Is it possible to place an armed security guard with a private weapons license on a construction site?
Jan 14, 2024
From: Attorney Shlomi Hadar - John Geva, Hadar & Co. - Lawyers and Mediators
The court ruled that although the contractors reached agreements (which gave them the force of a judgment) with the municipalities to station armed security guards at the construction site, in light of the illegality of the agreements in this matter, they must be annulled, and consequently, the judgment must also be annulled.
Background
Our concern is a petition filed by several construction companies against the Givatayim Municipality, the Ramat Gan Municipality, and the Bat Yam Municipality (hereinafter: " the Municipalities ") and against the Ministry of the Interior and the Ministry of Construction and Housing (hereinafter: " the State "), in which they petitioned to annul the municipalities' decision dated 10/23/23 prohibiting the opening of construction sites located on their territory and imposing sanctions on contractors who act in violation of this decision, and to order that the construction sites be allowed to operate.
After discussing the petition, the parties reached agreements regarding the conditions under which the construction sites would be opened, which were given the force of a judgment. One of the conditions was that the construction sites would be open subject to the posting of a security guard at the entrance to the site, who could also be armed. However, the language of the section was vague and incomplete, and it did not provide specific and clear instructions regarding the approvals required from the relevant authorities, the qualification required to perform the role, the type of firearms license required, etc., which left room for broad interpretation.
In practice, the contractors exploited the loophole to their advantage and appointed as security guards people with private firearms licenses, based on their interpretation of the ruling, which did not constitute an act tainted with illegality.
The ruling created a public outcry, and following the manner in which the contractors acted, and in light of the Ministry of National Security and the Israel Police's appeal to the state, the state filed a request for clarification (procedure Dana -ATM 37148-10-23 ) in which the court was asked to clarify that the placement of an armed security guard requires obtaining permission from the Ministry of National Security and all the permits required by law, and according to existing law, it is not possible and it is not illegal to place a person with a private firearms license at the entrance to the construction site for the purpose of securing the site. At the hearing, the petitioners clarified that they are leaving the decision regarding illegality to the court's discretion and that if the court determines that there is illegality in the agreement, they will act accordingly.
From: Attorney Shlomi Hadar - John Geva, Hadar & Co. - Lawyers and Mediators
The court ruled that although the contractors reached agreements (which gave them the force of a judgment) with the municipalities to station armed security guards at the construction site, in light of the illegality of the agreements in this matter, they must be annulled, and consequently, the judgment must also be annulled.
background
Our concern is a petition filed by several construction companies against the Givatayim Municipality, the Ramat Gan Municipality, and the Bat Yam Municipality (hereinafter: " the Municipalities ") and against the Ministry of the Interior and the Ministry of Construction and Housing (hereinafter: " the State "), in which they petitioned to annul the municipalities' decision dated 10/23/23 prohibiting the opening of construction sites located on their territory and imposing sanctions on contractors who act in violation of this decision, and to order that the construction sites be allowed to operate.
After discussing the petition, the parties reached agreements regarding the conditions under which the construction sites would be opened, which were given the force of a judgment. One of the conditions was that the construction sites would be open subject to the posting of a security guard at the entrance to the site, who could also be armed. However, the language of the section was vague and incomplete, and it did not provide specific and clear instructions regarding the approvals required from the relevant authorities, the qualification required to perform the role, the type of firearms license required, etc., which left room for broad interpretation.
In practice, the contractors exploited the loophole to their advantage and appointed as security guards people with private firearms licenses, based on their interpretation of the ruling, which did not constitute an act tainted with illegality.
The ruling created a public outcry, and following the manner in which the contractors acted, and in light of the Ministry of National Security and the Israel Police's appeal to the state, the state filed a request for clarification (procedure Dana -ATM 37148-10-23 ) in which the court was asked to clarify that the placement of an armed security guard requires obtaining permission from the Ministry of National Security and all the permits required by law, and according to existing law, it is not possible and it is not illegal to place a person with a private firearms license at the entrance to the construction site for the purpose of securing the site. At the hearing, the petitioners clarified that they are leaving the decision regarding illegality to the court's discretion and that if the court determines that there is illegality in the agreement, they will act accordingly.
