All alleged miscreants are innocent until proven GUILTY in a court of law.
If a suspected shoplifter were to ignore the demands of a store security person in Texas there is relatively little under Texas law the he or she can do, beyond what a private person is able to do under Texas law.
Here is an excerpt from the Texas Department of Public Safety Security Officer Certification Course:
Power To Arrest
The Role and Responsibilities of the Security Officer
Part A.
It is important to remember:
A security officer is not a peace officer!!!
A peace officer is defined in the Texas Penal Code as a person elected, employed or appointed as a peace officer under Article 2.12 of the Code of Criminal Procedure.
Common examples of this would be a Sheriff and their deputies, city police, state police (DPS), constables.
Peace officers are also considered Public Servants in the Penal Code.
The Code of Criminal Procedure does not list a private security officer as a peace officer.
How are security officers different from peace officers?
Security officers do not have:
The same job duties as peace officers;
the same training; or
the same powers as peace officers, according to the law.
What happens when a security officer pretends to be a peace officer?
Any security officer who pretends or even implies [lets others think] that he is a peace officer is committing a crime. The Penal Code, in Section 37.11 makes it an offense to falsely identify yourself as a peace officer (public servant). A person who is found guilty of impersonating a peace officer could be punished by a fine or county jail sentence, or both.
What are a security officer's roles and responsibilities?
A security officer's role is to protect the people and property of his or her employer or contracted clients.
A security officer's responsibility before an incident / offense has occurred is Prevention.
A security officer's responsibility after an incident / offense has occurred is to Observe and Report.
What is a Peace Officer's job?
Peace officers are law enforcement officers such as Sheriffs and their Deputies, Constables, Marshalls, members of a city police force and other officers whose duty is to enforce the law and preserve the public peace. If a law is violated, peace officers are required to pursue and apprehend the person responsible. This is not required or expected of a security officer!
Another typical situation might be: A person intends to steal from a store but sees a uniformed officer on patrol. The person leaves the store without stealing anything. The officer, simply by being there in uniform, has prevented a crime.
[You should call the police, then observe and report.]
#2:
While you are guarding a sporting goods store, a man runs out of the store. Ten seconds later, the owner runs to you and says there has been a robbery. What should you do?
[Have the owner call the police, then observe and report.]
#3:
You are patrolling a store parking lot. A shopper loads Christmas gifts into a station wagon and goes back to do some more shopping. The windows of the wagon are open, and three boys are gathered around the station wagon looking in. What should you do?
[You should try to prevent a possible theft by making your presence known.]
#4:
You are on guard in a jewelry store. An employee showing diamond rings to a customer is called to the telephone. The customer is left alone with the display box of diamond rings. What should you do?
[You should try to discourage a theft by making your presence known.]
Authority to Question and A Basis for Making Decisions
Part D
A security officer's authority to question people.
A security officer is an agent of the property owner and in this role can exercise the owner's right to question people on the owner's property. If they refuse to answer the questions, or if their answers are not satisfactory, the officer may ask them to leave. If they do not leave, the officer may contact the police and report them for criminal trespassing.
Remember, in general your authority is no greater than any other private person's. On the other hand, you have authority to question people while on the property of a client where you are on duty as a security officer.
What are the property owner's right's?
The owner has the right to establish certain rules on his property that may not be part of the Penal Code. For instance, if an employee shows up for work drunk, he may be violating a company rule. The client may want the employee sent home or may want to fire him. How this situation is handled is between the employee and his employer and has nothing to do with the police or criminal law. A security officer must know company policies!
Do not confuse company policy with criminal law.
For example, if the employee refuses to leave when asked, he may be arrested by the police for trespassing. On the other hand, if the security officer uses unnecessary force in removing the employee from the premises, the officer may be arrested for assault.
How should you handle violations?
As a security officer, acting as a representative of the owner on his private property, you can physically prevent a person from entering an area--but only as a last resort. Be sure to check with your employer regarding the way to handle a violation of company rules as well as how to handle a violation of criminal law.
