If railway police officers investigating an incident encounter evidence that could be damning to a rail company, do they see their primary duty as seeking all the facts or protecting the company’s name?
For some families of loved ones who died in railway accidents, that question is not merely academic.
Since October, FreightWaves has conducted a series of interviews on the issue, including the question of whether a governmental or other third-party entity should be responsible for ensuring that policing functions are performed ethically and lawfully.
Responses to this question are limited in part by the fact that no single body, particularly in the U.S., represents the railway police force as a whole. Rather, it is often up to individual railroads that employ their own police forces to explain how railway police function within the companies.
The Railway Association of Canada, the Teamsters Canada Rail Conference (TCRC) and the four U.S. Class I railroads either did not return requests for comment or declined to comment, although TCRC has backed efforts at the federal level supporting families whose loved ones died in railway accidents. The Association of American Railroads does not have a policing committee, while railway police are outside the jurisdiction of the Transportation Trades Department of the AFL-CIO.
Responses were generally more attainable from sources in Canada because of efforts by some there to create regulations that would hold railway police accountable if they are involved in a criminal investigation.
What railway police do
Each Class I railroad has railway police, whose function is to protect the infrastructure, assets and people working for the railroad. Their jurisdiction is generally limited to railroad property. Railway police officers might also be known as special agents, and they might have the authority to make arrests. Railway police may also work with area first responders and local police departments.
Union Pacific (NYSE: UNP) says on its website that its railway police “are certified state law enforcement officers with investigative and arrest powers both on and off railroad property in most states. They also have interstate law enforcement authority pursuant to federal law.”
In Canada, railway police have authority under the Railway Safety Act to enforce the Canada Transportation Act as well as all Canadian and provincial laws within 500 meters of railway property.
Canadian railway CN told FreightWaves in May that the “primary focus” of its police force is “to prevent rail incidents related to illegal and unsafe behaviors at rail crossings and due to trespassing on CN’s right of way. In doing so, we protect the communities in which CN operates through enforcement, education, engineering and engagement activities. We believe strongly that rail safety is a shared responsibility and so we work closely with all communities and stakeholder groups to keep everyone safe around CN’s network.”
The websites of the Class I railroads, such as those of UP, CSX (NASDAQ: CSX) and Norfolk Southern (NYSE: NSC), vary in their descriptions of what railway police do.
One rail worker’s experience
While rail employees might sometimes be wary of running into railway police, they may prefer to deal with railway officers in sensitive situations than with other police because railway police understand operating nuances. This is especially true in situations that involve deaths or injuries to trespassers.
“Railroaders have this complicated relationship with the railroad police, which is that even though they generally distrust police officers in general, because of fear of the possibility of being held liable for something that they didn’t do — just like everybody in the rest of society — they particularly have a concern about when civil police come on railroad property and try to do this or that or the other,” a train engineer told FreightWaves.
“One of the things that every engineer fears is that when there’s a fatality on the railroad — a trespasser gets out on the track and they get struck by a train — and the civil police come out and arrest the engineer and cart them off to the headquarters and put them under the spotlight because that’s what they think they’re supposed to do … . And in that respect, most railroaders are l,kind of like, well, we’d rather deal with a cop who actually knows how things work on the railroad.”
However, rail workers have concerns about railway police as well, in part because of the opaque nature of how railway police have traditionally operated, according to the source.
One is whether railway police have access to information that could be used for unethical purposes, including information on critics and opponents of the railroads. Railway police are perceived as having access to sensitive information collected by governmental agencies.
The second issue is the view that the heads of railway police departments — even if they are commissioned police officers — might be under pressure to ultimately represent the interests of the company because they are company employees. There might also be questions about the railway police’s ability to control any ongoing investigation.
“The private companies that do things that are quite dangerous and quite important — most of them don’t have their own private police force that gives them access to things that help advance the corporate interest and also prevent liability,” the source said.
Attempts in Canada to hold railway police accountable
The issue of conflicting interests has gathered steam in some circles in Canada because of incidents over the past decade that involved workers for Canadian Pacific and CN.
Regina, Saskatchewan-based attorney Tavengwa Runyowa is among those seeking to address the perceived conflict of interest. Runyowa became involved in the issue when he took on a case in 2014 on behalf of the families of Andrew Dockrell and Dylan Paradis, both of whom died in a February 2019 accident involving a CP train in British Columbia.
Runyowa also came to represent the family of Kevin Timmerman, who died in an incident involving a CN train while he was working for the company.
