Civil Liability of Security Personnel and Moonlighting

Introduction: Private Security and Civil Liability

Current statistics reveal that private security personnel are twice the number of public law enforcers (Moore, 1987). Of utmost consideration is that these private security personnel are authorized to protect the lives and property of customers. They need to recognize the magnitude of this responsibility, and without adequate training, that recognition is hardly possible. They are not law enforcers or peace officers who fall under the same rules and regulations imposed on, and followed by, public police (Moore).

Sadly, most private security officers have little or no qualified training, yet they often respond to situations with unreasonable or excessive force (Moore, 1987). While public police officers enjoy some constitutional protections, private security personnel can be subject to civil action for undue acts. Civil action can require them to compensate their victims for inconvenience or harm. Firms and the personnel they employ must temper their investigations with reason; otherwise, both can be held liable for their actions. Civil liability suits can be lodged against them for improper or excessively aggressive conduct (Moore).

Moonlighting as a Serious Civil Liability Risk

Public law enforcers are permitted to pursue additional income beyond their routine work hours through employment outside of law enforcement (Scarry, 2007). They may accept positions as security personnel at banks, retail stores, private residences, and events such as concerts and sporting activities. These secondary jobs are often pursued to meet additional financial needs or to pay debts. However, accepting a second job as a security employee carries significant risk.

The security officer and a secondary employer may enter into an informal or verbal agreement, whereby the employer agrees to pay the officer a specified amount for a specific number of hours of work. Quite often, however, there is no clear description of who should bear responsibility in cases of a civil suit arising from an unlawful action or inaction by the officer. The civil liability concern is compounded when the officer's primary agency is unaware of the secondary employment. A host of questions requires clear answers regarding civil liability for security personnel engaged in moonlighting (Scarry, 2007).

The Color of Law Doctrine

Civil liability may be brought against police officers for violations of 42 U.S.C. § 1983 and/or a relevant state law (Scarry, 2007). A police officer must be found to have acted under the "color of law" in order to be civilly liable under this statute. Most lawsuits in this area involve secondary employment situations. An officer is presumed to have acted under the color of law if he or she acted in an official capacity or while exercising responsibilities as defined by state law. Notably, not every action taken by a state official or employee qualifies as action performed under color of law.

In determining whether a violation has occurred under this standard, the officer should first consult applicable state statutes. Some state statutes impose a duty to act even when an officer is off-duty. If no such state law exists, the court must interpret the statute's requirements as applied to the officer's specific conduct. Crucially, the basis for this determination is not whether the officer was on or off-duty at the time, or whether he or she was in uniform. The basis is the nature of the conduct itself (Scarry, 2007).

Courts generally consider five factors when determining whether conduct falls under the color of law. The first is the existence of a departmental policy requiring officers to remain on duty at all times. The second is whether the officer wore a badge issued by his or her department. The third is whether the officer identified himself or herself as a police officer. The fourth is whether the officer carried or used a weapon issued by the department. The fifth is whether the officer placed the individual under arrest. Courts carefully seek out and examine these details in each case (Scarry, 2007).