When Private Patrols Pull The Trigger 

A security guard who was supposed to be unarmed shot a burglary suspect in Oakland, raising questions about the legal risks of hiring private companies to patrol neighborhoods.

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Just before noon on February 13, the Oakland Police Department responded to calls regarding a shooting in the Upper Dimond-Oakmore neighborhood. When cops arrived to Waterhouse Road, they found eighteen-year-old Larry Ward suffering from a gunshot wound to his leg. The shooter was a patrol guard with Security Code 3, a private firm that residents in the area hired to protect their streets. The guard, however, was supposed to be unarmed.

According to the OPD, the security guard had "confronted" Ward, who was suspected of burglarizing a nearby home. Ward subsequently "brandished a lethal prybar and advanced toward the security guard in a threatening manner," OPD officer Michael Troupe wrote in a statement. (Police also called the weapon a "screw driver" in a news release). The guard then fired at the young man, who was later taken to the hospital. Prosecutors subsequently charged Ward with felony first-degree burglary.

The incident has reignited the controversy surrounding private patrols in Oakland, sparking heated debates between residents who are in support of hiring these companies and those who remain opposed to them. Over the last year, residents frustrated with the city's understaffed police department have launched crowd-funding campaigns to bring private guards to their neighborhoods at relatively affordable rates. Much of the debate has focused on the ethics and effectiveness of bringing more guns and officers to wealthier parts of Oakland.

This month's shooting, however, has raised new concerns about the potential risks of hiring private patrols; namely, to what extent are residents legally liable for the actions of the officers they hire? This question is especially pressing to some residents due to the troubling revelation that the guard was supposed to be unarmed. The neighbors who hired the firm signed up for unarmed patrol services, a fact which apparently did not stop the Security Code 3 employee from retrieving his gun from the trunk of his car while on duty and then firing at the suspected burglar. The guard, who officials have not named, has not been charged with a crime.

"If a security guard shoots an innocent bystander by accident and that person secures legal counsel, can they sue everyone in the neighborhood?" asked Mitsu Fisher, an Upper Dimond resident who has not signed up for patrol services but lives adjacent to areas covered by Security Code 3. His family now avoids the streets patrolled by Security Code 3. "I don't go up there," he said. "I feel it's less safe."

Richard McDiarmid, a Security Code 3 regional manager, declined to comment on the employment status of the guard. He did, however, confirm that the group of residents who signed up for these services requested unarmed officers. The officer in question is typically not armed while on duty, but on February 13 was headed to a shooting range after his shift and had a gun in a bag inside the trunk of his vehicle, according to McDiarmid.

"Our officer has been cleared," he said of the police investigation, citing self-defense. "He's licensed to carry a firearm as a guard. ... It's legal." He said that Security Code 3 conducts internal investigations into incidents of guard-involved shootings to determine if disciplinary action is required, but declined to say whether this officer would be disciplined. Speaking to broader firearm policy, he added, "If somebody threatens to kill you or comes at you with a weapon ... you are well within your rights to defend yourself."

OPD spokesperson Johnna Watson declined to comment on the ongoing investigation beyond what was included in the initial police report. Alameda County Assistant District Attorney Paul Hora, who filed the charges against Ward, noted that at the time of the incident, the suspect was out of custody on $300,000 bail for an earlier robbery case and is now facing an additional $500,000 bail for the new charges. Hora said he couldn't comment on any investigation into the guard. But in an email to an Oakland resident that was forwarded to me, Hora wrote that "based on the evidence I have reviewed, the security guard shot the burglar in self-defense." He also noted in that email that the officer has a valid guard license and firearm permit.

Vince Mackey, president and CEO of Oakland-based VMA Security Group, which started staffing two private patrols in Oakland in the past year, said that he would have zero tolerance for an employee discharging a weapon while assigned to an unarmed patrol — even if the officer had a proper weapons permit. "That would be an instantaneous fireable offense," Mackey said. "I probably would try to get legal charges against my officer. It's just unacceptable." And his armed officers would only fire their weapons in the face of a direct threat to their lives, he added. "There's no shame in leaving the scene."

Kamorudeen Animashaun, owner of ANI Private Security and Patrol, which operates multiple unarmed patrols in the Oakland hills, said his employees know they aren't allowed to bring firearms to these assignments. "You can't even carry your gun in your car. If I know that, I will fire them."

