Police departments are slowly starting to change their views as well. They are reevaluating their need for continuums, and some are moving away from them in their policies and training.
FLETC stopped using its color-coded continuum charts and graphs in 2005. Since that time, the training center has based its force policy and programs on Graham. Florida and Wyoming law enforcement training academies have eliminated continuums, as has the San Jose Police Department, one of the most progressive and training-oriented law enforcement agencies in the country. The FBI has also encouraged the elimination of force continuums from police policies.
The private sector should make a similar shift with regard to use-of-force policies, training, and legal defenses. Already, since the Graham decision was handed down, many states have passed reasonableness statutes that adopt the language of the court precedent and extend its application beyond police. In Nevada, for example, security officers have the authority to detain individuals “in a reasonable manner, for a reasonable length of time” in cases of gaming violations and shoplifting. Connecticut has specific statutes that address the use of force by private citizens, including security personnel, and these statutes clearly and consistently use reasonableness as the standard for acceptable use of force.
Security providers or internal security departments must always keep in mind that their officers are ordinary citizens (unless they happen also to be sworn police officers). This fact has implications both in terms of what laws apply to them and in terms of how their actions will be viewed by the courts.
Though security officers occupy a pseudo law enforcement position, they have few of the protections afforded the police, such as qualified immunity, in the performance of their security duties, which can involve detention, arrest, and the use of force. Security officers may make a citizen’s arrest, an arrest by statute, or a detention by statute, depending on state law.
Security officers are in a difficult position. While they are typically viewed by the courts not as members of law enforcement but as private citizens, if they use force, the courts may hold them to the same reasonableness standard as they hold police. Thus, companies may simply want to remove force as an option. Where that is not considered appropriate, they should make sure to train to the reasonableness standard, not the force continuum standard.
This should also be true for how incidents are reported. When security officers write up reports, they are sometimes taught to explain their actions in terms of the police force continuum. A security officer’s report will often say, “I used the minimal (or just enough) force necessary to effect the arrest.”
The problem with this language is that there is no legal standard that references the use of minimal force. The legal precedent refers only to the use of reasonable force, as already discussed.
An organization can also get into legal trouble if it gives officers inappropriate guidance with regard to when detention and arrest are appropriate. For example, I have seen companies incorporate security officer protocol verbiage such as: “a person can be handcuffed for: a misdemeanor committed in the security officer’s presence; probable cause for a felony; probable cause for shoplifting; and when the security officer feels a person may be a danger or threat to the officer or another person.” The first three examples are usually fine. However, the last one has no basis in the law and can be viewed as false arrest and detention.
Security should be aware that standards for arrest are different from standards for use of force. Any force used by a security officer to arrest or detain a subject based on the officer’s feeling that the person may be a threat is often claimed to be excessive because there is no authority for the arrest or detention.
The bottom line is that all companies employing security officers—whether contract or in-house and whatever the industry—need to train those officers on the standard of reasonableness in the use of force as set out in the Graham decision and on state-mandated arrest and detention laws.
Graham clearly outlines what can be a simplified policy: Reasonable force is based on the totality of the circumstances at the time the force was used. This is short and to the point, and it will make it easier to teach officers about force and easierto investigate force deployment.
Tommy J. Burns, CPP, owns Burns & Associates, Inc., a security and police consulting firm. He also consults as the privacy officer for the Southern Nevada Counter-terrorism Center. Burns was previously employed as security director for several hotel casinos in Las Vegas and worked in law enforcement for 25 years, retiring in 1999 as chief of police for the Henderson (Nevada) Police Department. Burns is a lead faculty instructor in criminal justice and security for the University of Phoenix. He is a member of the ASIS International Gaming and Wagering Protection Council.