Armed Security Contracts
Issues for the Attorney Advising the Common Interest Development Client
By Kevin Mallett, Esq.
In California, an armed security officer is authorized to carry a loaded firearm. Furthermore, an armed security officer is required to have additional certifications, training, and licensure over a security officer who is not carrying a firearm. By its very nature, armed security brings into play the potential for the use of deadly force. When a security officer draws a firearm, whether for the officer’s protection or the protection of others, it is an extreme situation with the very real potential for a death to occur. The concepts of "shooting to wound" or "firing warning shots" should be considered invalid; virtually all modern police agencies define any such practice as a violation of policy. If a security officer fires a weapon, that officer is responsible for ALL bullets that leave the weapon. Typically, security officers (like police officers) are trained to shoot the center of the torso of the aggressor (also known as "center of mass").
One thing to remember: Security officers are not sworn peace officers pursuant to California Penal Code §832; they do not possess the powers of arrest that a sworn peace officer has under California Penal Code §836.
The need for armed security is a difficult subject to evaluate. However, it does appear that for the most part the issue boils down to concern of crime/violence and the safety needs of the members and residents of a given CID. For purposes of this article, we will assume that the board of directors for your CID (hopefully with input from the association’s legal counsel) has made the tough decision that your CID needs armed security. The universe of issues to be evaluated in deciding that armed security is required is beyond the scope of this article and will not be addressed.
This article is offered to provide suggestions to both attorneys and the boards of directors for CIDS who may be navigating the myriad and complex issues CIDs face when contracting for armed security; issues that are realistically outside the experience of most people not directly employed in and around police agencies or the security industry.
COSTS & ANALYSIS
Armed security is expensive and, in many neighborhoods, unarmed security is not an option. If the risk of violence/crime is deemed high enough (which is likely if the CID board is considering armed security), security companies bidding on providing services will likely be unwilling to supply unarmed security at any price. Armed security hourly costs can be upwards of $40.00 per hour and in some cases more.
The balance each CID must find in providing armed security boils down to member/resident safety versus cost and liability exposure for the CID. Minimizing the association’s liability exposure is the main focus of legal counsel’s efforts in negotiating a contract with the security service provider.
The following elements impact the cost of security services (not an exclusive list):
1) How many armed officers are needed
2) How many days per week and how many hours per day
3) When the hours in question will occur (some shifts are more expensive than others)
4) Foot patrol or automobile patrol (or some mixture of each)
5) Dedicated cell phone contact number for all on-site personnel and at least one on-call supervisor
6) Reporting protocols and use of bodycams
7) Insurance issues (policy limits, additional insured issues)
How Many Security Officers? In some neighborhoods (for example, a CID located within an area claimed by multiple gangs), security companies may require two officers on patrol. An armed security officer may become a target simply because the officer’s openly carried firearm is a temptation for theft and the security company may require two officers on-site to provide backup and protection for each other. The bidding security company’s risk analysis of the CID location and surrounding neighborhoods (Does the neighborhood suffer multiple shootings/assaults/robberies per year?) may result in a bidding security company requiring the CID hire at least two officers on any given shift. Otherwise, the security company bidding on services will forego providing any security services for that CID.
On its surface, this seems to be a simple decision in terms of cost/benefit analysis; however, it isn’t. If you have two bids – one from a company with a good reputation that refuses to provide a solo officer based on its risk analysis and another bid for perhaps a newer, hungrier company that offers the lower cost, one security officer option – this may seem like an easy choice for a money-strapped board looking at the net savings. However, if the officer is injured or uses excessive force because he or she was alone with no backup or other option, then the savings from the less expensive security contractor could prove illusory.
How Many Hours and How Many Days? Scheduling (deciding the number of hours/days and when those hours are served) is a complex analysis that needs to include input from the board, not just reliance on the recommendations from the security company. Few CIDs can afford 24/7 coverage. Each CID does, however, need the best coverage it can afford. One option is having security at different times of the day with patrols not following any repeated pattern (Any set schedule adds the potential that bad actors will simply plan their illegal activities around your schedule.) If the CID has identified any sort of pattern with its problem/criminal activity (as in issues occur mostly at night and on weekends), those times should be expressed to the security company with a request that the security company make its officers available with some randomized coverage that emphasizes the high risk times, but remains unpredictable.
