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The soccer field in Clifton Park was quiet on Sunday as hundreds lined up to view the body of Kevin Torres, laid out next to red and white balloons.
Next to the body of the beloved soccer coach sat the championship trophy his team had won on the day police said a security guard shot and killed him at the ChrisT Bar in Highlandtown earlier this month. Some wore the Villanueva soccer jersey, representing the team Torres led, while others wore shirts and hoodies that read “Justicia para Kevin.”
Torres is the second man to die by the hands of private, armed security guards and the third to be shot by one in the last month. After shooting him, a security guard working the bar told police that Torres threw a brick at him, though family members who witnessed the shooting denied that allegation. Police are reviewing video footage from the bar in their investigation.
The aftermath of the shooting has resounded loudly on the eastern edge of the city. Night after night, crowds of people in Highlandtown have halted traffic while rallying support for the slain Honduran-born coach. More than a week after Torres was shot, police have not made public any developments in his case.
The recent string of shootings involving armed security started on Oct. 21 at a CVS in Harbor East, where a security guard confronted a man accused of shoplifting. The man then pulled out a needle and tried to stab the security guard, prompting the guard to shoot him in the face, according to police, who have not announced charges in the case.
On Oct. 30, a security guard at a Royal Farms southeast of Pigtown fatally shot 26-year-old Marquise Powell in the head after he returned to the store despite being told to leave. Police charged Kanisha Spence three days later with attempted second-degree murder. Spence had told detectives she shot Powell because he lunged at her, but police later determined he was being restrained by someone else when he was shot.
Those chanting in the streets for Torres have called for the security guard who shot him to serve time in prison, but it’s unclear if he will face any criminal charges. Despite serving in a quasi-policing capacity, security guards are treated more or less as private citizens in the criminal legal system. The same factors being weighed by prosecutors would apply to anyone else, said Jeremy Eldridge, a former Baltimore City prosecutor and criminal defense attorney.
A person arguing that they shot someone in defense of themselves or others is judged criminally on two factors, Eldridge said: Were they in reasonable fear of imminent bodily harm or death, and did they use reasonable force to combat that danger?
“If you are a trained law enforcement officer or a trained security guard, your ability to recognize a threat and react to that threat may be viewed differently, in light of your training or expertise,” Eldridge said.
But the Maryland State Police, which licenses private armed security guards, doesn’t mandate training for security agencies. They also don’t track shootings or play any oversight role in shooting incidents. Security guards apply for a license only after they are hired by an agency. Then they submit an application and fingerprints for a criminal background check. The State Police can revoke the license for a felony or misdemeanor in some cases, and security guards can work while their applications are pending.
David Alan Sklansky, co-director of the Stanford Law School’s Criminal Justice Center, said that type of loose oversight structure isn’t unique to Maryland, even as the private security industry has expanded over the last several decades. On the one hand, Sklansky said, security guards do not enjoy qualified immunity, which means private guards and their employers are easier to sue in a civil tort case.
“On the other hand, there are a range of oversight mechanisms for public police that are almost entirely absent for private security guards,” Sklansky said.
That absence of accountability could become a more prominent issue in Baltimore, which has a police department short hundreds of patrol officers and stubbornly high levels of homicides and nonfatal shootings. Security guards and locked-away merchandise have become more common in recent years at Baltimore businesses, and there are an array of companies providing the services. As of last month, there were 1,312 security agencies licensed to operate in Maryland, according to State Police data, with 191 headquartered in Baltimore.
There are legal implications of that expansion that haven’t yet been tested. In the trendy Harbor East area, and other parts of the waterfront, a “business improvement district” requires all commercial businesses operating there to pay a fee — money that is then used to fund greening and cleaning services, as well as private security, according to a city councilman representing the area.