It's unclear if the residential clients of Security Code 3 — who had signed up for an unarmed service — are taking any action in response to the shooting. Multiple residents who organized the efforts either declined to comment or did not respond to my inquiries. However, several neighborhood listserv emails from Upper Dimond-Oakmore residents celebrated the guard's actions — one even suggested a coordinated thank-you gift. At the same time, others questioned how they can be sure "unarmed patrols" aren't actually bringing more guns to their neighborhoods. And some patrol customers are scrambling to understand the legal risks they have taken by hiring the guards, armed or not.

"It's completely unregulated and out of control," said Ann Nomura, Mitsu Fisher's wife. "Neighbors should have a right to know who is being contracted and whether they have guns or not."

In California, the Bureau of Security and Investigative Services within the Department of Consumer Affairs regulates private security. The state mandates that private patrol operators who employ armed guards have a minimum of $1 million in insurance, said agency spokesperson Monica Vargas, noting that companies must report all shooting incidents to the state and that local law enforcement investigates them.

The contracts between security firms and their clients typically outline liability through indemnification clauses, which the courts would review in cases of litigation. I was unable to obtain a Security Code 3 contract and McDiarmid declined to speak about liability for his residential patrol customers.

I did, however, review a copy of a patrol contract from Bay Alarm; an Oakland resident sent it to me last year pointing out that his neighborhood declined to sign up in large part because of concerns with the liability clause. It said that if "anyone other than you asks us to pay for any harm or damages" resulting from the "negligence" or "improper or careless activity" by Bay Alarm, then "you will pay to Bay (a) any amount which a court orders us to pay or which we reasonably agree to pay, and (b) the amount of our reasonable attorneys' fees and any other loss and/or costs that we may pay in connection with the harm or damages."

In the aftermath of the shooting, Allan Brill, a member of the Glenview Neighborhood Association, sent excerpts of this contract to his neighbors, warning them that "Bay Alarm has fashioned a very long and detailed Agreement exempting them from most every imaginable circumstance, and placing the liability directly on their customers." Brill, who has not signed up for patrols, added in an interview: "Every attorney I know that read it says, 'Jesus, nobody should sign this document.' Nobody in the neighborhood has the ability to pay hundreds of thousands of dollars to Bay Alarm if they do something stupid."

I read the clause to Andrew Bradt, an assistant professor of law at UC Berkeley who specializes in litigation procedure. He told me that "that provision is expansive in its scope and its breadth doesn't surprise me." It is broad, he explained, in terms of the "extent to which it goes to shift liability to the resident." He added: "Whether a court would enforce that contract is a separate and more complicated question."

Generally, people can be "vicariously liable" for the wrongdoing of people they hire, Bradt said, noting that the more control an employer has over the employee, the more likely it is that liability would exist. The risks would then be less severe in cases of neighborhoods hiring a security company as an independent contractor that remains responsible for the actions of its own employees.

Joseph Lavitt, a UC Berkeley law professor who teaches torts and insurance law, put it this way: "The owner should not be liable for the conduct of the guard generally speaking, but there are many exceptions that each case may turn on its facts."

Examples of exceptions include "negligent selection," in cases where the client had reason to believe the security company was not competent to perform its duties but hired the firm anyway. Another is "negligent instruction" in which, for example, a client's direct orders to the hired guard led to the damages in question.

It's unclear how many private patrol contracts in Oakland include clauses that closely resemble the Bay Alarm policy. "This is the standard language ... in every reputable patrol company's contract," said Graham Westphal, co-president of Bay Alarm.

VMA Security Group's contract with Rockridge residents, however, does not appear to shift legal liability to its clients for serious mistakes made by its guards — although it does place a $2 million cap on how much VMA would have to pay in a court case.

Limor Margalit, regional sales manager for Bay Alarm, said the company now provides patrol services to more than 1,500 households in Oakland — who, he emphasized, had no problem signing contracts that shift legal liability to them. "The bottom line is this is really not the issue residents that are meeting with us are discussing. ... They are concerned about the safety of their house and the safety of their family."

Private patrol operators emphasized that their guards are trained to "observe and report," which is why, they said, legal liability is not generally a major concern for clients.

That is, until a guard pulls the trigger.

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