When Officers Serve the Shifts. When security commences, a given shift should vary. At the same time, the bulk (core) of officers’ shifts need to coincide with the greatest crime exposure. For instance, having an 8-hour shift starting at 6 p.m. one evening and 10 p.m. another may help increase the impact of coverage where the CID can only afford a few shifts per week. An additional element of randomness/non-predictability to the security coverage can be a force multiplier when the CID is working with a limited budget.
Foot Patrols or Vehicle Patrols? Foot patrol is advantageous for small to mid-sized CIDs; however, larger CIDs will usually need at least some vehicular patrol. Car patrol can also be a good way to stretch the CID’s dollar when in the form of periodic random "drive-bys" from an officer at a different location when coming on or off shift. Another use of vehicle patrol can be having a security officer coming off another job "driving by" the CID in question to give a quick check and also provide an unexpected extra presence of security to an otherwise no-security-coverage night or early morning shift.
Communication Lines with the Security Company. Adding provisions to the contract that require a dedicated phone number where an on-shift security officer can be reached can be a big help in getting a security officer to the right place at the right time. As a practical matter, when the CID exercises this option, it should be coordinated through the security company’s dispatch in order to cut down on false calls (i.e., dispatch vetting the caller as an authorized CID member or resident). The vetting process protects both the CID and the security officer and helps keep costs down since false alarms are likely to raise the CID’s future security costs.
Reporting Protocols & Body Cameras: Establishing clear reporting protocols is important. Before signing any contract, the association board needs to see what a typical daily activity report looks like, the typical detail, and make certain there is an ability to integrate audio, video, and still imagery into a report. This can be very important should an incident escalate to a level where someone is injured or worse. A good reporting system limits the association’s liability and helps protect everyone.
This is also an area where body- or vehicle-mounted video can be very important. Cell phone video can be edited and/or faked (and even made up out of whole cloth via a "deep fake"); so having a reliable video/audio reporting baseline is important. In this day and age, bodycams and vehicle cameras are an important tool for both the security company and any client.
Insurance. Insurance is another critical issue. The reviewing attorney needs to see the security company’s policies and vet the insurance carriers. If the CID wants additional insurance coverage above what is normally carried by the security company, this requirement may increase the security company’s premiums. Do not be surprised if the security company wants to pass those increased premiums on to the CID. Unless such a cost is utterly prohibitive, it is likely well worth it.
This list is not exhaustive. There may be other factors specific to each CID client that should be addressed. Specific chronic sources of incidents may need to have a specific strategy developed to address the specific people in question. Drug sales, theft, vehicle issues (including working on vehicles, dumping stripped vehicles, and vehicle chop shops), violence between organized groups, squatters, prostitution, "tagging" (see reference to specific organized groups), and past issues with local law enforcement all need to be considered by the board and attorney drafting a given security contract.
VETTING POTENTIAL PROVIDERS
References from current and even former clients are a good source and beginning point. An attorney vetting potential security service providers needs to look at reviews by various review providers, as well as what can be found within the strange world of the internet. Current clients can be helpful, but need to be treated with at least some skepticism (look for patterns). If a security provider provides services for public entities, this is often a good indicator of the company’s reliability (most public entities will require a history of stability). Use the following link to verify training facilities, private patrol firms, and security officers: https://www.bsis.ca.gov/forms_pubs/online_services/verify_license.shtml
The name on the Department of Consumer Affairs license must match the business name of the company providing service. The company needs to be referenced both by California Consumer Affairs and the Secretary of State (referencing corporate status). It’s not uncommon for there to be a mismatch. This is a red flag that should be run down by either the board or the CID legal counsel assisting that board. The mismatch is not always a disqualifier, but it does need to be explained. If it is transitory, it is usually an issue of adding or removing personnel or business entities from the license in question. If the explanations don’t add up, or seem unlikely, that is also a red flag. A CID should stay far away from a questionable security provider, at least until the provider is a bit more organized.
