US Legal Aspects Part I

Caterpillar Corporate Security

May 11, 2007 1

References
 Handbook of Loss Prevention and Prevention

 Introduction to Security

 Protection of Assets Manual

chapters 16, 20, and 21

 Security and Loss Prevention; An Introduction

May 11, 2007 2

Basic Aspects
 Criminal Law is found in USC title 18

 Statutory law is legislated

 Common law represents “Mala in Se”

May 11, 2007 3

Contract Liability
 Between 2 or more persons
– An Agreement
– To do or not to do something
– Obligation flow to each party
– Must have legal capacity to contract
– Contract must be legal

May 11, 2007 4

Contracts are…
 Enforced by a court
 Pertinent to private security in that
– Provider may be liable
– Provider hire employees by contract

May 11, 2007 5

Express Contract
 Agreement uttered or declared
 By the parties involved
 At the time the contract is made

May 11, 2007 6

Implied Contract
 Not created
 Not evidenced
 No explicit agreement
 Inferred by law

May 11, 2007 7

Price
 Value stated in the contract
 Reasonable value is
– Value of goods
– Value of services
– Or determined by court or arbitrator

May 11, 2007 8

Written Agreements
 “Time Bar”
 Are not complete agreements
– Unless stated so
 Oral agreements not inconsistent with
contract
– May be considered binding

May 11, 2007 9

Warranties
 A statement that
– Goods or services are as described
 A person can collect damages to the extent
of injury
 Can limit itself

May 11, 2007 10

Torts (Civil Wrongs)
 Willful or negligent
 No agreement required
 Operates to:
– Compensate
– As deterrent
– Evidence of disapproval

May 11, 2007 11

Basic Elements of Tort
 An Act
 An Omission
 That brought about an intended result
 Negligence
– A failure to exercise reasonable or ordinary
care
– Higher standards when “professionals” are
involved

May 11, 2007 12

Tort Examples
 Battery
 Assault
 False Imprisonment
 Trespass
 Fraud
 Defamation
 Invasion of privacy

May 11, 2007 13

Injured Party Must Prove
 Feasor acted negligently
 The negligent act was the cause of loss or
injury
 Gross Negligence
– Greater lack of concern
– Punitive damages available

May 11, 2007 14

Agency Relationship
 One party acts for another
 An agency can be
– An express appointment
– Ratification of actions
– Permitting one to act with authority

May 11, 2007 15

Respondeat Superior
 The master is responsible for the actions of
his servant while the servant is acting on the
master’s behalf
 Is common law matter

May 11, 2007 16

The Right of Control
 Is the test between the master and servant
relation (co-employment)
 Proprietary security are servants
 Contract are servants of providing company
 The distinction is how the work is done
– Company’s way
– Provider’s way

May 11, 2007 17

The Right of Control
– Proprietary officers are servant of the company
– Contract officers are employees of the
supplying agency therefore not consider
servants of the employing organization

May 11, 2007 18

Liability Under Contract
 Is is officer acting within scope of
employment
 Was act wrongful
 Was officer employed to perform act
 Within time and space limits
 Motivation by
– Desire to serve

May 11, 2007 19

Hands Off Contract
 Might avoid liability
 Non-delegable duty
– Some acts cannot be delegated
– Courts can find negligence in hiring or exercise
in lack of control

May 11, 2007 20

Vicarious Liability
 Indirect legal responsibility
 Can avoid with “independent contractor” on
part of tort feasor is established
 Liability of employer for employee if:
– Employee acting within scope of work
– Acting within scope when injury occurred

May 11, 2007 21

Employer Liability
 If contracted work is wrongful
 Work is public nuisance
 Work is inherently dangerous
 Act of “independent contractor”
– Violates duty imposed by contract
– Violates statutory duty

May 11, 2007 22

Strict Liability
 Held when business conducted is “ultra-
hazardous or abnormally dangerous”
 Statutes hold employer for all acts of its
employee

May 11, 2007 23

Remedies to Tort Actions
 File injunction to prohibit act
 Or imposition of
– Special damages to amount
– General damages to injury
– Punitive damages to compensate for behavior

May 11, 2007 24

Premise Liability
 For failure to provide reasonable security
 When an invitee is injured by a criminal act
 And if act occurred on premises
 Applies to
– Duty
– Foreseeability
– Totality of circumstances
– Breach of duty
– Causation

