Legalities of Mall Security

[scott_davis5]

James -

 

If you don't get a good response from the mall management, I strongly suggest you get your teenage friends organized and picket OUTSIDE the mall to protest their policies. Call the local TV stations, newspapers and radio, and get them to cover your protest. Five minutes of that kind of footage, heck, thirty seconds of that kind of footage on the local news, and you'll have mall management offering to publicly fire the guard in question, and asking you exactly where you want them to kiss your ass. ( I could seriously see mall gift certificates in your future if you play this card right ). Keep a protest as a trump card, but plan it anyway. Even if the guard has no respect for you as a teen, the mall management will know their demographics and customer statistics. They'll know how bad word of mouth will be for business, especially among teens.

[kevin m.]

That wasn't condescension, it was smart-assed-ness.

 

I though street photogs were supposed to shoot people where they work, live and play, not where the backgrounds look pretty.

 

It seems a large part of modern American life goes undocumented due to corporate policies and lack of courage on the part of photographers, so why encourage the perpetuation of either?

[roger krueger]

Thomas: I still don't see any legal means to enforce mall policy per se, other than ejecting

people. If a security guard tells you photography is prohibited, but neglects to ask you to

leave--and in fact, makes an unenforcable demand for you to follow him to a mall office--

what law would you be cited under for ignoring him?

 

Scott Aitken: Thanks for your concise theory of how this field ends up with its apparent

overpopulation of aggressive losers. Grown-up schoolyard bullies indeed!

[jeff_conrad]

<blockquote>

Due to a Supreme Court decision earlier this year, a police officer can now

require you to produce ID.

</blockquote>

Scott, this is true <em>only</em> if a valid state law requires a person to

identify himself to a peace officer on demand (see <cite>Hiibel V. Sixth

Judicial District Court of Nevada</cite>, mentioned earlier). I include

“valid” because not every “stop and identify” law

<em>is</em> valid; for example, California’s previous “stop and

identify” law, Penal Code § 647(e), was found to be

unconstitutional (<cite>Kolender V. Lawson</cite>, 461 U.S. 352, 1983)

because the requirement to produce “credible and reliable”

identification was void for vagueness, giving a peace officer carte blanche

in deciding who he might arrest.

<p>

In Nevada, a person detained under “circumstances which reasonably

indicate that the person has committed, is committing or is about to commit

a crime” must identify himself—this is what <cite>Hiibel</cite>

upheld. In California, failure to identify oneself constitutes disorderly

conduct under the current Penal Code § 647(e), under the following

circumstances:

<blockquote>

(e) Who loiters or wanders upon the streets or from place to place without

apparent reason or business and who refuses to identify himself or herself

and to account for his or her presence when requested by any peace officer

so to do, if the surrounding circumstances would indicate to a reasonable

person that the public safety demands this identification.

</blockquote>

It’s difficult to imagine this applying to a person merely because he

was taking photographs, but I suppose we’ll need to wait for a

post-9/11 court interpretation, if indeed such a case ever is brought to

trial.

<p>

The laws probably are different in every state, so it’s difficult to

make a blanket statement. As always, one should be damn sure he knows the

applicable law before refusing to show ID to a peace officer. Even then,

one must decide if the hostility likely to result from such a

refusal is worth the trouble. Sometimes, of course, there is a slight down

side to producing ID and allowing the police to run a warrant

check—there might be an outstanding warrant for someone with the same

or a similar name. Although this is quite rare, it does sometimes happen,

as was discussed in a previous thread.

[Brad_]

<I> It seems a large part of modern American life goes undocumented due to corporate

policies and lack of courage on the part of photographers, so why encourage the

perpetuation of either?</i><P>

 

Has nothing to do with courage, I just don't find malls interesting or challenging. I

wouldn't be shooting there even if there were zero hassles. As far as seeking out "pretty

backgrounds," nope, not interested in that either.