Runyowa and his clients are in active litigation against both railway companies over concerns that the railways have withheld or destroyed evidence that could shed more light on the causes of the incidents that killed their family members. Runyowa’s clients have also sought to file shareholder proposals regarding the use of railway police forces.
“CP Railway’s management wants to churn so much litigation that if [my client] loses, it would cost her a tremendous amount in legal fees to CP Railway,” Runyowa said. “We regard this as an act of intimidation and a gross abuse of power. CP Railway appears intent on bullying my client into silence to prevent CP Railway’s other shareholders from learning the ugly truth about the company’s cross-border policing activities in Canada and the United States.”
In response to the ongoing situation, CP told FreightWaves: “There is certainly no ‘evidence’ suggesting that the operations of CP or CPKC’s police service have violated any applicable law governing the operation of railroad policing in the United States or Canada. Any allegation to the contrary is baseless,” CP told FreightWaves. “It is unfortunate that such misleading statements and allegations continue to be made by a plaintiff’s attorney; however, given the ongoing civil litigation, CP has no additional comment at this time.”
Runyowa and his clients have also asked the Canadian government to step in, but he said the government is not taking enough action.
Runyowa and his clients want CP — now Canadian Pacific Kansas City or CPKC — and CN to decommission their police forces and hand over policing activities to public forces that have independent civilian oversight. This would also prevent large investors from being able to “buy large chunks of federal, cross-border police forces on the open market,” he said.
Runyowa’s clients have submitted petitions, here and here, asking the government to take measures to ensure railway police are accountable in situations that might involve criminal investigations.
Parliament member Taylor Bachrach of British Columbia presented both petitions to Parliament in October.
“We believe that these private corporate police should be replaced by a public rail police body that would be funded by the rail corporations and accountable to an independent civilian oversight body,” Bachrach said at a press conference announcing the petitions. “This is similar to the situation in the U.K. and would allow for impartial investigations that are so important to ensure that family members get the justice that they deserve.”
In December, Minister of Transport Omar Alghabra tabled the petitions, saying that other police forces, such as the Royal Canadian Mounted Police and provincial police, operate alongside railway police, and those forces have the discretion and independence to determine when an investigation is warranted.
The transport minister also noted that a government committee has recommended amending Railway Safety Act code to remove the conflict of interest that could arise when private railway police take part in investigations involving their companies.
“I’ve spoken to the minister of transport about this issue. He has acknowledged the concerns. And he claims that the Department of Transport or that Transport Canada is currently working on a review of rail policing,” Bachrach told FreightWaves. “And so the hope is that that review will lead to substantive reforms that will give rail workers and their families the peace of mind of knowing that if their loved ones are involved in a rail accident, they will have access to an impartial investigation.”
While the Transportation Safety Board of Canada, a federal agency akin to the National Transportation Safety Board in the U.S., does have a role in investigating incidents, it is unable to assign criminal responsibility or negligence, Bachrach said.
Although the minister of transport tabled the petitions, Runyowa and his clients still see relevance in the issue because of the merger between CP and U.S.-based Kansas City Southern, particularly since the merger involves railway police operating in three countries: the U.S., Canada and Mexico.
In light of the merger between CP and KCS, Runyowa said he has sought inquiries or filed whistleblower complaints with numerous state and local agencies and politicians, including the U.S. Department of Transportation’s Office of Inspector General, the Federal Trade Commission, the U.S. Department of Justice, Senate Judiciary Committee Chairman and Illinois Democratic Sen. Dick Durbin, the Illinois Law Enforcement Training and Standards Board, the commissioner of the Maine Public Safety Department, and the attorney general of Maine.
When it comes to cross-border movements, the U.S. and Canadian governments should coordinate with each other to ensure that the public, cross-border railway policing structures are regulated under treaties that would prevent the uncontrolled flow of policing and national security information to private corporations, Runyowa said.
Runyowa defended himself against criticisms suggesting that he is pursuing the litigation out of financial self-interest.
“There are far easier ways to make money than by representing regular citizens against billion-dollar corporations with endless litigation budgets, connected lobbyists and politicians who are Olympians at avoiding their responsibilities. I did not seek out this cause; it found me. After the first client approached me about the railway issue, I was alarmed by the ugliness and unfairness of a system that most would associate with undemocratic countries,” Runyowa said.
