Transit Passengers and Civil Rights (2005)

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3TRANSIT PASSENGERS AND CIVIL RIGHTS By Larry W. Thomas Attorney Washington, D.C. INTRODUCTION The overall objectives of this study are to research what rights transit authorities have in ejecting or ex- cluding persons who constitute a danger or annoyance to other passengers and the due process rights that members of the traveling public have in the use of tran- sit. Important issues are whether a transit authority may eject or exclude a passenger based on his or her present or past conduct; what elements of behavior must a transit operator observe to justify the removal or exclusion of a passenger who is loud or disruptive, vio- lates the law, or who is a known sex offender; what pro- cedures must be afforded to a passenger who is ejected from a transit system or who is barred from using the transit system for a prolonged period of time; and whether a transit authority may reject a service animal accompanying a transit passenger. The above issues and others discussed herein present numerous constitutional and other issues. Depending on the issue, the transit authority’s actions or restric- tions may implicate the First Amendment, the Due Process Clause of the Fifth and Fourteenth Amend- ments, the Equal Protection and/or the Privileges and Immunities Clauses of the Fourteenth Amendment1 of the U.S. Constitution, and federal and state civil rights statutes, as well as rights under a state constitution or state law. This Report discusses, inter alia, (1) what the transit authority’s obligations are to serve the public; (2) whether there is a constitutional right to travel via transit; (3) when restrictions on the use of transit facili- ties may implicate the First Amendment’s rights of free speech and assembly; (4) what the transit authority’s lawful responses are when there is suspicious activity or security threats; (5) what the transit authority’s law- ful responses are when there is unruly behavior or the presence of sex offenders in the transit system; (6) what the transit authority’s obligations are regarding a tran- sit user’s service animal; (7) what the transit author- ity’s potential liability is under the civil rights laws for a violation by the transit authority of a user’s constitu- tional rights; (8) the standard of judicial review, i.e., level of scrutiny, that the courts would apply to transit regulations or policies that provide for the temporary or 1 Hutchins v. District of Columbia, 338 U.S. App. D.C. 11, 188 F.3d 531 (D.C. Cir. 1999) (Upholding D.C. curfew law ap- plicable only to juveniles). permanent suspension of transit users from the system; (9) whether the transit authority should have specific and clearly defined procedures in place concerning the barring of transit users; and (10) if a transit user is re- fused service or suspended or barred from using transit facilities, what procedures would satisfy due process. I. RESPONSES BY TRANSIT AGENCIES TO SURVEY ON POLICIES AND PROCEDURES In April and May 2004, 60 transit agencies represent- ing 29 states responded to a questionnaire regarding their experiences, practices, and procedures relating to the subject of the Report. The agencies’ responses will be discussed in various sections of this Report.2 The following tables provide some information on the nature of the agencies that responded to the survey, such as the population of the agencies’ service areas, the number of buses and train cars, and the average number of daily riders. Please note that not every agency responded to all requests for information or questions in the survey. Table 1.A shows the range of responses by the size of the population of the transit agency’s service area; most responses were from agen- cies with service area populations ranging from 100,000 to 1,000,000. 2 Responses of the transit agencies are on file with the Transportation Research Board, Washington, DC, and are hereinafter referred to as “Confidential Survey Response.”

