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Analyse the strength of the argument that security managers deal with security while lawyers deal with law
The purpose of this paper is to analyse the strength of the argument that security managers deal with security while lawyers deal with law. In order to do this, the paper looks at the contemporary role of security managers and lawyers, and presents a discussion on who deals with the legal aspects of security work.
SECURITY MANAGERS DEAL WITH SECURITY
It is indubitable that security managers deal with issues affecting security. They deal with supervision of guards and other personnel; patrols; inspections; regular audits of performance and competence; lights, fences, doors, windows, locks, barriers, safes, and communications equipment (Fischer and Green 1998). They also deal with security clearances, investigation of losses and violations of company regulations, and liaison with the police and other agencies. Modern security managers are also a security program educators and salespeople.
They must find ways of selling security as a cost-effective investment, understanding that, in order to develop future-oriented security programs, they must take an interest in safety, architecture, consulting and engineering, human resources, compliance, transportation, telecommunications, information processing, and marketing. According to Caralli and Wilson (?), managing security in the context of the organisation's strategic focus ensures that the goals of security management are aligned with the high-level goals of the organisation.
However, these strategic needs are often in conflict with the actions required to ensure productivity. Thus, finding the right balance between protecting the organisation's core assets and processes and enabling them to do their job becomes a challenge for security management. Caralli and Wilson (?) further argue that, in order to meet these challenges, the most important areas of the organisation must be identified and targeted. Then, because security is a problem for the whole organisation, security managers must mobilise many disparate parts of the organisation to work together and to expand their core responsibilities to include security.
To be effective in their role, security managers must effectively deal with other functions, including managerial and administrative (Fischer and Green 1998). They must be sufficiently skilled in planning, organising, employing, leading, supervising, innovating, and guiding and controlling the performance of the department. They also have to be skilled in budget and fiscal supervision, office administration, establishment of policies governing security matters and deployment of systems and procedures, development of training programs for security personnel and security education of all other employees, and provision of communication and liaison between departments in security-related matters.
Apart from dealing with issues affecting security per se, security managers also deal with law. According to Okaty (2005:109) the responsibilities of loss prevention officers begins not with an overview of duties, but rather of the legal liability that officers may encounterÂ. In the past few years, the number of complaints filed against security officers and companies has increased dramatically, and most of the cases belong in the tort category. According to Fisher and Green (1998), it is of enormous value for everyone engaged in security industry to pursue the study of both civil and criminal law, since without some knowledge of the law security officers frequently cannot serve their clients' interests. They may subject themselves or their employees to lawsuits.
Furthermore, in cases that must eventually go to court, misunderstanding of legal processes and how they operate could result in the case being lost. Security officers must also be introduced to the tort category of law (Fischer and Green 1998). For example, if a guard takes some action to interfere with the free movement of some person, there is a basis for a suit no matter whether the guard knows those actions are wrong or is unaware that the actions are wrong, or is unaware that the actions are wrong but acts in a negligent manner. The most common intentional torts are assault, battery, false imprisonment or arrest, defamation, malicious prosecution, invasion of privacy, trespass and conversion, intentional infliction of mental distress.
Security officers must also be educated about the law regarding making an arrest, and this power varies among states (Fischer and Green 1998). Security officers have the same power as other citizens. In the US, a citizen's power to arrest is granted by common law and in many jurisdiction by statutory law. In most states, warantless arrests by private citizens are allowed when a felony has been committed and reasonable grounds exist for believing that the person arrested committed it. In some jurisdictions, a private citizen may arrest without reasonable grounds as long as a felony was committed. Often, security officer is liable if a crime was not committed, regardless of the reasonableness of the belief.
There are many problems involved in making an arrest of a shoplifter (Fischer and Green 1998). Since the laws vary from state to state and since they are still subject to changes, it is essential for security officers to be continuously trained and educated, as any variation from approved procedure can subject the store to severe financial reverses and damaging public relations consequences (Lienesch 1993). Thus, all security personnel must know the legal limits and ramifications of their actions. Most retail security managers have little difficulty training security officers in identifying and apprehending shoplifters, but they do encounter problems when trying to teach sound decision making based on knowledge of the law.
There are other cases where security officers might be held liable for their actions. According to Hayes (1991), when employee-thieves and shoplifters are detected, these individuals are generally detained so that follow-up action can be taken. Whether the individual is released, criminally prosecuted, or civilly remanded, the process leading up to the apprehension and the circumstances of the detention must conform to accepted standards. A single poor decision by a security officer can wipe out that store's annual profit.
The key to preventing false arrest claims is through training programs for employees who have the authority to detain theft suspects (Anonymous 1995). The law permits a private citizen or his employees to detain in a reasonable manner and for a reasonable time a person who is believed to have stolen merchandise so that the merchant can recover the merchandise or summon a police officer to make an arrest. The exact extent of the protection afforded to merchants and their employees or agents depends on the individual state's statutes (Fischer and Green 1998).
Some states offer protection against liability for false arrest, false imprisonment, and defamation, while others offer protection against false imprisonment but not against false arrest. Statement made under duress is not regarded as trustworthy and is therefore inadmissible in court (Fischer and Green 1998). A search made as a part of an arrest is supported by case law, but this too varies among states (Fischer and Green 1998). In the US, for example, some states neither forbid nor condone searches, rather, they allow security personnel to investigate or make reasonable inquiries as to whether a person possesses unpurchased merchandise. In other states, searches are strictly forbidden, except looking for objects carried by the suspected shoplifter.
