By Dave Domzalski, Associate General Counsel and Director, Legal Services, Amtrak Police Department, Philadelphia, Pennsylvania
legal adviser for a police department receives a call from a local supervisor stating that a railroad police officer with a railroad police commission from another state just came into his precinct with an arrest for simple assault on a conductor on a passenger train in the supervisor’s state. The supervisor asks if this railroad police officer has the authority to make the arrest and wonders if the prisoner should be locked up. He is concerned about potential liability for accepting a prisoner on an illegal arrest.
The short answer is yes—railroad police do have police authority to make such arrests. This column sheds some light on the legal authority of railroad police, which will be useful for legal advisers if they should be involved in a similar issue.
Railroad police grew out of the need for railroads to provide security and safety for crews, passengers, and cargo as the United States expanded westward throughout the late 1800s. Railroads were plagued by criminal gangs and crime sprees, including the infamous Robert Leroy Parker and Harry Longbough (better known as Butch Cassidy and the Sundance Kid). Because of vast jurisdictional issues and the unreliability of local law enforcement agencies in the West, railroads first contracted with private detectives such as Bat Masterson and Allan Pinkerton to address criminal issues. Eventually, railroads recognized that sworn law enforcement officials were needed, as the private contractors failed to stem the flow of crimes committed against railroads. But the first “railroad police” were just employees who were given a gun and a badge and “turned loose” to enforce the laws.1
With various legal issues still prevalent and allegations of abuse by railroad police on the rise, government regulation of these agencies began when Pennsylvania enacted the first Railroad Police Act in 1865.2 From there, the professional development of railroad police started in what are now railroad police departments with significant numbers of sworn and trained personnel.
For years, however, railroad police officers were still confronted with jurisdictional issues, as their police powers were limited to the state in which they received their commission. Substantial gaps in law enforcement efforts existed because railroad officers in one state had to stop literally at the state boundary line and request that officers of the same corporation in the next state continue with an investigation.
State Authority and Jurisdiction
Even today, the cornerstone of a railroad police officer’s legal authority is still rooted in state law. Most states have a statute that authorizes railroad corporations to hire and appoint railroad police officers. Generally, these laws are found in the railroad or public utility sections of a state’s consolidated statutes. A railroad police commission is issued by a specific state agency, usually from the state police but sometimes from the governor’s office. The remaining state code sections regarding railroad police often require the employing corporations to bear all liability; the officers to take an oath and wear a badge indicating that they serve as railroad police officers for a specific railroad corporation; and local police agencies to accept persons arrested by railroad police.3 If the requirement to accept prisoners is not explicitly stated in the railroad police statute, the police powers conferred upon sworn and commissioned railroad police officers in the enabling law will convey that they possess the same legal authority as state and local police or peace officers. As such, their legal authority includes the typical police powers to arrest persons for state law felonies, misdemeanors, or violations and process them into the local criminal justice system.4 In many states, rail and transit police agencies are included in criminal justice system processes and have access to state criminal record systems for investigative and arrest-processing purposes.
