Running Head: MSA 560 PORTFOLIO PROJECT
MSA 560 Portfolio Project
Justin Edwards
Southwestern College
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Abstract
Over the last six weeks, we have been talking about security law which directly applies to
my profession on a daily basis. Although I am currently in the military, it was interesting to
learn how court cases help courts form fair judgments based on either previous similar cases or
their interpretation of the law. In most instances, we find that the court does side with security
personnel as long as what the actions that they take are in accordance of the law. Whether it was
public nuisance, asking the right questions, hiring people with criminal convictions, etc. this
class covered it all in such a manner that made sense and help disseminate information that is
important regarding these topics. The below paper will cover information regarding these topics
and how they really apply to a security setting. As a military professional who will in 7 years
become a civilian, it is helpful to see how the law is applied outside of the government.
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MSA 560 Portfolio Project
Introduction
For the past 6 weeks, we have been learning a lot about security law and how it applies to
the civilian security force as well even government agencies. I have learned a lot from this class,
but foremost the lesson I have learned is that as long as you follow the law, and don’t abuse the
powers that are given to you by the law, the court will protect you. However, if you use the
powers given to you to harass, discriminate, hurt business, etc., you will have a lot of explaining
to do in court. In this class the top five things I have learned are
1. Hiring a person whom we trust
Hiring a person with criminal convictions or untrustworthy is a huge liability to a security
establishment. Some say that they can be rehabilitated, however as an organization whom
provides security, there is little argument that hiring a person with convictions is just a huge
liability you are placing on yourself, and the establishment that is requesting the security.
If hiring a rehabilitated individual isn’t liability enough, if they by chance commit a
crime while working for the organization, you have just opened your organization to ridicule and
most likely will lose your business because you will not be able to find customers to make
money. There is nothing that says you can’t hire a person with a prior conviction, however, you
need to make sure that the person will be able to get the security clearance in which they will
need, or even be able to carry a weapon of any kind.
It may see likes it’s not equal opportunity to not hire based on criminal convictions and
rehabilitation, however, as an employer and the nature of the job, you cannot take a risk that
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something like this would happen and lose your business over something that could have been
prevented. Statistics show that most of the time criminals will recommit crime, unless you can
guarantee that the person is the best qualified for the job regardless of prior convictions. If the
employer can’t trust the guy to protect him, then he isn’t the best qualified person. With the
nature of the job, and what is at stake, it is in the best interest of the employer to be choosey and
protect the company’s assets as well as their clientele’s assets as well.
In the case of RONALD W. McGUINESS v. BRINK'S INC. (1999), Maryland law states
that there is no “special duty” to protect others from criminal acts by a third party when such a
statute or special relationship does not exist. The court used the court cases Valentine, Hartford
Insurance Co. v. Manor Inn of Bethesda, Curley, Kahlendberg, and Wright v. Neale to guide
their decision in this matter. . The state of Maryland agreed with the argument that Brinks
should have exercised due care in selecting competent and careful employees. However,
regardless of the fact that Brashears was habitually late in returning her weapon back to Brinks,
it was Ratliff who pulled the trigger, which according to the State of Maryland does not leave
Brinks accountable for Ronald McGuiness’ current paralyzed state.
2. Trespass Liability
In a trespass situation, a property owner has the right to ask a person to leave the
establishment or property, however, the actions taken by the property owner to get the person off
the property are under strict regulation. In the case of Marvin Lebovitz v. Sheraton operating
corporation, we see that the property owner asked him to leave and had him dragged out with his
pants still rolled up in an attempt to get his boots shined, but then the property owner took it
upon himself to lie to authorities in order to get him arrested by the New Orleans Police
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Department (Pastor, 2007). The court denied the writ application because the court felt as
though there was “factual question to the conduct of the security personnel” (Pastor, 2007).
