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Foundations of Security Law
By: James F. Pastor, PhD, JD
President- SecureLaw Ltd. and Associate Professor in Public Safety at Calumet College of St. JosephIntroduction
For those who are unfamiliar with the notion of Security Law, this document is intended to summarize the historical and theoretical foundations of Security Law. We will begin with a brief summary of the discipline of security law and a description of the historical, theoretical, and situational factors that have led to our current circumstances in security and policing.
Security Law
The concept of security law requires an understanding of many diverse legal disciplines. These disciplines range from negligent and intentional torts to contract and insurance provisions, agency and vicarious liability theories, and constitutional and criminal laws. Despite their obvious diversity, these disciplines are linked in this context by the impact of crime and misconduct. Hence, this legal analysis should be supplemented with “security sense” and experience.
In post 9/11 America, the emphasis on security has been heightened. While some people continue to question the extent of the threat facing this country, those who study terrorism and security know that the threat remains real. Indeed, the threat of violence, particularly from terrorism, violent gangs, and lone psychopaths, is likely to persist. Violence is as old as human nature. I see no end to violence as long as human nature exists. To deal appropriately with the many diverse and complex legal issues within this field, the security professional needs to possess expertise that extends beyond the rather narrow confines of criminal law.
This maze of legal issues is further complicated by the unfortunate, but inevitable, lack of consistency created by differing state laws. Unlike criminal law, which involved numerous U.S. Supreme Court decisions, the subject areas within security law are largely based on state court decisions. Because so few U.S. Supreme Court decisions relate to security law, security professionals, and their legal advisors, tend to focus much more on state laws within their particular environment. The many variations in security laws among different states present a real challenge to corporations with properties and service provisions in different states.
By now some readers may be asking: Why should I care about court decisions—made by judges and juries—who have little understanding of security methods and principles? The short answer is liability. Liability often drives the implementation of security methods. Stated another way, the exposure of potential liability—often in damage awards reaching six, seven or even eight figures—has motivated many corporations; either private, public or municipal, to worry about security. Of course, some organizations continue to insist that it “won’t happen here.” Nonetheless, many unfortunate businesses and property owners find themselves on the wrong end of a lawsuit, faced with substantial potential exposure or actual liability. Hence, court decisions have provided substantial incentive for organizations to face the impact of crime and misconduct. The old adage of “pay me now or pay me later” has been a powerful motivator to take the threat of crime and misconduct seriously.
Let me clarify a key point. I do not advance or subscribe to the notion that security methods are directly related to liability exposure. To do so would equate life with money. This is not my intention. My point is that the legal system has shaped security methods and even, to a large degree, the security industry. This is so in a number of ways. Since the consequences of security breaches vary, or are not directly quantifiable prior to the incident, the typical property or business decision maker may believe that little or no security is sufficient. When no crime is committed, the decision proves correct. This mind-set gives rise to the inevitable questions: Why spend money on security? Why inconvenience your employees, tenants, or customers with security protocols that seem unnecessary? Coupled with the natural human tendency to believe that bad things happen only to others, this attitude leads many to assume, often incorrectly, that their environment or workplace is safe.
Now add hefty and highly publicized court decisions to the mix. At this point, many people will sit up and take notice. While some may still cling to a false sense of security, reasonable and prudent decision makers now see the implications much more clearly. The implications, of course, are more than just money damages. Loss of reputation, goodwill, business continuity, and of course, the lives and property of those affected by a workplace crime are also involved. The need to prevent such losses is a strong incentive to pay attention to security. With these implications in mind, I will provide an overview of the historical and theoretical underpinnings of Security Law.
Historical Perspectives
Centuries of history related to security and policing can be summarized in one overriding human theme: survival. The security of the individual, the family, the community, and even the nation-state are all tied to this basic need. As an indicator of its importance, Maslow classifies security as a second-tier need in his hierarchy of needs, just above food, clothing, and shelter.1 Given the importance of security, it is understandable that humans have developed various mechanisms designed to foster this goal. While this summary represents only a cursory view of the historical complexities of security, the issues raised in this overview are intended to provide a pointed and appropriate framework for private security law.
