us legal aspects

8/7/2019 US Legal Aspects

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May 11, 2007 1

US Legal Aspects Part I

Caterpillar Corporate Security


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May 11, 2007 2

References

j Handbook of Loss Prevention and Prevention

j Introduction to Security

j Protection of Assets Manual

chapters 16, 20, and 21

j Security and Loss Prevention; An Introduction


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May 11, 2007 3

Basic Aspects

jCriminal Law is found in USC title 18

jStatutory law is legislated

jCommon law represents Mala in Se


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May 11, 2007 4

Contract Liability

jBetween 2 or more persons

An Agreement

To do or not to do something Obligation flow to each party

Must have legal capacity to contract

Contract must be legal


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May 11, 2007 5

Contracts are

jEnforced by a court

jPertinent to private security in that

Provider may be liable Provider hire employees by contract


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May 11, 2007 6

Express Contract

jAgreement uttered or declared

jBy the parties involved

jAt the time the contract is made


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May 11, 2007 7

Implied Contract

jNot created

jNot evidenced

jNo explicit agreementj Inferred by law


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May 11, 2007 8

Price

jValue stated in the contract

jReasonable value is

Value of goods Value of services

Or determined by court or arbitrator


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May 11, 2007 9

Written Agreements

j Time Bar

jAre not complete agreements

Unless stated sojOral agreements not inconsistent with

contract

May be considered binding


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May 11, 2007 10

Warranties

jA statement that

Goods or services are as described

jA person can collect damages to the extentof injury

jCan limit itself


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May 11, 2007 11

Torts (Civil Wrongs)

jWillful or negligent

jNo agreement required

jOperates to: Compensate

As deterrent

Evidence of disapproval


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May 11, 2007 12

Basic Elements of Tort

jAn Act

jAn Omission

jThat brought about an intended resultjNegligence

A failure to exercise reasonable or ordinary

care Higher standards when professionals are

involved


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May 11, 2007 13

Tort Examples

jBattery

jAssault

jFalse ImprisonmentjTrespass

jFraud

jDefamationj Invasion of privacy


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Injured Party Must Prove

jFeasor acted negligently

jThe negligent act was the cause of loss or

injuryjGross Negligence

Greater lack of concern

Punitive damages available


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May 11, 2007 15

Agency Relationship

jOne party acts for another

jAn agency can be

An express appointment Ratification of actions

Permitting one to act with authority


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May 11, 2007 16

Respondeat Superior

jThe master is responsible for the actions of

his servant while the servant is acting on the

masters behalf

j Is common law matter


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May 11, 2007 17

The Right of Control

j Is the test between the master and servant

relation (co-employment)

j

Proprietary security are servantsjContract are servants of providing company

jThe distinction is how the work is done

Companys way Providers way


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May 11, 2007 18

The Right of Control

Proprietary officers are servant of the company

Contract officers are employees of the

supplying agency therefore not consider

servants of the employing organization


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May 11, 2007 19

Liability Under Contract

j Is is officer acting within scope of

employment

j

Was act wrongfuljWas officer employed to perform act

jWithin time and space limits

jMotivation by Desire to serve


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May 11, 2007 20

Hands Off Contract

jMight avoid liability

jNon-delegable duty

Some acts cannot be delegated Courts can find negligence in hiring or exercise

in lack of control


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May 11, 2007 21

Vicarious Liability

j Indirect legal responsibility

jCan avoid with independent contractor on

part of tort feasor is establishedjLiability of employer for employee if:

Employee acting within scope of work

Acting within scope when injury occurred


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May 11, 2007 22

Employer Liability

j If contracted work is wrongful

jWork is public nuisance

jWork is inherently dangerousjAct of independent contractor

Violates duty imposed by contract

Violates statutory duty


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May 11, 2007 23

Strict Liability

jHeld when business conducted is ultra-

hazardous or abnormally dangerous

j

Statutes hold employer for all acts of itsemployee


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May 11, 2007 24

Remedies to Tort Actions

jFile injunction to prohibit act

jOr imposition of

Special damages to amount General damages to injury

Punitive damages to compensate for behavior


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May 11, 2007 25

Premise Liability

jFor failure to provide reasonable security

jWhen an invitee is injured by a criminal act

j

And if act occurred on premisesjApplies to

Duty

Foreseeability

Totality of circumstances Breach of duty

Causation


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May 11, 2007 26

Remedies

jEnforcing rights and redressing wrongs

Injunctions to prohibit continuance

Special damages (medical bills) General damages (pain and suffering)

Punitive damages (compensate)

Statutory damages (required by statute)


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May 11, 2007 27

Criminal Law

US Legal Aspects


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May 11, 2007 28

Crime

jA prohibited act

jOr omission

j Is a threat to public welfarejCriminal or civil wrong is determined by

legislation

Federal criminal law is USC title 18


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May 11, 2007 29

Stare Decisis

jThe law of precedence

jOne case will apply to all latter cases with

similar factsjWhen a court has

Made prior decision

Has a set of facts


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May 11, 2007 30

Classification of Crime

jFelony (5 classes of felonies exceed 1 year

in prison)

j

Misdemeanor (Class A, B, and C)j Infraction (penalty is 5 days or less)

jMala in se (bad in them selves Murder)

jMala Prohibita (crimes by statutes)


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Crime Terms

jCorpus Delicti (body of the crime)

j Jurisdiction (geographical area)

jVenue (place crime was committed)jDouble Jeopardy (prosecuted for same

crime)

jDue Process (notice and chance to defend)


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Prosecution Must Prove

jA legally forbidden harm

jThe act caused harm

jThe accused is a particular individual


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Corpus Delicti

jConsists of

Mens Rea - intent

Actus Rea - action

The coming together of act and intent


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May 11, 2007 34

Criminal Act

jAn affirmative act or omission

jA cause and effect relationship between act

and accused proximate cause of injuryjCan be committed by

The offenders hand

Through an inanimate agency

Through an innocent human agent

Through a non-human agency


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May 11, 2007 35

Proximate Cause

jA direct cause

jAccuses set in motion events that caused

harm but for testjAccused place victim in circumstance

jMotive is not essential

jRequires simultaneous act and intent Intent must be clearly abandoned before act


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May 11, 2007 36

Transferred Intent

j Intends one crime but accomplishes another

jCriminal intent is present by Transfer

j I.e. Robbery to assault

jOnly need Mens Rea general intent to

commit a crime


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May 11, 2007 37

Recklessness vs. Negligence

jRecklessness is a wrongful state of mind

jTo reasonable man test

jNegligence has 4 elements A standard of care

A breach of this standard

Proximate cause

Harm or injury


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May 11, 2007 38

Criminal Negligence

jOften called gross or culpable negligence

jCan render an actor liable civilly or

criminally

jMala Prohibita - wrong by statute and

require no proof of intent (speeding)


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May 11, 2007 39

Defense

jAlibi physical impossibility

jMistake of fact- break law in good faith

jEntrapment- inducing a person to commit a

crime


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May 11, 2007 40

Laws of Arrest

Legal Aspects


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4th Amendment

jProtection from unreasonable search and

seizure of property or persons


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Arrest Elements

j Intention to effect an arrest

jThe active seizure or detention of a person

jCommunication of intentjUnderstanding by the person


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May 11, 2007 43

Arrest Authority

jWith Warrant

Probable cause with judiciary

Protects officer from civil liability

A warrant is the arrest of a person

Summons is a direction to appear


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May 11, 2007 44

Arrest Authority

jPrivate citizen in aid of LE

jPrivate citizen is same as LE

jPrivate citizen is protected from liabilityeven if LE was acting illegally


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May 11, 2007 45

Arrest w/o Warrant

jLE must articulate reasonable cause

jPrivate Citizens can arrest if offence is

In their presence A felony not in their presence


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May 11, 2007 46

Use of Force

jReasonable force is the least amount offorce necessary

jReasonable force is allowable in:

Self-defense

Defense of others or the offender

Defense of property or premise

Correction of minor child or incompetent Prevention of escape

Force must stop when resistance stops


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May 11, 2007 47

Deadly Force

jOnly when like force is threatened

jWhen deadly force is imminent


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May 11, 2007 48

Defense of Property or Premise

jMust articulate criminal trespass

jMust be in reasonable charge of premise

jUse amount of force necessary reasonablejFatal force generally not authorized


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Search and Seizure w/ Warrant

jSearch warrant is an order by a judge

jSearch warrant extend to all reasonable

parts of the premisejExclusionary rule

j Tainted fruit of the poisonous tree


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May 11, 2007 50

Search and seizure w/o Warrant

jBased on precedence not 4th amendment

jSearch incidental to arrest

jTo protect officerjAvoid destruction of evidence

jArea of search is limited

jWith consent of owner/accusedj Plain view doctrine


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May 11, 2007 51

Confessions and Admissions

jConfession is statement acknowledging

guilt.

jAdmission is a statement in which facts are

admitted to but does admit to crime.


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May 11, 2007 52

Miranda v Arizona 1966

jRight to remain silent

jAnything said can be used against them

jRight to a lawyerjLawyer will be appointed

jAdmission to private citizen is admissible

without warningsjFree and voluntary test


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May 11, 2007 53

Legal Aspects of Private Security

jConstitution applies to government not

private citizens

j

Private Security powers can equal Private citizen

Authority by deputization

By statute or regulation


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May 11, 2007 54

Private Security Arrest

jPowers same as private citizen

jStatutes may grant powers similar to police

jMerchants may have right to arrest anddetain

jLegally detained person may be

interrogated

jPrivate Security Not required to Mirandize


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May 11, 2007 55

Private Security Search

jSame as private citizen

j 4th Amendment does not apply

jEvidence discovered is admissiblejLaw not clear, policies and contracts dictate


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May 11, 2007 56

Violations Significant to Security

j Larceny

j Embezzlement

j False pretense

j Receiving stolen property

j Robbery

j Burglary

j Forgery

j Uttering (Check floating)

j False imprisonment

j Perjury

j Misprison of a felony

j Trespass of real property


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May 11, 2007 57

Key Points of Criminal

Proceduresj Arrestee brought before a magistrate withoutunnecessary delay.

j Preliminary hearing is to determine Probable

Cause.j Indictment from Grand jury.

j Information from prosecuting attorney.

j Defendant can plea.

Not Guilty. Guilty.

Nolo Contende.


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May 11, 2007 58

End of Part 1

jTactful interrogative sentences or phases for

exposition of dubious, factitious or

ambiguous points set forth as objectively

real is determined by the evidence set forth

in the 12th edition of the CPP study guide

will not be deliberated.

j In short, serendipity suprimere has beeninvoked.


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May 11, 2007 59

Legal Aspects Part II

Caterpillar Corporate Security


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May 11, 2007 60

Eavesdropping

jEavesdropping is knowingly and without

lawful authority to listen to private

conversation.

jWiretapping- interception of a

communication circuit.

jBugging is interception of a communication

using an electronic device.


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Not Prohibited by Federal Law

jCommunication Company in course of

business.

jBy party of or consent of party

communicating.

jOrder of FISO Court.

jReadily available communication.

jBy law after judicial review.


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May 11, 2007 63

Stored Communication

jUnlawful access or alter communication in

electronic storage.

jPenalties are higher for tampering.

jCordless and Cellular Phones.

Illegal to intercept.


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Key Federal Agencies in

Investigationsj The Department of Homeland Securityhas five major directorates:

1. Border and Transportation

2. Emergency Preparedness

3. Science and Technology

4. Information Analysis5. Infrastructure Protection and Management


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May 11, 2007 65

Department Of Justice

j Headed by Attorney General of United

States responsible for over 40

organizations. Key organizations are;

1. FBI

2. U.S. Marshal Service

3. BATF

4. DEA


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May 11, 2007 66

Federal Highway Administration

jFHA has regulatory jurisdiction over safety

and performance of commercial motor

carriers interstate commerce.

