Number 18. November 15, 1968

Number 18. November 15, 1968 HONORABLE GEORGE A. LUCIANO State Superintendent of Buildings State Office Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Mr. Luciano: You have asked for my opinion on the authority of municipal police officers to maintain order and enforce the criminal law on state property, upon request of an appropriate state official. Your letter states: "The General Laws impose the responsibility upon me of protecting certain properties which are under the control of the Commonwealth. In addition to buildings owned by the Common- wealth, these properties include, without limitation, any municipally owned or privately owned building which is leased in its entirety to the Commonwealth for public offices, as well as any part of a municipally or privately owned building which is leased to the Commonwealth for public offices. "In the past I have called upon municipal police departments for assistance in providing the ordinary policing necessary to protect adequately these properties under the control of the Common- wealth. Our cities and towns are to be commended for their cooperation in this regard. "In order that this high degree of cooperation may be main- tained, it is necessary that the following question be resolved: 'Does the power and authority of a municipal police officer extend to the maintenance of order and enforcement of the criminal law of the Commonwealth while on property con- trolled by the Commonwealth within the geographical limits of his employing municipality, when he is on such property pursuant to assignment by his local police department in P.D. 12 71 response to a request by me or by the official having charge of such property?' "By way of illustration, municipal police authorities from time to time might be asked to provide officers on detail for assistance in safeguarding persons and property in the State Office Building at Springfield, and various local offices operated by the Department of Public Welfare, and for assistance in protecting visiting dignitaries at the State House in Boston. "In responding to the above question, it would be of great value if you specifically treated the effect, if any, of G.L. c. 8, § 12, upon your opinion." Your question is posed in general terms. While it may be appropriate in most cases to decline to answer questions so framed, we deem this occasion an appropriate exception to that rule. The matter directly involves your present statutory duties and is susceptible of a reasonably specific answer. The subject matter of your request has not, it seems, been treated in any opinion of the Supreme Judicial Court. It has however been considered in prior opinions of Attorneys General which will be referred to below in this opinion. It may be useful at this point to restate certain general principles of law. Ordinarily, the authority of local police to protect life and property and maintain the peace extends to all property located within the municipality of the officer's appointment. Joyce v. Parkhurst, 150 Mass. 243, 246. As recently stated in Thurlow v. Crossman, 336 Mass. 248, 250, "Lawful entry [by police officers] may be made 'to save goods which are in jeopardy of being lost or destroyed by water, fire or any like danger' [citation] , to prevent the spread of fire [citation] and to make arrests [citation] . A police officer who enters upon private premises in good faith in the performance of his official duty to protect life and property and to preserve the peace is not a trespasser." See also Commonwealth v. Murphy, 1968 Mass. Adv. Sh. 1, 5. And while, apart from "fresh pursuit" (see G.L. c. 41, § 98A, as amended through St. 1967, c. 263), the power of a municipal police officer to make an arrest without a warrant is limited at common law to the territory of his own municipality, his power to execute a warrant of arrest or commitment is statewide. Common- wealth v. Martin, 98 Mass. 4; G.L. c. 279, § 38; c. 41, §§ 95 and 98. Certain broad territorial powers are also conferred on municipal police officers by c. 41, § 99 and by the Civil Defense Act. St. 1950, c. 639, § 1 1, as amended. The foregoing examples are only some of the instances of the exercise by local police of concurrent jurisdiction with other police forces. The statutes relating to the State Police furnish another example of the exercise of such jurisdiction. By St. 1921, c. 461, now appearing as amended in G.L. c. 22, § 9A, the State Police were given concurrent jurisdiction with local police over all offenses. This grant was based on legislative reports which found that such jurisdiction, rather than being detrimental, would in fact contribute to the public safety. Report of the Adjutant General and the Commissioner of Public Safety on the Establishment of a State Police Force, 1921 House Doc. No. 280; Report of the Special Commission on Constabulary and State Police, 1917 House Doc. No. 539. 