Does Virginia's 2015 amendment giving private police departments 'law-enforcement officer' status actually grant them police powers?

Plain-English summary

For decades, Virginia's Department of Criminal Justice Services had recognized nine "private police departments" (places like Babcock & Wilcox, the Wintergreen, Massanutten, and Kingsmill resort and residential communities, hospital police, and theme-park police at Kings Dominion). Their officers exercised police powers as "special conservators of the peace" ("SCOPs") under § 19.2-13, appointed by circuit court order. A 2013 informal AG opinion warned that DCJS could not legally recognize those entities as full-blown law-enforcement agencies without express legislative authority. That set off a multi-year policy process culminating in 2015 Va. Acts ch. 195, which amended § 9.1-101 to add a "private police department" definition and to fold qualified private-police-department employees into the definition of "law-enforcement officer."

Delegate Toscano asked three questions. (1) Could the General Assembly delegate law-enforcement authority to private-corporation employees at all? (2) Did the 2015 amendment actually grant that authority, or merely describe it? (3) Did the amendment violate Article IV, § 12 of the Virginia Constitution by embracing more than one object?

The AG answered: (1) Yes, longstanding Virginia precedent allows the General Assembly to delegate specific law-enforcement authority to employees of private businesses (citing City of Alexandria v. J-W Enters., 279 Va. 711 (2010); Norfolk & W. Ry. Co. v. Haun, 167 Va. 157 (1936)). (2) Yes, the 2015 amendment's text describing the employees' responsibilities for "prevention and detection of crime and the enforcement of the penal, traffic or highway laws," together with its express authorization for the nine identified departments to continue to operate, fairly conferred police authority. Reading the amendment otherwise would make it describe a class that did not exist and render its express authorizations nonsensical (Jones v. Conwell, 227 Va. 176, 181 (1984)). (3) No, the amendment embraced only one object (the law-enforcement powers of private police departments and their employees), and the single-object rule is to be "liberally construed and treated, so as to uphold the law, if practicable" (Commonwealth v. Brown, 91 Va. 762, 772 (1895)).

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 9.1-101 has been amended on multiple occasions since 2016, including changes responding to broader Virginia criminal-justice reform. Anyone researching private-police-department authority today should pull the current statute and check for changes in the list of recognized departments, the training requirements, and the relationship between SCOPs and "law-enforcement officers."

Background and statutory framework

The pre-2015 framework had two parallel tracks. "Law-enforcement officers" were defined in § 9.1-101 by reference to specified government agencies (local police and sheriff's departments, ABC special agents, marine police, conservation officers, lottery investigators, DMV enforcement officers, animal-protection police, campus police). Each of those agency types had a separate statute authorizing police powers (e.g., § 4.1-105 for ABC, § 28.2-106 for marine police, § 29.1-205 for conservation police). Employees of private police departments at the nine recognized institutions, however, exercised authority only as SCOPs under § 19.2-13, with the lower training standard and narrower powers that the SCOP scheme imposed.

In 2014, the House Militia and Police Committee asked the Secretary of Public Safety and Homeland Security to convene a task force on private-police questions raised by the 2013 AG informal opinion. The Virginia State Crime Commission then endorsed draft legislation. The result was 2015 Va. Acts ch. 195, codified through amendments to § 9.1-101. The amendment broadened the "law-enforcement officer" definition to include "any full-time or part-time employee of a private police department . . . who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth." It also added a "private police department" definition and an enactment clause expressly recognizing the nine departments in existence on January 1, 2013 (Aquia Harbor; Babcock & Wilcox; Bridgewater Airpark; Carilion Clinic Police and Security; Kings Dominion Park; Kingsmill; Lake Monticello; Massanutten; Wintergreen). A 2016 amendment, 2016 Va. Acts ch. 618, added "successor in interest" coverage.

The AG read the amendment with reference to its legislative history and operative text. The descriptive language fairly described law-enforcement authority, and reading it as mere description without empowerment would conflict with § 19.2-13(A), which says SCOPs are not "law-enforcement officers" under § 9.1-101. The amendment's express authorization of the nine departments to continue to operate would also be reduced to surplusage. Under standard canons (Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425 (2012); Jones v. Conwell, 227 Va. 176, 181 (1984)), that reading had to be rejected.

On the single-object rule, the AG applied the liberal-construction approach from Commonwealth v. Brown, 91 Va. 762, 772 (1895), and Commonwealth v. Dodson, 176 Va. 281, 305 (1940). Matters "germane to the object, made manifest by its title, may be included." The amendment's single object was the law-enforcement powers of private police departments and their employees; the definitional, recognition, and standards provisions were all germane.

Common questions

Q: What did "private police department" mean under the 2015 amendment?
A: A police department (other than one whose officers were authorized as "police agents" under § 56-353, which covered railroad police) that employed "private police officers" and was operated by an entity authorized by statute or act of assembly to establish a private police department. The amendment expressly validated the nine departments in existence on January 1, 2013, and limited any future new private police departments to those authorized by statute or act of assembly.