For centuries, people in the community have acted as the security force within the community. Indeed, the “job” of security was not even a job. It was the duty of all able-bodied men to protect their homes and their community.2 There were no police to call. Instead, the people acted in self-defense or in defense of their community. Through much of history, security was seen as the province of the people. This viewpoint was so entrenched that it even served as one of the guiding principles of the founder of Britain’s first professional police force, Sir Robert Peel, who asserted: The people are the police, the police are the people.3
Before the formation of public police, self-help and self-protection were considered the foundations of law enforcement and public order.4 Throughout much of recorded history, kings were primarily concerned with conducting warfare and protecting their land from invaders. This changed when the legal system or the justice process came to be regarded as a cash cow.5 The subsequent expansion of the internal justice process was justified by the concept of the king’s peace. The term king’s peace equated to law and order.
As the power of the king evolved, many offenses that were previously regarded as intentional torts (wrongs subject to civil action) were deemed crimes against the king’s peace.6 Reynolds observes this key fact: “Whereas the spoils of tort law belonged to the victims, the spoils of criminal law went to the king.”7 Based on this principle, acts previously considered torts such as arson, robbery, and murder could be declared crimes. The incentive to expand the king’s peace was clear. If people could be declared criminals, their property could be confiscated by the king.8 Such declarations allowed the king to collect property or revenue from the “criminal.” Likewise, the criminal could be punished (or even executed) for deeds against the king, his sovereignty, and his people.9
The change from a tort-centered to a crime-centered system directly affected those who were to be compensated. Traditionally, the injured person (or his or her family) was to be financially compensated by the person who caused the injury. Many victims favored treating offenses as civil torts, because this provided them with a way to collect financial compensation.10 The typical compensation involved some financial or property transfer to the victim or the family of the victim from the person who caused the injury. However, once the act was declared a crime, the financial benefit through fines, confiscation of property, and the like was transferred to the king.
It is important to note, however, that this increasing expansion of the criminal law was not without justification. Those who favored increasing sovereignty of the king believed it would reduce the incidence of retribution by private citizens, as well as provide for legitimate sanctions by government.11 Government sanctions against criminals were deemed legitimate because they removed the need for the victim (or his or her family) to retaliate against the offender.
The desire to limit the use of power or coercion to the government rested on sound reasoning. Naturally, there was a desire to reduce the amount of violence. Many believed that responding to violent acts based on the “eye for an eye” code of justice served only to perpetuate violence. Notwithstanding the potential for deterrence, or even the justification of retribution, the notion that government should be the arbitrator of violence had compelling logic. According to this way of thinking, putting the government in charge of retribution would help limit the use of violence by private citizens. As a consequence, government was increasingly saddled with the burden of controlling crime and capturing and punishing criminals.
Notwithstanding this gradual transfer of authority to government (or to the throne), the burden of law and order rested on the citizenry for a large part of recorded history. In early times, crime control of the town or community was provided by people through the use of the “hue and cry.”12 A hue and cry was a call to order. It was designed to alert the community that a criminal act had occurred or was occurring. Upon this call to order, able-bodied men responded to lend assistance, or to pursue a criminal. This ancient crime protection system is remarkably similar to the “observe and report” function of private security, absent the pursuit and capture of the criminal. The theory behind observe and report is that the security officer should act as a deterrent to crime. When a crime is observed, the task of the security officer is to gather information about the criminal (or the crime), and then immediately report such to the public police—in effect, serving as the “eyes and ears” of the police.13
Over time, however, the custom of hue and cry gave way to a more defined system of crime prevention. This system, known as “watch and ward,” entailed more formalized crime prevention methods. It was headed by shire reeves appointed by the king.14 The shire reeves, in turn, appointed constables to deal with various legal matters. Both the shire reeve (later shortened to sheriff) and the constable were the forerunners of modern sworn law enforcement officers.15 This system furthered the legitimacy of public officers in crime prevention and control, with the appointment of individuals who reported directly to the king.
Early American colonies adopted this watch-and-ward system. Partly due to the deficiencies inherent in this system, however, some towns supplemented this method with night watches conducted by citizens appointed by the local government.16 Unfortunately, these unpaid, ill-trained, and ill-equipped constables often failed to control crime. As a result, businessmen hired their own security to protect themselves and their business or property.17 These early security providers, however, did not protect the general population. Most people had to fend for themselves. Towns and villages were largely unprotected, except by those who lived there.