72 P.D. 12 I consider that the above materials both establish the general principle of a broad grant of police power within the geographic limits of a municipality and eliminate any conceptual barriers to overlapping police jurisdiction based on abstract notions of state "sovereignty." They do not support any proposition that under either the common law or statutes municipal control of premises within a municipality is necessary for the exercise of local police jurisdiction thereon. Nothing in the above materials carves out any exception for state property as an exempt enclave. Further, the activities of local police considered here do not involve any conflict between state and municipal authorities. Activities of local police in preserving the public peace on Commonwealth property do not in any way involve the imposition of local law upon the supreme sovereign. On the contrary, they are simply a means whereby the law of the supreme sovereign can be enforced on its ov/n premises. Thus, far from impeding the operations of the Commonwealth, such action by local police should plainly facilitate them. See Commonwealth v. Biddiscombe, 347 Mass. 427; Op. Atty. Gen. No. 68/69-3. Thus, I see no reason to conclude that, as a general proposition, the leasing or purchase of a building by the Commonwealth removes that building from the area in which local police may exericse their police powers to keep the peace and enforce the criminal laws of the Commonwealth. I now turn specifically to G.L. c. 8, § 12, to which you have referred in your request. This statute provides: "The [state] superintendent [of buildings] shall take proper care to prevent any trespass on, or injury to, the state house or its appurtenances, or any other building or part thereof owned by or leased to the commonwealth for public offices; and, if any such trespass or injury is committed, he shall cause the offender to be prosecuted therefor. For any criminal offence committed in any part of the state house or the grounds appurtenant thereto, or in any other building owned by or leased to the commonwealth, the superintendent and his capitol police shall have the same power to make arrests as the state police officers. A capitol police officer may, upon view of any misdemeanor committed in his presence, while on duty, arrest the person committing such misdemeanor, and shall have all the powers of police officers in the enforcement of traffic rules, regulations and ordinances on streets adjacent to any building owned, or occupied wholly or in part, by the commonwealth; and a capitol police officer shall have all the powers of state police officers while going to or from any such building on any assigned duty. The superintendent may arm his capitol police and, in case of an emergency, may arm and detail as capitol police for extra duty such employees in his department as, in his judgment, the emergency requires for the proper protection of state property under his jurisdiction. The capitol police shall have such additional duties as may be from time to time assigned by the commissioner of administration, and shall have, when so assigned, all the powers of state police officers." The Capitol Police, through whom you exercise your authority to maintain order on the premises under your jurisdiction, are created by G.L. c. 8, § 4. They are the successors to the "watchmen" who until 1938 (St. 1938, c. 249) had the duty of guarding the State House and other buildings in Boston owned or controlled by the Commonwealth. G.L. (Ter. Ed.) c. 8, § 12. The watchmen had the "same power to make arrests as the police officers of the City of P.D. 12 73 Boston." St. 1895, c. 284, § 4. It was, I assume, inconceivable both in 1895, when the power of arrest was first given to the "watchmen," and in 1938, when the watchmen were designated as Capitol Police, that the Legislature could have ever intended that this historic public building should be deprived of protection by police officers of the City of Boston. As for other premises of the Commonwealth under your jurisdiction, there may conceivably be cases where the Legislature intended to deny local police any jurisdiction over them. However, I would suppose that there are few such cases. Unquestionably, the Legislature could, by appropriate enactment, deprive local police of any police authority when on state property within their municipality. But I find no such general legislation in effect, and I know of no other authority requiring such a result. In particular, I know of no common law rule or statutory provision which would exempt from local police jurisdiction the particular state properties described in your request for my opinion. I do not consider applicable certain cases which have held that municipal ordinances may not be applied to state property so as to frustrate state policy or interfere with state activities. See Teasdale v. Newell & Snowling Constr. Co., 192 Mass. 440 and Medford v. Marinucci Bros. & Co., 344 Mass. 50, 54-57. We are here not concerned with the frustration of or interference with state policy or activities but rather with the implementation thereof, pursuant to