Q: Did the amendment automatically give every employee at one of the nine departments full police powers?
A: No. The amendment imposed training and qualification requirements parallel to those for governmental law-enforcement officers, including the DCJS minimum compulsory training requirements. Officers had to satisfy those requirements to qualify as "law-enforcement officers."

Q: What practical advantages did the amendment give the nine departments?
A: It gave qualified officers access to the rights and benefits of "law-enforcement officer" status: higher training standards, mutual-aid agreements with local law-enforcement agencies, ability to participate in regional criminal-justice training academies, and access to the Virginia State Police Criminal Information Network.

Q: Did the AG reach any constitutional concerns?
A: The AG addressed only the single-object rule of Article IV, § 12. The amendment passed that test under the established liberal-construction standard. The AG did not reach other potential constitutional concerns.

Citations and references

Statutes and constitutional provisions:
- Va. Code Ann. § 9.1-101 (definitions, including law-enforcement officer)
- Va. Code Ann. § 19.2-13; § 19.2-18 (special conservators of the peace)
- Va. Code Ann. § 56-353 (railroad police agents)
- Va. Code Ann. § 4.1-105 (ABC special agents)
- Va. Code Ann. § 28.2-106 (marine police)
- Va. Code Ann. § 29.1-205 (conservation police)
- Va. Code Ann. § 58.1-4006 (lottery investigators)
- Va. Code Ann. § 10.1-117 (conservation officers)
- Va. Code Ann. § 46.2-217 (DMV enforcement officers)
- Va. Code Ann. § 15.2-632 (animal protection police)
- Va. Code Ann. § 23-234 (campus police)
- Va. Const. art. IV, § 12 (single-object rule)
- 2015 Va. Acts ch. 195 (the amendment)
- 2016 Va. Acts ch. 618 (successor-in-interest amendment)
- Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Cases:
- City of Alexandria v. J-W Enters., 279 Va. 711 (2010)
- Norfolk & W. Ry. Co. v. Haun, 167 Va. 157 (1936)
- Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 (2012)
- Jones v. Conwell, 227 Va. 176 (1984)
- Commonwealth v. Brown, 91 Va. 762 (1895)
- Commonwealth v. Dodson, 176 Va. 281 (1940)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/15-083-Toscano-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

September 9, 2016

The Honorable David J. Toscano
Member, House of Delegates
211 East High Street
Charlottesville, Virginia 22902

Dear Delegate Toscano:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask generally whether the General Assembly may delegate law-enforcement authority to persons who meet the qualification and certification requirements for law-enforcement officers, but are employees of a private corporation.

More specifically, you ask whether Chapter 195 of the 2015 Acts of Assembly, which changed the definition of "law-enforcement officer" under § 9.1-101 of the Code of Virginia and added a definition of "private police department," was sufficient to delegate law-enforcement authority to private police departments and their employees, or if the General Assembly must expressly delegate that authority by a separate statute.

Finally, you ask whether construing Chapter 195 as both defining and delegating law-enforcement authority to private police departments would mean that the act improperly embraces more than one object, in violation of Article IV, § 12 of the Virginia Constitution.

Applicable Law and Discussion

In response to your general question about whether the General Assembly may delegate law-enforcement authority to employees of private corporations, long-standing precedent of the Supreme Court of Virginia confirms that the General Assembly has the authority to delegate specific law-enforcement authority to employees of private businesses.

A response to your specific question whether the 2015 amendment to § 9.1-101 effectively granted law-enforcement authority to private police departments and their employees requires consideration of the process leading up to enactment of the amendment, as "[c]ourts look to a statute's contemporary history and historical background as aids to interpretation."

For decades, the Virginia Department of Criminal Justice Services (DCJS) has recognized nine "private police departments" in Virginia. The established practice for granting law-enforcement powers to the officers of those police forces has been for the officers to be designated "special conservators of the peace" ("SCOPs") by order of a circuit court. The General Assembly has empowered circuit courts to appoint SCOPs with "all the powers, functions, duties, responsibilities and authority of any other conservator of the peace" within their jurisdictions, including the power to arrest. Nevertheless, SCOPs are not "law-enforcement officers" who, until recently, were defined solely as officers of certain specified governmental offices, agencies, and political subdivisions.

Some key differences between SCOPs and "law-enforcement officers" are that the minimum training requirements for law-enforcement officers are higher, and only law-enforcement officers (through their agencies) may be parties to mutual aid agreements with local law-enforcement agencies, contribute to the funding of regional criminal justice training academies, and have access to the Virginia State Police Criminal Information Network.

In a 2013 informal opinion, this Office concluded that DCJS could not legally recognize the nine private police departments as law-enforcement agencies without express legislative authority. The opinion raised concern in the law-enforcement community, where the nine departments had previously enjoyed much the same status as governmental law-enforcement agencies.

In the following 2014 legislative session, amid questions raised by the opinion and other persons regarding the scope of authority and jurisdiction of SCOPs employed by the private entities, the House of Delegates Militia and Police Committee requested that the Secretary of Public Safety and Homeland Security convene a task force to examine these issues. Later in 2014, the Virginia State Crime Commission endorsed draft legislation regarding private police departments following review of the findings and recommendations of the Secretary's Task Force and presentations by the Virginia Association of Chiefs of Police, which sought to maintain the historically recognized status of the private departments as operational police departments.