May 11, 2007 25

Remedies
 Enforcing rights and redressing wrongs
– Injunctions to prohibit continuance
– Special damages (medical bills)
– General damages (pain and suffering)
– Punitive damages (compensate)
– Statutory damages (required by statute)

May 11, 2007 26

Criminal Law

US Legal Aspects

May 11, 2007 27

Crime
 A prohibited act
 Or omission
 Is a threat to public welfare
 Criminal or civil wrong is determined by
legislation
– Federal criminal law is USC title 18

May 11, 2007 28

Stare Decisis
 The law of precedence
 One case will apply to all latter cases with
similar facts
 When a court has
– Made prior decision
– Has a set of facts

May 11, 2007 29

Classification of Crime
 Felony (5 classes of felonies exceed 1 year
in prison)
 Misdemeanor (Class A, B, and C)
 Infraction (penalty is 5 days or less)
 Mala in se (bad in them selves… Murder)
 Mala Prohibita (crimes by statutes)

May 11, 2007 30

Crime Terms
 Corpus Delicti (body of the crime)
 Jurisdiction (geographical area)
 Venue (place crime was committed)
 Double Jeopardy (prosecuted for same
crime)
 Due Process (notice and chance to defend)

May 11, 2007 31

Prosecution Must Prove
 A legally forbidden harm
 The act caused harm
 The accused is a particular individual

May 11, 2007 32

Corpus Delicti
 Consists of
– Mens Rea - intent
– Actus Rea - action
– The coming together of act and intent

May 11, 2007 33

Criminal Act
 An affirmative act or omission
 A cause and effect relationship between act
and accused – proximate cause of injury
 Can be committed by
– The offenders hand
– Through an inanimate agency
– Through an innocent human agent
– Through a non-human agency

May 11, 2007 34

Proximate Cause
 A direct cause
 Accuses set in motion events that caused
harm – “but for” test
 Accused place victim in circumstance
 Motive is not essential
 Requires simultaneous act and intent
– Intent must be clearly abandoned before act

May 11, 2007 35

Transferred Intent
 Intends one crime but accomplishes another
 Criminal intent is present by “Transfer”

 I.e. Robbery to assault

 Only need Mens Rea – general intent to
commit a crime

May 11, 2007 36

Recklessness vs. Negligence
 Recklessness is a wrongful state of mind
 To “reasonable man” test
 Negligence has 4 elements
– A standard of care
– A breach of this standard
– Proximate cause
– Harm or injury

May 11, 2007 37

Criminal Negligence
 Often called gross or culpable negligence
 Can render an actor liable civilly or
criminally

 Mala Prohibita - wrong by statute and

require no proof of intent (speeding)

May 11, 2007 38

Defense
 Alibi – physical impossibility

 Mistake of fact- break law in good faith

 Entrapment- inducing a person to commit a

crime

May 11, 2007 39

Laws of Arrest

Legal Aspects

May 11, 2007 40

4 Amendment
th

 Protection from unreasonable search and

seizure of property or persons

May 11, 2007 41

Arrest Elements
 Intention to effect an arrest
 The active seizure or detention of a person
 Communication of intent
 Understanding by the person

May 11, 2007 42

Arrest Authority
 With Warrant
– Probable cause with judiciary
– Protects officer from civil liability
– A warrant is the arrest of a person
– Summons is a direction to appear

May 11, 2007 43

Arrest Authority
 Private citizen in aid of LE
 Private citizen is same as LE
 Private citizen is protected from liability
even if LE was acting illegally

May 11, 2007 44

Arrest w/o Warrant
 LE must articulate reasonable cause
 Private Citizens can arrest if offence is
– In their presence
– A felony not in their presence

May 11, 2007 45

Use of Force
 Reasonable force is the least amount of
force necessary
 Reasonable force is allowable in:
– Self-defense
– Defense of others or the offender
– Defense of property or premise
– Correction of minor child or incompetent
– Prevention of escape
– Force must stop when resistance stops

May 11, 2007 46

Deadly Force
 Only when like force is threatened
 When deadly force is imminent

May 11, 2007 47

Defense of Property or Premise
 Must articulate criminal trespass
 Must be in reasonable charge of premise
 Use amount of force necessary – reasonable
 Fatal force generally not authorized

May 11, 2007 48

Search and Seizure w/ Warrant
 Search warrant is an order by a judge
 Search warrant extend to all reasonable
parts of the premise
 Exclusionary rule
 “Tainted fruit of the poisonous tree”

May 11, 2007 49

Search and seizure w/o Warrant
 Based on precedence not 4th amendment
 Search incidental to arrest
 To protect officer
 Avoid destruction of evidence
 Area of search is limited
 With consent of owner/accused
 “Plain view doctrine”

May 11, 2007 50

Confessions and Admissions
 Confession is statement acknowledging
guilt.

