Legalities of Mall Security

[Brad_]

Kind of funny, all the legal thumping here.. As usual, Mike, Bob and Barry provide the best

reasoned responses - Eric gets bonus points for real world creativity.

 

Lawsuits and Rosa Parks, indeed...

[tim_malone]

I don't know about Texas, but when I worked retail in Washington we were given very strict guidelines about detaining people for shoplifting. If you didn't watch them from the time they grabbed the item to the time they were leaving, you weren't allowed to do anything. I can't even imagine what the rules about detaining somebody for photography would be. Of course, I'm no lawyer and you should really go with the sane advise and talk to one if it really bothers you.

Rent-a-cops are there to scare you, so in a way, the guy was just doing his job. I read an article on bank robberies a while ago. I don't remember the specifics, but there was a drastic decrease in the number of bank robberies if you simply had a man in a uniform hanging out. He didn't even need to have a gun. For the most part, these people don't have weapons, they don't have any authority, and they don't get paid well. They are simply there to intimidate you.

[will_perlis]

Don't forget, the rent-a-cops have been pumped up by being dubbed "the first line of defence against terrorism" by outfits like http://www.homelandsecurity.org/.

 

Think Barney Fife with a thicker neck, lower IQ, and a new mission.

 

The only thing that's going to get them to back off is fear of losing their jobs, getting sued, or going to jail, and that can be generated by instilling some fear of losing money in the people who hire them, supply them, and train them.

[chip l.]

Kelly, I know that. But there are cases (Amber Hagerman) that helped create the AMBER

Alert system. And this is used regardless of whom abducts a child. The point I guess I was

trying to make was one of small events having big changes in the laws, rules, and

attitudes.

 

What seems to be missing from this discussion by both sides is how do we balance the

needs/desires of people in the mall now being promoted as the new "town square"? For

those that say there is an expectation of privacy, what about security cameras that seem to

be every where in a shop or mall?

 

In the thread I mentioned, it appears that the parking lot of the mall had be legally

considered "public property", though my take was the inside was considered "private

property".

 

Then we have the issue of proper notice. It has been a while since I have been to a mall.

But my thinking is that if the "rules" are not clearly posted, and there is no clear "law" on

the books as to what can and can not be done (ie, theft is against the law, as is "peeping-

tom" photos) that is hard to detain an individual that is willingly leaving the property. An

arrest can be made for "trespass" if you choose not to leave. That is not the case with this

situation. James was stopped, questioned, rules explained; and was on his way out. All

perfectly legal IMO. The second stop and detention is where the mall crossed the line.

 

As with the post by Calico, we have a situation growing in some places of "profiling". Look

or act in certain way, and you risk being hassled or detained. What i hear from some of the

posts here is, "Well, this has never happened to me. You must have given them a reason.

Any how it was private property.".

 

I would be interested in knowing if this mall has events (halloween contest, car shows, or

such) that people take pictures of the participants and productions? Are pictures taken

during these events? If so, does security stop them?

[jeff_conrad]

It might be worth a call to mall management (<em>not</em> security

management) to see if there really <em>is</em> a policy that requires

written consent for taking pictures of someone of the opposite sex (it

sounds nuts, but one never knows). If there is no such policy, it

wouldn’t be the first time that security people have misinterpreted

policy or simply invented their own (If there is such a policy, it would be

interesting to know the basis). If there is no such policy, a complaint to

mall management might get the security folks a dressing down for violating

mall policy (as well as probably the law) and opening the mall to legal

action. Similar actions when detaining alleged shoplifters (even when the

actions weren’t necessarily illegal) has resulted in substantial

civil awards against store owners, and most mall owners probably are aware

of the this. As everyone has suggested, legal action here would seem

pointless but a well-crafted complaint to mall management might get the

guards to behave in the future, which was James’s original objective.

[jeff_lu]

nice, calico

[roger krueger]

James: The best response, if you can swing it, is not from you, a presumably low

disposable-income teenager. Their are two things mall management tends to respect:

buying power and lawsuits. Have a parent call mall management. Have them armed with

full legal knowledge of, and anger over, the things perpetrated against their child. Have

them emphasize that as a regular mall customer they are outraged, and are telling all of

their also-regular-mall-customer friends. Have them send a letter threatening legal

action. If by chance your family is affluent enough that $100 bucks isn't a big deal then

paying a real lawyer to send the threatening letter on their letterhead would be even

better. Doing some or all of this should at least get the guards a good solid talking to.