[chris_waller]

A shoping-mall is private property so the owners can have an injunction against photography. I suggest that the answer to this is to publicise such actions by 'security guards' (usualy overweight young men with very low IQs) and embarrass the owners of the malls for being too far up their own backsides.

 

Or, rather than pursue anti-social activities like taking photogrpahs, maybe you should take up something currently more socially acceptabe like serial axe-murder, crack dealing or letting of bombs in public places.

 

In Britain we hear the stuffed shirts complaining about kids hanging about with nothing to do and causing trouble but, as in your case, when you try to do something worthwhile, some overweight neanderthal with an overestimate of his own importance decides to start jumping on your head.

 

Time for another revolution. This is not what we campaigned for in the sixties.

[richard_milner2]

I assume you are at high school. You could investigate this incident and write it up as a media project, get it published in your school paper and maybe your local newspaper.

 

Check the law as it applies, then ask the mall management for an interview.

 

Get your revenge in the courts of public opinion.

[kevin m.]

Whether you choose legal action, or just contacting the mall offices, it pays to fight back against this sort of thing.

[j.w.]

In theory, private security guards have no additional authority than you or I.

 

However, the mall is private property, and the security guards do have the authority to "guard" said property (whatever that word implies).

 

But private citizens (i.e. non-law enforcement personnel), such as you, I or the security guard, have no authority to "arrest" or apprehend anyone, other than what rights any citizen normally would have when faced with crime in public (so-called "citizen's arrest", which is really just holding a person until proper law enforcement arrives).

 

That stated, there are two issues with private security guards holding people for photographing in public:

 

1)Photographing in public may be against the policy of the corporation that manages the mall, but that's not the same thing as saying its illegal.

 

2)The only legal authority that the mall's management has is to ask you to leave their property. If you fail to do so, you can be arrested by law enforcement for trespassing. But NOT for photographing in public. Its the photographing against the private policy of the mall management that gets you in the position where they must ask you to leave, at which point you have to decide whether to trespass, or leave.

 

Having stated all that, it should be noted that the wall of seperation between government and corporate authority has been eroded as of late, so you see more and more situations where proper law enforcement, and local DA's, are not properly addressing the abuse of power by the private security industry.

 

Which is not surprising, given a peak into how much gray area there is between governmental-provided and private contractor-provided security in the Iraqi conflict.

 

Unfortunately, it seems that private security is viewed now as an unofficial "deputy" of law enforcement, with similar implied authority and little or no oversight or accountability.

[chip l.]

Jeff Conrad,

 

Attended an event at the MCI Center recently. They had a no "professional camera" rule

posted on the door. At least they described it further meaning no interchangeable lens

cameras allowed.

 

Firs there should be a lot of Nikon N55/75, Canon Rebel, and many others that will be

happy to know that they are now "professionals". And then there are those like Michael

Reichmann at Luminous Landscapes that have done wonders with cameras like the Minolta

A2 and Sony F828.

[jeff_conrad]

<blockquote>

They had a no “professional camera” rule posted on the door.

</blockquote>

I think this is perfectly legit, especially if there is a charge for

admission. The prohibition then becomes a term of the admission contract,

and if you violate those terms, they probably can throw you out of the

event, using reasonable force if necessary. They still can’t legally

confiscate a camera, though they often try. I don’t what law applies if

this results in fisticuffs, but for whatever reason, such confiscations seldom

seem to get challenged in court.

<p>

Things get dicey when the terms of admission are not clearly indicated at

the time the contract is made, or when the terms are so ambiguous (e.g.,

simply “professional camera”) as to invite capricious

enforcement. Even then, if the guards are bigger and more numerous, they

usually win.

<p>

In any event, the situation is different at a mall, which, in essence, is

open to the public without terms of admission. Even if a mall posts

“no photography” signs, their legal remedy usually is limited

to asking you to leave, provided, of course, that applicable law gives them

that option.

