State rules spell out limits of security guards’ power

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.

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.