However, in the case of Karen Keagan v. Lemieux Security Inc., where the campus
security guard (Karen) had entered the construction site after watching a set of 4 trespasser’s
enter the construction zone, and entered in an attempt to keep them safe with the knowledge the
site was not safe. She then got injured on the site, and filed a suit against the person whom was
responsible for the safety of the site and Lemieux whom was responsible for patrolling the site
on the weekends to discourage trespasser’s (Pastor, 2007). The court found that the property
owner only has the responsibility to avoid willful or wanton misconduct, which could not be
proven by Karen Keegan, making the property owner not liable for her injuries. There was no
sign of breached duty on the side of the property owner in this case (Pastor, 2007).
Using these two cases, it is easy to see the difference as to how trespass liability can
cause issue, and protect the property owner. The property owner does have a liability to the
property and the events that happen on that property to some extent, as long as reasonable
measures are taken to prevent misconduct on the property.
The standard of care for a property owner would include reasonable measures to ensure
that the temptation to trespass, with the possibility for them getting hurt is limited. What I mean
by this is: suppose you have a vacant rental property which had a pool in the back yard visible or
even not necessarily visible as you walk by. If there is no fencing to discourage people from
coming onto the property and having the measure to prevent them from entering the pool, the
property owner could be held liable for any harm that comes to the people who have just entered
the pool. The laws are different from adult to child as well. If a child is drawn to what
findlaw.com calls an “attractive nuisance”, they property owner could be held liable since they
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did not take appropriate care to rid the temptation for children to want to enter the property due
to this “attractive nuisance” and end up getting injured or worse die. If there is nothing posted
stating the lot is private property and trespassers will be dealt with by authorities, there is little to
deter them from accessing the property and doing as they wish. However, this also could be
prevented with proper signage, fencing, motion lighting, etc. Anything that would allow the
property owner to make it safe within reasonable standards while also attempting to deter those
who might try to trespass onto the property.
Findlaw.com states that there are three types of people whom enter a property: Invitees,
licensee’s and trespassers. In regards to the so called “invitees”, it would be the property
owner’s responsibility to ensure that it is safe for the patrons whom are there. For the licensee’s,
it would be reasonable to assume they would conduct regular maintenance, keep stairwells clear,
as well as follow guidelines set by the law and organization. It is not the responsibility of the
property owner to protect a trespasser, however, the property owner is not allowed to hurt the
trespasser willingly. That is not to say you do not have the right to protect yourself and your
property should it be defamed or if the person/person’s trespassing are attempting to break into
your home, or possible a rental home. At any rate, the property owner needs to utilize the 9-1-1
system if they are able and warn the trespasser’s that you as the property owner will take action
should they enter because that is your right.
The likely policy reasons for this standard are to ensure that although we cannot protect
everyone from everything, that property owners are keeping their property safe in an attempt to
keep any person who accesses it with or without permission isn’t harmed by unreasonable
conditions. It is the responsibility of the property owner to ensure that the property has the
appropriate measures to maybe deter those who might be trying to trespass, but also noting that
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they can’t reasonably stop everyone. It is also important to note that the property owner’s
liability only goes so far and as long as they prove the measures were taken, they do not have to
fear liability of injury or whatever else may end up landing him in court later down the road.
3. Sexual Harassment
According to Foster, the issues that need to be considered in a sexual harassment claim include
(2008):
1. If the harassment came from someone other than a supervisor, and if the plaintiff
could show that the employer knew about it and failed to take corrective action.
2. Whether or not the employer did a prompt and thorough investigation.
3. Did the “harassment” interfere with the employees work performance in a significant
manner outside their normal duties and behaviors and within the guidelines of the
ADA?
4. Whether or not the harassment was considered enough to take action.
5. Whether or not employee action occurred.
6. How did the victim conduct themselves and what was the context of harassment.
7. What the size and nature of the business involved may affect the amount of damages
and whether liability exists.
8. Sexual harassment is actionable by people of the same sex.
In the case of a supervisor harassing a subordinate, the liability would fall on the
employer if the person who was harassed reported the harassment, only to find that the employer
refused to conduct an investigation on the complaint, nor made an effort to ensure the situation
would not happen again. However, this would need to be proven by the client in court. Most
organizations have a standard procedure for handling harassment cases in such a manner that
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they can figure out what happened, who was at fault, what caused the incident, what needs to be
done about it, whether or not the person whom was harassed needs counseling over the issue, etc.