 

Actual legal action would be tough because the encounter mostly comes down to you and

your witnesses' word against against the guard's word. As long as they're all willing to lie

to cover each other you won't get anywhere. But FEAR of legal action might be enough to

get the mall management to at least offer an apology.

 

The "legal permission to take a picture" line is utter horse%^&*.

 

The sad fact is that the law is only as good as your ability to get it enforced. Even if you

got a cop there, and the guard admitted to wrongdoing, the cop STILL might take his side

against a teenager. The chances that a cop will arrest, or a DA will prosecute, a guard in

such an instance is very small, even though if the roles were reversed they'd run you in in

a heartbeat. And it'd be hard to get a jury to take the word of teenagers over the word of

adults in uniform.

 

Sorry, being a teenager is rough; no one wants to take your side, take your word. At least,

unlike blacks or gays, you'll "grow out of it."

 

Never EVER follow mall security to a room if you haven't broken the law. Disobeying a mall

guard, other than an order to leave, is NOT a crime.

 

Jeff: Actually the police can detain you without arrest on mere suspicion, rather than

probable cause. It's called a "Terry Stop" from Terry v. Ohio, 1968. The relevant details I

seem to remember, but didn't locate all of in a brief search are: Precautionary frisk for

weapons only, not full search; Requires "reasonable suspicion"--less than probable cause,

but still not just "a hunch;" Limited duration--again my fallible memory, I think 20

minutes was established as a rough guide; No forced relocation--they can't take you

downtown as part of this, it happens at the point of encounter.

 

But none of that applies to a rent-a-thug, of course.

[jeff_conrad]

Chip L.,

<blockquote>

Christopher Colley—I thought that there was a recent SOCTUS ruling that

said that the police do have the right to demand an ID

</blockquote>

Sometimes they do, and sometimes they don’t.

<p>

The ACLU “bust card” states that “you can’t legally

be arrested merely for refusing to identify yourself to a police

officer.” The operative word here seems to be <em>merely</em>;

if a person is detained under suspicious circumstances, some states require

that the person identify himself to a peace officer. The case to which you

refer is <cite>Hiibel V. Sixth Judicial District Court of Nevada</cite>,

decided in June 2004. The decision upheld a Nevada law requiring a person

detained under “circumstances which reasonably indicate that the

person has committed, is committing or is about to commit a crime” to

identify himself.

<p>

In many cases, a person <em>does not</em> need to produce ID upon request,

but absent a thorough knowlege of state and local laws, refusal to do so is

risky; for example, in California, a bicyclist stopped for a traffic

violation can be arrested for failure to produce ID (<cite>People v.

McKay</cite> (2002), 27 Cal.4th 601). Even when refusing to produce ID is

perfectly legal, a person should decide if it is worth the potential grief,

as has been discussed in several previous threads. In some cases, this

might be true even if the request is from a private security guard, who

usually has no legal authority to demand ID.

[matt_m__toronto_]

james,

like others said. typical abuse of uniform. nothing new here. a couple phone calls and a letter or two will get those guards a talking to. post back here any results. and since you're young, how about you and your buds abuse that and go back once they've been spanked and take photos of each other in front of them all day long :)

[scott aitken]

Stories like this always get my ire.

 

For a while I worked a security job while I was in the Navy. If I can use broad generalities,

there are two types of guys (it is almost always guys) that try to get into law enforcement:

well meaning guys who want to enforce the law and protect the public, and mean bullies

who are looking for justification and legitimacy for their thuggish behavior. Most police

forces do their best to recruit the first type and weed out the second type. Unfortunately

for you, most of the bullies get dropped from the police forces, and end up getting jobs as

rent-a-cops. A huge percentage of private security guards (though not all) are thugs

looking for legitimacy for their behavior, and have almost no education about the law.

These types of guys will fabricate laws on the spot to justify harassing you. It makes them

feel important.

 

As a minor, I'm sure you've run into bullies at school. Well, that mall security guy is just a

bully who grew into an adult. Now he is a bully with a mall security uniform and an

overinflated sense of importance. From your description, he sounds very typical. He was

harassing you, but he knows very little about the law.

 

The worst possible offense you might arguably be guilty of is trespassing. And that is

assuming that in your state a mall is private property, and that security asked you to leave.

 

It is common that most malls have restrictions against photography. But this is to protect

copyrights and trademarks and the holy sanctity of the store displays of the retail stores.