Based on these circumstances, some criminologists and historians believe that the emergence of municipal police forces were a direct result of the growing levels of civil disorder within society.18 Indeed, Miller emphasized that in 1834, known as the “year of riots,” legislators in New York decried the need for order. This outcry for order translated into more “security” forces. It became increasingly clear that the established system of crime prevention was not working. In this sense, the riots acted as a trigger, helping to bring about the institution of municipal police departments.
The emergence of public police, as with any societal initiative, was not without its problems and detractors. Many people argued that a full-time police force was too expensive. Certainly, the traditional methods were less costly because the major portion of these protective services was provided by unpaid volunteers.19 Another economic objection was based on the argument that the newly created public police agencies were unable—or unwilling—to provide for the security needs of the commercial sector.20 To support this assertion, critics of public policing could point to the situation in America’s “Wild West.” The western territories had few government-employed police officers. This lack of police officers was especially problematic for newly developing mobile commercial enterprises, such as the railroad industry. Labor unrest, especially in the steel, coal, and railroad industries, further drove the demand for security.21 Not surprisingly, this growing need for security significantly drained resources from already overextended municipal police departments.22 In order to serve this growing market, Allan Pinkerton formed the first contracted private security firm in America.23 This occurred in 1850, at a time when many municipal police departments were in their infancy. Thus, paid security forces were developing even while the growth of public police departments was still in its early stages.
Other criticism of early policing pointed to the dangers of a government monopoly on policing,24 fearing that it could lead to the development of excessive police power.25 To these people, the cop on the beat represented an “ominous intrusion upon civil liberty.”26 To others, the concern for security overrode the integrity of constitutional provisions. Thus, the tension between the desire for security and the desire to maintain constitutional protections became critical in the debate over this policing initiative. Likewise, the difficulty of balancing public safety with individual rights continues to fuel controversy over current security initiatives—whether public or private.
As public policing began to take hold, certain legal decisions carved out the specific duties of the government in regard to the safety and security of its citizens. As noted earlier, the historical roots of policing stemmed from the notion that citizens were obligated to maintain law and order. This notion was consistent with the ideals of the framers of the U.S. constitution. They assumed that law-abiding people would be largely responsible for their own safety.27 As a result, the framers of the Constitution did not define any specific governmental obligation to protect citizens from crime. The U.S. Supreme Court upheld the principle that government does not have a specific duty to protect individuals in the famous case entitled South v. Maryland (1856). In its decision, the Court refused to create this duty based on the belief that it would “impose a crushing economic burden on government.” Instead, the Court held that government had a general duty to enforce laws, but not to protect any particular person. Significantly, the South v. Maryland Court held that:28
There is no constitutional right to be protected by the state against being murdered by criminals.… The constitution is a charter of negative liberties, it tells the state to let people alone, it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.29
This decision provided the intellectual principle that the government is not responsible for the safety of its citizens—as it related to criminal activity. Accordingly, citizens are expected to secure their own safety from criminals, independent of the protection from government. This basic principle has not changed. Absent the duty from a third party, usually imposed on a corporation or a property owner, the burden is on each individual to provide for his or her own safety and security.30
This brief historical perspective illustrates the impact of crime on civilized society. In days of old, security was the province of the people. In contemporary times, “the people” typically pay others for protection. Citizens pay taxes for municipal policing. Clients pay contracted fees to security firms. Both of these methods of maintaining public safety and providing security services are accepted as contemporary norms. However, as will be more fully articulated later, there is a growing trend for citizens to pay security firms for protection within the public realm. This creates a sort of back to the future circumstance, where “the people” are taking more responsibility for their own security.
The payment of monies for private security services raises an important question: Is it appropriate for clients, who are citizens of a governmental entity, to pay a private firm for security, or even public safety services? My answer is yes. To answer this question for yourself, you might begin by asking yourself these questions: Is it wrong to pay for personal protection? If public police cannot or will not provide for your personal protection, is it inappropriate to pay a security firm to do so? Viewed from this perspective, affirming the individual’s right of self-defense seems the only reasonable approach.
Because the job of private security professionals involves the imminent threat of violence, their effectiveness almost inevitably depends on their ability to use appropriate tactics, including the use of force. Regardless of the situation that prompts the use of force or the mere imposition of verbal commands, the use of coercive measures is subject to monitoring by the legal system, either through judicial and legislative pronouncements. Thus, those who are in the business of security have a responsibility to stay informed about the legal limits of their power and authority. As the role of security providers in society continues to expand, the need to understand private security law becomes increasingly important. This book attempts to address that need.
