Residential properties are increasingly becoming closed communities for the more prosperous members of our society. The closed community controls access to their property for various reasons and in various ways. Some communities have literally become fortress-like while others have very open observation of, and access to, their community.
The reasons for restricting access to residential property take many avenues. Some residents are concerned for the security of their property and residents because of demographics and crime trends in adjacent areas. Others believe that this type of community provides them with a prestige symbol. A third general category includes those individuals, who because of their occupation or public image require the protection to maintain a stable family environment.
Regardless of the justification for establishing this type of community, the security issues are identical. The courts have held that any security measures adopted must be utilized in a reasonable and appropriate manner. Herein is the minefield—care must be taken to ensure that there is no “illusion of security that does not in fact exist.â€Â Inappropriate reliance on security measures, actual or implied, decreases the individual’s awareness of their own responsibilities for their safety and security.
A measure not properly utilized will frequently increase the potential for negligent security or premises liability litigation. The theory is that the need for the security measure has been identified as necessary to counter a security risk, and therefore it places a burden on the property owner to utilize the measure appropriately.
For illustration purposes, let’s outline the procedures appropriate to developing a security program for a closed community. The starting point is for the residents to develop an overall security plan acceptable to the majority of the residents—there is no one-plan-fits-all, each property has unique risk factors. A security committee should be appointed to be the primary managers of community security programs.
As part of this overall plan, an evaluation of the risks faced by the community must be identified. These risks include the crime rate on and adjacent to the property, the demographics of the surrounding neighborhoods, traffic patterns that facilitate movement onto the property, and the potential costs of failing to mitigate the identified risks.
The overall security program must be a combination of people, security devices and systems, policies and procedures, and a security awareness program. Each portion of the security plan is designed to complement and increase the efficiency of the overall loss prevention program.
The community security plan is oriented to prevention of loss rather than enforcing local criminal laws. Prevention is the primary goal and law enforcement intervention is necessary when the prevention strategies are ineffective.
All security programs should include concentric circles of protection. In the case of the closed community, the perimeter is the first line of defense. The second line of defense may be a security patrol force or a very active neighborhood crime watch program. The third line of defense is the physical security measures undertaken at each residence. Responsibility for the first and second lines of defense is that of the community governing body, while the resident is responsible for the third protection line.
Once the overall security concept has been identified, it is necessary to decide the appropriate manner for implementing the program. The first area to analyze is how to control access to the property. Perimeter fencing serves many purposes but there is no fence that can not be overcome by a dedicated individual. The fence defines property lines, channels pedestrian and vehicular traffic to a designated entry point, and notifies the general public of the restricted nature of the property.
Fencing comes in many forms and a decision must be made based on the risk analysis and desired esthetics. The chain link fence with a barbed wire overhang would not normally be appropriate for a community. The solid concrete or wooden wall may give an impression of a fortress mentality. The most appropriate fencing is probably a wrought iron decorative fence that allows visibility of the property but meets the requirement for controlling access. For esthetic reasons, various landscaping techniques can be used to minimize the “harsh†appearance of the fence, for example planting shrubbery in front of the fence or planting vines to cover the fence.
The use of fiber optic and pressure sensors does not meet the requirements normally expected of fencing. This technology could be a supplement to the fencing as it would report any intrusion to a central location for further action. Used by itself, many false alarms are probable due to animals crossing the property line or teenagers taking a short cut to their residences rather than go through the entry gate.
A critical component of the perimeter fencing is the entry gate. A gate without a perimeter fence only partially controls access and may increase the level of liability with the gate demonstrating a desire to control entry but easy entry at a point beyond the gate. An unattended entry point that relies on mechanical devices to control entry creates an additional burden on residents to authorize each entry and also reduces the response time for emergency services. The manned entry area could be utilized as the central security point. It could also serve as a base for the personnel responsible for managing the second line of defense—interior patrolling of the community and response to security problems.
The quality and management of the security force is critical, whether the security force are employees of the resident governing body or a private contract security firm. The establishment of minimum performance standards is extremely critical. Litigation issues more frequently arise from security force issues than other problem areas.
The courts have ruled that the governing body may outsource the responsibility and function of providing security, but they retain the overall responsibility for security. You may delegate task performance but not the ultimate responsibility.1
Because each property has unique characteristics and risks, the courts have held that security trade practices in the area do not establish the appropriate level of care.2Â What this basically means that a property is not required to utilize identical security measures as adjacent properties.
Potential problems arising from security force issues are easily mitigated through the development of comprehensive operational instructions and aggressive and continual management supervision. Policies and procedures are the most critical element of any security program. They document your expectations and provide guidance for application of the various components of the overall program. They must be viable, support the identified goals and objectives of the security program and be in strict compliance with all applicable laws and regulations.