This has nothing at all to do with customers taking pictures of each other. The rent-a-

cop's claim that you have to have the young woman's permission in writing is complete

B.S., even if the mall is private property. Again, the worst they can do is kick you out of the

mall for violating mall policies against photography. There is no way you can be arrested

just for taking some young woman's picture as you describe it. Her gender and age are

irrelevant.

 

The subject of ID has been brought up a couple of times. Due to a Supreme Court decision

earlier this year, a police officer can now require you to produce ID. However, that

authority does NOT extend to private security guards. If a rent-a-cop ever asks you for ID,

you can simply decline. Anyone can ASK you for ID, but only a police officer can require

you to produce it.

 

If your description of the incident is completely accurate, you might be able to sue,

although that is a stretch. He harassed you, and he's a dumb sh*t, but he didn't lay a hand

on you, and didn't force you to stay. He basically just tricked you into believing he had

more authority than he does. Talking to the mall management with your parents will

probably get you more satisfaction. Malls want their security guards to keep theft to a

minimum, and keep the customers and the building safe. If the security guards are

intimidating the customers and driving business away, on the other hand, the mall

management won't hesitate to reprimand or fire the security guards. The mall is in

business to make money, and they don't make money if the rent-a-cops are driving the

business away. You may just be a teenager, but teenagers and young adults spend more

money at malls than most people realize. As long as you are not a hooligan, the mall

wants you there spending money.

[jeff_conrad]

Roger Krueger wrote:

<blockquote>

Jeff: Actually the police can detain you without arrest on mere suspicion

</blockquote>

Oops ... something here obviously was wrong—if you take what I said

literally, you couldn’t ever be arrested, could you? ... looks as if

I omitted “without lawful authority”. Incidentally, the words

“however brief” (often qualified with “an appreciable

period of time”) and “without lawful authority” are from

court decisions rather than the law itself, which simply states,

<blockquote>

False imprisonment is the unlawful violation of the personal liberty of

another.

</blockquote>

A peace officer can detain upon “specific and articulable facts

which, taken together with rational inferences from those facts, reasonably

warrant that intrusion” (<cite>Terry v. Ohio</cite>); a private

person, including a security guard, cannot detain for any reason except

suspicion of shoplifting.

<blockquote>

But none of that applies to a rent-a-thug, of course.

</blockquote>

True. The Fourth Amendment to the U.S. Constitution applies only to

government agents, not private individuals. A twist to this is that, if a

search by a security guard uncovers contraband, such as drugs, or in the

case of a minor, alcohol, whatever is found is admissible as evidence if

the DA decides to prosecute for possession of the contraband. Of course,

in most cases, a security guard has no right to perform a search, but if he

is bigger than you are you may not be able to prevent it. Yet another

reason not to follow a security guard <em>anywhere</em> there won’t

be witnesses unless he has lawfully placed you under arrest ... and even

then, his right to forcibly move you is questionable in most cases.

[bobatkins]

Thanks for pointing out that some malls in some states may not be considered as "private property".

 

However, even if a mall IS considered to be private property, the most a security guard is allowed to do if they find you taking photographs against mall regulations is to ask you to stop and leave. They can't detain you, they can't confiscate your film or camera. Assuming you've commited no crime, the only way the police will get involved is if you refuse to stop taking photographs and refuse to leave the property.

[roger krueger]

Jeff: It doesn't matter (to the photographer) what mall policy is--mall policy has no legal

force, other than perhaps as a backup justification for a request to leave. But yeah, lying

about mall policy would be a good way for the guards to get in hot water with their

bosses.

 

Chip: Private property is private property. The important distinctions are

whether the mall functions as a public forum, and whether a given state's constitution has

aggresive enough protection of freedom of expression that leads to owners of private

property that functions as a public forum being required to permit expressive activity. The

most cited case, Pruneyard, deals specifically with rights created in the California

Constitution, not the U.S. Constitution.

 

Someimes it gets pretty complicated. In California, (sorry, I know not particularly relevant,

but, being a Californian, it's what I know.) whether or not a mall is a public forum rests in

large part on the presence of certain types of business, such as gyms and theaters.

Albertsons has explicitly stated in a court document that they draft their leases to

specifically prohibit any other businesses in a strip mall wih them that might give it public

forum status!

[jeff_conrad]

Roger Krueger wrote:

<blockquote>

It doesn’t matter (to the photographer) what mall policy is—mall

policy has no legal force, other than perhaps as a backup justification for

a request to leave.

