It is not uncommon for private security officers to act too aggressively and injure someone in the process of doing their job. When excessive force is used, even where the use of some force was lawful, the injured victim may be entitled to compensation. On the other end of the spectrum, is the situation in which security personnel do not fulfill their duty to protect others in the business they were employed to protect. When someone is injured on business property (such as a bar or restaurant) by a third-party assault, there may be a negligence cause of action against the business for the inaction of their security staff.
Excessive Security Force Claims
Under California law, a private person (including a security officer) can arrest someone for a public offense committed or attempted in their presence. They can also arrest someone who has committed a felony although not in their presence. That felony has to have actually been committed, and the security officer must have reasonable cause for believing the person arrested committed the offense. In addition to this general rule, retailers and their security staff have additional rights to stop and arrest people for shoplifting when they have “probable cause to believe the person detained was attempting to unlawfully take or has taken any item from the premises”. California Penal Code Section 490.5.
One thing common to all of these laws is that the actions of the security staff must be “reasonable” in terms of the amount of force used to apprehend and detain the subject. When someone commits a crime, their right to be free from unnecessary force or violence still remains. California Civil Code Section 43. What force is reasonable under the circumstances of an arrest or detention is something that always depends on the particular facts of the case. For example, when a subject is being taken into custody but passively resists (by not complying with instructions) they cannot lawfully be struck in the face with a closed fist. Such force would be excessive and maybe even criminal. Likewise, even someone who physically resists arrest without a weapon cannot be beaten into submission with a baton or club with strikes to the face and head. The use of potentially deadly force in that scenario would likewise be excessive.
When the force exceeds the limits of what was reasonable the person injured may bring a claim against the security employees and their employer for assault, battery, false imprisonment, and certain statutory violations. Compensation may include recovery for pain and suffering, medical expenses, lost income and perhaps punitive damages.
Security Neglect – Failure to Protect
In general, a business owner or one in control of property has a duty to “use reasonable care to protect their guests from another person’s harmful conduct on their property if the owner can reasonably anticipate such conduct.” California Civil Jury Instructions, No. 1005. Perhaps the most important issues in these cases are whether the harmful conduct could be anticipated and whether there was time to intervene in some fashion. To prove the owner and/or their security staff could anticipate an attack was about to occur, there likely has to be some conflict that precedes the actual assault.
For example, in one case handled by this office, a family was seated at a table inside of a restaurant for the father’s birthday celebration. At an adjacent table a group of four younger people, who had been drinking, were seated. One of the male patrons made some unappreciated comments about the family, and a verbal confrontation followed. At least two restaurant employees observed the argument. The younger group was asked to leave. In the process of walking out, one of the men rushed back past an employee and toward the family before striking his victim in the face. The unruly group then resumed leaving, only to wait out in the parking lot for another opportunity to attack the father. The attacker rushed back into the rear patio area of the restaurant and assaulted the victim a second time. The case against the restaurant for not protecting their guest was eventually settled after a lawsuit was filed.
Not every assault happening on business property is the responsibility of the business owner or their security staff. In the example above, had it not been for the first assault that occurred in the presence of restaurant employees, it would have been vey difficult to prove the restaurant staff was aware there would be a second, more serious attack. In addition to a specific warning about an imminent assault, it is sometimes sufficient to prove the business was the site of many earlier assaults, and no security staff was either provided or they were not managed carefully, allowing for the subject attack to occur. Evidence of prior calls for service to the police can often assist in proving such a case.
Contact a Security Misconduct Attorney
If you believe you have been the victim of excessive force or neglect by security and were injured as a result, contacting an Orange personal injury attorney may be the best, first step toward getting compensation for the injuries and damages sustained. Mr. Ralph has nearly thirty years of experience successfully handling security misconduct claims, and he can be reached at the number below for a free consultation.Tags: orange injury attorney, security misconduct attorney, failure to protect claims, security misconduct law, police and security misconduct