Highway Safety Act.

Interstate Commerce Act.

Explosive an Dangerous Articles Act.


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May 11, 2007 67

Floods and Weather

jU.S. Army Corps of Engineers responsible

for flood control planning.

jNational Oceanic and Atmospheric

Administration is responsible for situation

reports on flooding.

jNational Weather Service is responsible for

severe weather advisories.


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Key State and Local Agenciesj State Policej Department of Motor Vehicles

j Bureau of Vital Statistics

j County farm Agent

j County Assessor

j Board of Elections

j Licensing Authorities

j Board of Educationj Municipal Fire Department

j State parole and probation Board

j Department of State


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Key State and Local Agencies

jMunicipal, County and State Courts

Records concerning civil, criminal, juvenile

equity and probate Divorce records

Citizenship matters

Records of legal change of names


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May 11, 2007 70

Key State and Local Agencies

jLocal Police and County Sheriff

Arrest Records

Identification Records

Missing persons

Lost and stolen articles indexes

Accident reports Gun Permits


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May 11, 2007 71

Administrative law


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Basic Concepts

jAdministrative agencies affect private rightsby:

Rule-making

Licensing Investigation

Prosecution

Informal action

When under appropriate statue agency rules haveforce of law.


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Enabling Statues

jEnabling statues describe agency structure

and powers. Generally agencies have quasi-

judicial power in that they:

Make rules and regulation

Issue citations

Hold hearings

Assess penalties


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Fair Credit Reporting Act

j Regulates mercantile, insurance and employmentinvestigations

j Consumer reporting agency

j Investigative Consumer Reportsj Need written notice of investigation

j Describe nature and scope investigation

j Internal staff report not a consumer report

j Routine investigation does require notice

j Adverse action occurs written rights presented


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Statutory Civil Rights

jThe Civil Rights Act prohibitsdiscrimination in any adverse to anemployee or employment applicant based

on: race,

creed,

sex

religion

national origin.


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Griggs V Duke Power Company

jDetermine that any test, standard, job

requirement or screening device and or

policy must be shown necessary for the

successful accomplishment of the job.

jThese requirements must be stated in

specific terms.


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May 11, 2007 77

Gregory v Litton

jRejection of prior arrest is disallowed.

No questions may be asked of previous arrest

A question may be asked to prior convictions

Applicant cannot be rejected solely on prior

convictions. The whole man rule must be

applied.

E l E l O i


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Equal Employment Opportunity

CommissionjEEOC acts on complaints or can initiatecharges on the civil rights act covers.

jAge Discrimination in Employment act of

1967 prohibits against discrimination for a

job for those over 40 years of age.

jThe Equal pay Act of 1963 requires

employees to receive equal pay for equalwork regardless of sex.


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Labor Relations Laws

j National Labor Relations Act (Wagner Act) rightto organize.

j Unfair Labor practices.

Interfering with employee rights Interfering with organization

Discouraging membership

Discharging NLRA complainers

Refusing to bargain

Basic test is unfair labor practiceprohibited by NLRA


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NLRA Ground Rules

jDistribution of literature at parking lots andlunch is lawful

jManagement may not attend Union

meetingsjUndercover operations against union

unlawful

j

Cant list union membership in reportsjSecurity actions are employer actions

jClear reason for security operations


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Just Cause Discharge

j Incidents are serous

j Infractions serious misconduct

j

Disciplined person was responsiblej Incident was known to be serious

jViolation known to be misconduct


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Arbitration

jArbitration is governed by the labor

contract. Includes

Decision enforceable

Compelling evidence by subpoena

Facts found by arbitrator nor review by courts

Arbitrator admit what both parties offer for

evidence.