 Admission is a statement in which facts are

admitted to but does admit to crime.

May 11, 2007 51

Miranda v Arizona 1966
 Right to remain silent
 Anything said can be used against them
 Right to a lawyer
 Lawyer will be appointed
 Admission to private citizen is admissible
without warnings
 Free and voluntary test

May 11, 2007 52

Legal Aspects of Private Security
 Constitution applies to government not
private citizens
 Private Security powers can equal
– Private citizen
– Authority by deputization
– By statute or regulation

May 11, 2007 53

Private Security Arrest
 Powers same as private citizen
 Statutes may grant powers similar to police
 Merchants may have right to arrest and
detain
 Legally detained person may be
interrogated
 Private Security Not required to Mirandize

May 11, 2007 54

Private Security Search
 Same as private citizen
 4th Amendment does not apply
 Evidence discovered is admissible
 Law not clear, policies and contracts dictate

May 11, 2007 55

Violations Significant to Security
 Larceny
 Embezzlement
 False pretense
 Receiving stolen property
 Robbery
 Burglary
 Forgery
 Uttering (Check floating)
 False imprisonment
 Perjury
 Misprison of a felony
 Trespass of real property

May 11, 2007 56

Key Points of Criminal
Procedures
 Arrestee brought before a magistrate “without
unnecessary delay”.
 Preliminary hearing is to determine “Probable
Cause”.
 Indictment from Grand jury.
 Information from prosecuting attorney.
 Defendant can plea.
– Not Guilty.
– Guilty.
– Nolo Contende.

May 11, 2007 57

End of Part 1
 Tactful interrogative sentences or phases for
exposition of dubious, factitious or
ambiguous points set forth as objectively
real is determined by the evidence set forth
in the 12th edition of the CPP study guide
will not be deliberated.
 In short, serendipity suprimere has been
invoked.

May 11, 2007 58

Legal Aspects Part II

Caterpillar Corporate Security

May 11, 2007 59

Eavesdropping
 Eavesdropping is knowingly and without
lawful authority to listen to private
conversation.
 Wiretapping- interception of a
communication circuit.
 Bugging is interception of a communication
using an electronic device.

May 11, 2007 60

Interception Communication
 Federal law 18 USC 2500 prohibits:
– Intentional use of any wire, oral, electronic
communication.
– Intentional use of electronic, mechanical or
other to intercept oral conversations.
– Intentional disclosure of information form
illegal intercept.
– Intentional use of information gained from
illegal intercept.

May 11, 2007 61

Not Prohibited by Federal Law
 Communication Company in course of
business.
 By party of or consent of party
communicating.
 Order of FISO Court.
 Readily available communication.
 By law after judicial review.

May 11, 2007 62

Stored Communication
 Unlawful access or alter communication in
electronic storage.
 Penalties are higher for tampering.
 Cordless and Cellular Phones.
– Illegal to intercept.

May 11, 2007 63

Key Federal Agencies in
Investigations
 The Department of Homeland Security
has five major directorates:
1. Border and Transportation
2. Emergency Preparedness
3. Science and Technology
4. Information Analysis
5. Infrastructure Protection and Management

May 11, 2007 64

Department Of Justice
 Headed by Attorney General of United
States responsible for over 40
organizations. Key organizations are;

1. FBI
2. U.S. Marshal Service
3. BATF
4. DEA

May 11, 2007 65

Federal Highway Administration
 FHA has regulatory jurisdiction over safety
and performance of commercial motor
carriers interstate commerce.

– Highway Safety Act.

– Interstate Commerce Act.
– Explosive an Dangerous Articles Act.