4TABLE 1.A—NUMBER OF TRANSIT AGENCIES RESPONDING BY SIZE OF POPULATION SERVICE AREA Less than 49,999 50,000 to 99,999 100,000 to 199,999 200,000 to 499,999 500,000 to 999,999 1 Million to 1,999,999 2 Million to 2,999,999 3 Million to 4,999,999 5 Million or More 1 4 10 9 9 7 3 2 1 Table 1.B illustrates the range of the agencies’ fleets in number of buses. Over 60 percent of the agencies responding had fleets of less than 200 buses. TABLE 1.B—AGENCY’S FLEET (BUS ONLY) 0 to 99 100 to 199 200 to 299 300 to 399 400 to 499 500 to 599 600 to 699 700 to 799 800 to 899 900 to 999 1000 or more 28 8 2 3 2 3 3 0 0 1 2 Table 1.C illustrates the range of agencies’ fleets in the number of rail cars for those also having rail operations. About 15 percent of the agencies responding to the survey furnish both bus and rail service. TABLE 1.C—AGENCY’S FLEET (RAIL CAR ONLY) 0 to 99 100 to 199 200 to 299 300 to 399 400 to 499 500 to 599 600 to 699 700 to 799 800 or More 3 1 1 1 0 0 1 0 1 Table 1.D illustrates the wide range in numbers of daily riders on the transit systems responding to the survey. About half of the agencies responding had more than 20,000 riders per day. TABLE 1.D—AGENCY’S AVERAGE NUMBER OF DAILY RIDERS Less than 4,999 5,000 to 9,999 10,000 to 19,999 20,000 to 49,999 50,000 to 99,999 100,000 to 199,999 200,000 to 299,999 300,000 to 499,999 500,000 to 999,999 1 million or more 12 4 8 6 3 6 6 1 0 1 In the survey, transit agencies were asked whether in the past 3 years the agency had excluded a transit user from the system because of being a security threat; for threatening another user; for engaging in political, religious, or other ex- pression or protest; for being a registered sex offender; or for engaging in begging or other unacceptable behavior.

5TABLE 1.1—PERCENTAGE OF TRANSIT AGENCIES REPORTING BARRING TRANSIT USERS IN PAST 3 YEARS Agencies that had Ex- cluded Users Agencies that had Not Excluded Users No Response or Referred to Police 62% (37 of 60) 30% (18 of 60) 8% (5 of 60) As to the nature of the incidents in the past 3 years, only four agencies responded that the incidents were too numerous to describe or that they numbered in the hundreds. Fourteen agencies (23 percent) reported that they had had approximately one to three incidents the last 3 years. The agencies reporting incidents described them variously as involving trespassing; assaults on the op- erator or transit users; abusive or disorderly conduct; destruction of property (e.g., cutting seats); panhan- dling; drinking, being drunk in public or having open containers of alcoholic beverages; thefts; fighting; unac- ceptable verbal behavior; refusals to leave the vehicle; and indecent exposure. Transit agencies did not report any incidents involving political, religious or other ex- pression or protest or involving registered sex offenders. In the survey, transit agencies also were asked whether they had procedures for responding to prob- lems or incidents. TABLE 1.2—PERCENTAGE OF TRANSIT AGENCIES HAVING PROCEDURES FOR RESPONDING TO INCIDENTS Agencies Reporting Proce- dures Agencies Reporting No Procedures Response Not Clear 53% (32 of 60) 45% (27 of 60) 2% (1 of 60) Thirty-two agencies (53 percent) reported having some procedures, whereas 27 agencies (45 percent) re- ported having no procedures. Based on the responses, it appears that only 13 agencies (22 percent) have some form of written procedures. Seventeen agencies (28 per- cent) responded that their policy was to report any inci- dent to the police and rely on the police and the courts to deal with such incidents. One agency reported that the municipality had added a new section to its munici- pal code describing various forms of prohibited bus con- duct. As stated, some agencies had unwritten procedures. A few of the responses from agencies with no written procedures: x “Bus supervisors always respond at the scene of the incident[;] depending on the nature of the incident, quite often [the] police are called. Both the supervisor and bus operator are asked to document [the] details of the incident.”3 x “Operators contact Dispatch through radio or emer- gency switch where street supervisors and police are dispatched to intercept [the] bus.”4 x In situations where a user was barred from the sys- tem, one agency stated that, “[i]n most cases [the] per- 3 Confidential Survey Response. 4 Id. son who is barred will come in and talk to management about their situation, and we make a decision.”5 Transit agencies were also asked whether, in the past 3 years, transit users had made claims for being denied service or for being barred or suspended from using the transit system. 5 Id.

