State rules spell out lim­its of se­cu­rity guards’ power

Honolulu Star-Advertiser - - LOCAL | HAWAII REPORT - CHRIS­TINE DON­NELLY ——— Write to Kokua Line at Honolulu Star-Ad­ver­tiser, 7 Water­front Plaza, Suite 210, 500 Ala Moana Blvd., Honolulu 96813; call 529-4773; fax 529-4750; or email kokua­line@starad­ver­tiser.com.

Ques­tion: Of­ten I hear about house de­tec­tives, now called “loss con­trol of­fi­cers,” or se­cu­rity guards de­tain­ing shoplifters at stores. What rights/pow­ers do these folks have to de­tain any­body? Are they al­lowed to use phys­i­cal force? Isn’t that as­sault? Short of that, what gives them the right to put their hands on some­one? What if some­one re­sists?

An­swer: What pri­vate de­tec­tives and se­cu­rity guards may and may not do is spelled out in state law and ad­min­is­tra­tive rules, pri­mar­ily Hawaii Re­vised Statutes Chap­ter 463 and Hawaii Ad­min­is­tra­tive Rules Chap­ter 97. Among the high­lights:

>>They can make a cit­i­zen’s ar­rest, which means they can ar­rest, with­out a war­rant, any­one in the act of com­mit­ting a crime, in ac­cor­dance with HRS 803-3. How­ever, loss preven­tion of­fi­cers (LPOs) seem more likely to call the po­lice than to make a cit­i­zen’s ar­rest. They may de­tain the sus­pect un­til po­lice ar­rive.

>>They may stop and frisk any per­son on the premises they are guard­ing if they have good cause to be­lieve that a crime has been or is about to be com­mit­ted.

>>They may not “in­ter­ro­gate, ques­tion, or in any way abuse the civil rights of a per­son ar­rested, de­tained, or found on the premises which are be­ing guarded.” Any sus­pect must be turned over im­me­di­ately to the ap­pro­pri­ate gov­ern­men­tal au­thor­ity.

>>They must com­ply with HRS Chap­ter 703, which de­scribes when use of force is jus­ti­fied to pro­tect one­self, oth­ers and prop­erty. Ac­cord­ing to the com­men­tary on sec­tion 703-306, “Force may be used to pre­vent crim­i­nal tres­pass and bur­glary, un­law­ful en­try upon real prop­erty, theft, crim­i­nal mis­chief, and other tres­pas­sory tak­ing of tan­gi­ble, mov­able prop­erty,” as long as the per­son pro­tect­ing the prop­erty owns it or is act­ing on be­half of the owner.

>>They may not carry weapons un­less “specif­i­cally au­tho­rized in writ­ing by the ap­pro­pri­ate state agency or chief of po­lice” in the county where they work. This in­cludes firearms, black­jacks, ba­tons, night sticks, chem­i­cal sprays, stun de­vices or other weapons.

>>Their uni­forms, iden­ti­fi­ca­tion badges and em­blems may not mimic those of any gov­ern­men­tal law-en­force­ment agency. This re­stric­tion ex­tends to their work ve­hi­cles, which may not be “painted in a man­ner or bears any em­blem, in­signia, or de­sign that may be mis­taken for, or re­sem­bles that of any law en­force­ment ve­hi­cle.”

>>They may not sup­press ev­i­dence in a crim­i­nal or civil mat­ter with the in­tent to hin­der law en­force­ment.

As for re­sist­ing ar­rest, an­other state law pro­vides shop­keep­ers and their agents some de­fense against law­suits filed by ac­cused shoplifters who claim they were wrongly de­tained at a store.

HRS 663-2 states that “in any ac­tion for false ar­rest, false im­pris­on­ment, un­law­ful detention, defama­tion of char­ac­ter, as­sault, tres­pass, or in­va­sion of civil rights” brought by some­one de­tained at or in the im­me­di­ate vicin­ity of a store for al­leged sho­plift­ing, “it shall be a de­fense to the ac­tion that the per­son was de­tained in a rea­son­able man­ner and for not more than a rea­son­able time” to per­mit in­ves­ti­ga­tion of the al­leged crime.

The law says that “rea­son­able grounds” to de­tain a per­son in­cludes know­ing that they have con­cealed pos­ses­sion of un­pur­chased mer­chan­dise. “Rea­son­able time” means long enough to speak to em­ploy­ees and ex­am­ine store records to clar­ify own­er­ship, and for the de­tained per­son to make a state­ment or refuse to make one.

Hawaii’s Board of Pri­vate De­tec­tives and Guards li­censes pri­vate se­cu­rity guards, who be­sides work­ing for re­tail­ers, are em­ployed by ho­tels, apart­ment build­ings, hospi­tals and many other busi­nesses and in­sti­tu­tions.

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