Another issue is that of having staffing sufficient to cover all of the security company’s clients. Finding out how many hours per week the head of the company is providing patrol services can be an indicator. If very many, a startup security firm might be over-committed and unable to meet all of its commitments to its various clients. When a security company is over-committed, it is also likely to retain less experienced and trained personnel that may not be able to render the level of security the CID needs and deserves.
INDEMNITY
This is an area most general counsel for CIDs can evaluate and negotiate with some level of experience. Beware any security company that seeks indemnity from the CID for anything other than liability based on the direct actions of the board and its directors. Security services are specialized with specific training requirements. There should be minimal blow-back on any CID if there is an event creating liability unless the CID’s board took some action in direct contravention to a course of action recommended by the hired security company.
INSURANCE
Additional insurance (certificate and endorsement) needs to be part of what the CID receives from its security company. If it costs money to provide, then the board needs to factor that cost into the board’s analysis concerning hiring that vendor.
In our experience, most CID liability (CGL) policies will not cover (or at least attempt not to cover) directors for potential situations wherein someone is injured (or killed) in connection with a security service provider. Sometimes E&O policies will provide coverage; however, such coverage is rare and becoming more so. The insurance carried by a provider of armed security specifically does cover many of the circumstances in which an injury or death arises. But beware, there are circumstances which by law cannot be covered by insurance. Section 533 of the California Insurance Code prohibits coverage for an insured’s willful acts. This covers both intentional torts and criminal acts; criminal acts are for the most part intentional. Intentional torts include assault, battery and ultimately wrongful death. Victims can include both potential criminal assailants and innocent bystanders. Injuries from actions taken by an armed security officer can be caused by: (a) impact weapons (batons or even empty handsDisplay footnote number:1); (b) chemical agents (mostly pepper spray); (c) electronic weapons (tasers); or (d) firearms (almost universally handguns, not long arms). Last, but not least, the contract should specify that the CID, as an additional named insured, is to be notified within a certain time period as to any change in the security company’s liability coverage.
EQUIPMENT
This issue is, in and of itself, something that could easily be the subject of a separate article. For those not familiar with this area of inquiry, the answer is simple. The security officers in question must use those items that are in use by local police and that they are allowed to use under relevant regulations and ordinances. If the information of what is issued/authorized by the local police department is unavailable, then counsel should go to the county sheriff for information (or if no other information is available, to federal law enforcement). This should not be an issue as the potential security company should be able to offer a myriad of authorization information and the sources supporting that information.
The security officer will need to carry the proper baton (wood or plastic) or expandable baton (ASP or Smith and Wesson). The security officer may carry a taser (a very expensive item, often costing more than the firearm). The security officer will need to carry a police-grade chemical weapon (using some form of oleoresin capsaicin for which the manufacturer will stand behind the product). The security officer will likely carry some form of restraint, usually handcuffs for citizens’ arrests (the security officer does not have the same powers of arrest that sworn law enforcement has). The handcuffs should be "double locking" and used in a fashion to prevent over-tightening injuries. The flashlight should not be heavy enough to constitute a club (see prior discussion). Any edged tool carried by a security officer must be in the vein of paramedic shears or something with a blade with no point, used to assist with wound care or to free someone from a stuck seatbelt, not a knife that is primarily useful as a weapon. The security officer needs both a reliable fully charged radio and a cell phone. Again, body cameras are all but mandatory these days.
There are only a few popular handguns in almost universal use by police agencies. If the potential security company isn’t equipping its officers in a manner similar to local police officers or sheriff’s deputies, this is a red flag. The ammunition for any such firearm should be the same as approved for use by the local police or sheriff.
While the idea of security officers carrying weapons loaded with expanding or hollow point ammunition may seem inappropriate to the uninitiated, it is vital that only expanding ammunition ("hollow points") should be issued, as any other type of ammunition presents a danger of over-penetration (i.e., the possibility that the bullet will pass through the person at whom the security officer is aiming and strike and injure someone else).