S it i NLRA Di i li


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Security in NLRA Discipline

Casesj Security personnel must act reasonably

j Statements must be voluntary

j Evidence taken must meet reasonable expectation

of privacy

j Surveillance must meet reasonable expectation of

privacy

j

Polygraph not unfair labor practicej Weingarten rule, union representative present


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Appropriate Bargaining Unit

jExcludes supervisors and managers

jExcludes craft or professional workers

j

Consist of two workersjCant mix guards and non-guards

jPast practices are regular and recurring

ways of doing things not in the unioncontract.


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Past Prior Benefit Clause

jUnion contract insures that any condition of

employment existing at the time of the

contract cannot be changed by management

to condition less beneficial to workers.


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May 11, 2007 86

Labor Management Relations Act

jTaft-Hartley Act forbids unions from:

Restraining or coercing employees

Discriminate against employees

Refusing to bargain

Secondary boycotting

Charging excessive fees

Featherbedding

L b M t R ti


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May 11, 2007 87

Labor Management Reporting

and Disclosure ActjLandrum-Griffin Act safeguards and

restriction on union officers and

management conduct regarding their

members.

jForbids Hot Cargo

jForbids making deals at expense of

members or business


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Strikes

jEconomic

most frequent

jUnfair Labor Practice

Permit little to prepare

Employees must be allowed to return to work

Strike to for discontinuance of alleged violation


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Security during a Strike

jLessen Violence

jAdequately deal with violence

j

Prevent death or serious injuryjMaintain Order

jPreserve integrity of worksite


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Security Strike Operations Plan

jThe Security strike operations plane should

be a comprehensive statement of all

policies, procedures, and activities for a

strike Plan is made available to supervisor and higher

Shot have sensitive info

Have fewest entry points in facility Policy for arrest during a strike


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Security and Unlawful Labor


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Security and Unlawful Labor

PracticesjSecurity activities that could be basis of

unlawful labor practices

Handling access control.

Handling distribution of union literature on

property.

Investigations of employee activities.

Occupational Safety and Health


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Occupational Safety and Health

Act (OSHA)j Williams-Steiger Act 1970.

j Department of labor enforces it.

j Covers all industry except mining.

j Provides of safe and healthy work conditions.

j Cover businesses with more than 10 employees.

j Require record on all work related deaths injuries

and illness.


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Priorities for Inspection

jCatastrophes resulting in death or 3 or more

hospitalized

jEmployee Complaints

jHigh injury or health hazards

jRoutine random Inspections


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OSHA Inspections

jMarshall v Barlow requires OSHA to have a

warrant for inspection.

jProbable cause not required if routine

jCan request a shutdown for imminent

danger.

jCitation issued to employer not employee.


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May 11, 2007 97

OSHA Citations

j Imminent danger

jSerious Violation

j

Non serious ViolationjDe Minisi Violation

jWillful Violation

j

Repeated Violation


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Security and the Disabled

j Americans with Disabilities Act (ADA)

j Cover employers with 15 or more employees.

j Cant discriminate against qualified disable

candidate.j Must provide reasonable accommodations.

j Not covered by the Act

Transvestites Current illegal drug user

Homosexuals


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Federal Sentencing Guidelines

j 1987 Individual sentencing guidelines forcertain crimes

j 1991 organization guidelines for

Antitrust violations Money laundering

Fraud

ERISA

Securities violations

Environmental law


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Deterrence and Fines

jFines are to make restitution to injured

parties

jFines not tax deductible

jBaseline fines is the greater of:

Pre-tax gain

Loss of any injured party

From $5,000 to $72,000 for each fine.

Determining Culpability


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Determining Culpability

jEvery business starts with a score of 5 anddepending on aggravating or mitigating

move from 0 to 10

jAggravating factors that penalize a firmsare management disregards, condones or

covers up criminal conduct.

jMitigating factors encourage firms to deter

or report criminal conduct.


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Effective Compliance Program

1. Establish compliance standards

2. Senior management oversees compliance

3. Communication of standards

4. Auditing of compliance system

5. Discretionary authority

6. Disciplinary procedures7. Prevention program


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