Harbor East was the backdrop for the first in the string of three recent private security guard shootings, when a security guard working at a CVS shot someone in the head, telling police the man attacked them with a needle. Police and prosecutors have not announced charges in that case. Representatives from CVS told WJZ the guard worked for the Harbor East community.
The legal calculus for a shooting
In a shooting involving a security guard, Eldridge, the former prosecutor, said the challenge for a prosecutor reviewing a case would be to determine whether the shooter’s actions were consistent with their training and whether there was an ongoing threat of bodily danger.
If that was the case, Eldridge said, the shooter generally won’t be charged, or if they are, a jury would likely side with them because they used force that seemed reasonable. Conversely, a shooter who doesn’t give any verbal warnings and shoots someone who didn’t pose an ongoing threat might be found to have acted unreasonably, he added.
“The calculus is training and experience in parallel with consistency in action,” Eldridge said. “If you’re a defense attorney or a prosecutor analyzing these cases, that is what you’re looking for.”
In Maryland, where training is left to the armed security agencies themselves, the level and type of training security guards receive could vary widely. There is also the wild-card factor of off-duty police working jobs as private security officers, which would raise questions about which capacity they were acting under when the shots occured. Baltimore police officers are authorized to carry their firearms when working off-duty.
A security guard who received deficient training, Eldridge said, might see that get factored into the determination of whether or not the force they used was reasonable. In Maryland, the law allows for “imperfect self-defense,” he added, meaning a jury could decide someone honestly and reasonably believed they were in harm’s way, but used too much force.
“That could knock murder down to manslaughter, or could knock an assault first-degree down to second-degree,” Eldridge said. “It allows for someone that meets one of those two prongs in the self defense realm to satisfy one of them.”
David Jaros, a criminal law professor at the University of Baltimore, said it’s important to remember that security guards and police alike aren’t allowed to shoot someone simply for running away, unless there’s a risk of bodily harm or death to themselves or someone else.
Jaros scoured Maryland criminal codes and found only one instance where security guards are treated differently than private citizens: an exemption for reckless endangerment that states that law enforcement officers and security guards are allowed to discharge a firearm from a motor vehicle.
Are private security guards state actors? The answer matters
Though there seems to be only the one carve-out for private security in state criminal law, the landscape for federal civil law is less-settled terrain.
For instance, the factor of business improvement district-funded private security, Jaros said, could be seen as a gray area ripe for a constitutional law challenge.
“The degree to which they [security guards] are performing a public function, the degree to which the state is funding them, the more what they are doing is considered a state activity,” Jaros said. “Then the more likely they’re considered state actors.”
Whether someone is a state actor decides whether they could be sued for violating someone’s constitutional rights, said Robert Knowles, an associate professor at the University of Baltimore. That includes lawsuits over bodily harm as well as challenges to improper search and seizure, he added.
To determine the question of whether someone is a state actor, the 4th District Court of Appeals, which oversees Maryland, has used a two-factor test, Knowles said. One factor is whether the government “knew of and acquiesced” in the private individual’s conduct. The second is whether the individual intended to assist law enforcement, or had a different motivation.
“By far, the most important factor is the first one,” Knowles said.
In all of the shootings so far, Knowles said, the question of whether someone is a state actor wouldn’t come into play. The security guards have all been reporting to private businesses or other commercial entities.
But if a security guard funded by a Business Improvement District were to hit someone with gunfire while out patrolling an area, Knowles said, one could make the “state actor” argument.
“If they’re acting as de facto police officers, and the taxing district is a public entity, then it’s hiring these officers to patrol public spaces,” Knowles said. “I think it would depend on what the Harbor East officers are authorized to do as part of their duties. I would say it’s at least possible they could be treated as state actors.”
Reporter Clara Longo de Freitas contributed to this report.
bconarck@thebaltimorebanner.com
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Ben Conarck is a criminal justice reporter for The Baltimore Banner. Previously, he covered healthcare and investigations for the Miami Herald and criminal justice for the Florida Times-Union.
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