9.03.2013

Mall Cop's Fight Highlights Public Misinformation on Authority

This incident happened back in May, but I have decided to show it here since there is still quite a bit of discussion going on about it, and quite a lot of misinformation.

In the video you will see a Security Guard, under contract with the Cafaro company, attempt to enforce the regulations of the Ohio Valley Mall. A physical confrontation ensues. The debate here swirls around all sorts of misunderstanding by the general public, and the public's general disdain for authority.

As any regular reader here knows, I am not fan of authority myself, and certainly no "cop lover." But while I have to agree that this guard acted foolishly, technically, she had every right* to do what she did. The woman she confronted should have been arrested and charged.





The primary misconception that the public often has is that security guards have no legal authority. This is completely incorrect. In some ways, private security guards actually have more power than a police officer.

You see, a police officer must have either probable cause that a crime has been committed or be acting under emergency authority in order to issue you a command. A security guard on the other hand, is acting as the agent of the property owner. Essentially, a guard has as much authority over their jurisdiction as you have in your own home.

The police may enforce the law, but that is where their authority ends. The security guard on the other hand, may enforce the law, any rule or regulation of the property, and may even make up rules as they go along. The only real exception there is that the guard can't compel you to commit a crime.

A guard might enforce a "shoes required" dress code for the mall, even though there is no law that says you have to wear shoes. A guard might also tell you to get up an move, right after you sat down at a table in the food court. The guard would have no obligation to explain why, and would not have to cite a "you can't sit here" rule in mall regulations. The guard might simply be telling you to move because that space was reserved, or perhaps there is a crew coming to fix a water leak there. Or maybe the guard just wanted that table for themselves. It doesn't really matter legally speaking. Now granted, a guard who goes around bullying people without cause or to get the best table in the foodcourt is not going to be looked upon well by their employer, or even fellow guards, but the legal authority is there just the same. 

So specific to this situation here now. A police officer might very well tell these people that they cannot photograph there, and order them to move along. While taking photographs is not illegal, the officer may establish a scene perimeter because of the emergency situation and enforce special circumstances within that scene. They might tell you to move along for reasons of safety, or even tell you that your photos are subject to confiscation as evidence in an ongoing investigation.

(It should be noted here, that emergency authority if often used to enforce some level of common decency too. Aside from being material evidence in an investigation, no one wants to see pictures circulated on the internet of their loved one's mutilated remains being extricated from a twisted wreck along some highway. And you probably wouldn't want to see a bunch of rubberneckers oogling you while you die either.)

The guard also has, generally speaking, this same emergency authority. Being a security guard does not grant that authority outside of their jurisdiction, but here on the mall property, the guard was indeed helping to manage an emergency situation and a hazardous condition within her jurisdiction as a consequence of the emergency. She could not go running out to the interstate and do the same thing, but there on mall property she had every right to do what she did.

Now here is where the guard's power goes even beyond that of a police officer. Even if there had been no truck rolled down the embankment, no emergency situation, the guard still had the authority to tell those folks to stop taking pictures and to move along. Not only were they impeding the flow of traffic and creating a hazardous safety condition, but the guard also has no obligation to explain herself to them. She didn't have to have a reason at all, legally speaking, as we have already seen with the foodcourt example. But at the same time, if one of those idiots had gotten run over they probably would have turned right around and sued the mall over it.

Okay, so we have now established that a guard can enforce the law and help to maintain a secure perimeter in an emergency situation. We have also seen that a guard may enforce the rules of the property, which may not have anything to do with actual laws. We have even seen that a guard has the right to make up the rules as they go. Just as you could in your own home. You could tell other people they can't smoke in your home while you sit down and light up a fat cigar. The guard is the legal agent of the property owner, and therefore has the same authority as the property owner.

But what can the guard actually do to enforce these rules? It's simple really. They can tell you to leave. And if you refuse to leave? Well then, now you have committed a crime. Criminal trespass. You are now subject to arrest. The guard may use physical force to affect that arrest, or may simply use physical force to stop you from continuing your criminal activity. This is the same authority a nightclub bouncer uses when they kick out drunks. If they ask you nicely to leave, and you don't, you're in trouble. This is the same in a bar, a mall, or when you are in someone's own home. You can be ejected through physical force, and you are subject to a criminal prosecution.