6TABLE 1.3—PERCENTAGE OF TRANSIT AGENCIES REPORTING CLAIMS IN PAST 3 YEARS BASED ON USER’S EXCLUSION Transit Agencies Report- ing No Complaints or Claims Transit Agencies Re- porting Some Form of Complaint Transit Agencies Re- porting the Filing of a Claim No Response or Response Not Clear 70% (42 of 60) 10% (6 of 60) 10% (6 of 60) 10% (6 of 60) Forty-two agencies (70 percent) answered that they had not had such claims. Another six agencies (10 per- cent) reported that there had been complaints occasion- ally that had resulted in a follow-up inquiry, but that these complaints had not resulted in formal cases or proceedings. Only six transit agencies (10 percent) re- sponded that they had had an actual claim for having denied service or for having barred or suspended a user from the transit system. Few claims appear to have involved actual court pro- ceedings. One agency advised that it had had claims relating to “harsh treatment,” but that the suspension had been upheld.6 Another agency reported that more than 3 years ago one suspended passenger had taken legal action (outcome not disclosed). One agency re- ported that one suspended passenger had contacted the local office on civil rights, but no legal or other action had resulted. One agency advised that there had been one or more instances in which there was an appeal to the transit commission (no other details provided). One agency reported that there had been some complaints by passengers that were resolved after an informal hearing. Only one agency advised that there had been a complaint that had been “denied” in court, but no other details were provided.7 One transit agency, serving a population of more than 3.5 million with both buses and trains, reported: Neither the [agency’s] Transit Police nor Research and Planning is aware of any successful attempts to exclude a person from the transit system. Certainly, no one would be excluded for engaging in political, religious, or other expression of protest. Many years ago, a woman kept fak- ing seizures in the system, causing disruptions and de- lays. [The agency] was unsuccessful in getting her ex- cluded from the system. There are some other anecdotal incidents, but no one can say for sure that anyone was banned from the system in the past 3 years. Records of this would not be easily retrievable.8 As discussed in Part II. below, although the transit agency is under an obligation to serve the public, the agency may respond to a security threat or disorderly, 6 Id. 7 Id. 8 Id. abusive, or other conduct that impairs the safety or comfort of others using the transit agency’s facilities. II. OBLIGATIONS OF THE COMMON CARRIER IN SERVING THE PUBLIC A common carrier may be liable for the unexcused re- fusal to transport persons who pay or are ready to pay the fare. However, where a common carrier has reason- able cause to believe that the safety of its passengers will be endangered by a prospective traveler, the carrier may refuse service. Persons whose conduct is riotous, disorderly, or potentially dangerous may be refused service; thus, for example, a bus driver has an affirma- tive duty to protect passengers and may exclude per- sons because of their disruptive behavior. In Martin v. Central Ohio Transit Authority,9 the plaintiffs, an injured youth and mother, appealed the trial court’s decision that granted summary judgment to the defendant transit bus driver. The youth and his companions caused a disturbance on a transit bus, were told to leave, and upon refusing the driver produced a handgun. A struggle ensued and the youth was shot. The lower court’s ruling was affirmed that the bus driver was acting within his scope of employment and that he had a duty, as the driver of a common carrier, to protect his passengers. As such, he had qualified im- munity under Ohio Rev. Code Ann. § 2744.03(A)(6)(a) and his actions or omissions were not with malicious purpose, in bad faith, or in a wanton or reckless manner under § 2744.03(A)(6)(b). No authority has been found holding that a transit authority’s refusal to serve a passenger or its suspen- sion or bar of a user from service implicates any consti- tutional right of the patron to use transit. In fact, it is reasonable for a transit agency, as a common carrier, to exclude a patron who poses a threat to the safety and security of himself or other passengers or the operator.10 Depending on the circumstances, if a transit agency must take action to suspend temporarily or perma- 9 70 Ohio App. 3d 83, 590 N.E.2d 411 (1990). 10 See generally 14 AM. JUR. 2D Carriers § 82, at 219–20; Schaeffer v. Cavallero, 54 F. Supp. 2d 350, 351–52 (S.D. N.Y. 1999) (No claim for damages for removal of a passenger unless carrier’s decision was arbitrary and capricious).

