Police and Guards, Private

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POLICE AND GUARDS, PRIVATE

The use of private security guards and police by such entities as businesses and school campuses to protect their property, employees, and students has grown rapidly since the early 1980s. The authority of these guards, sometimes known disparagingly as "rent-a-cops," depends upon the employer and the type of security involved. Some guards are considered private employees of security firms and possess no more authority than an ordinary citizen. Other guards, such as campus police officers, are given specific authority to serve as peace officers by state law.

Private investigation firms predate the formation of the United States. During the nineteenth century and early part of the twentieth century, these firms often were employed by private companies for such purposes as breaking strikes, infiltrating labor unions, and investigating robberies and other crimes. By the 1930s, however, the industry was in decline, and from the 1930s to the 1970s, public law enforcement officers were more prevalent than private guards.

By the early 1980s, the private security industry began to expand, and by the early 1990s, it was one of the largest growing industries in the United States. Private guards and police personnel now outnumber the total number of federal, state, and local law enforcement officers combined. Moreover, an estimated 150,000 regular police officers moonlight as private security guards. Some municipal police departments supply regular police officers to businesses and private individuals, and then pay the officers from the proceeds of the arrangement.

One of the most ubiquitous private security officers is the campus or university police officer. Institutions of higher education are generally under a duty to provide reasonable security measures to protect their students. Many states designate these private officers with powers and authority similar or analogous to regular police officers, particularly at state institutions, but also at some larger private institutions. Some campus police departments also make arrangements with local police departments to cooperate in investigating campus crimes. Under the Student Right-to-Know and Campus Security Act, Pub. L. No. 101-542, 104 Stat. 2381, all colleges and universities that receive federal financial assistance are required to publish and distribute campus security policies and crime statistics to current students, employees, and the secretary of education.

In California, for example, the Regents of the University of California and the Trustees of the California State University and Colleges may employ one or more campus police officers to serve as peace officers (Cal. Educ. Code §§ 89560, 92601). These officers may only exercise their duties within one mile of the exterior boundaries of each campus, although California courts have held that officers may, in some circumstances, extend beyond these boundaries to fulfill their duties (Baughman v. State of California, 45 Cal. Rptr. 82 [Cal. App. 1995]). In order to qualify to become a peace officer, a candidate must be 18 years old, demonstrate good moral character based upon an investigation, and be free from any physical, emotional, or mental condition that might adversely affect the performance of his or her duties.

Some plaintiffs have sought to hold campus police officers liable for the officers' actions under a variety of legal theories. For instance, in DeSanto v. Youngstown State University, 2002 WL 31966960 (Oh. Ct. Cl. 2002), campus police were given the responsibility to provide security for a dance, including checking identification of the participants and requiring non-students to sign a log. Two individuals became involved in a fight, requiring the intervention of the officers. Although one of the two participants threatened to kill the other, the officers did not arrest the man who uttered the threats. Thirty minutes later, another individual killed the man against whom the threats were made. The family of the victim claimed that the officers were negligent for failing to arrest the man who made the threats. In addition, a plaintiff's expert witness testified that had the officer arrested the man who made the threats, the victim would not have been killed. Nevertheless, the court found that the theory was speculative and held in favor of the officers.

The application of the constitutional provisions governing criminal procedure has come into question in a number of cases involving security guards. If a security guard or officer is a purely private officer, constitutional provisions generally do not apply. These private guards usually are limited by other state criminal and tort laws, such as assault, battery, trespass, and false imprisonment. On the other hand, if the security guard or officer is deemed a state actor, then the constitutional provisions, such as the Fourth Amendment's prohibition against unreasonable searches and seizures, applies. Some states, including Georgia and South Carolina, have deputized security guards with much of the same authority as regular police officers. Other states, such as Arizona, have expressly provided that security guards do not have the same authority as regular police officers.

In Washington v. Heritage, 61 P.3d 1190 (Wash. App. 2002), a juvenile was convicted of possession of marijuana after she was searched by city park security guards. The juvenile court in the case found that the guards were private guards, so constitutional rules of criminal procedure did not apply. However, the Washington court of appeals determined that these guards were indeed state actors because they were employed by the city government. Accordingly, the guards were required to comply with constitutional requirements, including giving the suspects Miranda warnings.