Introduction
This is the third installment in the CLB’s “Odd Cops” series following previous installments on Special Deputies and University Cops. This installment will focus on railroad cops.
I’m reminded of the 1969 movie Butch Cassidy and the Sundance Kid¹ featuring Paul Newman and Robert Redford as affable 1890’s Wyoming train robbers who picked on the Union Pacific once too often. They were pursued by a capable and relentless private posse engaged by the Union Pacific Railroad. Whether or not the private posse members were sworn officers, the reality was that the Union Pacific had its own law enforcement.
Statutes and Rules
And so it is in the Hoosier State. Statutory provisions respecting railroad police are codified at IC 8-3-17, beginning with this foundational provision (as amended) dating back to at least 1927:
IC 8-3-17-1 Appointment, qualifications, and terms
Sec. 1. Upon the application in writing of a company owning, leasing, using, or operating a railroad in Indiana accompanied by the statements of three (3) reputable Indiana citizens testifying to the moral character of the applicant, the Indiana department of transportation shall appoint and commission persons the company designates and the department finds to be suitable and qualified persons, to act as policemen for the company, upon the premises of the company, or elsewhere within Indiana, when engaged in the discharge of their duties as policemen for that company. Every policeman appointed shall be known as a railroad policeman and shall be a person of good moral character. The policeman shall be commissioned so long as the policeman is employed by the company on whose application the policeman was appointed, unless the policeman’s commission is sooner revoked by the Indiana department of transportation for good cause shown, or by the company on whose application the railroad policeman was appointed, as provided in section 8 of this chapter. Emphasis added.
Formerly: Acts 1927, c.18, s.1; Acts 1975, P.L.80, SEC.1. As amended by P.L.384-1987(ss), SEC.42; P.L.18-1990, SEC.50.
Questions and comments on Section 1 may begin with: Where would I find “three (3) reputable Indiana Citizens?” What if I can’t round up more than two (2)? What if I gather three (3) such reputable citizens and they refuse to take money to vouch for the moral character of the railroad cop candidate?
The appointment of a railroad cop comes on the application of the hiring railroad and is issued by the Indiana Department of Transportation. The durational term of a railroad cop’s commission is “so long as the policeman is employed by the company on whose application the policeman was appointed.” The commission may end sooner by way of IDOT revocation “for good cause shown” or by company action.
The territorial jurisdiction of the railroad cop is “upon the premises of the company” or elsewhere within Indiana when engaged in the discharge of duties as a railroad cop. Likewise, IC 8-3-17-3 pertaining to “powers and duties” provides that a railroad cop shall “enforce and compel obedience to the laws of this state” when engaged in railroad cop duties. I find no statutory provision defining or listing the various duties of a railroad cop.
Here are some thoughts about railroad cop jurisdiction. “Upon the premises of the company” is where the commissioned railroad cop clearly has police powers. The rail yard should constitute “premises.” But what about outside the yard on rails laid across an easement for rail purposes? I submit that a railroad right-of-way across the land of others is not “premises” of the railroad. If I drive down a public street, it does not thereby become my “premises.” The train itself should be “premises” to the railroad cop who is on the train.
Away from railroad “premises” the railroad cop may exercise police powers of a railroad cop, but not necessarily the full spectrum of police powers. The statutory provisions lack any explanation of such “duties” of a railroad cop that can expand the cop’s territorial jurisdiction to locations away from railroad “premises.” I imagine that such “duties” could involve the off-premises pursuit of freight thieves or graffiti vandals.
IC 8-3-17-2 provides that an otherwise commissioned railroad cop must (before exercising duties of office), sign an oath which, along with the commission, “shall be recorded” in the cop’s county of residence. Likewise, IC 8-3-17-6 establishes a surety bond of $5,000.00 as an additional precondition to the exercise of police powers.
Relevant administrative regulations of the Indiana Department of Transportation reside at 105 IAC 5-6. “Rule 6″ establishes a mandatory training requirement for railroad cops to be completed within a year of the start of employment. Under 105 IAC 5-6-3 revocation of a commission is the mandatory consequence of a failure to timely complete the training. Miscellaneous requirements (age, education, fitness, etc.) for railroad cop eligibility can be found at 105 IAC 5-6-5.
It is worthy of note that there are definitions of “law enforcement officer” at IC 9-13-2-92 and IC 35-31.5-2-185. Each statute contains a list of categories of persons qualifying as “law enforcement officers.” Neither statue mentions, lists, or otherwise describes railroad cops.
Case Law
Indiana case law offers very little help in the study of railroad cops. One case of interest (among very few) is Mazziotti v. State 343 N.E.2d 816 (Ind. Ct. App. 1976), the unsuccessful appeal of a conviction for resisting an officer who happened to be a railroad cop. The location was described as a parking lot near a railroad passenger station in Fort Wayne. Responding to the report of vehicle break-ins, railroad cop Jack Swygart left his rail station office to find Frank Mazziotti in the act of theft (to which he pled guilty). The interesting aspect is that Mazzioti resisted Swygart’s successful efforts to effect an arrest. On the resisting charge the issue on appeal was whether Swygart was a “peace or police officer” for purposes of the resisting statute. Mazziotti rightly argued the absence of evidence at trial as to whether the parking lot crime scene was railroad property. The COA Opinion reasoned that ownership of the lot was irrelevant in that Swygart was on duty at the station when he received word of vehicle break-ins, and that he had the general duty to enforce the laws of the State. This is an erroneous and dangerously liberal expression of the territorial jurisdiction and powers of a railroad cop. Mazziotti has not been overruled or followed in any subsequent case.
Personal Experience
In my personal experience defending others against charges of petty crimes I had a single encounter with a railroad cop. A client who was too old for Juvenile Court yet too young to drink legally found himself, drunk and short-tempered, in the Griffith rail yard after a family squabble in his nearby home. He was confronted by an alleged railroad cop. There was a trial at which I attempted to question the police powers of the man purporting to be a railroad cop. Such was relevant to a charge of resisting. That vile, ignorant criminal known as Judge Orval Anderson² shut me down with the moronic declaration that I needed to go to Marion County to challenge the credentials of the purported railroad cop. Anderson was then enjoying his last year or two on the bench before he was charged and convicted in U.S. District Court for an offense relating to unlawfully disposing of drunk driving cases and then lying about it as he testified during the trial of another.
Advice
For the lawyer defending a person in a railroad cop case, I recommend challenging nearly everything. I would not challenge the pre-commission testimony of the three “reputable” citizens since the issuance of the commission would seem to settle conclusively the adequacy of the application. Demand proof of continuing employment (as of the incident date) with the employer that sponsored the applicant. Demand proof of the IDOT commission, the oath, the recording, the county of residence, the training, and the surety bond. If the encounter with your client was away from railroad “premises,” demand an explanation of what railroad cop “duties” were involved. Inquire where you could find a list of railroad cop “duties.”
As for the individual who encounters a purported railroad cop away from railroad property, my advice is to assume he’s a real cop with real police powers. You cannot determine his actual status in real time.
ADDENDUM: Yes, I know that train conductors are also odd cops of a sort. Rather than writing of them in the Railroad Cops segment I expect to write of them along with several other groups of lesser cops in a segment likely to be titled “Odds & Ends.”
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¹ The story is based loosely upon historical fact.
² Anderson’s conviction was for knowingly making a false material declaration (a/k/a) Obstruction) in violation of 18 U.S.C. § 1623. You can read the Opinion affirming his conviction in United States v. Anderson, 798 F2d 919 (7th Cir. 1986).
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