Crime, Criminology and Security Law
Security personnel seek to prevent crime by attempting to predict reasonably foreseeable crime and develop precautions against it.31 Whether a crime is foreseeable and whether it can be prevented is often based on an understanding of the environment and of the offender. A substantial body of law has grown around the notion of the environmental aspects of crime. Many researchers believe that an area often undergoes a transition from relatively few crimes toward a high incidence of crime or a heightened fear of crime, caused in part, by lack of order.32 For example, order maintenance theories contend that crime problems initially arise from relatively harmless activities, such as drinking on the street, graffiti on buildings, and youths loitering on street corners. If these activities go unchecked, the level of fear and incivility in the area begins to rise and more serious crimes, such as gang fights or even drive-by shootings, may take place. The underlying theory is that the presence of disorder tends to reduce the social controls previously present in the area. This results, at least in theory, in the increased incidence of crime, particularly serious crime. Increased crime, in turn, contributes to the further deterioration of the physical environment and economic well-being of the community.
The development of order maintenance theories can be traced to a line of thinking that developed over time. These theories focused on conditions in cities, particularly in the slums. In these areas of the city, conditions included “physical deterioration, high density, economic insecurity, poor housing, family disintegration, transience, conflicting social norms, and an absence of constructive positive agencies.”33 Over time, researchers began to focus less attention on socioeconomic factors, and more on the physical characteristics of the community, or on the environment. The focus on the physical characteristics of the space where crime occurred resulted in a substantial body of scientific research, including that of Cohen and Felson. They argued that the completion of a crime requires the convergence in time and space of an offender, a suitable target, and the “absence of guardians capable of preventing the violation.”34 The guardians include police, security, citizens, and “place managers” who are either formally or informally responsible for a particular property or location.35
This focus on environmental factors is seen in a number of studies. For example, Gibbs and Erickson found that the daily population flow in large cities “reduces the effectiveness of surveillance activities by increasing the number of strangers that are routinely present in the city, thereby decreasing the extent to which their activities would be regarded with suspicion.”36 The implication was that the more crowded an area became, the less likely it was for strangers to be noticed. Thus, with less natural surveillance from community residents, more crime might develop. Consequently, Reppetto concluded that the social cohesion and informal surveillance declines with the large number of people living in a given area.37
Similarly, Lewis and Maxfield focused their research on specific physical conditions within the environment. They sought to assess how the environment affected the level of crime and the fear of crime. Their research design took into account such factors as abandoned buildings, teen loitering, vandalism, and drug use. They believed these factors draw little attention from the police partially because the public police have limited resources to effectively deal with these problems.38 The researchers noted that such problems, nonetheless, are important indicators of criminality within any community.
These problems are considered indicators of the “level of incivility” in an area and are thought to contribute to a sense of danger and decay. The presence of danger and decay, in turn, increases the perceived risk of victimization.39 In this sense, the presence of incivility may lead to crime, or it may simply cause an area to seem dangerous. While some incivilities are not even criminal, they are disconcerting nonetheless. For example, groups of teens walking through a neighborhood may be legal but still raise fears within the community. As such, these studies concluded that policymakers should focus on “neighborhood level” approaches to reducing crime and fear.
This research was supported and further validated by subsequent studies. Covington and Taylor conducted research into what they termed the “incivilities model.” They argue that people perceive “cues” to the underlying level of disorder in their immediate environment. When people sense negative cues in their environment, they feel more vulnerable and fearful.40 In essence, they become more aware that they may be at a risk of being criminally victimized. Consequently, cues representing incivility may serve as an early warning or an indicator that the environment may be ripe for serious crimes.
What are these cues, or the signs of crime? According to Covington and Taylor, there are several indicators or cues. They fall into two distinct categories: social and physical. Social cues include public drinking, drug use, loitering, and disturbances such as fighting and arguing. These activities may be deemed disturbing to some people, and dangerous to others. Physical cues include litter, graffiti, abandoned buildings and vacant lots, and deteriorating homes and businesses.41 While these conditions may not be inherently dangerous, they create the impression that the neighborhood is declining. This impression, in turn, may foster an attitude that the people in the neighborhood do not care about their homes or their community. As a consequence of such, those intending to commit crime may view the perceived lack of care as an invitation for criminal activity.