He continued, “Even if I was doing this for ‘personal gain,’ Americans and Canadians should ask themselves a simple question. If a ‘self-interested’ lawyer spends time exposing a broken system and gross misconduct by large corporations that have caused numerous deaths and injuries, is that really a bad thing? These railway companies move toxic substances, bombs, weapons and other products that could cause serious infrastructural and environmental damage in the communities they pass. Many of these trains travel near schools and densely populated places. Many workers have died and been injured at these companies. Therefore, if ‘personal gain’ could inspire more people to advocate for public safety, their country’s sovereignty, civil rights, civil liberties, and other interests that these company’s private police forces undermine, the world would be a much better place.”
CP and CN defend their police forces
Runyowa believes that CP and CN’s civilian corporate leaders, who have been based in Canada, have been exercising operational command over police officers and law enforcement operations in the U.S.
“No country that takes pride in its sovereignty would allow private persons abroad, who are not police officers in the country, to exercise such extraordinary control over a federal police force,” he said.
But the railways say there is no conflict, in part because railway police officers are commissioned and vetted in Canada and the U.S., and as such are already held accountable by public entities.
CN told FreightWaves that its police service is appointed by the superior courts of the provinces per the Railway Safety Act.
Policing operations use a traditional policing model, in which day-to-day operations are overseen by a local inspector at the provincial and state level, CN said. There is also a chief of police who provides strategic oversight and direction for the entire service, and all police officers operate under a code of ethics.
CN said its police service “has a strict policy and practice whereby we do not conduct investigations into employee injuries or deaths on CN property. Such investigations are conducted by the local police of jurisdiction (where a criminal element may exist as determined by them) and by the coroner and government authorities (such as Transport Canada) who have jurisdiction over such matters. The role of [CN’s police] in these investigations is to protect the evidence until appropriate authorities take over and to provide assistance as requested.”
CPKC told FreightWaves in May that CPKC police service members are appointed by a judge of the superior court of Canada for enforcement of the Canada Transportation Act and provincial laws. CP also noted that although its police force is responsible for the protection of CP property, the police force’s jurisdiction doesn’t replace or supersede the jurisdiction of public agencies, including the Royal Canadian Mounted Police.
Meanwhile, in the U.S., CPKC police members are fully commissioned police officers within the states in which they operate and are empowered by that state to enforce the law.
What’s the future of railway police?
Since federal investigations are still ongoing for the February 2019 incident in Field, British Columbia, in which three employees were killed while operating a CP train, there could be further momentum in support of the victims’ families depending on the results of the investigation.
For now, as Runyowa noted, questions about whether railway police should be held accountable to outside regulation or an outside body have lingered for years, with numerous petitions filed in the U.S. and Canada.
Sources attributed the inertia on regulatory action to several factors. For starters, the topic of police in general can be a political hot potato and may discourage politicians from addressing the issue in depth.
Another is the view that the drive to regulate railway police is hampered by regulatory capture, according to Bruce Campbell, an adjunct professor of environmental and urban change at York University in Toronto, Ontario.
“There is the revolving door feature where people from the industry go [work for] the regulator and don’t take off the railway hats. … Basically, it’s a way of changing the relationship [between corporations and government] into a kind of a partnership. But it offloads responsibility for following what the safety management requires as doing the proper oversight,” Campbell told FreightWaves. Campbell wrote an essay last September calling for reform at the federal level in support of the families of workers who have died in railway incidents. He has also written a book on what went wrong with investigations in the July 2013 Lac-Megantic incident in Quebec, in which an unmanned Montreal, Maine and Atlantic Railway train carrying crude oil derailed downtown, causing a massive fire and killing over 40 people.
Whatever might happen with the families’ petitions in Canada and Runyowa’s inquiries in the U.S. and Canada, the issue of holding railway police accountable could eventually get swept up into broader trends facing policing, according to Robert McCrie, professor and deputy chair of the Department of Security, Fire and Emergency Management at the John Jay College of Criminal Justice in New York City.
These broader trends include dissolving private police departments in favor of regular law enforcement, mainly because of the technologies and resources that law enforcement has access to nowadays, McCrie told FreightWaves. For instance, towns in the western U.S. that have been created and owned by corporations historically would have been overseen by company police.
Auxiliary police services, such as those used in metropolitan transit systems, may remain because they can maintain order and do some of the things “that police just don’t want to do,” McCrie said. These forces may be trained to collect evidence to eventually turn over to local law enforcement.
“If the [police of] private organizations can facilitate local issues, such as the processing of lost and found, that’s fine.The police don’t want [to deal with] that. But when it comes to investigations, that’s maybe where the line should be drawn because there is a possibility of conflict of interest,” McCrie said.
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