Legalities of Mall Security

Alright, basically I am asking what are mall security guards rights?

 

Situation is:

Today I went to the Baybrook Mall in Clear Lake, Texas with 2 of my

friends. We took a digital camera along to take various pictures ex.

(funny poses, stupid faces, me and Jarret playing ping pong). Anyway,

while at the mall we saw a girl in the food court and asked her if

she would mind if I took a picture with her. She consented and so the

picture was taken, also there was nothing obsene about this picture

at all just her and I standing next to each other. So we thank her

and we make our way out because we were fixing to leave the mall

before we saw her. On our way we got surrounded by 4 mall security

guards, they told us about mall policies and picture taking, and also

said that we must have a written consent to take a picture of anyone

of opposite sex. We told them what we did and showed them the

picture, they said "ok" but that this a warning and let us on our

way. As we stepped out of the mall doors we were approached by the

Sergeant Security Guard asking me for I.D. As I pulled out my wallet

he began explaining to me about mall policy and picture-taking again,

and told me that what I did was illegal even though the young woman

had said that I could take the picure with her. I told him that we

could go inside the mall, I could find her, and she could tell him

that I did ask if she would take the picture with me and that she had

said that it was fine. We go to the food court and find her eating

her lunch and we tell her the situation and she tells the Sergeant

Security Guard that she had given me permission and that it was fine.

While the guard explained AGAIN mall policies and photography I

smiled...( I have a problem when I get nervous in situations to start

laughing, smirk, or smile. My mother knows this is a trait of mine,

and that I can do virtually nothing about it. I know that I am doing

it, but I really can't stop it, back to the story) So I smiled and

the guard looks at me and tells me to come with him. I follow him to

the Security room and he asks me "What's so funny" "Do I think this

is a game" etc etc. He says he could place me under arrest right now

for taking someone's picture in the mall without their written

consent, but then calls the Harris County D.A. to ask what he should

do about the situation. He ends up sending me outside of the room so

he can call my mom and tell her of my heinous crime, after about 5

minutes outside he eventually let's me talk to my mother on the

phone. By the sound of her voice I can tell that he did not tell her

the correct situation, because I do not think of this as a serious

matter. After getting off the phone with my mom the guard then told

me that if he felt like it he could have me arrested and that I could

be in a Juvenile Detention Center right now, waiting for my parents

to come and post bond for what I did.

 

As a citizen I feel violated that a security guard held me for over

30 minutes for a digital photo I took with a girl who was over the

age of 18 and gave verbal, and later written permission for me to do

so. (after getting out of the back office, me being the only one

detained while they made my 2 other friends wait for me out in the

food court, I find out that they have gone to the girl and asked if

she would write on a peice of paper "I give James B***** my

permission to take a picture with me" with her name and date on it) I

could see where a problem would be if the picture was of an obscure

place (below the waist, or up a skirt), or if I just ran up and

snapped a picture with her and ran off. Also, I do not see the reason

that I was detained, when a group of guards had approached us before

and explained everything and let us go giving us a warning. The only

reason possible I think I was detained was based on the fact that I

was underage and he felt that I could be taken advantage of by using

his "scare tactics" and that the Sergeant Security Guard "did not

like my attitude, and it was time for a reality check"

 

So my questions are:

1.What is the extent of a mall security guards power?

2.Could I actually be sent to jail for taking a picture with a member

of the opposite sex if they are over the age of 18, and consent to me

taking the picure? or do I have to have a written consent even though

it will not be used for commercial use?

3.If the security guard did do wrong, then what could I do to make

sure that he does not use powers that he does not have, such as

arresting an individual, on minors such as myself?

 

Please, somebody respond to this and answer any questions you can,

even if I was in the wrong. It would be greatly appreciated.

 

-James

To clear up any confusions, I am a minor, the girl in the picture was not. And also the security guards were not the ones who had the girl give written consent, it was my 2 friends who went and asked if she would do it. And even the girl thought it was wrong for them to threaten to take me to jail.