So yes folks, rent-a-cops do indeed have authoritahhh. In many ways, more so than a police officer. In fact, a guard could supersede the commands of a police officer, or even eject a police officer from the property in some instances, depending on the specifics. 

The last argument that can be made here is that the guard was not actually on private property, but public property. I have seen this argument made, but it is simply not true. Even if you let the public onto your property, let's say for a yard sale as an example, it is still your property and you have the right to kick someone out. This is true even of businesses like malls, that are often thought of as public areas, even when they really are not. This has been upheld numerous times and is well established in case law. Mall property is not public property.

Furthermore, where this incident took place was not a public roadway. The truck rolled over from the public interstate, but where the guard's confrontation occurred was on Mall Ring Road, which is private property. It is not owned or maintained by any public entity, but instead secured and maintained through private contracts. the guard was within her jurisdiction. The fact that it is private property has been established by numerous media reports and is also evident by the fact that the road is not accessible to Google Earth's Street View.

So all in all here, we must now conclude that the people taking pictures and loitering, were wrong, and that the guard was legally in the right. Not only was she enforcing mall regulations, she was also protecting the interests of the mall owners, and the safety of the very people who had become confrontational with her. Although we hear in the video some talk about who touched who her first, we also see now that the guard had every right to initiate physical force to enforce the mall's security.

The guard was under no obligation to "call the police" as some have suggested, because the guard herself is in fact the authority there.

Now, having said all of this in defense of the guard, we might also look at the manner in which she performed her duty. This is the real problem here. What she did was completely legal, and the other folks were indeed breaking the law at that point, we can also see this as an example of a total lack of professionalism. A lack of training and experience could be blamed here as much as any judgement of the guard's personality. So in that sense, we might even blame her employers partially for this incident. But it seems clear enough that whatever the reason, the guard lacked a certain level of professionalism. She lost control of her own temper, and at least partly because of that, she lost overall control of the situation. Meeting belligerence with belligerence and escalating a situation beyond one's control are not hallmarks of security and/or law-enforcement professional conduct.

Having worked int he field myself, I will share my opinion here on what I might have done in that situation. First, I would have established my authority with what is known as command presence. this can be accomplished through everything from wearing a well-fitting, neat uniform, to posture, to speaking in an authoritative tone, eye contact, and in general expressing an air of professional confidence.

When my commands were not followed, I would have selected on of two options. First, to continue my hard-ass approach and call for immediate backup. At that point, I have made a supervisor aware of an escalating situation. It is then left to them to either order me to disengage, or to send reinforcement to press the issue. The alternative for me would have been to humanize myself a bit. To try to build a small rapport of understanding, and basically tell them why they can't be there taking pictures.

"Look guys, I'm just doing my job. If one of you gets hit by a car, it's my ass," is something I might have said.

Or maybe, something a little condescending even like, "Come on people. Really? How morbid are you? Don't sit here taking pictures of someone having the worst day of their lives."

The idea here is to engage in a bit of coercive conversation, rather than just start screaming and yelling. If at that point they still refused to follow instructions, I would fall back to the first choice, and call a supervisor/dispatch for reinforcement and/or further instructions.

The guard's inability to stay calm, and to effectively maintain order led to her being fired from her job in the end. No charges were filed against her, which goes to show that she was legally justified in what she did. But at the same time, her employer saw the guard was unable to do her job effectively, and sent her on her way. Because of that, it is little surprise that the mall elected not to pursue charges against the transgressors.

So the next time you start making wise cracks at the mall cops, just remember that most are more professional than you give them credit for. They are at the short-end of plenty of jokes, they bite their tongue and carry on. Think what you want about security guards, but don't make the mistake of thinking that they are powerless. If pushed, they really can mess up your day. At the very least they can tell you to get the hell out and never come back.












*DISCLAIMER: This article is not intended as legal advice. Consult an attorney to learn the specific regulations and guidelines in your state and/or location














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