Liability of a Security Guard v. Police Officer
Under California Law, security companies are responsible for the actions of their employees, i.e., their security guards. Similarly, private businesses such as night clubs, retail stores, and homeowners’ associations that hire their own employees to act as security guards (including “bouncers” and the like) are also liable for the actions of those employees. And the security guards themselves are personally liable for their own actions. Therefore, it is common to name the security guard company as well as the individual guards as defendants.
The California Civil Rights Act is a very powerful tool when suing security guards and companies that hire them. Under federal law, civil rights lawsuits against police officers are commonly brought under section 1983 of the federal Civil Rights Act. It imposes liability against individuals acting “under color of state law,” that is, police officers. However, the acts of security guards are typically not considered under color of state law. Therefore, it is a mistake to sue security guards based solely on section 1983 and your case will likely get dismissed pretty quickly.
Under California law, the Bane Act is the most effective tool in security guard cases. The Bane Act imposes liability on individuals, “whether or not acting under color of law.” The Bane Act serves as the basis for lawsuits against security guards, and the companies that hire them, for the (1) use of excessive force, and (2) false arrest. However, the following are some more important difference under California law.
Qualified immunity is a legal doctrine that protects police officers. The doctrine was created to weed out frivolous lawsuits against governmental officials before the case goes to trial. For a more detailed analysis of how it works, see my posts Qualified Immunity and Knowingly Arresting the Wrong Person, and Qualified Immunity Shoots Down Taser Case.
The biggest problem with qualified immunity is the police officers’ right to an “interlocutory appeal.” In most other cases, all parties must wait until the trial is over before they can appeal a judge’s ruling(s) or a jury’s findings. An interlocutory appeal is an immediate right of appeal. Qualified immunity is asserted on behalf of the police officer before trial. If the trial judge disagrees, he or she will deny the request. A denial of the request means the officer must stand trial. And that should be a good thing for the plaintiff, right? Not so fast. If the request is denied, the officer immediately has the right to file an interlocutory appeal. In the Ninth Circuit Court of Appeals, that process takes 18 months to two years to complete. And if the officer loses there, s/he has the right to petition the United States Supreme Court to hear the case. Although those petitions are often denied, they are time consuming as well.
However, the doctrine of qualified immunity only applies to cases brought under federal law, typically section 1983 actions. Qualified immunity does not apply to cases under state law such as the Bane Act. Without the doctrine of qualified immunity, the plaintiff in a case against a security guard is on a much faster track to a trial.
Respondeat superior is an ancient legal doctrine that makes the master liable for the wrongs of its servant. In more modern times, it is called principal/agent liability, and employer/employee liability. Example: You are rear-ended by a vehicle owned by a corporation and driven by its employee. The corporation is liable for the acts of its employee simply because of its status as the employer of the negligent driver.
There is no respondeat superior liability in a section 1983 case against a police officer. If you want the public entity in the case, you need to state a separate theory against the public entity such as negligent hiring and supervision. However, respondeat superior does apply to a state law claim against a security guard. Therefore, the employer of the guard is liable for the actions of the security guard simply because it is the employer. This makes it much easier to have the company as a defendant. This is very important if you are seeking punitive damages.
Section 818 of the California Government Code states, in part, “a public entity is immune from punitive damages . . . .” Punitive damages are still available against a police officer individually. But punitive damages are based on the financial condition (sometimes called new worth) of the individual officer. Those verdicts are usually small.
On the other hand, security guards are typically employed by a private business. They are not public entities. Therefore, punitive damages can be awarded against a private a business that employs security guards. Example: I went to trial against a very large security guard company called Borg-Warner. It was the same company that provided security at the 1996 Olympics in Atlanta, Georgia. The jury awarded my client $600,000 to compensate him for his injuries. It then returned a verdict of $1,000,000 in punitive damages against Borg-Warner. Punitive damages are designed to punish a defendant for their conduct and deter them from engaging in the same conduct in the future. Thus, allowing punitive damages in security guard cases achieves that goal.
Both section 1983 and the Bane Act allow the court to order the defense to pay for the prevailing plaintiff’s attorney fees. The attorney fees are typically calculated by multiplying the number of hours worked on the case by a reasonable hourly fee, even if the case was taken on a contingency fee basis. This is called the Lodestar amount.
However, under California law, the prevailing plaintiff under the Bane Act may seek a “multiplier” of the Lodestar amount. The multiplier is based on several factors including the experience of your lawyer and the complexity of the legal issues. If the court awards a multiplier of 2, your judgment will be increased by two-times the Loadstar amount.
If your case settles instead of going to trial, can you write about your victory on social medial or tell your friends? If the defendant is a public entity, the settlement is a matter of public record. Therefore, you can write about it and tell your friends. However, a private security company, night club, retail store, or homeowners’ association are not public entities. Therefore, the defense almost always requires a confidentiality clause in the settlement agreement. If you want to settle, then it must be confidential.
This area of law is very complicated with many nuances. This post is meant to highlight the primary difference between suing a security guard company and a police department. Please contact us if you would like a consultation on your security guard liability case.
 See Tsao v. Desert Palace, Inc. 698 F.3d 1128, 1139, 1140 (Cesar’s Palace security guard working together with Las Vegas Metropolitan Police Department held to be acting under color of state law).