I do not know for sure the answers to your questions though I do believe the extent of a mall security guards powers is very limited. From what I can tell looking at only one source they have much of the powers of an average American citizen. From what I can tell, in California at least, all the security guard needs is a background check and to complete a 'Power to Arrest' training course. This course seems to be something that emphasizes search and siezure laws, ethics and liability as well as what may be the most important part here, Citizens Arrest. It appears any arrest made by these individuals is a citizens arrest. So in general they dont have as much power as they might lead you to believe. At least this is my assumption and understanding.

 

As with a 'real' police officer you are not required to give them I.D. and unless there is due cause or you have commited a crime they cannot detain you. This is not to say that you are free to run away from them, but to come to an understanding of what your detention is for and why you are being questioned. Thus, in my opinion based upon your story, you were likely free to go upon the exit of the building. You were free to go when asked for I.D.. As well as not required to have a visit to the office where your guardian was called. My basis for believing this is that no matter what mall policy is, it is not illegal to photograph someone in a place where the subject of the photo had no reason to believe they had privacy. It is most assuredly not illegal to photograph a willing participant. So no, I personally do not feel you could be sent to jail because I do not understand that a crime was commited, thus the actions of the guards was ill-advised and likely uncalled for. You do not need written consent.

 

If they did do wrong, which I believe is the case seeing as no matter what mall policy says they cannot trump the country and state laws you did not commit a crime. They likely need to be told the facts they likely already know but don't care to share. You have the right to leave unless you are being detained for having commited a crime and if a crime was commited ask them to explain to you what crime it was. Violating mall policy, at most, is to be punished by removal from mall propety, not arrest by proper legal authorities. At most you could be detained for questioning by the security guards, but not arrested for such a violation, and I doubt any police officer would have even listened to the claims of these security guards, though I may be wrong.

 

I suggest you look up citizens arrest laws on the books in your state to see the full extent of their powers as to me, this seems to be a citizens arrest dispute as from what I can tell mall security have no extra powers than a normal citizen.

 

Id love the other users of the board who may be more astute to correct any of my assumptions, misjudgements and incorrect facts.

 

(I apologize if this is a double post as my first attempt to submit this reply timed out)

they have the same 'rights' as you...but in the domain of the private space of the mall, a

little more 'authority'

 

they could trespass you...i dont know what the law is in your region, but your action does

not constitute a crime where i live (but i dont live in texas)...in many areas, security cannot

detain you if you did not commit a crime...to detain you they'd need to make a citizens'

arrest and to do that they'd need to witness you commit at least a misdemeanor crime

 

to get a little academic, many 'rule enforcers' operate not to enforce the rules but to

coerce respect...people disrespecting them may undermine their security in their

work...when you go off to college you can study this stuff more...but suffice it to say you

made it tougher on yourself by not submitting

 

not that you should have been overly compliant when security made unreasonable

requests...it's a testament to the world and the nation when following laws and principles

makes life difficult

 

what can you do? you could report the incident some higher-up (though i doubt this will

go anywhere as he/she will most likely be entwined with the rule creators), you could write

to your congressman, you could become a lawyer and fight gross injustices in this world

(and earn the derision of the many many people who, for many reasons, approve of the

system)

A mall is private property. If they don't want you to take pictures they can ask you to leave. If you don't leave they can have you arrested, but if you do leave they can't. Taking pictures in an mall is not a criminal offense.

<p>

If they think you're guilty of some other crime they can hold you and call the police. That's the extent of their legal power as far as I know.

<p>

It's not a crime to take a picture of anyone, anywhere in public, regardless of their age, with or without their permission unless you're also in violation of some other statute (which are generally related to invasion of privacy, obscenity, etc.).

<p>

I'm not a lawyer. Don't get legal advice off the internet. Talk to an real lawyer if you want real legal advice and opinions that hold any real weight.