state permission. Compare Commonwealth v. Biddiscombe, 347 Mass. 427, 429; Commonwealth v. Bragg, 328 Mass. 327, 330-331. And it is my judgment that there are no abstract principles of state sovereignty which would strip municipal police of their powers to keep the peace and enforce state criminal law when on state property at state request. There have been several opinions of Attorneys General dealing with the general subject matter of municipal police jurisdiction. See Report of the Attorney General for the Year Ending June 30, 1947, p. 91; Report of the Attorney General for the Year Ending June 30, 1949, p. AS; Op. Atty. Gen. No. 67/68-50. The first of these opinions dealt with the jurisdiction of the Boston Police over the Logan International Airport (prior to its inclusion in the Boston Port Authority). In it, Attorney General Clarence A. Barnes stated: "Land acquired by the Commonwealth is not generally subject to control by municipal police departments. When such control is deemed desirable, specific legislative authority to exercise it is granted by the General Court (see G.L. (Ter. Ed.) c. 81, § § 11,19). Lands such as reservations, parks and boulevards of the Common- wealth placed by the Legislature under the control of a State agency or authority are not subject to entry or control by municipal police except for such purposes as may have been specifically granted to such police by statutory provisions. "The police of the city of Boston are confined in their authority as regards the said airport to the pursuit and apprehension of persons who have committed a breach of any statute, ordinance or regulation within the city of Boston outisde the airport and have taken refuge in the said airport, and they have no authority to enter said airport for the purpose of maintaining peace and order therein except at the request of said bureau established for the maintenance and operation of the airport as aforesaid." As authority for the foregoing statement, Attorney General Barnes cited an opinion by Attorney General Herbert Parker in 1902 (2 Op. Atty. Gen. 454) 74 P.D. 12 which, together with an ealier opinion (2 Op. Atty. Gen. 363), held that municipal police officers, except when in fresh pursuit of a fugitive, had no jurisdiction to enforce the public peace on the roadways, parkways and boulevards of the Metropolitan Park Commission. In reaching this conclusion Attorney General Parker relied on the fact that the statute which created the Commission not only vested in it complete and exclusive control of its property but also created a special police force to enable the Commission to preserve good order thereon. Although the statute was silent on whether this force was to have exclusive jurisdiction, the Attorney General inferred this to be the intention of the Legislature, and he so held. It is plain, however, that he proceeded on the assumption that but for the statute local police would have had jurisdiction over the Commission's property. Whatever the circumstances in 1902 when Attorney General Parker con- sidered this question in respect to the statutes creating the Metropolitan Park Commission, I ascertain no such legislative intention generally applicable now to all state property. Also, Attorney General Barnes' opinion clearly dealt with an asserted conflict in jurisdiction over Logan International Airport. It is, on the particular facts there presented, not inconsistent with my opinion herein. Indeed, Attorney General Barnes specifically noted an exception for the authority of Boston police "to enter said airport for the purpose of maintaining peace and order therein ... at the request of . . . [the state body established to operate the airport] ." Finally, in an opinion dated November 14, 1967 {Op. Atty. Gen. No. 67/68-50), I stated my view that G.L. c. 41, § 98, which authorizes local police to "enter any building to suppress a riot or breach of peace therein" and to make arrests in connection therewith, authorized entry for such purposes in buildings controlled by the Commonwealth. For the reasons indicated above, however, I do not regard § 98 as limiting the authority of local police to enter state property. Moreover, the present opinion does not in any way diminish the control of the Commonwealth or its officials over property owned or leased by the Commonwealth. Further, nothing in this opinion should be regarded as holding that local police officials are empowered to enforce on state property municipal ordinances or by-laws or certain special statutes of only local application. In summary then, it is my opinion that, except in particular cases where there is a clear legislative expression to the contrary - and there is no such contrary expression in relation to the illustrations given in your request for my opinion, namely, the State House in Boston, the State Office Building at Springfield and various local offices of the Department of Public Welare - the answer to your question is YES. Yours very truly, ELLIOT L. RICHARDSON A ttorney General P.D. 12 75