliction of emotional distress. When this occurs, I tried to classify the case into the dominant subject. Admittedly, this was not a perfect exercise. For those cases that seem to be better served in another subject, you can attribute this error to my editing process—and to the diverse nature of security law. Hopefully it will be attributed more to the latter than the former.

Following the presentation of the cases, I provide a brief case comment. Sometimes the comment will emphasize principles derived from the case. Other times, I will focus on specific facts that turned the decision. The case may also be contrasted with another case, to illustrate differences in how the case was approached, or the decision of the court. In addition to these techniques, discussion questions are presented at the end of the section in order to facilitate classroom discourse and individual analysis. Using these techniques, the goal is to get the reader to think critically about the case—and the relevant principles and facts contained in these cases.

In each section or chapter, I introduce the elements of the particular cause of action. Since each legal theory has particular elements, I highlight these prior to presenting the case. At appropriate points, certain suggested security methods which relate to the particular cause of action are presented. In this way, the reader should have a grasp of the legal theory, its elements and principles, and of the security methods designed to reduce the likelihood of its occurrence—or at least to limit the liability exposure if it does occur.

Part One provides an overview of Premises Liability and Negligence. Chapter 1 serves as an introduction to the key cause of action in security law: negligence. In this chapter the elements are presented in some detail. In addition, the notion of premises liability, which is based on negligence, is analyzed from historical to contemporary times. Included in this analysis, a chart listing premises liability standards in each state is presented. The benefit of this chart is to provide a handy resource for research and comparative analysis. Chapter 2 presents various Negligent Employment based causes of action, such as Negligent Hiring, Negligent Supervision and Training, and Negligent Entrustment. Chapter 3 presents Investigative Cases and Methods.

Part Two provides an overview of Intentional Torts and Claims. Chapter 4 presents Torts of Physical Nature. These causes of action range from assault and battery, false arrest/false imprisonment and malicious prosecution, and trespass. Chapter 5 focuses on Torts of Personal Nature, such as defamation and invasion of privacy. Chapter 6 delves into Workplace Violence, with an explanation of its definitions, risk factors, implications and illustrative cases. Chapter 7 presents Sexual Harassment, with definitions, principles, defenses, and illustrative cases.

Part Three shifts to Agency and Contract based claims. Cases in this section include...