Subsequent research by Fisher and Nasar further validated this logic. They studied the effects of “micro-level” cues. Micro-level clues involve a specific place or location. The authors found that such cues relate to fear in three specific criteria:42
- Prospect—openness of view to see clearly what awaits you.
- Escape—ease of departure if you were confronted by an offender.
- Concealment—extent of hiding places for an offender
Based on an analysis of these criteria, the authors concluded that areas that lack open views and avenues of escape for potential victims while offering criminals effective hiding places are ripe for crime. When faced with these conditions, individuals tend to feel a greater exposure to risk, lose their sense of control over their immediate environment, and are more aware of the seriousness or the consequences of attack.43 This conclusion further advanced the concept of “situational crime prevention.” This approach advocates the examination of the actual criminal event or incident. When doing so, it is considered key to assess how the “intersection” of potential offenders connected with the opportunity to commit crime. This level of analysis focuses on how to prevent this “intersection” from occurring. According to this way of thinking, reducing the criminal’s opportunity to commit crime should enable individuals to avoid crime. Consequently, the commission of a particular crime could be prevented through specific measures designed to reduce the offender’s ability (or even propensity) to commit crimes at a specific location.44
The conclusions from these studies have been echoed by a number of other authors, including Kelling, who asserts that citizens regularly report their biggest safety concerns to be activities such as “panhandling, obstreperous youths taking over parks and street corners, public drinking, prostitution, and other disorderly behavior.”45 All of these factors have been identified as precursors to more serious crime. Moreover, the failure to correct these behaviors is often perceived by potential offenders as a sign of indifference—which may lead to more serious crime and urban decay.46 According to this thinking, the most effective way to reduce crime is to address both the physical and social conditions which foster criminal behavior and to prevent such conditions from festering into more serious levels of incivility and decay.
The logic behind and conclusions derived from these studies have been embraced by both public police and private security. The key component of these studies, in both the public and private sectors, is order maintenance. Order maintenance techniques are designed to improve physical conditions within a specific geographic area. This can be accomplished in a number of ways, including the rehabilitation of physical structures, the removal or demolition of seriously decayed buildings, and the improvement of land or existing buildings by cleaning and painting. Other environmental improvements, such as planting flowers, trees or shrubs, and various other methods to enhance the “look and feel” of an area are also recommended.47 These physical improvements are then coupled with efforts to reduce or eliminate certain anti-social behaviors. The reduction or the elimination of problematic social behaviors is at the core of an order maintenance approach to crime prevention. The objective is to address these behaviors before more serious crimes occur.
Viewed from this broad environmental perspective, the topic of security becomes wide ranging. It can encompass services as seemingly diverse as trash collection and private police patrols that are in fact linked by the common goal of improving conditions within a neighborhood. Given the important role of the environment in the development of crime, the need to control physical conditions and public activities within a particular environment is paramount. The advent of terrorism will only magnify this environmental focus. In today’s world, many formerly unremarkable occurrences can seem ominous. An unattended package left on a street corner might turn out to be a lethal bomb. The illegally parked vehicle in your neighborhood could be a tragedy in the making. In this new reality, the importance of an orderly and clean environment cannot be understated. Of course, these perceived or potential threats are difficult to remedy. Nonetheless, this growing emphasis on the environment has been echoed by Kaplan, who views the environment as the security issue of the early twenty-first century.48
In public policing, these order maintenance techniques are encompassed in the concept of “community policing.”49 The core of community policing is for policing efforts to extend beyond the traditional goal of crime fighting. It is to focus on fear reduction through order maintenance techniques.50 In this way, crime and fear reduction through order maintenance are in accordance with the environmental theories articulated above.
This focus on prevention has traditionally dominated the decisions of security industry officials.51 Indeed, the similarity of private security techniques and community policing techniques can be narrowed to one core goal: both are intended to utilize proactive crime prevention that is accountable to the customer or the citizen.52 Private security’s traditional “client focused” emphasis on preventing crime—not merely making arrests after a crime has occurred, directly relates to this approach. With community policing seeking to achieve this same goal, the functions of police and security have or will inevitably move closer together. Of course, private security is particularly well suited to serve in a crime prevention or order maintenance role. This has been its role for generations. At least partly because of its focus on the property and financial interests of their clients, private security has long since replaced public police in the protection of business facilities, assets, employees, and customers.53 This is because private security personnel provided what the public police could not accomplish. Specifically, the industry provided services for specific clients, focusing on the protection of certain assets, both physical and human, as their primary and even exclusive purpose.
