If railway cops investigating an incident encounter evidence that may very well be damning to a rail company, do they see their primary duty as looking for all of the facts or protecting the corporate’s name?
For some families of family members who died in railway accidents, that query is just not merely academic.
Since October, FreightWaves has conducted a series of interviews on the problem, including the query of whether a governmental or other third-party entity ought to be accountable for ensuring that policing functions are performed ethically and lawfully.
Responses to this query are limited partially by the proven fact that no single body, particularly within the U.S., represents the railway police force as an entire. Slightly, it is commonly as much as individual railroads that employ their very own police forces to clarify how railway police function throughout the corporations.
The Railway Association of Canada, the Teamsters Canada Rail Conference (TCRC) and the 4 U.S. Class I railroads either didn’t return requests for comment or declined to comment, although TCRC has backed efforts on the federal level supporting families whose family members died in railway accidents. The Association of American Railroads doesn’t 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 due to efforts by some there to create regulations that may hold railway police accountable in the event that they are involved in a criminal investigation.
What railway police do
Each Class I railroad has railway police, whose function is to guard the infrastructure, assets and folks working for the railroad. Their jurisdiction is usually limited to railroad property. Railway cops may also be often known as special agents, and so they may need the authority to make arrests. Railway police may work with area first responders and native 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 each on and off railroad property in most states. Additionally they have interstate law enforcement authority pursuant to federal law.”
In Canada, railway police have authority under the Railway Safety Act to implement the Canada Transportation Act in addition to all Canadian and provincial laws inside 500 meters of railway property.
Canadian railway CN told FreightWaves in May that the “primary focus” of its police force is “to stop rail incidents related to illegal and unsafe behaviors at rail crossings and on account of trespassing on CN’s right of way. In doing so, we protect the communities wherein CN operates through enforcement, education, engineering and engagement activities. We imagine strongly that rail safety is a shared responsibility and so we work closely with all communities and stakeholder groups to maintain everyone protected around CN’s network.”
The web sites of the Class I railroads, similar to those of UP, CSX (NASDAQ: CSX) and Norfolk Southern (NYSE: NSC), vary of their descriptions of what railway police do.
One rail employee’s experience
While rail employees might sometimes be wary of running into railway police, they could prefer to cope with railway officers in sensitive situations than with other police because railway police understand operating nuances. This is particularly true in situations that involve deaths or injuries to trespassers.
“Railroaders have this complicated relationship with the railroad police, which is that despite the fact that they often distrust cops normally, due to fear of the potential for being held accountable for something that they didn’t do — identical to everybody in the remaining of society — they particularly have a priority about when civil police come on railroad property and check out to do that or that or the opposite,” a train engineer told FreightWaves.
“Considered one of the things that each engineer fears is that when there’s a fatality on the railroad — a trespasser gets out on the track and so 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 highlight because that’s what they think they’re speculated to do … . And in that respect, most railroaders are l,form of like, well, we’d somewhat cope with a cop who actually knows how things work on the railroad.”
Nonetheless, rail employees have concerns about railway police as well, partially due to opaque nature of how railway police have traditionally operated, in keeping with the source.
One is whether or not railway police have access to information that may very well be used for unethical purposes, including information on critics and opponents of the railroads. Railway police are perceived as gaining access to sensitive information collected by governmental agencies.
The second issue is the view that the heads of railway police departments — even in the event that they are commissioned cops — could be under pressure to ultimately represent the interests of the corporate because they’re company employees. There may also be questions on the railway police’s ability to regulate any ongoing investigation.
“The private corporations that do things which might be quite dangerous and quite necessary — most of them don’t have their very own private police force that provides them access to things that help advance the company interest and likewise prevent liability,” the source said.
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Attempts in Canada to carry railway police accountable
The problem of conflicting interests has gathered steam in some circles in Canada due to incidents over the past decade that involved employees for Canadian Pacific and CN.
Regina, Saskatchewan-based attorney Tavengwa Runyowa is amongst those looking for to deal with the perceived conflict of interest. Runyowa became involved in the problem when he took on a case in 2014 on behalf of the families of Andrew Dockrell and Dylan Paradis, each of whom died in a February 2019 accident involving a CP train in British Columbia.
Runyowa also got here to represent the family of Kevin Timmerman, who died in an incident involving a CN train while he was working for the corporate.
Runyowa and his clients are in energetic litigation against each railway corporations over concerns that the railways have withheld or destroyed evidence that would shed more light on the causes of the incidents that killed their members of the family. Runyowa’s clients have also sought to file shareholder proposals regarding the usage of railway police forces.
“CP Railway’s management desires to churn a lot litigation that if [my client] loses, it will cost her an incredible 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 stop CP Railway’s other shareholders from learning the ugly truth concerning the company’s cross-border policing activities in Canada and the USA.”
In response to the continuing situation, CP told FreightWaves: “There’s actually 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 USA or Canada. Any allegation on the contrary is baseless,” CP told FreightWaves. “It’s unlucky that such misleading statements and allegations proceed to be made by a plaintiff’s attorney; nevertheless, given the continuing civil litigation, CP has no additional comment at the moment.”
Runyowa and his clients have also asked the Canadian government to step in, but he said the federal government is just not taking enough motion.
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 which have independent civilian oversight. This might also prevent large investors from having the ability 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 federal government to take measures to make sure railway police are accountable in situations that may involve criminal investigations.
Parliament member Taylor Bachrach of British Columbia presented each petitions to Parliament in October.
“We imagine that these private corporate police ought to be replaced by a public rail police body that may 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 comparable to the situation within the U.K. and would allow for impartial investigations which might be so necessary to be certain that members of the family get the justice that they deserve.”