The extent to which force may be used is restricted, and if the force exceeds what is deemed reasonable, officers and their employers are liable for the use of excessive force, which can range from assault and battery to homicide (Fischer and Green 1998). In the hotel industry, for example, owners might be liable for failure to adequately protect guests from foreseeable criminal activity. Security officers may also be liable for failure to perform jobs they have been contacted or employed to perform. Where security officers clearly intended from crimes to be committed, they may be charged with solicitation of an illegal act or conspiracy in an illegal act. Entrapment, which is solicitation by police officers, is another charge that may be leveled against security officers.
Law and regulations regarding information security pose additional problems. Laws regulating user data and government surveillance may be clear, but how to comply often is not. According to Anonymous (2001), there are two legal worries in the UK: the Regulation of Investigatory Powers Act and the Data Protection Act, and security managers have to work out how their companies would comply with this in practice. Security managers around the world face similar laws. According to Thurman (2004), most information security professionals are familiar with at least one of the many recent regulations that have an information security element to them. One legislation of concern is the Sarbanes-Oxley Act, which has presented new financial accounting and reporting requirements. Managers have to review the law to see what is needed to ensure compliance.
According to Caralli and Wilson (?), regulations can draw the organisation's focus away from organisational drivers and on to the compliance requirements of the moment. Complying with regulations is certainly an important activity in an organisation, but it cannot substitute for a mission-focused, strategic security management process. Regulation is intended to improve the core industries on which it is focused, but compliance activities can give organizations a false sense of the overall effectiveness of their security programs. A compliance-driven approach to security can also cause costly and inefficient investments in protection mechanisms and controls to protect those assets and processes that are subject to regulation, when in fact this may not be the best use of limited resources for the organisation. Security management that is subsumed by a need to comply with regulations can detour an organisation from this strategy by diverting their attention away from what is best for their unique organisational context.
LAWYERS DEAL WITH LAW
Lienesch (1993) claims that most retail security managers have little difficulty training security officers in identifying and apprehending shoplifters, but they do encounter problems when trying to teach sound decision making based on knowledge of the law. In addition, Thurman (2004) indicates that, when managers have to review the law to see what is needed to ensure compliance, they are often confused because there is no guidance on the related issues. According to Fischer and Green (1998), the complexities of the legal climate governing the war against shoplifting require a sensitive understanding and a thorough briefing by an attorney experienced in the field. In the application of statutes, interpreters must deal with a number of kinds of ambiguity, and as it has been shown above, security managers are faced with all sorts of legal issues and problems.
The trouble is that in many cases the solution to the dispute is not something which can be determined like a mathematical equation. This is when lawyers come into play (Harris 2002). According to Twining and Miers (1991:173), theologians interpreter the Bible; producers, actors and critics interpret plays; historians interpret past events; and lawyers, as part of their professional work, are regularly called on to interpret statutes, regulations, cases, contracts, wills and other types of documentÂ. All rules can give rise to problems of interpretation and some special considerations apply to all statutes. According to Parkinson (2001), systematic ambiguity arises where there is doubt as to the meaning of a particular word. Syntactical ambiguity arises where the meaning of the individual words is clear but the difficulty in interpretation arises from the conjunction of one word, phrase or clause with another. Contextual ambiguity refers to the cause of difficulty in interpreting a partial clause arises from the context in which that clause is found. In order to reduce the degree of ambiguity in statutes, lawyers familiarise themselves with specific principles of interpretation.
Where doubts do arise about the scope or meaning, or about the relationship with other provisions, they often have to be resolved by legal professionals. In order to do this, lawyers go through different stages of the process (Harris 2002). First, they go through clarification of standpoint and role. Then, they identify, locate and assemble an authoritative version of the statutory material relevant to the problem at hand. This involves discovering the original statutory text and any amendments to it, and then discovering when the statute came into force, to what period of time it applies, and what is its duration. Third stage is the identification of the exact word or phrase causing difficulties and of the conditions of doubt which give rise to them. The final stage is the construction of arguments. Thus, law embodies dominant social norms and values, and lawyers are engaged in their everyday work in maintaining those values through their function of implementing the law.
The paper has argued that the statement that security managers solely deal with security while lawyers solely deal with law is not entirely correct. It is accurate that security managers deal with issues affecting security, including education and sales, finding the right balance between protecting the organisation's core assets and processes and enabling them to do their job, and other functions, including managerial and administrative. It is also true that the role of lawyers indisputable.
This is because security managers encounter problems when trying to teach sound decision making based on knowledge of the law. Furthermore, when managers have to review the law to see what is needed to ensure compliance, they are often confused because there is no guidance on the related issues. Thus, where doubts do arise about its scope or meaning, or about its relationship with other provisions, they often have to be resolved by legal professionals.
However, security managers also deal with law. Everyone engaged in security industry needs to study both civil and criminal law, since without some knowledge of the law, security officers frequently cannot serve their clients' interests. They may subject themselves or their employees to lawsuits, and their misunderstanding of legal processes and procedures and how they operate could result in the case being lost. Security officers must also be educated about, among other issues, the law regarding making an arrest, detainment, protecting guests from foreseeable criminal activity, failure to perform jobs they have been contacted or employed to perform, solicitation of an illegal act or conspiracy in an illegal act, entrapment, and information security laws. Furthermore, security managers have to ensure that regulations do not draw the organisation's focus away from organisational drivers and on to the compliance requirements of the moment.
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