The increase in tort causes of action, known as either premises liability or negligent security, has fueled explosive growth in the security industry, and in the business of personal injury attorneys.54 These lawsuits stem from negligence based legal theories, which question whether the business or property owner knew or should have known that a criminal would come along and commit a crime within the property. Hence, the crime victim could sue the business or property owner (and indirectly its insurance company) for the actions of the criminal. The logic of this cause of action rests on the theory that the owner contributed to the crime, or at least, allowed the crime to occur by failing to take remedial action. According to this logic, the property or business owner, who did not commit the crime, is nonetheless guilty of negligence by allowing the conditions conducive to crime to occur or to fester. Thus, the failure to cure the conditions served to “invite” the criminal act.
These causes of action are based on two contemporary developments. First, the impact of crime has created substantial damage—in human and economic terms. Faced with these financial and human tragedies, courts began to develop the logic and reasoning to support these lawsuits. Second, these lawsuits were intellectually justified by the previously described body of knowledge relating to crime. This thinking was further supported by the Restatement of Torts 2nd, Section 344, which provides the crime victim (plaintiff) must prove both of the following conditions:55
- Owner knew (or should have known) the premise was not secure.
- Negligent features of premises allowed the crime to occur.
Scientific studies relating to the relationship between crime and the environment are compelling. As noted previously, numerous studies have provided a wealth of evidence that criminals do not act arbitrarily and randomly. Indeed, despite the public’s abhorrence of criminal conduct, criminals tend to view the decision to commit a crime as a rational choice. The offender may weigh the risk of being caught versus the benefit from the crime. If the potential gain outweighs the risk, then it is more likely the crime will occur. Based on this logic, it seems reasonable to infer that crimes tend to occur in locations that minimize the criminal’s risk of being caught while maximizing his or her advantage. Indeed, criminological research has demonstrated that certain factors may lead to crime. These factors include: disorderly conditions, diminished lighting, high prospect for escape, increased ability to conceal the crime, and various other factors related to the criminal decision process.56 Such factors may even invite crime. For example, Gordon and Brill argue that poor lighting not only fails to prevent crime, but acts as a “crime magnet.”57 For these reasons, it was not a great leap for courts to begin to accept the counterintuitive notion that the property or business owner should pay for the actions of the criminal.
A significant consequence of this thinking was to extend legal exposures to a new class of defendants: property and business owners. This exposure, in turn, became a motivator for many owners to institute security measures within and around their property or business location. In this sense, potential liability served as both a carrot and a stick. The carrot was the advantage that promised to accrue to property or business owners who established a safe and secure place in which to do business, and to live or work in. Certainly, maintaining a safe and secure environment could not hurt the reputation of the business, or the viability of the property. Conversely, the stick was substantial potential liability, with large jury awards, that could occur in the event of a crime on their property. In addition, media exposure stemming from such incidents could create a reputational and public relations nightmare for the owner of the business or property where the crime occurred. Clearly these factors provided substantial negative motivation to secure the premises from criminals.
This carrot and stick approach led to the growing use of private security personnel and methodologies. This boded well for the security industry. Business and property owners started to think and worry about security. They became more proactive in their approach to a safe and secure environment. For security firms, the need for increased vigilance created a larger and larger market of potential clients. It brought security further and further into the realm of the average citizen. Security personnel began to be routinely used at businesses and large corporations, now often focusing on the protection of employees and clients, instead of simply preventing them from stealing. In this sense, security became more mainstream. It is part of the hospital you visited, part of your workplace, and part of the apartment building you live in. Consequently, the security industry moved into the lives of average people. No longer was it just the public police who serviced the people; now there was another service provider, this one operating out of the private realm. Now private security was “the people.” This closeness to mainstream society also increased the scope of the services provided by private security.
As premises liability and negligent security lawsuits developed, the liability of business and property owners extended farther and farther beyond the “protected facility.” The seemingly ever-expanding perimeter was the result of court decisions. It was not uncommon for incidents in parking lots to create liability exposure. Indeed, liability exposure may even be claimed to apply to attacks that occur beyond the perimeters of the property or business.58 In fact, lawsuits have succeeded in cases of criminal attacks that occurred down the street from the property or business held liable. As liability exposure expanded, so did the security perimeter and methodologies. Consequently, it is now common for security patrols and hardware for properties and businesses to extend into the streets and other public areas, in the quest to prevent crime and to provide a safe and secure environment.