<p>

Read this: <a href="http://www.krages.com/phoright.htm">http://www.krages.com/phoright.htm</a>

and let me add, you were not in the wrong...maybe made the moment more difficult for

yourself which is not always a stupid/bad thing...from your account, security was in the

wrong

You probably were in violation of the mall's policies, but violating a mall's policy banning photography is not a criminal offense. Since you didn't offer any argument and were actually trying to leave the mall, they couldn't arrest you for trespassing. When he called the DA, the DA probably told the guy to get a real life. Sounds like you had the misfortune of encountering some halfwit asshole (sorry, but that is the polite description in this case) who wanted to feel powerful by bullying someone who was unlikely to stand up to him.

 

I'd recommend that you and your parents send a complete account of what happened (complete with copies of the girl's note) to the mall owners (or whoever employs the security at the mall). Just stick to the facts. No guarantee that it will have any effect, but the mall's management might be interested to know that their head of security is wasting his time intimidating kids instead of protecting the security of the mall's stores.

Security is a HUGE business; the chap has to justify his well paid job; one that cannot be sent overseas. Many of these chaps are at the bottom of the food chain; and have seen too many cop shows. Maybe he got a bad job review; for sleeping on the job; and you are the "almost arrest" to make his goofy boss happy. You are on private property; so they seem to have McCarthy era reactions; to trivial events. Once the only problems were that store owners didnt want their layouts; racks; wares photographed. Then some got more punchy when insurance costs have skyrocketed. Today the post 9/11 phobias have gone loony-toons in some places. Your security guard seems abit too much coffee and donuts; maybe too wired; maybe brain dead with low protein :) I wonder what the mall owners think about events like this; there is a hell of alot of buying power with young people in malls. Vote with your pocketbook. Most malls would die without younger folks visting them. Is there one chap who owns or runs the mall? Ask him if he really needs to loose customers by hassling them.

this may viewed as a rare occurence...the security guard an anamoly, but i have study on

hand that reports in a small industrial city, 37%+ of police officers believe it legit to use

violence to coerce respect...of course you were in a slightly different situation, but your

smile could get you into unwanted trouble all over - as it appears you understand

 

so take a longer look at the incident's roots...and maybe you'll feel civic spirit and get

active

kick 'em in the balls and run! geez, what's wrong with kids these days!

Your best bet would be to talk with a local attorney. While general principles probably apply, the actual specifics of the law in Texas (or any place for that matter) may be different.

 

Typically speaking: 1. The mall security guard would have the same powers of arrest as any non-sworn officer (or you although as a minor, there may be some differences as compared to an adult). Which is why a citizen's arrest is required for non-felonies not committed in the presence of the peace officer. 2. Could you be sent to jail? ("Arrested" and then taken into custody (jailed)?) Sure. Would it be legal? Depends on Texas law. If it happened as you described, I doubt it. The citizen does have certain powers to arrest. I would expect that the local police, when called to take you into custody might try to keep anything drastic from happening but the guard might insist on it. I don't know that they (the police) can refuse to process the arrest. But their liabilities would be different from those of the individual actually making the arrest. Taking pictures "in public" is almost never illegal, even without consent - that's changing somewhat as society responds to the problems of the internet voyeur, etc.

 

How to keep him from doing it again? That especially needs to be done with the advice of a local attorney.

Actually, detaining him is possibly unlawful. Yes I think they can ask you to leave and if you don't they can have you arrested for tresspassing and can probably detain you while the cops get there. In the old days Eric has the right of it, you just kick the jerk and run, now, you just sue his ass off.

<p>

As far as I know, in a red state you can be shot on sight for any reason by

anyone in uniform ... OK, perhaps I’m getting carried away. If you

want solid legal advice, you need to speak with an attorney who is familiar

with familiar with Texas law and preferably Harris County as well.

I’m not an attorney and I’m not familiar with Texas law; my

comments all are based on California law, which I suspect is a bit more

liberal than that in Texas.

