When Police Walk the Security Beat

Hiring off-duty police to serve as private security officers creates specific legal exposures for organizations.

By David H. Peck

            During the early evening hours of Saturday, October 15, 1994, Robert Abraham and Dennis Redding began taking clothes off a rack in the men's department of a Macy's store and stuffing them into hags. Their actions triggered a series of events that left one person dead and gave rise to a lawsuit that illustrates many of the legal issues employers face when they hire police officers to moonlight as security officers.

Redding's and Abraham's blatant shoplifting, which occurred at the Cherry Hill Mall, in Cherry Hill, New Jersey, was observed by Macy's security officers. The officers then followed the suspects through the store and out into the parking lot while radioing mall security personnel for assistance. Kimberly Raso, an off-duty Cherry Hill police officer working as a mall security officer, responded to the call.

After exiting the mall, Redding and Abraham separated briefly then met at Abraham's car. As Abraham approached the car, Raso ordered him to stop but was unable to prevent him from enter mg the car. Raso continued toward the car, approaching from the rear, as Abraham started the car and backed abruptly out of the parking space. Raso jumped out of the way as the car backed across the aisle and slammed into a parked car. Abraham then pulled forward and began inching the car up the aisle to ward Raso, despite her repeated commands to stop Raso, whose ability to escape was blocked by cars on both sides of the aisle, began to back up. She also drew her handgun and pointed it at Abraham stating, "Please, please don't make me do this. Just get out. Just shut the car off" Abraham looked directly at her and slammed his foot on the accelerator.

    It is unclear whether Raso was hit by Abraham's car or nearly missed being hit when she jumped to move out of the car's path. But, it is undis­puted that within an instant of the im­pact or near impact, Raso fired one shot at the driver's side window. The window shattered and the bullet struck Abraham's left arm, then pene­trated his chest.

    After regaining her equilibrium, Raso ran after Abraham's car. The car traveled down the aisle, collided with another car, then hit a parking island, a sign, and a tree, where it came to rest with Abraham slumped uncon­scious and dying over the wheel.

    Abraham's widow subsequently filed a multi-count lawsuit against Raso, the Township of Cherry Hill, the mall, and Macy's. The case (Abraham v. Raso, U.S. District Court of New Jersey, 1998) included claims of violation of constitutional rights, assault and battery, and negligent hiring.

Security officers must understand the potential issues that can arise when they also hold police powers.

    Constitutional rights. In the first count of the complaint, Abraham's widow alleged that Raso had violated Section 1983 of the United States Code, which prohibits state officials or other per­sons acting under the authority granted to them by the state from vio­lating a person's constitutional rights. The statute is broad and has been ap­plied in cases involving abortion rights, freedom of speech, school desegrega­tion, race discrimination, and search and seizure. Prevailing plaintiffs can recover a number of remedies includ­ing injunctions, compensatory and punitive damages, and attorney fees.

 Generally, private entities like the Cherry Hill Mall and Macy’s cannot be sued under Section 1983 because they are not state agencies and their em­ployees do not act under color of state law. However, by employing off-duty police officers to act as security officers, businesses can expose themselves to liability under Section 1983.

 Ms. Abraham's Section 1983 claim alleged that Raso violated Abraham's Fourth Amendment right to be free from unreasonable search and seizure by using excessive force. Because Raso was employed as mall security at the time of the shooting, the court had to first decide whether she acted under color of state law. If she did not, then she could not be sued under Section 1983. Similarly, the retail store and the mall would escape liability under the statute.

 Whether a police officer acts under color of state law does not depend on whether the officer is on duty at the time of the incident. Off-duty police officers who either purport to exercise official authority or who exercise ac­tual police authority may be acting under color of state law. If there is a significant relationship between an off-duty officer's conduct and his or her duties as a police officer, then the offi­cer will be found to have acted under color of law.

 As for Raso, the court found that she clearly acted under color of state law. She wore her police uniform at the time of the incident, she responded to a call addressed to off-duty Cherry Hill police officers working as mall se­curity, and she specifically identified herself as a police officer when order­ing Abraham to stop and get out of the car. The court also noted that, like many jurisdictions, the Township of Cherry Hill has an ordinance that re­quires its police officers to enforce the law at all times.

 The court, having determined that she acted under color of state law, was left with the question of whether Raso used excessive force. The court found Abraham's actions amounted to an at­tempted homicide, which, under New Jersey law, justified Raso's use of deadly force. Because Raso did not vi­olate Abraham's constitutional rights, she and the mall prevailed against the Section 1983 claim.

 In a similar case, a police officer and the company that employed him as a security guard were found to have acted under color of state law. In that case, Groom V. Safeway (U.S. District Court for the Western District of Washington, 1997), Safeway hired off-duty Seattle Police Officer Michael Hon to work security in one of its grocery stores. Patricia Groom and a friend were shopping in the store when the manager of the seafood sec­tion noticed that Groom, who did not have a shopping cart, was no longer carrying a bag of prawns that she had just ordered. The manager suspected that Groom had shoplifted the item when, in reality, she had placed the merchandise in her friend's shopping cart. The manager notified Hon, who was wearing his police uniform, about the possible shoplifting.