May 11, 2007 66

Floods and Weather
 U.S. Army Corps of Engineers responsible
for flood control planning.
 National Oceanic and Atmospheric
Administration is responsible for situation
reports on flooding.
 National Weather Service is responsible for
severe weather advisories.

May 11, 2007 67

Key State and Local Agencies
 State Police
 Department of Motor Vehicles
 Bureau of Vital Statistics
 County farm Agent
 County Assessor
 Board of Elections
 Licensing Authorities
 Board of Education
 Municipal Fire Department
 State parole and probation Board
 Department of State

May 11, 2007 68

Key State and Local Agencies
 Municipal, County and State Courts

– Records concerning civil, criminal, juvenile

equity and probate
– Divorce records
– Citizenship matters
– Records of legal change of names

May 11, 2007 69

Key State and Local Agencies
 Local Police and County Sheriff

– Arrest Records
– Identification Records
– Missing persons
– Lost and stolen articles indexes
– Accident reports
– Gun Permits

May 11, 2007 70

Administrative law

May 11, 2007 71

Basic Concepts
 Administrative agencies affect private rights
by:
– Rule-making
– Licensing
– Investigation
– Prosecution
– Informal action
When under appropriate statue agency rules have
force of law.

May 11, 2007 72

Enabling Statues
 Enabling statues describe agency structure
and powers. Generally agencies have quasi-
judicial power in that they:

– Make rules and regulation

– Issue citations
– Hold hearings
– Assess penalties

May 11, 2007 73

Fair Credit Reporting Act
 Regulates mercantile, insurance and employment
investigations
 Consumer reporting agency
 Investigative Consumer Reports
 Need written notice of investigation
 Describe nature and scope investigation
 Internal staff report not a consumer report
 Routine investigation does require notice
 Adverse action occurs written rights presented

May 11, 2007 74

Statutory Civil Rights
 The Civil Rights Act prohibits
discrimination in any adverse to an
employee or employment applicant based
on:
– race,
– creed,
– sex
– religion
– national origin.

May 11, 2007 75

Griggs V Duke Power Company
 Determine that any test, standard, job
requirement or screening device and or
policy must be shown necessary for the
successful accomplishment of the job.

 These requirements must be stated in

specific terms.

May 11, 2007 76

Gregory v Litton
 Rejection of prior arrest is disallowed.

– No questions may be asked of previous arrest

– A question may be asked to prior convictions
– Applicant cannot be rejected solely on prior
convictions. The whole man rule must be
applied.

May 11, 2007 77

Equal Employment Opportunity
Commission
 EEOC acts on complaints or can initiate
charges on the civil rights act covers.
 Age Discrimination in Employment act of
1967 prohibits against discrimination for a
job for those over 40 years of age.
 The Equal pay Act of 1963 requires
employees to receive equal pay for equal
work regardless of sex.

May 11, 2007 78

Labor Relations Laws
 National Labor Relations Act (Wagner Act) right
to organize.
 Unfair Labor practices.
– Interfering with employee rights
– Interfering with organization
– Discouraging membership
– Discharging NLRA complainers
– Refusing to bargain
Basic test is unfair labor practice
prohibited by NLRA

May 11, 2007 79

NLRA Ground Rules
 Distribution of literature at parking lots and
lunch is lawful
 Management may not attend Union meetings
 Undercover operations against union
unlawful
 Can’t list union membership in reports
 Security actions are employer actions
 Clear reason for security operations

May 11, 2007 80

“Just Cause” Discharge
 Incidents are serous
 Infractions serious misconduct
 Disciplined person was responsible
 Incident was known to be serious
 Violation known to be misconduct

May 11, 2007 81

Arbitration
 Arbitration is governed by the labor
contract. Includes
– Decision enforceable
– Compelling evidence by subpoena
– Facts found by arbitrator nor review by courts
– Arbitrator admit what both parties offer for
evidence.

May 11, 2007 82

Security in NLRA Discipline
Cases
 Security personnel must act reasonably
 Statements must be voluntary
 Evidence taken must meet reasonable expectation
of privacy
 Surveillance must meet reasonable expectation of
privacy
 Polygraph not unfair labor practice
 Weingarten rule, union representative present

May 11, 2007 83

Appropriate Bargaining Unit
 Excludes supervisors and managers
 Excludes craft or professional workers
 Consist of two workers
 Can’t mix guards and non-guards
 Past practices are regular and recurring
ways of doing things not in the union
contract.