Three factors to consider when making timely and reasonable decisions are:
Facts:
Consider the facts involved in the incident. The facts of any incident will be learned by answering the following questions:
Who? What? When? Where ? Why? and possibly How?
Law:
Consider the laws that may apply to the incident. Has a city, county, state or federal law been violated?
Policy:
Consider any policy that may apply to the incident.. What is the policy of your employer, client, or local law enforcement agencies regarding this incident?
The Security Officer's Legal Responsibilities and Liabilities
Part E
Actions based on poor judgment can lead to legal problems for both you and your employer. You must, by law, avoid certain actions. The legal responsibilities and liabilities that affect you are presented in this section.
Criminal Liabilities
Who has the Power to Arrest?
The authority to arrest is given to all private persons. A security officer arrests with the same power as any other private person. However, because the security officer wears a badge and a uniform, that can lead to misunderstanding and abuse.
Article 14.01 of the Code of Criminal Procedure states the conditions that allow a private person to make an arrest. Article 14.01 "Offense within view" A peace officer or any other person, may, without a warrant , arrest an offender when their offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.
What is an arrest?
Article 15.22 of the Code of Criminal Procedure states that: A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.
In simple terms an arrest is a form of lawful control by one person over the actions of another. An arrest, in Texas law, is "The apprehension or detention of another in order that he may be forthcoming to answer for an alleged or supposed crimes ." An arrest may be made by a peace officer or private citizen. To deprive someone of their liberty or freedom of movement may be viewed as an arrest.
If you, by communication or other means make a person feel that they are not free to go then you have arrested them.
Frisk for safety
If you are legally detaining a person you have the right to conduct a "frisk" of that person for your safety. Remember that you must be able to justify the "frisk" of that person as it relates to your safety. A "frisk" is defined as a "pat-down" search of a suspect designed to discover weapons, not to recover contraband. A frisk is not a full scale search of the person.
Some acts by security officers for which criminal liability is possible include:
Intimidation:
Threatening physical harm or otherwise frightening people when they do not cooperate or confess to a crime.
Excessive physical force:
When an arrest is made, the law allows only the use of force that is reasonable and necessary to restrain the suspect. When more force is used than the law allows, the arresting party is said to have used "excessive force."
The arresting party may be held criminally and civilly liable. An example of excessive force is the shooting of a suspect in order to protect personal property; deadly force is allowed only to protect lives.
False Arrest: (unlawful restraint)
A private person making an arrest may be found criminally liable if the offense did not happen within their presence or view and the offense was neither a felony nor a misdemeanor against the public peace. If you arrest a person it did not meet the above criteria you could be charged with the criminal offense of Unlawful Restraint PC 20.02) which is punishable by fine and or jail or prison time or both.
Everyone has a Civil Liability.
The legal term "party" can be a person, company, or organization.
When one party believes it has been injured, damaged, or wronged by another party, it may make lawful claim for damages.
The claim or Law Suit is presented to a civil court where both parties may explain their position to a judge or jury.
For Example:
A security officer makes a false arrest. The person arrested may file a civil suit for damages against the officer, his employer, and anyone else he believes to be responsible.
Even if the civil suit fails, the action may be costly to you and your employer.
When should a security officer arrest ?
A security officer who is expected to make arrest should receive instructions and the training on how to do so. Training should make the circumstances under which an arrest can be made and the procedure for making them.
As a security officer, you should work primarily in a preventive role. Use good judgment and exercise caution when faced with an arrest situation.
Every person is accountable for his actions. Acts of a security officer in an arrest situation are easy to defend when good judgment and good faith have been used. A security officer must not be afraid to execute an arrest, but must use restraint and good judgment.
Factors to Consider Before Making an Arrest
Part F
Are security officers required to make arrests?
At no time are you, as a security officer, obligated to make an arrest! You may be right at the scene when a violation occurs, but you do not have to make an arrest.
What are your primary responsibilities ?
Your first responsibility is protection/prevention. After a crime has been committed, your responsibility is to observe and report.
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