 

<ol>

<li>In general, a private security guard has the same authority as any other

private citizen. Additionally, he or she serves as the owner’s

agent, and in many cases can order a person to leave the property. A

mall is private property that is “open to the public,” and

the authority to order a person to leave such property varies from

state to state, and among jurisdictions within a state that does not

provide for criminal trespass on property open to the public. For

example, California state law does not provide for criminal trespass on

private property open to the public, so in a city such as Palo Alto

(e.g., Stanford Shopping Center) without a county or municipal

ordinance that covers such a trespass, a security guard <em>cannot</em>

legally order a person to leave. In a city such as San Francisco that

does have such an ordinance, a security guard <em>may</em> have the

authority to order a person to leave, but even this may be questionable

in light of a 1970 California Supreme Court decision. You’d need

to speak with an attorney on that one, however.

 

<p>A security guard can ask you a question, and can ask for ID (as can

any private citizen), but you most likely are under no obligation to

answer a question or show ID, and failure to do either is not a basis

for detention. In most cases, you <em>are</em> free to walk away,

though circumstances (e.g., you are outnumbered and each of the guards

is bigger than you) may suggest that this isn’t a good idea, even

if it is your legal right.

 

<p> A security guard’s authority to detain usually is quite limited. A

security guard has the same power of arrest as any other private

citizen; he can make an arrest if the person has committed a public

offense and the guard witnessed the commission of that offense (an

arrest also can be made for a felony that the guard did not witness).

Note that a private person <em>cannot</em> arrest on probable

cause, as can a peace officer. In California, detention, however

brief, is a misdemeanor (false imprisonment, Penal Code § 236) as

well as a tort, and even a peace officer can be charged with such an

offense (I don’t think it happens very often, however).

 

<p> In many places, including California, a merchant can detain and

search a person when the merchant has probable cause to believe that

the person has taken merchandise without paying. It’s not clear that

this authority extends to a security guard who was not witness to the

alleged theft. Again, you’d need to see a Texas lawyer for a

definitive answer; however, I don’t see any way that the guards even

could use this as a ruse in your situation.<br><br>

 

<li>I’ve never heard of a law that bans photography of anyone in a public

place, even without consent (a few activities, such as upskirting, are

banned in some places); it’s possible, I suppose, that Texas or some

counties or cities might have such laws, but it seems mighty unlikely.

Again, you’d need to confirm this with someone who knows the applicable

laws in Clear Lake.<br><br>

 

<li>You or your parents should find out the applicable law, and if it is as

we all suspect, your parents should write the security manager (or his

boss) complaining about your illegal detention. It’s possible

that the response you get will depend as much on prevailing local

attitudes toward minors and the authority of security guards to direct

them as well as the actual law.

 

<p>You might have cause for a civil action, though given the

circumstances (you weren’t beaten, robbed, or held all that long)

the likely outcome probably doesn’t justify the effort or the

expense.

</ol>

 

It would be interesting to hear what the DA said to the Sergeant (if he

really called the DA). The DA might well have said, “give him a

break,” or even, “Let him go or you could get your<em>self</em>

arrested.”

 

James said: "...but then calls the Harris County D.A. to ask what he should do about the situation...."

 

Some of you who responded should know better... where is the evidence that said guard ACTUALLY did call the "DA" meaning specifically the "District Attorney"? There isn't any. Did James speak to the person called? No. It seems he just heard one half of A conversation - the guard apparently talking into the phone (maybe not even with someone really on the other end.) For all anyone knows, even James, the so called, "DA" could have been anyone, another phone in the mall, the pizza place down the street... the janitor.

 

Lateral thinking calls for a reality check by calling the >REAL< DA's office and finding out if the mall contacted them about James taking pictures... if, as I suspect, it was little more than a bluff on the part of Mr. Mall Guard, there may be some meat to a really nasty complaint to the mall... or even the police about the guards' behaviour. (James was being detained, against his apparent will, under "colour of law" - which may constitute a serious crime in itself.) On the other hand, in the 1,000,000 to 1 chance that the guard actually did call the real "DA" (which I seriously doubt he did) then you can get a first hand account of what he was told.

 

If the guard only has the same rights and powers as any ordinary citizen why are we taking HIS word for it that he did what he claimed to have done?