Discussion and decision
The court ruled that the agreement was indeed tainted with illegality, and that it is not possible to station a private individual carrying a weapon at the entrance to a construction site for the purpose of securing the site, thereby effectively acting contrary to the law. The court ruled that the definition of "armed security guard" given by the parties in the agreement, which was given the force of a judgment, is problematic, as it requires approval from the Ministry of National Security and all the approvals required by law, and not everyone can be a "security guard," in light of the Firearms Law and the regulations enacted under it.
The court also rejected the municipalities' interpretation and even their naivety in this matter in attempting to define those security guards as "orderlies" and not as "security guards," while the parties' intended agreements reached by them, which were given the force of a judgment, clearly indicate that this is not a "orderly" but a security guard carrying a weapon and not a person employed by the contractors as an "orderly."
The court emphasized that it is unacceptable that the court supposedly gives protection to illegal agreements that have received the force of a judgment and that this illegal situation continues to exist without taking action to correct it as quickly as possible.
The court reached its decision after determining that, in accordance with case law, it has the authority to cancel the parties' agreements due to illegality, when they reveal a clear illegality in the terms of the settlement agreement and weighty considerations that support the cancellation of the settlement agreement despite the violation of the principle of finality of the hearing.
In the case before us, the court determined that the present case is one of those cases that meet the above conditions and that the continuation of the existing situation in which the municipalities, in fact, are carrying out illegal actions, supposedly under the auspices of the court's ruling, while ignoring the fact that the state's consent was subject to the instructions of the security forces and that, according to the provisions of the law, it is not permissible to carry out what is stated in the agreements regarding the placement of a private individual with a weapons license as a security guard on the site.
The court ruled that the agreement was indeed tainted with illegality, and that it is not possible to station a private individual carrying a weapon at the entrance to a construction site for the purpose of securing the site, thereby effectively acting contrary to the law. The court ruled that the definition of "armed security guard" given by the parties in the agreement, which was given the force of a judgment, is problematic, as it requires approval from the Ministry of National Security and all the approvals required by law, and not everyone can be a "security guard," in light of the Firearms Law and the regulations enacted under it.
The court also rejected the municipalities' interpretation and even their naivety in this matter in attempting to define those security guards as "orderlies" and not as "security guards," while the parties' intended agreements reached by them, which were given the force of a judgment, clearly indicate that this is not a "orderly" but a security guard carrying a weapon and not a person employed by the contractors as an "orderly."
The court emphasized that it is unacceptable that the court supposedly gives protection to illegal agreements that have received the force of a judgment and that this illegal situation continues to exist without taking action to correct it as quickly as possible.
The court reached its decision after determining that, in accordance with case law, it has the authority to cancel the parties' agreements due to illegality, when they reveal a clear illegality in the terms of the settlement agreement and weighty considerations that support the cancellation of the settlement agreement despite the violation of the principle of finality of the hearing.
In the case before us, the court determined that the present case is one of those cases that meet the above conditions and that the continuation of the existing situation in which the municipalities, in fact, are carrying out illegal actions, supposedly under the auspices of the court's ruling, while ignoring the fact that the state's consent was subject to the instructions of the security forces and that, according to the provisions of the law, it is not permissible to carry out what is stated in the agreements regarding the placement of a private individual with a weapons license as a security guard on the site.
End of the matter:
The court clarified that everyone must act according to the provisions of the law, and determined that the agreements between the contractors and the municipalities are not consistent with the provisions of the law, and the correct, complete and just result in this case, in the special circumstances of this case and considering the security emergency due to the war, is to cancel the agreements and, as a result, cancel the ruling that gave them the validity of an agreement and return the matter to the municipalities to make decisions on the instructions and conditions to be given to the contractors at the construction sites.
The court clarified that everyone must act according to the provisions of the law, and determined that the agreements between the contractors and the municipalities are not consistent with the provisions of the law, and the correct, complete and just result in this case, in the special circumstances of this case and considering the security emergency due to the war, is to cancel the agreements and, as a result, cancel the ruling that gave them the validity of an agreement and return the matter to the municipalities to make decisions on the instructions and conditions to be given to the contractors at the construction sites.
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