May 11, 2007 84

Past Prior Benefit Clause
 Union contract insures that any condition of
employment existing at the time of the
contract cannot be changed by management
to condition less beneficial to workers.

May 11, 2007 85

Labor Management Relations
Act
 Taft-Hartley Act forbids unions from:
– Restraining or coercing employees
– Discriminate against employees
– Refusing to bargain
– Secondary boycotting
– Charging excessive fees
– Featherbedding

May 11, 2007 86

Labor Management Reporting
and Disclosure Act
 Landrum-Griffin Act safeguards and
restriction on union officers and
management conduct regarding their
members.
 Forbids Hot Cargo
 Forbids making deals at expense of
members or business

May 11, 2007 87

Strikes
 Economic
– most frequent
 Unfair Labor Practice
– Permit little to prepare
– Employees must be allowed to return to work
– Strike to for discontinuance of alleged violation

May 11, 2007 88

Strikes
 Three phases for Security
– Pre-Strike phase
– Operation plan phase
– Post strike phase

May 11, 2007 89

Security during a Strike
 Lessen Violence
 Adequately deal with violence
 Prevent death or serious injury
 Maintain Order
 Preserve integrity of worksite

May 11, 2007 90

Security Strike Operations Plan
 The Security strike operations plane should
be a comprehensive statement of all
policies, procedures, and activities for a
strike
– Plan is made available to supervisor and higher
– Shot have sensitive info
– Have fewest entry points in facility
– Policy for arrest during a strike

May 11, 2007 91

Documenting Illegal Activities
 Support criminal charges

 Support injunction relief

 Support or defend against unlawful labor

practices

May 11, 2007 92

Security and Unlawful Labor
Practices
 Security activities that could be basis of
unlawful labor practices
– Handling access control.
– Handling distribution of union literature on
property.
– Investigations of employee activities.

May 11, 2007 93

Occupational Safety and Health
Act (OSHA)
 Williams-Steiger Act 1970.
 Department of labor enforces it.
 Covers all industry except mining.
 Provides of safe and healthy work conditions.
 Cover businesses with more than 10 employees.
 Require record on all work related deaths injuries
and illness.

May 11, 2007 94

Priorities for Inspection
 Catastrophes resulting in death or 3 or more
hospitalized
 Employee Complaints
 High injury or health hazards
 Routine random Inspections

May 11, 2007 95

OSHA Inspections
 Marshall v Barlow requires OSHA to have
a warrant for inspection.
 Probable cause not required if routine
 Can request a shutdown for imminent
danger.
 Citation issued to employer not employee.

May 11, 2007 96

OSHA Citations
 Imminent danger
 Serious Violation
 Non serious Violation
 De Minisi Violation
 Willful Violation
 Repeated Violation

May 11, 2007 97

Security and the Disabled
 Americans with Disabilities Act (ADA)
 Cover employers with 15 or more employees.
 Can’t discriminate against qualified disable
candidate.
 Must provide reasonable accommodations.
 Not covered by the Act
– Transvestites
– Current illegal drug user
– Homosexuals

May 11, 2007 98

Federal Sentencing Guidelines
 1987 Individual sentencing guidelines for
certain crimes
 1991 organization guidelines for
– Antitrust violations
– Money laundering
– Fraud
– ERISA
– Securities violations
– Environmental law

May 11, 2007 99

Deterrence and Fines
 Fines are to make restitution to injured
parties
 Fines not tax deductible
 Baseline fines is the greater of:
– Pre-tax gain
– Loss of any injured party
– From $5,000 to $72,000 for each fine.

May 11, 2007 100

Determining Culpability
 Every business starts with a score of 5 and
depending on aggravating or mitigating
move from 0 to 10
 Aggravating factors that penalize a firms
are management disregards, condones or
covers up criminal conduct.
 Mitigating factors encourage firms to deter
or report criminal conduct.

May 11, 2007 101

Effective Compliance Program
1. Establish compliance standards
2. Senior management oversees compliance
3. Communication of standards
4. Auditing of compliance system
5. Discretionary authority
6. Disciplinary procedures
7. Prevention program

May 11, 2007 102

May 11, 2007 103