On Duty and Vulnerable
Awareness of police misconduct and calls for reform in the United States have increased over the last decade. In some cases, officers were investigated and prosecuted at the state level for their actions. Other incidents investigated by the U.S. Department of Justice resulted in criminal prosecution of a police officer for violating a person’s constitutionally protected rights.
For example, from 2009 to 2012 the U.S. Department of Justice charged 254 police officers throughout the United States with violating the individual rights of Americans.
The private security industry remains historically insulated from claims of civil rights-related violations and the resulting criminal sanctions that can be imposed against security personnel. The private security industry in the United States is much larger than the public sector police force; the industry outnumbers public police by a ratio of at least three to one. This growing number of security personnel could lead to increased civil rights violations.
The security industry is also less regulated, meaning that security personnel have varying amounts of training while public sector police counterparts have mandated training programs. This discrepancy in training can also become a problem because many private security personnel have direct contact with the public, often performing quasi-judicial police-related activities.
One federal statute that has been used to prosecute police officers for civil rights violations is Title 18 of the United States Code, Section 242. It makes it a crime for anyone acting “under color of any law, statute, ordinance, regulation or custom” to willfully deprive a person of a right or privilege protected by the U.S. Constitution or state and local laws.
The statute also applies to public officials violating a person’s civil rights, including elected officials, public facilities’ care providers, correctional officers, court staff, and security officers.
For example, if a police officer assaults a citizen, the officer can be prosecuted for assault and battery and be charged at the federal level for violating the citizen’s Fourth Amendment rights under Section 242.
A conviction under the statute requires three elements. First, the act must violate a protected right guaranteed by the U.S. Constitution. If defendants reasonably understand that their actions are constitutionally impermissible, they can be held accountable for their actions.
Second, the accused must be acting under “color of law,” meaning an officer authorized under state or federal law and acting in his or her official capacity.
Lastly, there must be intent to “deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them,” according to Screws v. United States (U.S. Supreme Court, 1945).
This case clarified that a defendant violated Section 242 when engaged in activities to deprive an individual of his or her rights and was also “aware that what he does is precisely that which the statute forbids,” according to the Court’s opinion.
Few federal Section 242 prosecutions have involved security personnel. Of those cases, however, private security personnel were prosecuted when they conferred with police powers, were working off duty or moonlighting, or when they were employed as security guards under government contracts.
Police powers. Some security personnel were prosecuted under Section 242 when they were granted state-related powers and considered “state actors.” In the events leading to Williams v. United States (U.S. Supreme Court, 1951). Williams was a private detective with a special police officer’s card issued by the City of Miami. He had also taken an oath. Lindsey Lumber Company hired Williams to investigate a series of thefts, and during the investigation Williams used “brutal methods,” displayed his badge, and included the presence of a policeman to “lend authority” to the interrogations of four suspects who were “unmercifully punished for several hours,” according to court documents.
A jury convicted Williams of violating Section 242. He appealed the ruling, ultimately appearing before the U.S. Supreme Court to answer the question of whether private persons could be prosecuted under the statute.
In its opinion, the Court reasoned that Williams was acting under color of law and was not a private person. The Court concluded Williams’ actions were an “investigation conducted under the aegis of the state” because a regular police officer attended the interrogation and Williams was “asserting the authority granted him and not acting in the role of a private person.”
The Court upheld his conviction and noted that Williams was “no mere interloper but had the semblance of a policeman’s power from Florida” and his conduct violated the due process right to be free “from the use of force and violence to obtain a confession.”
Another case where private security personnel were convicted under Section 242 was United States v. Hoffman (U.S. Seventh Circuit Court of Appeals, 1974). In the case, two members of the Penn Central Transportation Company’s police force were convicted for physically assaulting trespassers on or near company property.
The officers admitted that they attacked trespassers but argued that they were not acting under Illinois law. Instead, they said they were acting in a purely private capacity and as private persons at the time they committed the crimes.
