Tales of Police Officers run amok abound as do the civil consequences of such behavior. State civil and federal courts regularly here matters such as where a Plaintiff seeks to hold the local or state government liable for the brutality of its law enforcement arm. Liability in these cases is fairly straightforward; that is, the State is bound by both federal constitutional and statutory law, as well as its own laws, to certain proscribed conduct with respect to the use of force, detention, due process and the like.
Unfortunately, private actors are not necessarily bound by those same laws with respect to the use of force by its private security and with respect to when and how that security arm can detain a guest or trespasser on its property. Nevertheless, private actors are bound by State common law regarding assault and battery, false imprisonment, false arrest, etc. But what constitutes these civil wrongs when private security confronts and detains a guest or invitee on company property?
Consider the following example culled from our case files. In the early hours of New Years Day Larry the cab driver was in his cab en route to pick up potential fares on Big Huge Casino’s property. As Larry arrives, he notices that there is a potential fare waving him down short of the cab stand on Big Huge’s property. Because it is early in the morning, there aren’t many cabs waiting in line to pick up fares at the cab stand. Therefore, Larry picks up the fare waving him down, even though he knows this is a violation of the taxi cab authority’s regulations, of which he is bound.
Unfortunately, Hero, one of Big Huge Casino’s star security officers, observed Larry picking up the fare and decided to stop Larry and force him to unload his “unlawful” fare. To that end, Hero steps in front of Larry’s cab, forcing him to stop. There Hero stands, demanding that Larry’s fare get out and stand in the cab line with everyone else. To his credit, Larry refused to submit to Hero’s unreasonable demands and attempted to leave the premises with his fare. As Larry pulled away, Hero faked being hit by Larry’s vehicle and collapsed. Hero called for backup and before he knew it, Larry’s cab was surrounded by almost ten other security personnel employed by Big Huge Casino.
At that point, Big Huge Casino security refused to allow Larry to leave the premises, effectively detaining him pending their investigation. After almost thirty minutes sitting in his cab waiting for Big Huge Casino security to conduct investigation, Big Huge Casino security ordered Larry’s witness, his passenger, to leave the premises before police arrived. Larry’s passenger was the only witness to the events in question and in fact informed Big Huge Casino’s security personnel that Larry did not hit Hero with his cab. Obviously, it was critical to Larry that his passenger stay for Police to question him. Unfortunately, he was ordered off the premises.
At that point, Larry got out of his cab to protest the eviction of his only witness. As Larry was speaking to security personnel, it is clear from video of the event (which, incidentally, clearly shows that Larry never struck Hero) that, without any physical provocation, Big Huge Casino security personnel suddenly and violently collapse upon Larry en masse and forcibly and violently take him and slam him against the hood of his cab, slamming his head into the cab’s rear view mirror, breaking Larry’s eye glasses; minutes later, as Larry is escorted to the curb by two other Big Huge Casino security personnel, those security “officers” decide to unceremoniously and violently body slam Larry into the sidewalk, while cuffed, again seemingly without provocation. When police and taxi cab authority officers arrive and investigate the matter, and upon review of the video in the matter, Larry is released without citation or charge. Later, after hearing before the taxi cab authority, Larry is cleared of all wrongdoing. What liability do Big Huge Casino and its security personnel have for their mistreatment of Larry?
In Nevada, as in every jurisdiction, the intentional tort of assault and battery is satisfied if the Plaintiff shows that the Defendant intended to cause the apprehension of an imminent harmful or offensive touching (assault), or, did in fact intentionally cause a harmful or offensive touching upon the Plaintiff (battery). Here, Big Huge Casino security officer Hero detained Larry by standing in front of his vehicle and placing his hands upon the taxicabs hood, which is considered an extension of Larry’s body. In addition, several other security personnel threatened Larry with harm, physically and forcibly restrained him, handcuffed him and threw him to the ground without legal authority Therefore, Hero and the other security personnel who later accosted Larry without provocation are liable in tort for battery.
In addition, Hero and the other security personnel that battered Larry are liable in tort for false arrest. To establish false imprisonment of which false arrest is an integral part, it is necessary to prove that Larry was restrained of his liberty under the probable imminence of force without any legal cause or justification. The elements of false imprisonment are: (1) that the defendant acts intending to confine the other or a third person without boundaries fixed by the actor; (2) his act directly or indirectly results in such a confinement of the other; and (3) the other is conscious of the confinement or is harmed by it. Here, Big Huge’s security personnel clearly intended to confine Larry, Larry was in fact confined, and Larry was conscious of his confinement and objected to it. Therefore, Big Huge Casino security personnel, including Hero, are liable for false arrest.
Generally speaking, an employer is not liable for the intentional acts of its employee, such as a battery committed against a customer, since under most circumstances such conduct is neither authorized by an employer or in legitimate service to that employer. However, because the tortfeasors in the instant matter are security whose very job is to use force, the general rule is excepted for security personnel.
Moreover, in Prell Hotel Corp. v. Antonacci, the Supreme Court of Nevada held that an employer was vicariously liable when the employee, a blackjack dealer, hit a customer in the face while dealing a game because the battery occurred within the scope of the task assigned to the dealer, that of dealing blackjack. Therefore, under Nevada law it is likely that Big Huge Casino may be held liable for the intentional tort committed by its employee.