The manning structure of the security force takes many directions. Some communities use a security force of employees, others may use a contract guard service and even off-duty law enforcement officers. Each type of force has unique characteristics. It’s important to remember that you get the quality you are willing to pay for, although high wages is not necessarily an indicator of quality performance.
The proprietary force may develop a bond with the community and its residents, especially if they reside on the property, but may also be expensive if an appropriate wage and benefit package is provided.
The contract security force quality is predicated on the community association setting strict standards and requiring strict compliance with the contract. Unfortunately, many managers depend on the vendor for supervision and management of the security force and its operations. Frequently this results in deterioration of performance and escalation of potential liability. The vendor frequently pays low wages and does not provide benefits, reducing the quality of the personnel pool.
Use of off-duty law enforcement officers has its own unique problems. The law enforcement officer’s operational concept is oriented to arrests and reaction to citizens’ complaints—the exact opposite of the prevention concept required in the security environment. The hourly rate expected by law enforcement officers is normally much higher than the proprietary and contract staff members. A serious problem arises if a law enforcement officer is injured while performing private security duties—who is responsible for workers compensation payments? Law enforcement officers are legally required in many jurisdictions to be available on short notice for additional assignments. They may observe a serious law violation on adjacent streets or property while performing security duties. The question arises as to whether they should respond to this external situation and if they do, what is the increased potential for liability for abandoning their security requirements?
The question of whether or not the non-law enforcement security force should be allowed to carry weapons has several legal and management ramifications. An armed security force must be trained in the proper use of force as well as marksmanship training. Additionally, the quality of the security officer must be appropriate to make the proper decisions on the use of force—John Wayne types need not apply for employment! Just remember that it is easy to teach someone the mechanics of firing a weapon but the difficulty is teaching individuals “when to shoot.â€Â The firing of a weapon by a security officer is almost a guarantee of litigation.
The operational expectations of the security force must be predicated on a concept of “observe and report†unless there is a demonstrated concern for the life of another person. The local law enforcement agency should be notified to respond to possible criminal incidents. The expectations for intervention to protect people and property must be coordinated with legal counsel and law enforcement.
The final defensive ring is the individual residence. Many residents believe that all they need is a home security alarm system and they are adequately protected. Nothing could be further from the truth.
Two major problems arise from the over-reliance on alarm systems. Residents fail to take into consideration that some type of law enforcement or security response is necessary to complement the alarm system. The alarm system’s purpose is to notify someone of an intrusion or other emergency. It is a notification system and not necessarily a protection system.  In many jurisdictions, law enforcement agencies have discontinued responding to home alarms because of the high number of false alarms due to misuse. The alarm company may claim to have a response capability but they are usually security officers without the power of arrest. They also do not have the authority to respond in a manner other than that of a private citizen—no emergency lights and sirens. Again, their function is to verify that the alarm is legitimate and notify law enforcement.
The second major problem is that of failure to use the alarm system as it is programmed to respond. False alarms frequently occur when someone forgets that the system is in operation and does not cancel the entry alarm within the prescribed timeframe. Depending on the type of alarm door contacts and the professionalism and quality of the installation, the alarm can be activated by a sudden impact to the door without the door actually opening. Large animals on the interior of the residence that jump onto the door have been known to activate the alarm.
The greatest inducement to the criminal is the carelessness of the resident who fails to shut all doors, especially a garage door, or who leave valuable property outside of a protected area. While the argument may be presented that the perimeter fence and the security patrol will stop anyone before they can get to the residence, it is important to remember that not all criminals come from outside of the property lines. Securing of doors and property should be an integral part of the family personal security protection plan.
While much time has been spent discussing the various aspects of the overall security program, little has been said about reducing the potential for liability. Studies have shown that when the property owner takes appropriate precautions and measures, if named as a defendant in a negligent security case, they will prevail about 52 percent of the time.
Much of your liability reduction program requires extensive documentation of the actions undertaken. The minutes of the initial security committee meetings should include a listing of identified risks, the measures and strategies identified to counter the risks, and the business decisions made to use selected prevention programs. Contracts with security vendors for services and equipment must be in sufficient detail to protect your interests. Remember, vendors normally have contracts in which they specifically try to limit their liability and shift the financial burden to the customer. Be especially aware of the consequences of letting a vendor insert a hold harmless clause in a service contract—that’s to his benefit, not yours.
Aggressive supervision of security activities and management of the security program are essential. Annual reviews should be conducted of the security risks and the security programs to ensure that your programs are adequate.
While the management tasks may seem onerous, they are insignificant compared to the costs of failing to have a viable and effective security program. Unfavorable litigation outcomes will impact the ability to your property and personal reputations and careers can be irreparably damaged.
Prevention, not reaction, should be the order of the day!
1 Rockwell v. Sun Harbor Budget Suites, 925 P.2d 1175 (Nev. 1996)
2 Allen v. Ramada Inn, 778 P.2d 291 (Colo. 1989)