Depending on the state, the geographical jurisdiction of railroad police officers can vary, sometimes substantially. However, in most cases, this authority is limited to the corporation’s passengers, employees, cargo, and equipment, on or about the railroad’s property, or in pursuit of railroad business. There are some unique exceptions. For example, in Maryland, railroad police agencies can enter into mutual-aid agreements with the chief county executive or law enforcement official and obtain countywide jurisdiction for enforcement of railroad-related criminal acts.5 Pennsylvania’s State Supreme Court has interpreted the state’s railroad police law, 22 Pa. C.S.A. 3303(a), very narrowly for railroad police engaged in transportation system business “off the property” in holding that with “the grant of extraterritorial jurisdiction on engagement in the discharge of duties in pursuit of transportation system business, the General Assembly intended to require a closer connection between the interests of the transportation system and the encounters in which police powers are to be exercised than mere ‘on-duty’ status of transportation system police on the observation of offenses.”6 On the other hand, such states as Delaware and North Carolina have laws with flexible language that can provide railroad police authority and jurisdiction throughout the state.7
As a result, railroad police officers have full arrest authority, often serve warrants in conjunction with local police agencies for railroad-related criminal offenses, and carry firearms. The overwhelming majority of arrests by freight and passenger railroad police are for crimes against state law. Railroad police officers receive their basic training at approved state police academies and schools and often must be certified in the same manner as police or peace officers. Railroad police are also required by state laws to meet in-service training requirements. Finally, due to recent changes in federal law, railroad police managers may attend the U.S. Federal Bureau of Investigation (FBI) National Academy training program, with the employing railroad corporation paying for tuition and housing.8
Federal Legal Authority and Interstate Jurisdiction
To address the problem of limiting railroad police officers to investigations wholly within the corporate boundaries of a particular state, federal legislation was needed that would provide them with the power to use their existing police authority across state lines. The statutory vehicle creating this legal framework was the Omnibus Crime Control Act of 1990, Public Law 101-647, which gave all U.S. railroad police this additional statutory authority to perform more efficient and effective law enforcement functions. Presently, it is codified at 49 U.S.C. 28101 and states as follows:
28101. Rail Police Officers
Under regulations prescribed by the Secretary of Transportation, a rail police officer who is employed by a rail carrier and certified or commissioned as a police officer under the laws of a State may enforce the laws of any jurisdiction in which the rail carrier owns property, to the extent of the authority of a police officer certified or commissioned under the laws of that jurisdiction, to protect—
(1) employees, passengers, or patrons of the rail carrier;
(2) property, equipment, and facilities owned, leased, operated, or maintained by the rail carrier;
(3) property moving in interstate or foreign commerce in the possession of the rail carrier; and
(4) personnel, equipment, and material moving by rail that are vital to the national defense.
The only jurisdictional exception existing prior to the enactment of this law was the railroad police of the National Railroad Passenger Corporation (Amtrak). Created by Congress, Amtrak’s enabling legislation under the Rail Passenger Service Act of 1970, now codified starting at 49 U.S.C. 24101, established the authority for Amtrak to have railroad police. The statutory authority was unique at the time and included interstate police powers. The Amtrak rail police law, now found at 49 U.S.C. 24305 (e), states as follows:
(e) Rail Police. —Amtrak may employ rail police to provide security for rail passengers and property of Amtrak. Rail police employed by Amtrak who have complied with a State law establishing requirements applicable to rail police or individuals employed in a similar position may be employed without regard to the law of another State containing those requirements.
Federal regulations promulgated under 49 U.S.C. 28101 are contained starting at 49 CFR 207 and apply to all railroad police, including those of Amtrak. These regulations describe in more detail the scope of this broader-ranging interstate authority.9
When railroad police officers are in a state different from the one where they received their railroad police commissions, their police authority is the same as that of railroad officers commissioned under the laws of the state in which they are present.10 Furthermore, this police authority shall apply only on railroad property, except in two instances:
- A railroad police officer may pursue someone off railroad property if that person is suspected of violating the law on railroad property.
- A railroad police officer may engage in off–railroad property law enforcement activities, including, without limitation, investigation and arrest, if permissible under state law.11
A railroad corporation has the duty to notify all the states in which a commissioned railroad police officer will work. The notice of commission contains various identifying information, including name, badge number, photograph, date of commission, and pertinent training information.12
Railroad Police Today
Armed with substantial authority as outlined in this column, railroad police work closely with federal, state, and local law enforcement officials at all levels. Many railroad police officers, along with their transit police counterparts, perform uniform patrol duties at train stations or ride in marked patrol units along dedicated rights of way.13 Several railroad police departments have special operations and perform unique services that protect the public at large as well as a railroad’s passengers, employees, property, and cargo.
