Public Liability for Privately Employed Security Personnel
| Publication year | 1987 |
| Pages | 2175 |
1987, December, Pg. 2175. Public Liability for Privately Employed Security Personnel
Public entities with close links to private security personnel may expose themselves to the irony of public liability for private misconduct. The law categorizes governmentally connected private security personnel as "special police officers."(fn1) Generally, special officers receive private compensation for protecting private property,(fn2) and possess apparent law enforcement authority superior to that of ordinary citizens. This apparent authority may flow from the special officers' primary employment as peace officers,(fn3) or from some governmental authorization to act as private security guards.(fn4) A public entity's potential liability turns on whether either of these sources of law enforcement authority transforms a special officer's private misconduct into public wrongdoing.
Public liability for a special officer's conduct may flow from common law torts or from federal statute. Public liability may arise if a public entity negligently authorizes or licenses an unqualified private citizen to act as a special police officer.(fn5) A public entity may also become liable if its policies or statutes give public authority to private special officers.(fn6) Such policies or statutes may allow private special officers to act on the public's behalf and, thus, bring their unreasonable or tortious conduct "within the scope of their public duties."(fn7) In addition, apparent public authority could supply the "color of law" element under 42 U.S.C.§ 1983 to create public liability for a special officer's infringement of another's constitutional rights.(fn8)
This article suggests several ways to sever the ties between public entities and special police officers. These suggestions will help governmental units to escape liability for the misconduct of special police officers, and avoid the costs of defending claims arising from such misconduct.
Public entities may avoid liability by divorcing themselves from the activities of moonlighting peace officers. To do so, local governments may define "private employment" by ordinance or regulation to exclude the activities of moonlighting peace officers from the scope of their official duties.(fn9) This definition would make privately employed peace officers ineligible for public workers' compensation benefits---even for injuries received during law enforcement.(fn10) Moreover, this definition should expressly prohibit privately employed peace officers from asserting public authority by identifying themselves as peace officers, by displaying their official badges or other identification, or by wearing their service uniforms.(fn11)
Law enforcement supervisors may adopt similar internal policies to discourage moonlighting.(fn12) Police supervisors may prohibit private employers from soliciting the private services of peace officers while they remain on the department's premises or on duty. In addition, police supervisors should prohibit their departments from becoming employment agencies for private employers. Departments that cooperate with the private employment of their personnel often inextricably link themselves to the private tortious conduct of those special police officers.(fn13)
Statutes that grant licenses or permits to special police officers may help to create or eliminate public liability for special officers' misconduct. In order to avoid public liability, law enforcement administrators and their legal counsel should review and, where appropriate, amend local licensing provisions...
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