Shopping center security has become a necessary component to safely operate large regional shopping centers. Let’s face it; no one wants to shop in an environment that is perceived to be unsafe. In some shopping centers, hordes of teenagers descend on the property and sometimes walk in large groups causing disruption. Sometimes gang members try to claim a shopping center as part of their turf. Other undesirables like aggressive panhandlers, intoxicated persons, and loud and obnoxious persons sometimes create a disturbance. Sometimes crimes are committed where security officers detain someone for arrest. Because of this, shopping center managers have established policies to cause the removal of those unwanted persons who commit crimes or violate mall rules while on the property.
What is a Trespass Warning?
If you think about it, a shopping center is private property that’s open to the public. This means that the invitation to come onto the property can be revoked by its operators. In the security vernacular, the word trespass has been coined as a term-of-art used to describe this policy. To trespass a customer means to formally warn the offending customer that they are to immediately leave the premises and not return under threat of criminal prosecution. The trespass notification can be written document or just a verbal warning. Obviously, written is better but not always practical. In either cause, the trespass warning must be communicated to the offender and should contain the precise language used in the state criminal statute. Trespass warnings can be given for a day, a week, a month, a year or permanently. However, temporary trespass warnings are difficult to enforce. For example, can you legally trespass a 15-year-old minor child for life? Technically speaking, once a person is formally trespassed they can be arrested if they return. Be advised that wholesale use of trespass warnings are sometimes viewed as a tactic to rid the mall of unwanted minority groups or others exercising their constitutional rights.
Who Can Issue a Trespass Warning?
Anyone who represents the property owner or leaseholder can revoke permission to come onto private property. The shopping center landlord, property manager, and their employees would certainly have the authority to trespass someone. Mall security typically is given the responsibility for trespassing undesirables. A tenant within a shopping center can only trespass a person from their shop, but not from the entire shopping center. Sometimes a tenant will call mall security after catching a shoplifter, and ask them to trespass the shoplifter from the entire mall. The trespass warning is equally legal if given verbally or in writing as long as it contains the proper language. Written and signed trespass warnings are better for proof purposes. The problem arises when a security officer illegally detains a mall patron for the purpose of filling out the respass form or requiring the unwanted person to stand still for a photograph.
Can Trespassers be Legally Detained?
One of the most misunderstood and abused shopping center practices is how to legally handle persons about to be trespassed. Many security officers believe that they can temporarily detain a person for violating a mall rule and process them. Many times I hear stories of mall security officers who detain teenagers for fighting or walking in large groups or for using foul language. These offenders are sometimes handcuffed and transported to the mall security office.
Once in custody, the rule violators are required to produce ID, sign formal trespass warning forms, and stand still for a photograph. After the teenagers are released, the photos and trespass forms are maintained in a mall filing system for future reference. The intent of these records is to be used as evidence of trespassing should the offender return. This process sounds okay to many mall security officers, but is patently illegal in most states. You can’t take someone into custody for violating a mall rule like walking in groups, using foul language, or being too noisy. Also problematic is posting a trespassed person’s picture on the office bulletin board for all to see (sort of rogue’s gallery) when they haven’t committed any crime.
When to Detain Trespassers
Security has no more authority than an ordinary citizen, in most states. At best, security officers can ask rule violators to leave the premises and not return. Unless a state statute specially allows for it, security officers cannot detain someone or take him or her into custody unless they have committed a crime. If a crime is committed then the officer must make a citizen's arrest before detaining a person. To legally make a citizen's arrest, a minor crime (misdemeanor) must have been committed in the presence of the person making the arrest. Security officers cannot rely on another person’s word that a misdemeanor crime occurred.
This whole business of stopping a person for a rule violation, transporting them to the mall security office for processing, and formally trespass-warning them is improper. Also, improper is requiring mall miscreants to stand in place while security officers obtain ID, bring forms and a camera to photograph them before issuing the trespass warning. To argue that the offending teenager volunteered to be detained for the purpose of being trespassed and processed is risky and should not be practiced.
Should all Trespasser be Arrested?
No! There are many exceptions, for example, when trespassed teenagers return with their parents. Most malls issue second and even third warnings for non-violent re-offenders. As always, using good judgment is important.
However, there are times when detention and arrest of criminals and trespassers is proper. Legitimate troublemakers and known criminals who have been trespassed previously sometimes should be arrested. The mall has an obligation to keep the premises reasonable safe. If mall security learns that a previously trespassed person has returned it can create a liability, especially if the person is known to be potentially dangerous.
If the person previously trespassed is not believed to be dangerous then discretion can be applied, depending on mall policy. Most mall security personnel simply remind the offending person that they are unwelcome and reaffirm the trespass warning. Trespassing is not a strong criminal charge and should be reserved for the more deserving offenders. The courts have been known to drop trespassing charges, in the interest of justice, without consulting the retailer. This can be a trigger for a lawsuit.
Use Good Judgment
Some shopping center security departments get carried away with the whole trespass concept. The trespass warning is just another tool that can help rid the center of the most troublesome persons. As a matter of policy, not all trespassers should be arrested. Sometimes second or even third warnings make more sense to rid the property of undesirables. Trespass warnings may not be enforceable across city or county lines making blanket banishment from all stores within a chain meaningless. Trespass policies are not designed to be a license for security officers to abuse state laws or violate the civil rights of mall visitors.
Violation of a mall rule is usually not a crime. The most that mall security can do is to advise, warn, and request mall visitors to act appropriately or to leave. What happens if an undesirable refuses to leave after being issued a trespass warning, can you arrest them for trespassing? The answer is usually, no, because the offender was initially invited onto the property as a member of the public and hasn't left the property yet. In most states, the crime of trespassing won’t take effect until the next time they return. In some states refusing to leave when asked and warned completes the crime of trespassing. But in the exercise of caution, most shopping centers have a policy to call the police to remove the person who refuses to leave rather than attempting a citizen's arrest.
Escorts off the Property
Make sure those persons who are asked to leave the shopping center actually vacate the entire premises, including the parking lot. Most major shopping centers escort and observe the offending persons off the entire property. This practice allows for clear enforcement of the trespass policy. The security escort should not be harassing or forceful.