Conversely, public police have a much more difficult task incorporating crime prevention into their organizational structure as a result of the broader societal mission to universally enforce laws throughout society, as well as to preserve democratic and constitutional ideals. Considering that the already overburdened public police are also faced with economic and operational constraints, it is not unreasonable to conclude that the role of private security will continue to increase. This relationship between crime and security has been pointedly summarized by Thompson. In additional to the criminological theories summarized previously, he outlines the increased incidence of security liability to the following factors:59
- Increased crime
- Growth of private security
- Greater public awareness of litigation
- Greater number of attorneys
- Increased publicity about criminal incidents
1. Robbins, Stephen P. (2003). Organizational Behavior (10th ed.). Upper Saddle River, NJ: Prentice Hall; and Clifford, Mary (2004). Identifying and Exploring Security Essentials, Upper Saddle River, NJ: Prentice Hall.
2. Pastor, James F. (2003). The Privatization of Police in America: An Analysis and Case Study. Jefferson, NC: McFarland and Company.
3. Oliver, Willard M. (2004). Community-Oriented Policing: A Systematic Approach to Policing (3 rd ed.). Upper Saddle River, NJ: Prentice Hall.
4. Pastor op cit. at 33. Also see Nemeth, Charles P. (1989). Private Security and the Law. Cincinnati, OH: Anderson Publishing Company; and Shearing, Clifford D., and Phillip C. Stenning (1983). Private Security: Implications for Social Control. Social Problems 30 (5).
5. Pastor op cit. at 34. Also see Reynolds, Morgan O. (1994). Using the Private Sector to Deter Crime. National Center for Policy Analysis, March, and Benson, Bruce L. (1990). The Enterprise of Law: Justice Without State. San Francisco, CA: Pacific Research Institute for Public Policy.
6. Pastor op cit. at 34. Also see Johnston, Les (1992). The Rebirth of Private Policing. London: Routledge.
7. Reynolds op cit. at 2.
8. Johnston op cit. at 2.
9. Pastor op cit. at 34.
10. Ibid at 34.
11. Pastor op cit. at 34-35; Nemeth op cit. at 2; and Benson op cit. at 12.
12. Pastor op cit. at 35; and Nemeth op cit. at 2.
13. Pastor op cit. at 35.
14. Pastor op cit. at 35; and Nemeth op cit. at 3.
15. Pastor op cit. at 35; and Nemeth op cit. at 3.
16. Pastor op cit. at 36; and Reynolds op cit. at 3.
17. Pastor op cit. at 36; Nemeth op cit. at 3; and Benson op cit. at 74. Also see Warner, Sam Bass (1968). The Private City. Philadelphia: University of Pennsylvania Press.
18. Warner op cit. at 78; and Pastor op cit. at 36. Also see Spitzer, Steven and Andrew T. Scull (1977). Privatization and Capitalist Development: The Case for Private Police. Social Problems 25 (1): pp. 18–28; and Miller, Wilbur R. (1977). Cops and Bobbies: Police Authority in New York and London, 1830–1870. Chicago: University of Chicago Press.
19. Warner op cit. at 80; and Pastor op cit. at 36.
20. Pastor op cit. at 38; and Nemeth op cit. at 6–7.
21. Nemeth op cit at 6–7; and Pastor op cit. 38.
22. Pastor op cit. at 38; and Spitzer and Scull op cit. at 21.
23. Spitzer and Scull op cit at 45; and Pastor op cit. at 38.
24. Pastor op cit. at 36; Johnston op cit. at 24; and Miller op cit. at 3.
25. Miller op cit. at 3.
26. Miller op cit. at 3; and Pastor op cit. at 36.
27. Reynolds op cit at 1; and Pastor op cit. at 68.
28. Reynolds op cit. at 1 and Pastor op cit. at 68.
29. Reynolds op cit. at 1 and Pastor op cit. at 68.
30. Pastor op cit. at 69.
31. Gordon, Corey and William Brill (1996). The Expanding Role of Crime Prevention Through Environmental Design in Premises Liability. National Institute of Justice, April.