    Hon approached Groom and asked to look in her purse. When Groom re­fused to allow the search, an alterca­tion ensued, and she was handcuffed and taken to the front of the store. She remained there, sitting on the floor in handcuffs, until her friend showed up with the prawns.

    Groom filed a Section 1983 lawsuit against Safeway claiming that she was subjected to an unreasonable detention and search, because Safeway failed to train the police officers it hired on how to deal with customers. A jury agreed and an appeals court upheld the verdict. The court emphasized that Officer Hon, his uniform, his badge, and his gun were all hired to serve Safeway's goal of deterring theft.

    In effect, Safeway hired Hon to act in his capacity as a police officer in its store and on its behalf, thus cloaking itself with the authority of the state in the court's opinion. The result may have been different if Safeway had in­structed Hon not to wear his uniform or to otherwise invoke his police pow­ers (more on this later).

    In another case, an off-duty police officer serving as a store detective who showed his badge and introduced himself as a police officer while de­taining a suspected shoplifter was deemed to have acted under color of state law as well. Similarly, an off-duty police officer who was moonlighting as a security guard at a McDonald's restaurant was found to have acted under color of state law when he ar­rested a patron who ignored an order to leave the restaurant. The officer's marked squad car was parked outside the restaurant. He wore his police uni­form, and he charged the individual with resisting a peace officer.

    Not every off-duty police officer will be considered as acting under color of law simply because he or she is serving in a security position. For example, the courts ruled that a part-time campus security officer who was also a part-time police officer did not act under color of state law in re­questing students to appear at a college administrative hearing; it was clear he acted in his capacity as a campus se­curity officer. Similarly, an off-duty deputy working security at a racetrack was found not to have been acting under color of state law when he ejected a patron on instructions from the racetrack owner, because he was simply following his employer's directive, not making an independent judg­ment as a police officer.

Whether a police officer acts under color of state law does not depend on whether he or she is on duty

            As these cases illustrate, liability under Section 1983 will only arise if the officer is identified as a police offi­cer or otherwise invokes his police powers and if that officer then exercises police powers in a way that violates a suspect’s constitutional rights. Of course, the company might, to avoid charges that the officer acted under color of law, insist that any off-duty police not wear police uniforms and not otherwise identify themselves as police while on the job. Such in­structions may, however, create their own problems. For example, they could unduly restrict the officer's abil­ity to assert certain legal defenses, such as the qualified privilege to use deadly force. In addition, they could conflict with the officer's duties under state law or department regulations.

    But a more important key to reduc­ing the risk of liability under Section 1983 is training. All security officers, whether or not they also hold police powers, must be educated with respect to the legal parameters of their con­duct when detaining suspects, con­ducting searches, and otherwise per­forming their job. Liability only arises when the officer's actions fall outside these parameters.

Assault and battery. The risk of a Sec­tion 1983 lawsuit alone may not be enough to justify a policy against hir­ing off-duty police officers to work as security officers. An employer may decide that the risk is outweighed by the advantages. One advantage is that off-duty officers have a qualified privilege to use force and make arrests.

    In the case involving Raso and Abraham, for example, the complaint was not limited to a Section 1983 ac­tion. The widow also sued the mall, Macy's, and Raso for assault and bat­tery. However, as a police officer, Raso enjoyed a qualified privilege protecting her against this charge while conduct­ing a lawful arrest, with the privilege subject to being negated by the use of excessive force. Because the court had already ruled that Raso did not use excessive force, her assault and battery on Abraham was not unlawful, and Raso once again prevailed.

    The assault and battery claim against the mall and Macy's was premised on vicarious liability.  This is a legal doctrine that holds an employer liable for any actions committed by its employees while acting within the scope of their employment. Although the parties disputed whether Raso was acting within the scope of her mall employment, the court found it to be irrelevant because as a police officer, she was authorized to use deadly force.

   Since Raso had not committed a tort, there was nothing for which the mall or Macy’s could be held liable. Thus, Raso’s privilege to use deadly force, combined with the reasonableness of her actions, prevented the mall from being held vicariously liable for assault and battery.

Negligent hiring. The third count of Abraham’s complaint accused the mall and Macy’s of negligently hiring Raso. According to the widow Abraham, the defendants were negligent because Raso had been the subject of several citizen complaints alleging improper conduct, including assault and battery. In fact, Raso’s authorized secondary employment hours had been limited in early 1991 due to concerns about stress and fatigue. At the time of the shooting, Raso was also receiving treatment for depression and anxiety and was taking prescribed medication.

To prevail on her negligent hiring claim, Abraham was required under the law to show that the mall and Macy's knew or had reason to know of Raso's alleged unfitness or danger­ous attributes and that they could rea­sonably have foreseen that such quali­ties created a risk of harm to other persons. Abraham also had to prove that her husband's death was the di­rect result of the defendants' negli­gence in hiring Raso.