</blockquote>

It’s probably more than a backup—mall policy is the owner’s

directive, and the security guard, as the owner’s agent, can enforce this

policy, provided, of course, that applicable law covers trespass on private

property open to the public.

<p>

A photographer certainly can’t be cited for violating mall policy,

but a security guard who violates mall policy in harassing a photographer

may leave the guard, and of course the mall, open to legal action. I

don’t know the applicable legal theory, but it could be something as

simple as this: a security guard can enforce but cannot establish

policy; his authority is limited to acting as the owner’s agent. When a

guard acts in violation of mall policy, he cannot be acting as the

owner’s agent, and consequently, his directive is without legal

force, and any detention or similar action is illegal.

<p>

Perhaps I harp on mall policy because I’ve had a number of instances

in which the policy that I got from mall management was quite different

from what I had been told by security personnel. Unfortunately, the person

who actually can answer the question always seems to be “gone for the

day” just when you really need him.

<p>

I’ve also found that sometimes, questioning a guard about the exact

policy will cause him to back off if he realizes that he really isn’t

sure what the policy is. The conversation might go something like

<blockquote>

“I’m sorry, photography isn’t allowed here.”

<br>

“But the lady over there just took a picture of her companions”

<br>

“That’s different”

<br>

“How is that different?”

<br>

“You’re doing professional photography, which we don’t

permit”

<br>

“Actually, I’m not shooting professionally”

<br>

“You’re using a professional camera”

<br>

“And just what is a professional camera? What exactly does the

policy say? May I see a copy?”

<br>

“Well, I’d need to speak with my supervisor.”

<br>

“Please do so.”

<br>

“Well, she’s not around right now.”

<br>

“Why don’t we speak again when she is around.”

</blockquote>

and so on. By this time, the guard sometimes will just walk away. Of

course, sometimes he will not, and may threaten various actions if you

don’t leave. In that case, common sense usually will dictate the

next step.

<p>

I don’t necessarily recommend challenging a guard, but sometimes it

does work. So far, at least, I've not suffered any consequences from doing

so. In general, I’d agree with the advice in Bob’s most recent

post. Unless you are mighty sure that you cannot legally be ordered to

leave, and are willing to risk the guard lying and the police and DA

believing him, you probably should leave if told to do so.

<p>

In the ensuing digression typical of these threads, we may have overlooked

one simple but significant item—James never said that any of the

guards actually asked him to leave the mall, which probably was their only

legal remedy. Yet another misstep by the guards. Consequently, James

probably could have quite legally ignored them. The same also would be

true for anyone else similarly challenged. Unless you’re a real

civil libertarian, however, it’s certainly not worth getting roughed

up over, so again, common sense should be the guide.

[thomas_sullivan]

unless they have changed the laws........

 

a mall is considered semi-public, in that the owners have let the public in sort of mass invited. there fore the "public" laws prevail unless the owner says otherwise.

 

which means, for photography, they have to post signs specifically saying "no photography"..........or........when a representative of the owner (ie the mall cops, store clerks, other workers of the mall) tells you that the policy is "no photography" (even without the signs), you must stop right then and there, no more pics. The pics you have taken up until that time are yours and they have no authority to confiscate them. You just stop taking pics. That's where the limit of their authority ends.....Period!

 

Now, with the terrorist threat, and the upskirting crap.......thanks alot you asshole idiots who do this.....i would assume they could detain you until the REAL cops got there, BUT, it would have to be for those reasons, not casual pic taking....but again, that is the limit, they can detain you until the real authorities get there........Period!

 

All that other bullshit you went thru is highly likely to be good grounds for a lawsuit, especially seeing as you are a minor, your parents probably should have been called immediately to notify them.

 

If you were my son.............there would definitely be a lawyer looking this over for law suit applicability at this very moment.

 

Get a lawyer. This sort of injustice has to be fought at every possible accurance. Its the only way its gonna stop.

[erin.e]

When you grow up and are old enough to leave home kid, leave that ole crazy shithole called the U.S.A and come to a sane place like New Zealand where you can take piccys in Malls , on the subway, and virtually anywhere in public without being harrassed by some powercrazy fuckwit in a uniform. Be a good boy and get a Uni degree in something and our Government will find a slot for you, bring your Mom and your dad,your brothers and sisters, your uncles, aunts, cuzzies and your cats dogs, and girlfriends and all the family loot too! In case Gary Woodward advocates whipping an shooting them all in true Will Munny style (" Heered ya killed wimmen an children back there in Mizzoura Will Munny")for being traitors and deserting the U.S.A.