Against that background, and as recommended by the Crime Commission, the 2015 General Assembly enacted Chapter 195, now codified as an amendment to § 9.1-101 of the Code of Virginia. The 2015 amendment broadened the definition of "law-enforcement officer" so that it now includes certain employees of private police departments:

"Law-enforcement officer" means any full-time or part-time employee of a police department or sheriff's office which is a part of or administered by the Commonwealth or any political subdivision thereof, or any full-time or part-time employee of a private police department, and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth . . . .

The 2015 amendment also added a definition of the term "private police department":

"Private police department" means any police department, other than a department that employs police agents under the provisions of § 56-353, that employs private police officers operated by an entity authorized by statute or an act of assembly to establish a private police department. No entity is authorized to operate a private police department or represent that it is a private police department unless such entity has been authorized by statute or an act of assembly. . . . Any person employed as a private police officer pursuant to this section shall meet all requirements, including the minimum compulsory training requirements, for law-enforcement officers pursuant to this chapter . . . . Any private police department in existence on January 1, 2013, that was not otherwise established by statute or an act of assembly and whose status as a private police department was recognized by the Department at that time is hereby validated and may continue to operate as a private police department, provided it complies with the requirements set forth herein.

Enactment Clause 3 of the 2015 amendment specifically identifies the nine private police departments that were in existence on January 1, 2013, and recognized by the Department.

The enactment clause and the definitions quoted above, and the context in which they were enacted, are critical to a legal analysis of the questions you have asked.

Here, the Crime Commission noted a study by the 2014 Task Force disclosing that employees of the nine private police departments in question received training that was "practically identical" to the training of government law-enforcement officers, even though their only source of law-enforcement authority was their status as SCOPs, for whom lesser training and qualification standards applied. In addition, this Office advised that those officers could not qualify as "law-enforcement officers" without legislation authorizing that status. The Crime Commission proposed the 2015 amendment to address that lack of authorizing legislation.

It was the intent of the General Assembly in enacting the 2015 amendment to give law-enforcement authority to qualified officers of authorized private police departments, thus filling a void noted by the 2014 Task Force and the Crime Commission.

"When construing a statute, our primary objective is to ascertain and give effect to legislative intent, as expressed by the language used in the statute."

Prior to the 2015 amendment, § 9.1-101 defined "law-enforcement officer" as a qualified person with a local police department or sheriff's office, or with any of several different governmental entities. For each of those governmental entities, there was a separate statute granting law-enforcement powers. However, when the 2015 amendment added certain employees of private police departments to the definition of "law-enforcement officer," it did not enact a separate statute comparable to those provided for the governmental entities. Instead, there is language in the 2015 amendment itself (i) describing the responsibilities of certain employees of a private police department who are deemed law-enforcement officers, specifically "any full-time or part-time employee of a private police department . . . who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth," and (ii) expressly authorizing the nine private police departments to "continue to operate as . . . private police department[s]."

This descriptive language in the 2015 amendment broadened the definition of the term "law-enforcement officer" to include any employee of a private police department "who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth." That language fairly describes law-enforcement authority. While the language could be interpreted as merely describing certain employees of private police departments (namely, those with law-enforcement powers), it could also be interpreted as granting law-enforcement authority to private police officers, especially when coupled with the express authorization of the nine private police departments to continue to operate as private police departments. I conclude that this language in the 2015 amendment does, in fact, grant law-enforcement powers to qualified employees of private police departments.

To conclude otherwise (that the 2015 amendment merely described those employees without empowering them, where there is no other statute expressly empowering them) would mean that the 2015 amendment describes a class of persons that does not exist, and that the express authorization of the nine private police departments to continue to operate as private police departments would be nonsensical. The rules of statutory interpretation argue against reading a legislative enactment in a manner that will make a portion of it useless or absurd.

The final remaining issue you have raised is whether the 2015 amendment is unconstitutional because it embraces more than one object. The applicable provision in the Constitution of Virginia is Article IV, § 12, which states, in relevant part, "No law shall embrace more than one object, which shall be expressed in its title." The Supreme Court of Virginia has long maintained that the single-object rule is "to be liberally construed and treated, so as to uphold the law, if practicable." "[M]atters germane to the object, made manifest by its title, may be included. Those things are germane which are allied, relative or appropriate. Its construction must be liberal . . . ." Here, the 2015 amendment reasonably may be construed as embracing only one object, namely the law-enforcement powers of private police departments and their employees. For that reason, I conclude that it does not violate the constitutional ban on legislation embracing more than one object.

Conclusion

For the foregoing reasons, it is my opinion that the 2015 amendment effectively confers law-enforcement authority to employees of authorized private police departments, but only if those employees comply with all applicable requirements of the Department of Criminal Justice Services. It is my further opinion that the 2015 amendment does not violate Article IV, § 12 of the Virginia Constitution.

With kindest regards, I am

Sincerely yours,

Mark R. Herring
Attorney General