James, no harm no foul in this case. If I had a dollar for everytime a security guard (rent-a-cop in my lingo) told me to do something I would be rich. The rent-a-cops have to justify their existence so they hassle people they can get away with hassling. You, being a goofy kid, were the target of the day. When a rent-a-cop tells me to move on or not photograph something, I say OK and keep on shooting. The second time they approach me, I ask them a bunch of rhetorical questions. If that does not confuse them enough and they insist that I leave, I go and try to find some spot to shoot that is just out of their jurisdiction. James, toughen up and practice trying to remove the smirk you get when faced with a difficult situation.

Call the security guard and tell him the Harris county DA wants to talk to him about kidnapping and unlawful imprisonment. Sounds like a case of an overzelous middle manager justifying his job. As a teen, you were an easy target. I'm sure he gets razzed by "your type" often. Welcome to the apocalyptic world of post 9/11. Take your shoes off and enjoy the ride. Be glad you were not caught photographing a bridge. The main thing is not to let this stop your interest in photography. You might put on a suit and tie, visit the DA and ask him what the laws are, without mentioning the incident, since I'd bet he never got a call....Mall security guard with the DA's phone number. I doubt it. Don't break the laws, if they are ridiculous, set about changing them. If you belong to a photo club, see about starting a petition, Maybe an appeal in the local paper. Obviously, this is important to you so do not drop it. It will, as a personal exercise, make you a stronger p erson later in life. Good luck and keep us posted......Warren

Imagine the media frenzy if the security clown had pulled the same stunt with a 15-year-old girl instead of a teenage boy.

You got picked on for being a kid with a goofy grin who didn't show this rent-a-cop the respect he felt he was due. And yes, they know we call them rent-a-cops, so they often have that chip on their shoulder to begin with.

 

Pursuing legal action seems a bit much to me, but I'd definitely call the DA to see if he contacted them, then call AND write mall management with this info and the rest of your story. Sh#t rolls downhill, and this guy works for somebody. Find out whow that person is and let them do your dirty work for you.

James B. - Back in the 80's the malls in the DFW area had problems with unescorted

minors in the Malls. Some tried banning unescorted minors. Some did "shadow patrols" to

make unescorted minors so uncomfortable, that they would just leave. It may seeem that

things have not changed out there.

 

Christopher Colley - I thought that there was a recent SOCTUS ruling that said that the

police do have the right to demand an ID.

 

Bob Atkins - On face value you are right. But the the situation is different by locality. Some

(Ca. as an example) have stated that certain parts of a mall are actually public property. I

remember reading one courts opinion that the mall has replaced the town square. And the

malls entice the public with much more than just shopping (car shows, pet shows, and

other performances). And that rules like laws need to applied equally. In this case the mall

allowed pictures at these events, but not outside of those events. The court did say that

stores themselves were "private property" even though they were in the mall. The point is

that with this subject it is impossible to have any blanket agreement as the rights of taking

pictures in a mall.

 

 

Kelly Flanigan - It is not just the post-911 world that has caused this. It is the abduction

of children, "up-the-skirt", and other situations that has caused a knee jerk reaction. For if

a photo could be proven been taken at a particular mall, that mall could face a lawsuit.

 

Kevin Mendenhall - I am not a proponent of filing a lawsuit at the drop of the hat. Though

in this case if checking with the DA that the mall and guard had detained the kid illegally,

they should request the DA file a case. If the DA won't, then the only recourse is to file a

private lawsuit. For if the mall did break the law and are not held accountable, they will

repeat it. Sometimes it takes one person to make a difference (Rosa Parks comes to mind,

though this case IMo does not raise to that level of course).

its private property, they can kick you out for any reason, you, your friends your mother, your grandmother, your camera, your poodle, any time, its theirs thats the way the pixels crumble.

Thanks everybody for answering, I am now going to call the DA and find out the law if I can, and if it seems that the security guard did do wrong then I will consult with my parents to see what we could do about this. If the DA is no help then I will be sending a letter to the Mall's Manager, and find out who they hired as their security company who will also be getting a letter of complaint. Again Thank you for answering and helping me out with this.