The court again ruled for the defense, finding that Raso's use of deadly force was reasonable and that the proximate cause of Abraham's death was his criminal conduct, not any foreseeable misconduct by Raso. The court also determined that it was rea­sonable for the mall to rely on the po­lice department's active employment of Raso and its approval of her sec­ondary work hours to perform secu­rity work as an indication of her fit­ness for the position.

    It should be noted, however, that not all courts would necessarily agree. Some judges or juries might find that the mall could not rely on the police department's assessment of Raso's fit­ness for duty. In one case, for example, an individual sued the owner of a laundromat for negligently hiring an employee who severely beat her while she was a patron of the Laundromat. The employee was hired from a state- licensed treatment center as part of a program to help juveniles return to the community. The court held that the employer could be held liable for negligence in relying on the screening techniques and judgments of the professionals at the treatment center. The same result could apply to a company that relied on a police department’s assessment of an officer’s fitness for duty when hiring the officer for private security work.

To avoid negligently hiring an unfit police officer, an employer should, at a minimum, familiarize itself with the police department’s screening criteria and policies to determine they are reasonable. Conducting an independent background check may also be advisable.

An employer must be careful not to assume too much about the quality an officer's training or its applicability to security work. Training varies widely from department to department, and the sometimes divergent roles served by police and security mat require different skills. Police officers hired for security positions should be required to undergo the same training as all others who are hired for the same position.

Miranda. In addition to the issues raised in the Abraham case, there are other legal issues that can arise when off-duty police officers are employed as security officers. One such issue is whether the off-duty police officer must issue a Miranda warning when working as a security officer.

     As a general rule, security officers are not required to issue Miranda warnings, but the courts may take a different position when the individual is also an off-duty police officer. In Wilson v. O'Leary (Seventh Circuit Court of Appeals, 1990), an off-duty deputy sheriff named Allen Hudson accompanied a rape victim, the vic­tim's husband, and several other friends to a bar in search of the rapist. In the bar, the victim identified an in­dividual named Wilson as one of the rapists. Hudson pulled his gun, flashed his badge, and told Wilson to step outside with them.

    Once outside, Wilson was sur­rounded by his accusers, who interro­gated him while Hudson stood nearby. Though Wilson repeatedly denied his involvement in the attack, which was carried out by two individuals, he identified the other attacker. At trial, both Wilson and his accomplice were convicted of rape.

     On appeal, Wilson argued that his statements should be excluded from evidence because he was not issued a Miranda warning. The court agreed, holding that Hudson acted under color of law when he flashed his badge and gun and ordered Wilson outside. The court stated that the police may not avoid Miranda by delegating the ques­tioning to individuals who do not hold law enforcement powers. Al­though Hudson was not employed as a security officer at the time of the in­cident, the same legal analysis would apply if he had been so employed.

The presence of an off-duty police officer may adversely affect the admis­sibility of incriminating statements if the Miranda warning is not issued. Of­ficers must understand the legal re­quirements concerning when, despite their off-duty status, they must issue a Miranda warning or otherwise com­ply with constitutional limitations on their conduct.

Searches. The question regarding the importance of issuing Miranda rights is actually part of a larger issue concern­ing the extent to which the presence of an off-duty officer may affect the admissibility of evidence obtained dur­ing a search. A search conducted by a private party does not violate the Fourth Amendment right against un­reasonable search and seizure, because the amendment only applies to gov­ernment agents. If however, a private party acts as an instrument or agent of the state when conducting a search or seizure, then the Fourth Amendment is applicable.

A private party is considered an agent of the government if the govern­ment knew of and acquiesced in the intrusive conduct and the party per­forming the search intended to assist law enforcement. This is true whether the actor is an off-duty police officer or a security officer.

For example, a motel manager who searched for evidence of drug activity while a police officer stood nearby and a citizen who searched a home while a detective waited a block away both acted as agents of the police. However, an off-duty police officer did not act as a government agent when he searched a suspicious package in the course of his secondary employment with Fed­eral Express. The officer did not hold his Federal Express position due to his police status, and he carefully separated the two jobs. Also, the police depart­ment had no knowledge of the search.

Once again, training is the key to avoiding these problems. Security offi­cers must understand the issues that can arise when one or more fellow of­ficers hold police powers. They can then better avoid situations that might result in the inadmissibility of evidence or other problems.

Employing off-duty police officers in a security capacity raises unique legal issues. While an employer may benefit from an officer's training, ex­perience, and the privileges associated with holding police powers, the em­ployer also exposes itself to additional liability. Being aware of these legal is­sues will help both the officer and the employer avoid the potential pitfalls of their employment relationship.

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David H. Peck is an attorney with Taft, Stet­tinius & Hollister LLP of Cincinnati, Ohio. He is a former retail loss prevention manager and is a member of ASIS.