[jtdnyc]

<They still can?t legally confiscate a camera...>

 

Are you sure?

 

As a non-practicing lawyer, I know better than to dispense or rely upon Internet legal advice, and I claim no special expertise in this area of law. But I can't help pointing out that, under certain extreme circumstances, copyright violations can in fact be criminal offenses and wondering whether seizure of hardware as evidence might be justifiable. (Possible example: a ring of professional video pirates taping a first-run movie off the screen in a mall movie theater.)

 

Of course, that would probably apply only to the most egregious copyright violations and not to kids fooling around in a mall, as was the case in the original post.

 

James, as an aside, I'd be curious to see some of the pictures you took at the mall, if you can post them...and to know whether you ever saw the girl again!

[Uhooru]

Brad's right, not too much excitement at the mall. For instance, I frequent my local Starbucks, always have the camera handy...basically cause it makes a great paperweight. Short answer, very few pics from Starbucks, but then again...

[j.w.]

Jonathan said: "But I can't help pointing out that, under certain extreme circumstances, copyright violations can in fact be criminal offenses and wondering whether seizure of hardware as evidence might be justifiable."

 

I think the crux of this whole incident, and the heart of the issue, is NOT whether a citizen can be held accountable for his actions while in public. That's a given.

 

The crucial question is: can private, corporate-paid security personnel act in lieu of the government? Should they be able to? Do they have the authority to confiscate other's property?

 

I don't think they do.

 

If you visited my house, and I decided you were doing something that I disagreed with, I don't have the right to take your car, camera or other property, even if you're still on my property.

 

The same is true with the Mall management. They have no additional authority, above and beyond what you or I have.

 

There's a precarious balance between the rights of property owner's, and their civil responsibility.

[roger krueger]

Jonathan: The POLICE can confiscate items as evidence when they make an arrest or take

custody of a citizen's arrestee, but a security guard can't. They're generally limited to a

weapons frisk in a citizen's arrest.

[jtdnyc]

Joe, Roger: One of the key distinctions between a police arrest and a citizen's arrest is that citizens, unlike police officers, generally have absolute, personal liability if the arrest turns out to have been inappropriate. For a citizen to make an arrest and not simultaneously seize plainly visible evidence is a recipe for great financial exposure. (Nobody here is talking about a search; we're talking seizing things in plain sight.)

 

The law of arrest is actually more complicated and nuanced than the simplifications that appear in Internet discussions, including this one, might lead a readet to believe. I would urge anyone reading this thread who anticipates making or being the subject of a citizen's arrest to consult an attorney for advice on the specific situation anticipated.

 

Of course, none of this applies to James's situation, as he wasn't doing anything illegal in the first place.

 

James: Let's see those pictures!

[roger krueger]

Jonathan: Could you a least give me a nudge in the right direction to find statute or case

law that allows someone other than a peace officer to seize someone else's property

(Other than seizing weapons upon making an arrest, for personal safety)?

 

It would seem on its face to be theft unless there's something specifically allowing it.

 

I understand that custody of evidence could be seen as an important element in making

sure a citizen's arrest doesn't lead to liability, but I just don't see the legal authoriztion for

the act.

[jtdnyc]

Roger, as I mentioned at the outset, I don't practice. Whatever I'm saying here is a combination of recollection from law school (25+ years ago) and common sense, which is why I urge anyone with a specific question to consult an attorney and discuss his situation specifically.

 

Wish I could give you a case law reference, but I don't have the casebooks at my fingertips and I don't subscribe to the online services.

 

However, you've hit upon the most obvious example yourself: seizing a weapon for safety. But let's take it a step further. Suppose a mall guard (citizen) makes an arrest for felony drug dealing committed in his presence. Although I try to be cautious in my analysis, I'm willing to jump to the conclusion that the guard is justified in seizing the drugs.

 

In the admittedly rare case where a copyright infringement might be a criminal violation, I would think that seizing the unauthorized copy, if it is in the possession of the infringer, would be justified.