These evaluations need to be made, and to protect themselves, their best method of protection is
documenting every conversation, every email or phone call, or even having an established HR
person trained in sexual harassment issues to be a witness/3rd party to the conversations that take
place, etc.
As well as what is considered, there are defenses that an employer can make in an
attempt to protect them of liability if they at least took the bare requirement set forth by the law.
Foster notes these as (2008):
1. Unwelcoming advances are not considered of an epidemic nature in the workplace
2. If an employer took reasonable steps to prevent the harassment
3. If an employer took immediate remedial measures to correct the harassing behavior
4. Employee did not take advantage of remedial measures
5. Employees did not timely complain about the alleged harassment
6. Employer conducted a timely, thorough, and fair investigation
Ways that an employer can limit their exposure to sexual harassment are: having notolerance policies for sexual harassment; having current meetings and trainings on a regular basis
informing employees of the company policies on sexual harassment and what constitutes
harassment; training for supervisors on early warning signs of harassment; employee training on
what to do if someone expresses concern about harassment related signs; etc. Although these
may not protect the employer from having sexual harassment claims in the workplace, they may
limit and educated the employees who may not have known that their actions could be
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considered harassment to the wrong person, or how to handle a situation if someone tries to
speak to them about actions that are taking place by another person.
Again if a male employee were to grope a female supervisor, the same liability would
take place should the organization not take the appropriate steps listed above to remedy the
situation. It would be considered worse for a supervisor to harass an employee, however, not
approached as less important. There might be more involvement on the management side to
figure out what happened, what led to the harassment, if there were signs displayed to the
supervisor that would have been overlooked by the supervisor that would have given them a
warning sign to the possibility of harassment, and immediate remedial training for supervisors on
how to handle themselves professionally as well as notice key warning signs that harassment
could be a possibility; even if the fault was not the supervisors. It is always important that we
allow others to learn from mistakes that take place. If we cannot learn from mistakes and realize
were additional training is needed, as employers we are not riding our organization of threats to
our assets to keep the organization fully functional and ready for work.
In the case of MARY NEWELL v. CELADON SECURITY SERVICES INC., The court
held that Kouidri was not a supervisor, nor did he represent himself as one which rid the
employer of liability of any sexual harassment committed by Kouidri , and Newell’s transfer to
Celadon was not a negative action for making a complaint. In the case of Ellerth, “the scope of
employment does not define the only basis for employer liability under agency principles”. With
this, there is no proof to show that Newell truly believed that Kouidri was her supervisor, to
impose that Celadon was liable for the action. Newell testified that Kouidri never indicated he
was her supervisor, and rather did not wear a suit while working.
4. Scope of Duty
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When determining what factors courts are used to assess whether off duty police officers
acted as a private or public actor, the first thing that needs to be looked at is the particular State’s
law in regards to when public duties end and obligations to an employee’s private company
begins. The state of Ohio has an interesting set of laws that allow police officers to act as such
even though off duty and being paid by private employer to perform security for their
organization. This was the case of The State of Ohio v. Underwood. The court determined in this
case that Underwood who was a sworn police officer, was in police uniform, ordered the
shoplifter to stop, and had to call for additional police backup when he didn’t stop. Some other
cases that are considered when determining the status of a police officer’s actions would include:
Duvall and Glover, in which helped the case above in its determination that Officer Underwood
was completely within the scope of his duties in regards to stating he was a police officer and
taking on a police officer role.
However, another aspect that is looked at is whether or not the security guard/ police
officer was acting as a police officer or as a security guard, since you cannot interchange during
an incidence. In the case of Jeffrey Swiecicki et. al., v. Jose Delgato., the court found that
Delgato’s actions were under “color of law” since he acted as a security guard, up until the
person whom he was escorting jerked away and then transferred his role to police officer with
the intent on arresting the person.