[kevin m.]

Erin, I've heard that both Oz and New Zealand are extraordinarily difficult to immigrate to. Am I misinformed?

 

Got room for 50-odd million?

[Brad_]

To those who actually go out and do SP on a regular basis, please raise your hand if you're

chomping on the bit to get into malls to take people pix with Sunglass Hut, Pottery Barn

Kids, Swatch, Geriatric GAP, Banana Republic and Old Navy as backgrounds. Oh...

[thomas_sullivan]

there is Victoria Secrets....however....

 

;o)

[terry_m1]

I recently took my Leica M6 into a mall near my house and was shooting the light coming through the glass ceiling in the main part of the mall when a security guard, obviously bored, walked up to me. He said," Are you taking photographs?" I said, "I'm shooting that beautiful light coming through the mall ceiling." "You are not allowed to shoot pictures in here of people", he then said. I responded, "I'm not shooting photographs of people; as I just said, I'm shooting the light." He said, "Would you like to go down the escalator and into the manager's office?". I said, "No, I'm busy shooting the light." He then walked away. This is consistent with what others have said above about the security guard field--some are good, others are morons. And this guy was obviously bored. Last year I drove to Long Beach (CA) harbor to attend a regatta boat shoot on the water. I got there at 7 a.m. on the Saturday scheduled and as I pulled into the parking lot adjacent to the harbor, flashing lights hit my car. I got out, pulled my camera bag from the back seat, heard a car door slam violently, and found a policeman in my face. I said, "Good morning, sir. May I help you?". He said, "You just drove through a stop sign back there." I said, truthfully, "No, sir, I was aside you at that spot and, like you, I acknowledged the stop sign by stopping." "What are you doing here", he asked. I said, "I'm here for a photo shoot sponsored by the Photographic Society of America, and this is my camera bag." He let off some more steam and finally walked back to his car and sped away at a fast pace. At that hour, I and he were the only ones on the adjacent streets, so he was obviously bored, too, and needed to strut his feathers and let off some steam. What an asshole!

[manuel_garcia5]

The "rent a cops" were just taking advantage of you becuase your young. You did nothing wrong, as long as your telling the whole story and didn't disrespect anyone then you have nothing to worry about. I really hate it when people take advantage of others like that.

 

I'm as law biding as the next guy but if the mall security would have given my kids that much greif over a silly picture I would have raised hell. It's against the law to detain you if they don't arrest you. You should have told them "unless you plan on calling the police then let me go". Good luck!

[acearle]

Well, I hate to tell you this, but it will only get worse. Anyone with a camera is a potential terrorist and according to an awful lot of halfwits, that means EVERYONE with a camera is a terrorist. Me? I saw this happening a few years back and left the country. I'm not shooting in a place where I can (and do) regularly tell police and military police to take a flying copulatory-action at a rolling donut (unfortunately, donut doesn't translate well into Chinese).

 

I've heard more and more similar stories. Before the election, I might have considered going back to the U.S. in another 10 years or so. With another 4 years of paranoia and erosion of civil rights, I figure it might be safe to do street photography in the U.S. roughly mid century. By that time, I'll probably be pushin' up the daisies.

 

My real take is that the mall security personnel were busy trying to feel important by harrassing a bunch of kids. There is no way in hell that you did anything illegal, immoral, or any other im or il. You were leaving. You technically don't have to have permission to take ANYONE'S picture in a public place (and a mall is defined legally as a public place, those who don't believe it should strip nekkid and see how far past the Sears bathrooms you get before getting arrested). If it is against mall policy, they can ask you to leave. My advice would be to leave. You don't have to surrender film, delete images, or ?????. In order to arrest you, you have to have done someting illegal. I seriously doubt if mall policy has been codified into municipal law ;).

[acearle]

Hey Erin, some of us are working on it :-D.

[kevin m.]

"...please raise your hand if you're chomping on the bit..."

 

What's with the condescension? I wasn't aware that subject matter made the picture. I'm chomping on the bit to see good SP photos taken anywhere, but I'd love to see a good 'malls of America' or WalMart series. Seems rather sad that a large part of American life - shopping - is off limits.

[Brad_]

<I> What's with the condescension?</I><P>

 

Condescension? Do you mean like: <I>I wasn't aware that subject matter made the

picture.</I><P>

 

In any event, subject matter is important to me.