Ultimately, the appellate court determined the officers were acting under color of law because Illinois state statute had given the railroad company’s police force “police powers as those conferred upon the police of cities,” according to court documents.
Moonlighting. Off-duty police officers granted government powers in a private security capacity have also been prosecuted and convicted of civil rights violations, such as in 2003 when a federal court ruled that a security guard in a strip club was acting under the color of law when he assaulted a dancer.
The off-duty police officer, moonlighting as a private guard, was wearing his badge and gun during the assault, identified himself as a police officer, and prevented the victim from calling the police. He also filed an arrest report against the victim for allegedly assaulting him.
The officer was found guilty under Section 242 and received a 27-month sentence as well as three years of supervised release. The officer appealed the decision, and the federal circuit court upheld the original ruling (United States v. White, U.S. Court of Appeals for the Sixth Circuit, 2003). A federal judge found that “displaying signs of state authority” by wearing his gun and badge, declaring himself to be a police officer while off-duty, and filing a police report “underscores his imposition of state authority,” according to court documents.
Government contract. The third identified theme is that security personnel can be prosecuted under Section 242 when operating under a contractual relationship with the state. In cases where security personnel employed as contractors for the state were prosecuted under Section 242, private security personnel had positions within a state agency, making the parties liable for their actions under the statute. Private security personnel working in correctional settings have also been prosecuted under similar circumstances.
Some of these cases are based on violations of a person’s Eighth Amendment right to be free from cruel and unusual punishment. In United States v. Mendez (U.S. District Court for the Eastern District of Texas, 2009), the defendant, an employee of a privately-owned prison transport company, received six months imprisonment and one year of supervised release for assaulting an inmate in her care and custody.
In another case, United States v. Fuller (U.S. District Court for the District of New Mexico, 2009), four defendants who worked for the Wackenhut Corporation, a contractor for a New Mexico county correctional facility.
Employed as correctional officers, two of the defendants physically assaulted an inmate, kicking him in the head multiple times. Prosecutors charged another defendant with failing to prevent the attack and indicted the fourth defendant with conspiracy for fabricating evidence, lying to, and providing false statements to police investigators. A jury convicted three of the defendants—the two defendants directly involved in the assault and the employee that lied to investigators—for violating Section 242.
Fifth Amendment violations involving contract security also exist. In United States v. Loya (U.S. District Court for the Southern District of Texas, 2009), Loya was employed as a contract guard at an Immigration and Customs Enforcement (ICE) detention facility.
While working in the facility’s infirmary, Loya sexually assaulted female inmates—a violation of the detainees’ Fifth Amendment right, to “life and liberty, including the right to bodily integrity.” Loya pleaded guilty to Section 242 violations and served a 36-month sentence.
These cases show that private security personnel can be prosecuted under Section 242, but also raise questions as to why so few cases have been brought. This may be because people fail to report violations, prosecutorial discretion, or the use of other federal statues to prosecute security personnel for civil rights-related violations.
For example, federal prosecutors can recommend a case for diversion instead of prosecuting suspects under Section 242 when the accused agree to probation and dismissal of the charges upon completion of probation.
Additionally, proving all requirements to secure a Section 242 conviction can be a barrier. “Color of law” and the “willfulness” standards can be difficult to establish, subsequently insulating security officers from prosecution.
Despite these factors that may limit prosecutions of private security personnel, the security industry should be aware of these liabilities, which could become greater as public-private partnerships expand to fight crime. Security managers should train their officers to protect the constitutional rights of the people they serve.
Brian Johnson, Ph.D., is a professor in the School of Criminal Justice at Grand Valley State University. He is the author of four books, including Principles of Security Management. He specializes in private security, criminology, and law enforcement.
Naoki Kanaboshi, S.J.D., is an associate professor in the School of Criminal Justice at Grand Valley State University. He writes on constitutional law, civil rights, and legal issues for criminal justice practitioners.