7nently a user from the system, as discussed in later sections of this Report, the transit user possibly would be entitled to notice and some form of rudimentary hearing, but not necessarily before being barred from using the system in whole or in part. No cases were located, however, in which a court has recognized or imposed any due process requirements on an agency when excluding or barring transit users. III. THE QUESTION OF WHETHER THERE IS A CONSTITUTIONAL RIGHT TO TRAVEL ON TRANSIT As stated, no authority has been located holding that access to or use of the transit system is a constitutional right. Even assuming arguendo that access to or use were held to be a constitutional right, the prevailing judicial view appears to be that such a right would not be a “fundamental” right. The distinction between a right and a fundamental right is an important one. Where a constitutional right is not a fundamental one, courts are likely to use a lower level of judicial scrutiny when they are reviewing the legality of restrictions on the user’s right to use the system or the transit agency’s procedures for barring a patron from the system. The U.S. Supreme Court and lower courts have rec- ognized in some situations a “fundamental” right to travel interstate or across borders.11 For example, in Saenz v. Roe,12 the Court held that a California statute imposing a durational residency requirement by limit- ing Temporary Assistance to Needy Families (TANF) benefits through the recipient’s first year of residency violated the Fourteenth Amendment’s “right to travel.” 13 According to Justice Stevens, the right to travel is an 11 See Memorial Hosp. v. Maricopa County, 415 U.S. 250, 94 S. Ct. 1016, 39 L. Ed. 2d 306 (1974) (One-year residency re- quirement for non-emergency medical care at the county’s ex- pense violated right to travel). The issue has come up a number of times in other cases dealing with residency requirements in which the Court has reached divergent results. Compare, e.g., Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975) (Upheld a 1-year residency requirement for initiating divorce proceedings); Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972) (Court struck down Tennes- see’s 1-year residency requirement for voting in state elec- tions). However, the Court approved a government ban on travel to Cuba in Zemel v. Rusk, 381 U.S. 1, 85 S. Ct. 1271, 14 L. Ed. 2d 179, reh’g denied, 382 U.S. 873 (1965). 12 526 U.S. 489, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (1999). 13 The majority opinion did not rely on the Equal Protection Clause as the Court had in Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). For the first time since the Slaughterhouse Cases, the Court relied on the Privileges and Immunities Clause of Article IV of the 14th Amendment and the Citizenship Clause of the 14th Amendment. See Com- ment, Laurence H. Tribe, Saenz Sans Prophecy: Does the Privi- leges or Immunities Revival Portend the Future—or Reveal the Structure of the Present?, hereinafter cited as “Tribe,” 113 HARV. L. REV. 110, 126 (1999). outgrowth of a number of Constitutional provisions. However, the Saenz case did not rule on intrastate travel.14 The Saenz decision and other cases suggest that the Court’s “right to travel interstate” decisions have more to do with the structure (“architecture”)15 of the federal union and the equality of the states than with the existence of a personal, fundamental right to travel.16 The courts appear to be divided on whether there is a constitutional right to travel intrastate.17 Some federal circuits refuse to recognize a constitutional right to travel intrastate.18 Other courts have held that travel is 14 Saenz v. Roe, 526 U.S. 489, 500, 119 S. Ct. 1518, 20 L. Ed. 2d 138 (1968). 15 In part the argument is that “to be accorded constitutional recognition, the right must be inferred from the structures of self-government that underlie our Constitution’s architecture and its animating premises.” Tribe, 113 HARV. L. REV. 154. 