In December, Minister of Transport Omar Alghabra tabled the petitions, saying that other police forces, similar to the Royal Canadian Mounted Police and provincial police, operate alongside railway police, and people forces have the discretion and independence to find out when an investigation is warranted.
The transport minister also noted that a government committee has advisable amending Railway Safety Act code to remove the conflict of interest that would arise when private railway police participate in investigations involving their corporations.
“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 result in substantive reforms that may give rail employees and their families the peace of mind of knowing that if their family members are involved in a rail accident, they are going to have access to an impartial investigation.”
While the Transportation Safety Board of Canada, a federal agency akin to the National Transportation Safety Board within the U.S., does have a task in investigating incidents, it’s 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 problem due to merger between CP and U.S.-based Kansas City Southern, particularly because 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 quite a few state and native 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.
Relating to cross-border movements, the U.S. and Canadian governments should coordinate with one another to be certain that the general public, cross-border railway policing structures are regulated under treaties that may prevent the uncontrolled flow of policing and national security information to personal corporations, Runyowa said.
Runyowa defended himself against criticisms suggesting that he’s pursuing the litigation out of economic self-interest.
“There are far easier ways to generate profits than by representing regular residents against billion-dollar corporations with limitless litigation budgets, connected lobbyists and politicians who’re Olympians at avoiding their responsibilities. I didn’t hunt down this cause; it found me. After the primary client approached me concerning the railway issue, I used to be alarmed by the ugliness and unfairness of a system that almost all would associate with undemocratic countries,” Runyowa said.
He continued, “Even when I used to be doing this for ‘personal gain,’ Americans and Canadians should ask themselves a straightforward query. If a ‘self-interested’ lawyer spends time exposing a broken system and gross misconduct by large corporations which have caused quite a few deaths and injuries, is that actually a nasty thing? These railway corporations move toxic substances, bombs, weapons and other products that would cause serious infrastructural and environmental damage within the communities they pass. A lot of these trains travel near schools and densely populated places. Many employees have died and been injured at these corporations. Due to this fact, if ‘personal gain’ could encourage 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 can be a a lot better place.”
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CP and CN defend their police forces
Runyowa believes that CP and CN’s civilian corporate leaders, who’ve been based in Canada, have been exercising operational command over cops and law enforcement operations within the U.S.
“No country that takes pride in its sovereignty would allow private individuals abroad, who should not cops within the country, to exercise such extraordinary control over a federal police force,” he said.
However the railways say there is no such thing as a conflict, partially because railway cops 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 standard policing model, wherein day-to-day operations are overseen by an area inspector on the provincial and state level, CN said. There’s also a chief of police who provides strategic oversight and direction for your complete service, and all cops operate under a code of ethics.
CN said its police service “has a strict policy and practice whereby we don’t conduct investigations into worker 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 (similar to Transport Canada) who’ve jurisdiction over such matters. The role of [CN’s police] in these investigations is to guard the evidence until appropriate authorities take over and to offer 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 accountable 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, within the U.S., CPKC police members are fully commissioned cops throughout the states wherein they operate and are empowered by that state to implement the law.
What’s the long run of railway police?
Since federal investigations are still ongoing for the February 2019 incident in Field, British Columbia, wherein three employees were killed while operating a CP train, there may very well be further momentum in support of the victims’ families depending on the outcomes of the investigation.
For now, as Runyowa noted, questions on whether railway police ought to be held accountable to outside regulation or an out of doors body have lingered for years, with quite a few petitions filed within the U.S. and Canada.
Sources attributed the inertia on regulatory motion to several aspects. For starters, the subject of police normally generally is a political hot potato and should discourage politicians from addressing the problem in depth.
One other is the view that the drive to control railway police is hampered by regulatory capture, in keeping with Bruce Campbell, an adjunct professor of environmental and concrete change at York University in Toronto, Ontario.
“There’s the revolving door feature where people from the industry go [work for] the regulator and don’t take off the railway hats. … Principally, it’s a way of fixing the connection [between corporations and government] right into a form of a partnership. Nevertheless it offloads responsibility for following what the protection management requires as doing the correct oversight,” Campbell told FreightWaves. Campbell wrote an essay last September calling for reform on the federal level in support of the families of employees who’ve died in railway incidents. He has also written a book on what went improper with investigations within the July 2013 Lac-Megantic incident in Quebec, wherein an unmanned Montreal, Maine and Atlantic Railway train carrying crude oil derailed downtown, causing an enormous fire and killing over 40 people.
Whatever might occur with the families’ petitions in Canada and Runyowa’s inquiries within the U.S. and Canada, the problem of holding railway police accountable could eventually get swept up into broader trends facing policing, in keeping with Robert McCrie, professor and deputy chair of the Department of Security, Fire and Emergency Management on the John Jay College of Criminal Justice in Recent York City.
These broader trends include dissolving private police departments in favor of normal law enforcement, mainly due to technologies and resources that law enforcement has access to nowadays, McCrie told FreightWaves. For example, towns within the western U.S. which have been created and owned by corporations historically would have been overseen by company police.
Auxiliary police services, similar to those utilized in metropolitan transit systems, may remain because they’ll maintain order and do a number of the things “that police just don’t need to do,” McCrie said. These forces could also be trained to gather evidence to eventually turn over to local law enforcement.
“If the [police of] private organizations can facilitate local issues, similar to the processing of lost and located, that’s fantastic.The police don’t want [to deal with] that. But with regards to investigations, that’s possibly where the road ought to be drawn because there’s a possibility of conflict of interest,” McCrie said.
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