 

Also, consider the alternative. Imagine the evidentiary difficulties in any of these scenarioes if the arresting citizen couldn't seize the gun, the drugs or the infringing copy. What sane person would ever make a citizen's arrest if he couldn't simultaneously seize incriminating evidence that would justify the arrest and protect him from liability for false arrest?

 

If you do research this, I'd love to know of the results.

[roger krueger]

In California at least, Penal Code 846 lets you take a weapon:

<br><br><i>

846. Any person making an arrest may take from the person arrested

all offensive weapons which he may have about his person, and must

deliver them to the magistrate before whom he is taken.

</i><br><br>

It's worth noting that the code in most areas regarding arrest refers to a "peace officer"--

when it refers merely to "Any person" it would seem that intentionally includes citizen's

arrests, although there a couple of areas where it gets more specific by referring to a

"private person".

<br><br>

If there were a blanket right to seize property from the arrestee PC 846 would seem

unnecessary.

<br><br>

Of course, this is just California, the real world may be very different...

[jtdnyc]

<If there were a blanket right to seize property from the arrestee PC 846 would seem unnecessary.>

 

Roger, I don't think there is blanket right to seize property and didn't mean to suggest that might be the case.

 

However, there may be a limited right to seize property involved in the commission of the crime. Such a right would not render PC 846 unnecessary, as the arrestee might be carrying a weapon not used in the commission of the crime (example: a drug dealer carrying a knife or gun that was never displayed during the transaction that led to the arrest -- citizen would seize the drugs because they constitute the basis of the crime, and the weapon pursuant to 846).

 

You've inspired me to dig around in some old law books I have at home. If I find anything relevant, I'll report back.

 

James: Okay, I guess we're never going to see the pictures.

[jeff_conrad]

Except for circumvention of copyright protection under 17 U.S.C. Chapter

12, violations of U.S. copyright law that are criminal offenses are quite

limited in scope, and are covered by 17 U.S.C 506:

<blockquote>

506. Criminal offenses<br>

 

(a) Criminal Infringement.—Any person who infringes a copyright willfully

either—

<br>

(1) for purposes of commercial advantage or private financial gain, or

<br>

(2) by the reproduction or distribution, including by electronic means,

during any 180-day period, of 1 or more copies or phonorecords of 1 or more

copyrighted works, which have a total retail value of more than $1,000,

shall be punished as provided under section 2319 of title 18, United States

Code. For purposes of this subsection, evidence of reproduction or

distribution of a copyrighted work, by itself, shall not be sufficient to

establish willful infringement.

</blockquote>

Note, in particular, the last sentence: it’s difficult to envision

Sec. 506 as a basis for seizing a camera at an event that prohibited

photography. As with other situations involving IP and privacy, it

probably is important here to distinguish between the making and the use of

an image. In most cases, the problems arise from the use of an image that

is perfectly OK to make, and prior to an unauthorized use, there is no

basis for civil or criminal action.

<p>

There may be something that protects promoters from legal action resulting

from confiscating cameras, simply because no one ever seems to bring

charges. An event that comes to mind is a recent Britney Spears concert

(in NY, I think) in which cameras were taken, in some cases by force, from

a number of people. To me, it would seem a rather clear case of robbery

and battery, but no charges were brought, an the on person who threatened

to sue decided not to do so, presumably on the advice of his attorney.

There apparently is something to this of which I’m unaware.

<p>

The <a href=http://www.dca.ca.gov/bsis/poa.pdf>Power to Arrest Training

Manual</a> (PDF) issued by the California Department of Consumer Affairs

indicates that, except for searches under Merchant Laws (PC 490.5), the

<em>only</em> search allowed is that for weapons under PC 846, and even

then suggests that some cause is required to search for weapons. This

manual gives a good overview of what the State of California expects of

security guards, though I’d be careful taking it as authoritative

with respect to law, because it contains at least two errors of which

I’m aware.

