Appeals Court to consider private police patrol of I-77 work zone

Traffic on Highway Source: Jacob Emmons, Carolina Journal

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  • The North Carolina Court of Appeals will decide whether a state Justice Department employee violated a private police force's rights by blocking its traffic work for an Interstate 77 construction project.
  • A Superior Court judge ruled in favor of Southeastern Public Safety Group in August 2023. The judge determined that the DOJ employee “substantially prejudiced” the company’s rights.
  • A Justice Department brief filed Wednesday argued that Southeastern had no authority to perform law enforcement work on highways owned by the state Department of Transportation.

North Carolina’s second-highest court will decide whether a state Justice Department employee violated a private police force’s rights by blocking its traffic work for an Interstate 77 toll lane project.

Superior Court Judge Steven Warren ruled in August 2023 that the DOJ employee “substantially prejudiced” the company’s rights and “deprived it of property by exceeding his authority or jurisdiction, acting erroneously, failing to use proper procedure, acting arbitrarily or capriciously, and failing to act as required by law.”

DOJ lawyers filed a brief Wednesday with the state Court of Appeals. The department urges the court to reverse Warren’s decision.

The case stems from work Southeastern Public Safety Group performed in 2016 and 2017. Road contractor Sugar Creek Construction hired Southeastern to help control traffic during construction of express toll lanes on I-77 between Charlotte and Statesville.

The work included rolling roadblocks and closing as many as eight to 10 traffic lanes in a day. Southeastern also handled traffic enforcement. That included one case of an officer pursuing a driver who was traveling the wrong way on the interstate. The private officer eventually appeared before a magistrate to support an arrest for driving under the influence.

“Before Southeastern contracted with Sugar Creek, no company police agency had ever policed active lanes of traffic in connection with a highway construction project in North Carolina,” according to the DOJ brief. “Previously, only off-duty municipal and county law-enforcement officers had been hired to work on these projects.”

Acting on a tip in March 2017, state Company Police Administrator Randy Munn contacted Southeastern. He questioned the company’s contract with Sugar Creek. Southeastern had no contract with the state Department of Transportation. Munn eventually warned Southeastern that it could face “summary suspension or other legal action” if it continued its I-77 work.

Southeastern stopped working on the project, and Sugar Creek finished its construction project with off-duty police officers handling traffic issues.

Starting in December 2017, the private company filed multiple complaints in state and federal court. The current case started in 2020.

Warren is the first judge who has ruled in Southeastern’s favor. He overturned an administrative law judge’s decision supporting the Justice Department.

“State law allows persons to hire certified private police forces, known as company police, to provide law-enforcement services,” DOJ lawyers explained in their brief. “These private police forces can exercise the same powers as public police forces, including making arrests.”

“But because they are private forces, their jurisdiction is limited,” the brief continued. “Their officers generally can only operate on property possessed and controlled by the entity that contracted with the company police force to provide policing services. If a shopping center contracted with a company police force, for example, its officers could operate on the shopping center’s parking lot.”

The Justice Department brief issued a warning about Warren’s decision.

“The court’s decision allows private police agencies to act beyond their jurisdictional boundaries, and it also prevents the Administrator of the Company Police Act from stopping them from doing so,” according to the brief.

“Southeastern violated the Company Police Act,” DOJ lawyers argued. “Company police officers are limited to strict jurisdictional boundaries. Officers have jurisdiction only where their agency or their agency’s employer owns or has ‘control and possession’ of property.”

“Here, NCDOT owned the relevant portion of I-77. NCDOT also did not convey any possessory interest to Southeastern’s employer, Sugar Creek. Thus, by operating on the highway, Southeastern’s officers acted beyond their jurisdiction, violating the Company Police Act,” DOJ lawyers added.

“The superior court’s contrary holding that Southeastern acted within its jurisdiction was in error,” the Justice Department brief continued. “The court explained that its decision rested on federal regulations, but no federal regulations actually give Sugar Creek or Southeastern the possession and control of the highway necessary to vest Southeastern with jurisdiction.”

“The regulations cited by the court rather provide safety protocols for highway construction projects, among other things. They do not require States to allow private police forces like Southeastern to manage traffic on public highways,” DOJ argued.

The Justice Department also questioned Warren’s ruling that Munn could not review Southeastern’s contract or inform the company that its contract violated state law.

“Mr. Munn, as the Administrator of the Act, has statutory authority to take steps like these,” the brief argued. “Indeed, if he lacked such authority, the Act could not be enforced.”

Southeastern will have a chance to respond to the Justice Department’s arguments before the Appeals Court hears the case in the months ahead.