For example, CSX developed and implemented a Rapid Response Team that consists of highly skilled and cross-functionally trained law enforcement specialists trained as hazardous materials specialists, explosives detection canine teams, explosive and mechanical breachers, and spent fuel specialists. This counterterrorism unit also supports traditional missions. CSX also developed a unique, special weapons and tactics (SWAT)–like three-day Tactical Rail Interdiction training course, offered to law enforcement officers at no cost.14
In the response to terrorist threats and the targeting of surface transportation systems by terrorists worldwide, Amtrak has also developed multidimensional mobile teams that consist of skilled police officers and special agents of Amtrak’s Counterterrorism Unit.15 Amtrak mobile teams provide a demonstrable show of force and deploy in a random and unpredictable fashion. With the ability to appear almost anywhere on the Amtrak route system, they act as a force multiplier in response to specific requests, threats, or intelligence. These teams conduct passenger and baggage screening (with explosives detection equipment) and perform tactical train rides and countersurveillance operations. All members have received Behavior Assessment Screening System (BASS) training.16
Police managers, supervisors, and legal advisers need to be aware of the authority of railroad police. Legal advisers should take the time to review the railroad police statutes in their states and the federal laws and regulations cited in this column.
Railroad police have evolved over time and have become a part of professional and well-trained police agencies. They take their place alongside federal, state, and local police and perform a critical role in protecting the United States’ rail transportation systems. Their interstate jurisdiction is defined by both federal and state laws and regulations. Like all law enforcement agencies, railroad police exist to serve and protect and keep the public out of harm’s way. ■
1Association of American Railroads, “Railroad Police—Para-public Law Enforcement Agencies,” (Washington, D.C.: Association of American Railroads, 1993), 2.
3Some state railroad police statutes expressly provide language that railroad police arrestees be accepted, including Maryland, Maryland Public Safety Article, Section 3-413; Massachusetts, Massachusetts General Laws Chapter 159, Section 94; and Pennsylvania, 22 Pennsylvania Consolidated Statutes Annotated 3303 (b).
4Typical of the statutory language are the following pertinent excerpts: Illinois, 610 Illinois Compiled Statutes 80/2: “may exercise like police powers as those conferred upon any peace officer employed by a law enforcement agency of this State”; New Jersey, New Jersey Annotated Statutes48:3-38: “possess all the powers of policemen”; Washington, Annotated Revised Code of Washington 81.60.040: “when on duty have the power and authority conferred by law on peace officers”; and Arizona, Arizona Revised Statutes 40-856: “each railroad policeman so appointed shall possess and exercise all law enforcement powers of peace officers in this state.”
5Maryland Public Safety Article, Section 3-406 (b) of the Maryland Railroad Police Act.
6Commonwealth of Pennsylvania v. Firman, 571 PA 610, 617 (2002).
7See 29 Delaware Code 2516 (d) and 74E North Carolina Statutes Annotated, Company Police Act.
842 U.S.C. 3771 (a).
9See 49 CFR 207.5 (a) on the authority of railroad police in states where officers are not commissioned: “A railroad police officer who is designated by a railroad and commissioned under the laws of any state is authorized to enforce the laws (as specified in paragraph b of this section) in any state in which the railroad owns property and to which the railroad has provided notice in accordance with 207.4.” The scope of authority contained in 207.5 (b) basically mirrors this language.
10See 49 CFR 207.5 (c). Under 49 CFR 207.2 (a), railroad police officers can be commissioned in their states
of legal residence or states of primary employment.
11See 49 CFR 207.5 (d).
12See 49 CFR 207.4—Notice to State Officials.
13For these purposes, right of way is defined as land owned by a railroad corporation where it has train tracks established as part of the railroad’s route system.
14To date, CSX has trained 15 federal state and local agencies, including the Miami–Dade County, Florida, Police Department; the Indiana State Police; and seven FBI field office SWAT units.
15The Special Operations Division of Amtrak’s Office of Security Strategy and Special Operations has teams of law enforcement personnel who possess military special-forces backgrounds and have extensive training and experience in counterterrorism, surveillance, and countersurveillance operations.
16In 2008, mobile teams were deployed at such National Special Security Events as the Democratic National Convention, the Republican National Convention, and the papal visit to the United States. A team was also deployed to assist in the protection of President-elect Barack Obama’s train ride from Philadelphia, Pennsylvania, to Washington, D.C., and inaugural functions at Union Station in Washington.