 

-James

Perhaps it's because I still wear long hair (a ponytail) but I have been stopped on several occasions to have my packages "inspected" by security at computer shows. I stood off searching for my receipts and while doing so, someone told the security guard that he must've dropped it and he was allowed to leave. Next it was my turn. Now, I am not an imposing looking person... I wear my ponytail and a leather vest wherever I go...(my "trademark" if you will). I got a bit perturbed and told the young man, "You cannot search me. I paid the entrance fee and I purchased these items here, which means that I bought nothing illegally. Now, you may NOT search me, and if attempt to do so, I shall consider it an assault on my person and I shall proceed to defend myself. Touch me and find out!" I simply lost it. I was furious. I pulled out a sheet of paper from my pocket and gave it to the security guard (his superior came along and read it, and said, "OK, get along; you may leave." Here's what I showed him:

 

LEGAL RIGHTS

 

Amendment IV (Constitution of the United States of America)

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

 

 

TITLE 18, PART I, CHAPTER 13, Sec. 242. (Civil Rights)

Sec. 242. - Deprivation of Rights Under Color of Law

"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death."

 

Hey, they "bought" it and I walked out. This is the same piece of paper I showed a supposed Federal Agent when I was taking photos in the Redhook section of Brooklyn (NY) overlooking the Statue of Liberty in the far distance... he got red-faced and walked away. I asked him to show me where it was WRITTEN that I couldn't take photos in a public place... he didn't answer. THERE IS NO SUCH LAW!

 

Security Guards cannot "arrest" you leagally; they make what's commonly called "A Civilian Arrest." They can also have charges brought against them... for illegally detaining you (if you can show that you've broken no laws).

 

Speak with the DA and have a grown-up with you. Demand to see where IT IS WRITTEN that you cannot take photos in a public place (a Mall is not "public" but "private" they can only ask you to leave... didn't they "ASK" you to go with them? Didn't they "ASK" you to go into their office? You were outside? You could have said, "No, thank you," and walked away. You don't have to play to their "power trip," my friend. It's just that you're a young kid and they played on your ignorance (meaning, lack of knowledge of the law). Do you think they would have questioned you twice if you were an ATTORNEY?

I keep hearing that malls are "private" property. This is a matter of local and state law.

Blanket statements do not help. The private/public status of malls is still being fought

many times over in the courts.

 

For an example see this thread:

 

http://www.photo.net/bboard/q-and-a-fetch-msg?msg_id=009yEb

 

For James B., I would suggest that the DA is the best first option. Also going to most

libraries, they have the legal text for their states in most cases. It takes work, but it shows

how serious you are about the law (Did this when a friends car was repo'd with my

belongings in the trunk. The dealer refused to release my belongs, even though I could

prove they were mine. Did the research, sent a letter and got my belongings back. )

What amazes me is that some people respond to this by saying, hey, it's private property, they can do what they want.

 

Understand the renta-cop thought process:

1 - that kid looks like he's up to no good.

2 - therefore that kid is up to no good.

3 - look -- he's taking a picture of that girl. And we know what that's all about! (And she's cute, too ... maybe I can get her number...)

4 - uh, she gave permission? how embarrassing (guess I won't be getting that number after all....)

5 - that smartass kid is smirking at me. time to teach him a lesson. it's okay, he's just a kid so I can pretty much do what I want. I'll scare the pants off him....

 

You can bet that they never would have pulled a stunt like this on an adult.

 

The most serious thing they could do would be to charge you with trespassing, but I personally doubt they could make that stick.

 

As for followup, let's be honest and admit that nobody's going to sue here. Get your parents on your side and go after the mall management.

Chip; most all abduction of children is by relatives; messy divorce; messy unmarried relationships; family breakdown stuff. A missing kid being grabbed by a relative is a sure bet; the first place police look for them. Here a 2 kids dissappeared after school; a massive manhunt was used; and they kids were at an aunt 300 miles away; to avoid being beat by both parents; who were divorcing. Normal folks dont grab kids; goofed up relatives are about the sole abduction folks.