With that being, it is also important that off duty police officers not acting as security
personnel also know the scope of their duties. In the case of REGGIE COLES v. THE CITY OF
CHICAGO, the off duty officer identified himself as an officer when someone shouted for the
police, and attempted to help the bouncers of the nightclub as security personnel. The court also
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found that even if the officer did not do all he might have done, they disputed that the facts could
lead jury to conclude that the actions were conducted to protect the city’s interests.
It would be in the best interest of any company looking to hire off duty police officers to
have those considered public actors. This is because if a person is able to be considered as a
public actor, they are not limited to the constraints that a security guard would face if they were
not a sworn law enforcement officer. This also helps the company as well, since the officer
would be able to wear his uniform, carry his weapon, and enforce the law. This also ends the
debate on when the duties of a security guard end and the duties of a police officer begin. The
negative to this, would obviously be, there are going to be a lot of police officers whom will be
acting as security guards outside the law enforcement setting, and there is a potential for abuse of
power (as in any profession), and could lead to the appearance of a completely militarized
society since ensuring that police officer could moonlight (which there are several) would not
allow them to blend in as they do now.
5. Terrorist Activity
Terrorism is a concept that is hitting the United States on a daily basis. With the constant
threat, it isn’t hard to continuously think of the quote “One man’s terrorist, is another man’s
freedom fighter” (2007). It is also something that hits close to me since I have currently
deployed 5 times attempting to defeat terrorists. With that being said, it was interesting to read
how terrorist cases affect us here in the United States. I was really struck by the case: IN THE
MATTER OF WORLD TRADE CENTER BOMBIMG (1994). In this case the court denied the
Port Authorities motion for summary judgment. The fact that security and terrorism experts had
warning from the FBI one month before the bombing of the World Trade Towers. The fact that
the Port Authority made contact with these people and created a “special unit” to deal with the
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threat show that it conflicted with their argument that they did not see the event coming. The
cases that were used in this case were: Todorovich v. Columbia Univ. in which tenants were
attacked in the building vestibule; Rotanee Jewelry Inc. v. Art Jewelry Ctr., Rudel v. National
Jewelry Exch. Co.; Shaefferv. Vera Wang Bridal House; Gross v. Empire State Bldg. Assos.;
Kahane v. Mariott Hotel Corp.; Jacqueline S. by Ludovina S. v City of New York; Nallan; etc.
These cases as well as many others helped with the case of terror that shook the United States for
years and led to the war that began shortly after.
One thing that I have learned is that if there is an idea or intelligence that leads you to
believe that someone is coming to attack you, your best bet is to take the threat seriously even if
just to err on the side of caution. The fact that intelligence showed that something could happen
and it wasn’t taken seriously was just a representation of how we put too much faith in our
security. What I mean by this is, we walk around every day saying that “this will never happen
to us” instead of taking our security more serious. So then when something does happen, we
want to sweep that information under the rug and say “oh my god, we had no idea” and in a mass
causality situation, you really cannot afford to not be taking security more serious.
On the other hand, as we have seen, that not all terrorist activity will be known about.
That doesn’t mean that the right people will not figure out what happened, and bring those
people to justice. I fight for freedom, as well as all the soldiers and airmen who are currently in
the military today. Security professionals do the same thing, just not necessarily in the
government sector, and really need to take their job seriously and keep whatever it is that they
are supposed to be protecting safe.
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Could 9/11 been prevented, maybe, but this needs to be a learning curve to those who
think that things cannot happen in the United States. We need to get off that cloud nine and
show that we take our security and the United States citizens serious.
Conclusion
This was a very interesting class in which I have learned a lot. I love learning about the
law, which makes this class very interesting and a learning experience that I will keep with me
for the rest of my life. I hope that I am able to utilize this in my career in hopes that I am better
suited to be an acceptable and competent security analyst as I migrate from a military lifestyle
back to a civilian lifestyle. Thank you for the very engaging class.
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References
FindLaw. (n.d.). Retrieved from Property Owners' Legal Duty to Prevent Injury:
http://realestate.findlaw.com/owning-a-home/property-owners-legal-duty-to-preventinjury.html
Pastor, J. F. (2007). Security Law and Methods. Amsterdam: Elsevier.
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