The security officer will need to have valid, current certificates for all items that the security officer is carrying. This is non-negotiable. Copies of these certificates must be maintained and current in the CID’s security file.
R.O.E.
R.O.E. stands for "rules of engagement" and refers to the specific operating policy of security personnel on the CID premises. Such policies are also referred to as "post orders." This policy is simply what will be the standard operating procedures for armed security officers for any given situation. The security service company should have a standard set of procedures or "post orders" that will help flesh out the R.O.E. Given that security service providers are mostly on-site as a deterrence and the security officer’s primary duty is to observe and report, the standard procedure with any violence or potential crime should include: (a) immediate contact with law enforcement should an arrest be needed; and (b) if a victim of property damage or injury is available, the security officer should get as much information as possible and give the CID and law enforcement a report outlining the relevant details and information. This is an area where board and management input will likely be quite useful.
REPORTS
Reports made by patrolling security officers should be detailed, understandable (i.e., not handwritten) and include embedded media, such as relevant photographs or videos. No one expects the next great novel from a security officer, but the reports should make sense and contain relevant details and facts. Reports should include references to where a patrolling security officer is located at any given time, names of all persons with whom the officer interacted and photos of any damage, injury, or condition of interest. Reports should be available to the CID within 48 hours of a given shift. (This is a vital and non-negotiable issue that should be spelled out in the contract and violation thereof should be a defined breach of the contract constituting good cause for contract termination.)
MAJOR INCIDENT RESPONSE PROCESS
A procedure should be in place for next steps following any major incident. This is something that the CID’s attorney should be involved in creating (if not, then the CID attorney should be able to refer his or her client to an appropriate attorney). A major incident would include instances where an individual is injured, arrested, or if a weapon (firearm, baton, chemical, or electronic) is deployed.
Initially, any time the police are involved should be considered a major incident. As part of this procedure, the CID needs to ensure that the CID’s attorney is contacted within a few hours to advise in the event of a serious injury or death, police action, fire, flood, or any other major event. There should be contact information readily available for all relevant insurers to either notify or tender defense/indemnity for any given incident. Additionally, it is wise to have the CID’s attorney involved in the retention of any investigator needed to immediately investigate an incident and preserve relevant evidence. Having counsel involved in the hiring of an investigator and having the investigator report to counsel protects the attorney-client and attorney work-product privileges and can be very important depending on how events transpire.
Insurance company retained investigators often arrive on scene days, or even weeks, after the incident date, and evidence and witnesses have often "gone cold" by that time. A wrongful death lawsuit against one of this author’s CID clients was settled for nuisance value because a witness the investigator hired through legal counsel for the CID found who had been missed by the insurer, the police, and the wrongful death plaintiff (i.e., deceased’s estate).
TERMINATION
Any armed security contract needs to contain simple language within for termination without cause, given reasonable written notice by the CID. Immediate termination for cause should also be well-defined (for instance, withholding of reports). For the same reasons, automatic renewal language should be looked at closely; any language that requires renewal unless the CID hits some narrow window or meets some complex cancelation process needs to be deleted from any proposed contract. This is another area where a competent CID attorney will be able to advise the CID client on best practices. Termination language, if not correctly handled during the formation of the contract, can seriously compromise the CID when it comes time to end the relationship.
At the end of the day, following the suggestions in this article should help to minimize the CID’s and its legal counsel’s exposure brought on by the introduction of armed security services and the potential use of deadly force within the CID’s complex.
Kevin Mallett is a founding partner of Russell & Mallett, LLP. Since forming the firm, he has convinced insurers to accept Russell & Mallett, LLP as defense counsel in a number of tort lawsuits against those clients, thereby ensuring those clients had defense counsel knowledgeable with the fundamental issues that uniquely impact California CIDs. Mallett has also acted as general counsel providing representation to clients who need advice in dealing with difficult owners as well as assistance in the tort defense context as defense counsel. He has authored courses in how to respond to lawsuits, has served as a judge pro tem in Contra Costa County, and serves as a California Bar Special Master in Alameda and Contra Costa Counties. He has served as an instructor for both CAI and CACM and on various legal presentation panels for both organizations.