32. See Covington, Jeanette and Ralph B. Taylor (1991). Fear of Crime in Urban Residential Neighborhoods: Implication of Between and Within Neighborhood Sources for Current Models. The Sociological Quarterly 32 (2): pp. 231–249; Lewis, Dan A. and Michael G. Maxfield (1980). Fear in the Neighborhoods: An Investigation of the Impact of Crime. Journal of Research in Crime and Delinquency, July, pp. 160–189; and Kelling, George (1995). Reduce Serious Crime by Restoring Order. The American Enterprise, May/June.
33. McLennan, Barbara N., ed (1970). Crime in Urban Society. London: Cambridge University Press.
34. Cohen, Lawrence E., and Marcus Felson (1979). Social Change and Crime Rate Trends. American Sociological Review 44: pp. 588–607.
35. Felson, Marcus (2002). Crime and Everyday Life. Thousand Oaks, CA: Sage Publications.
36. Gibbs, Jack P., and Maynart L. Erickson (1976). Crime Rates of American Cities in an Ecological Context. American Journal of Sociology 82: pp. 605–620.
37. Jackson, Pamela Irving (1984). Opportunity and Crime: A Function of City Size. Sociology and Social Research 68 (2): pp. 173–193.
38. Lewis and Maxfield op cit. at 187; and Pastor op cit. at 54.
39. Lewis and Maxfield op cit. at 162; and Pastor op cit. at 54.
40. Covington and Taylor op cit. at 232; and Pastor op cit. at 55.
41. Pastor op cit. at 55.
42. Fisher, Bonnie and Jack L. Nasar (1995). Fear Spots in Relation to Micro-level Physical Cues: Exploring the Overlooked. Journal of Research in Crime and Delinquency 32 (2): pp. 214–239.
43. Fisher and Nasar op cit. at 234–235; and Pastor op cit. at 56.
44. Pastor op cit. at 56.
45. Kelling op cit. at 36; and Pastor op cit. at 56.
46. Pastor op cit. at 56.
47. Pastor op cit. at 57. Also see Bazyler, Michael J. (1979). The Duty to Provide Adequate Protection: Landowners’ Liability for Failure to Protect Patrons from Criminal Attack. Arizona Law Review (21): pp. 727–737.
48. Kaplan, Robert (1994). The Coming Anarchy. The Atlantic Monthly, February.
49. Pastor op cit. at 57; and Kelling op cit. at 25. Also see Moore, Mark H., and Robert C. Trojanowicz (1988). Perspectives on Policing: Corporate Strategies for Policing. National Institute of Justice. (6) Office of Justice Programs, November; Palango, Paul (1998). On the Mean Streets: As the Police Cut Back, Private Cops Are Moving In. MacLeans, 111 (2), January 12; Robinson, Matthew (1997). Why the Good News on Crime. Investor’s Business Daily, April 30; Seamon, Thomas M. (1995). Private Forces for Public Good. Security Management, September; Kolpacki, Thomas A. (1994). Neighborhood Watch: Public/Private Liaison. Security Management, November; Spencer, Suzy (1997). Private Security. Onpatrol.com/cs.pivsec.html; Cox, Steven M. (1990). Policing into the 21st Century. Police Studies 13 (4): pp. 168–177.
50. Pastor op cit. at 58.
51. Pastor op cit. at 58. Also see Chanken, Marcia and Jan Chaiken (1987). Public Policing—Privately Provided. National Institute of Justice, Office of Justice Programs, June; and Cunningham, William C., John J. Strauchs and Clifford W. Van Meter (1991). Private Security: Patterns and Trends. National Institute of Justice. Office of Justice Programs, August.
52. Kolpacki op cit. at 47; and Pastor op cit. at 58.
53. Pastor op cit. at 58.
54. Ibid at 58–59.
55. Bazyler op cit. at 736–737.
56. Bazyler op cit. at 733. Also see Davey, Caroline L., Andrew B. Wootton, Rachel Cooper, and Mike Press (2005). Design Against Crime: Extending the Reach of Crime Prevention Through Environmental Design. Security Journal 18 (2): pp 3951; and McKay, Tom (2004). How Are Behavior, Crime and Design Related? Security Management, May.
57. Gordon and Brill op cit. at 5.
58. See for example, McClung v. Wal-Mart, 270 F. 3d 1007 (6th Cir., 2001).
59. Thompson, Michael (1986). Cutting Your Security Risk. Security Management, September.
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