How can civilian security personnel do their jobs without risk of committing assault or related crimes?

Question

As I understand it assault can include the implied threat of using physical force against an individual, such as looming over someone, to compel them to do something. I believe many US states also have related laws about harassment, menacing, etc.

However, the job of security personnel seems to be primarily to discourage activities by being present as deterrent against such crimes. Their mere presence is not a threat or assault of course, but if they are attempting to deter someone from acting in negative manner the security personnel would likely have to get close to the person and make demands that they leave or stop whatever activity their engaged in in a manner that could be considered a threat of force if they don't comply.

To go with a particular difficult example think of a bouncer at a bar. More then most security personnel a bouncers job is practically defined by their ability to loom. My father owned a bar, and as he described it to me a good bouncer should be identifying someone who's likely to cause an incident and basically pre-emptively start looming nearby them to remind the inebriated fellow that the bouncer is ready to use physical force if necessary in hopes of preventing a situation from occurring. Likewise breaking up a minor fight often involves a good amount of getting between the two fighting and looking menacing enough that no one want's to try to go around you. Basically you want your bouncer to be able to menace people when a situation is escalating because it's a far safer way of preventing the escalation then allowing it to degreed to violence.

Is a bouncer, or other security individual, guilty of assault or related crime when they do something like this? Does the fact that they are employed by a business with the explicit task of keeping the peace give them any extra leeway with such actions? Is the fact that they are trying to prevent/discourage other crimes give them more leeway?

Answer 1

The above is not quite accurate.

First, assault. The correct definition is "a threat or physical act that creates a reasonable apprehension of imminent harmful or offensive contact." Therefore, no attempt at a battery is necessary. Rather, simply making someone subjectively believe that you are about to commit a battery against them is enough for an assault charge. Please note the following two points. One, that apprehension does not mean fear. Apprehension means that the victim has to believe that the actor's conduct will result in imminent harmful or offensive contact. Two, it's not necessary that the victim believes such conduct will actually be effective - rather, he only has to believe the conduct is "capable" of making the contact.

I can't tell if by "other security personnel" you mean, in addition to bouncers, say, security at concerts or if you mean private security guards, such as ones who guard warehouses or other businesses.

Nonetheless, for the warehouse/business "guards," they do not have a special privilege above or beyond what any random person may do. That is, you may use force to the extent you reasonably believe necessary to prevent a felony, riot, or serious breach of the peace. You may use deadly force only if it appears reasonably necessary to prevent a "dangerous felony" involving risk to human life, including, for example, robbery, arson, burglary.

However, if the private security personnel are operating under authority vested to them by local ordinance or the state legislature, then their rights (and also any attendant restrictions, such as those provided to citizens under the Fourth Amendment) would apply instead.

So where's the difference? It comes about at the standard a situation must meet to allow use of deadly force. A police officer can use deadly force to effectuate an arrest based on a reasonable belief that a suspect has committed a felony involving the risk of physical harm or death to others (murder, manslaughter, kidnapping, rape or burglary) or if there is substantial risk that the suspect was dangerous to the point that he may cause serious physical harm or death to someone if the arrest were delayed.

On the other hand, as a private citizen, you may only use deadly force when attempting to effectuate an arrest if the suspect did indeed commit such a felony. Police can base their action on a reasonable belief and even if that belief is wrong, they will be safe from prosecution. A private citizen actually must be right about the suspect having committed the requisite crime. No matter how reasonable the belief was of a private citizen regarding a suspect, if that suspect did not actually commit the crime, the private citizen who used such force will be subject to prosecution.

Bouncers are afforded no more rights than private citizens. They can issue verbal warnings, ask a patron to leave the establishment, check identification, refuse entry, call the cops, protect bystanders from violence, break up fights, and respond with equal force if necessary. They may not strike an individual with a punch or kick, push or physically toss someone out of the establishment, restrain them using chokeholds or other submission techniques, or use weapons or pepper spray.

Answer 2

Is a bouncer, or other security individual, guilty of assult or related crime when they do something like this?

Maybe.

Being a bouncer or security officer (or police officer) does not give you the right to break the law- the law applies to you as it does to everyone else.

In many jurisdictions assault is a crime defined by statute, however, we'll use the common law definition "an attempt to initiate harmful or offensive contact with a person, or a threat to do so."

Implicit in this is that the "harmful or offensive contact" is unlawful. There are many situations where you may make contact with someone without it being unlawful. The most relevant for a security person is the protection of self-defense: you are allowed to use reasonable force to protect yourself, third parties and property.

Does the fact that they are employed by a business with the explict task of keeping the peace give them any extra leeway with such actions?

No

Is the fact that they are trying to prevent/discourage other crimes give them more leeway?

No