<p>

It’s important to bear in mind that the right to search for weapons

applies only <em>after an arrest has been made</em>, and that probable

cause is not sufficient for an arrest by a private person.

<p>

As has repeatedly been mentioned, California law applies only in

California, so someone elsewhere would need to examine the applicable laws

in that jurisdiction. I’m inclined to agree with Jonathan that

anyone who’s ready to forcibly resist an assumed unauthorized

detention by a security guard would be well advised to talk with an

attorney before trying it (yeah, I know, they’re never around when

you’ve been stopped). Few places prohibit resisting arrest by a

private person, but if the arrest is held to be lawful, the person

resisting can be charged with battery and perhaps other crimes (e.g.,

mayhem in the case of the time-honored ballpoint in the eye). As I was

advised, the charge for a brief consultation, even if it’s a few

hundred dollars, is a lot less that the cost of defending even a case

that’s a slam-dunk acquittal. There is one thing to be said for

internet forum legal advice, however—it’s certainly well worth what

you pay for it.

<p>

The most sensible option may be to know when to fold ’em—even

if the law is completely on your side, it’s not of much help if you

are injured or your equipment damaged or destroyed. It certainly seems

reasonable to verbally challenge an unlawful directive or detention, and

perhaps even to refuse to cooperate in any way. When one or more

rent-a-thugs make it clear that they’re going to use force, it may be

smarter not to forcibly resist. If they drag you away, they’ll

probably draw considerable attention, setting the stage for you to sue

their asses off.

 

[jeff_drew4]

An easy solution . . . do something else with your time . . . like have all your

classmates and friends sign a petition that they will not shop at that mall until the

"rent-a-cops" take sensitivity training! Mail copies of the petition to the major

franchise stores in the mall, the property management firm that controls the mall,

AND the local newspaper - be sure to include a written version of your incident.

Something positive may occur and perhaps you will positively affect change.

[roger krueger]

Jeff Conrad: re: Britney: Haven't researched NY laws, but my understanding is that, in at

least some states, violating the terms on your ticket puts you in the same position as

someone who enters with no ticket at all: you're trespassing even before a warning, thus

setting up a you-press-charges-against-us-we'll-press-charges-against-you situation. I

can't imagine I'd be predisposed to put a misdemeanor on my record just to have the

satisfaction of knowing the goon got a felony.

 

In regards to a civil suit, Britney's people may have pointed out that they have a platoon of

big ugly lawyers that'll make sure it's not worth the while of any plaintiff attorney to take

the case--these people can drag things out for years for what, barring serious injury,

would be a middling award. No lawyer's going to sign up for a case where even if he wins

he probably won't make minimum wage.

[fayeburns]

Security guards are very observing and they report if something fishy occurred. You can’t blame the security guards for their behavior towards you. They might be observing you while you took the photo with that girl and they might misunderstand you.

The mall policies are not made by the guards, the policies are proposed by the authority. Guards are helpless there. They have to do their duty perfectly. You can’t blame the security guards instead blame the policies of that mall.

The security guards are hired with the mission to

-preserve the peace

-preventing crimes

-respond to incidents

-communicate with the public

[DrBen]

Since someone else revived this thread from 2004 and the comments at that time were often inaccurate, I would like to add something.

 

A store or mall is a "private space open to the public". As such the default rule is that photographers can take pictures freely, just as they could in a "public space", without the permission of subjects or property owners. There are two exceptions to the general rule:

 

1. There is a highly visible sign that prohibits or limits photography or imposes conditions;

2. An agent of the owner/occupant tells you to stop taking pictures. In that case, you cannot be forced to erase pictures already taken and your camera cannot legally be confiscated.

 

You cannot be detained or be required to identify yourself. If you continue to take photos, the police can be called and you might be charged with criminal trespass. If a security guard or other person prevents you from leaving, he or she would could be charged with illegal confinement.