16 Thus, it has been argued that “the holding of Saenz re- flected the Court’s vision of [a] governmental design in a fed- eral union of equal states, and not primarily the Court’s per- ception of a personal right ineluctably flowing from constitutional text or deeply rooted tradition despite the major- ity’s ostensible reliance on the language of several clauses.” Tribe, 113 HARV. L. REV. 154. The Court’s welfare and other cases striking down durational residency requirements argua- bly are not so much based on an individual constitutional right as on the absolute necessity of an equality of treatment of the states for the preservation of the Union. “[I]ndividuals who travel to states other than their state of residence are entitled to expect that they will be treated no less favorably by the states through which they travel or in which they stay tempo- rarily than such states treat their own residents….” Tribe, 113 HARV. L. REV. 141. “Purely as a matter of the Court’s own ju- risprudence, it is not at all unusual for rights that are consid- ered fundamental and peculiarly American to be derived from the structural features of the Constitution.” Tribe, 113 HARV. L. REV. 168. 17 King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 647 (2d Cir. 1971), cert. denied, 404 U.S. 863 (1971) (Five-year dur- ational residency requirement for admission to public housing violated Equal Protection Clause); Wellford v. Battaglia, 343 F. Supp. 143, 150 (D. Del. 1972), aff’d per curium, 485 F.2d 1151 (3d Cir. 1973) (Law imposing 5-year residency requirement for one seeking election as mayor did not meet “compelling inter- est” test, thus violating 14th Amendment); Bykofsky v. Bor- ough of Middletown, 401 F. Supp. 1242 (M.D. Pa. 1975), aff’d without opinion, 535 F.2d 1245 (3d Cir.), cert. denied, 429 U.S. 964 (1976) (Although right to travel was “implicit in the con- cept of ordered liberty,” a juvenile curfew ordinance did not unconstitutionally infringe on right of minors to travel, 401 F. Supp. 1254). 18 Wright v. City of Jackson, 506 F.2d 900, 901–02 (5th Cir. 1975) (In upholding city residency requirement for firemen, the court stated “that nothing in Shapiro or any of its progeny stands for the proposition that there is a fundamental constitu- tional ‘right to commute’ which would cause the compelling governmental purpose test enunciated in Shapiro to apply,” Id. at 902); Wardwell v. Bd. of Educ., 529 F.2d 625 (6th Cir. 1976)

8not a fundamental right.19 Importantly, most courts have held that the right to travel intrastate is not a fundamental right that is subject to strict scrutiny by the courts.20 As noted in this Report, the difference be- tween a right and a fundamental right is important because the applicable level of scrutiny used by the courts differs when deciding whether to uphold a gov- ernment restriction.21 Although cases were not located involving transit op- erations and any constitutional right to intrastate travel, there are analogous cases, for instance, involv- ing juvenile curfew laws and “anti-cruising laws” in which the courts have upheld restrictions on the right to travel. The cases also illustrate the test the courts are likely to use in reviewing restrictions on travel by (Court held that requirement for public school teachers to es- tablish residence in city school district within 90 days of em- ployment met rational basis requirement; “the right to intra- state travel has [not] been afforded federal constitutional protection,” the court distinguishing those cases dealing with durational residency requirements affecting interstate travel, Id. at 627); Andre v. Board of Trustees, 561 F.2d 48 (7th Cir. 1977), cert. denied, 434 U.S. 1013 (Held that only the right to travel interstate is a recognized fundamental right). See also Detroit Police Officers Ass’n v. City of Detroit, 190 N.W.2d 97 (Mich. 1971), appeal dismissed for want of substantial federal question, 405 U.S. 950 (1972). 19 Scheunemann v. City of West Bend, 179 Wis. 2d 469, 507 N.W.2d 163, 167 (Ct. App. 1993) (Court applied intermediate, not strict, scrutiny in upholding an “anti-cruising” law said to violate the right to travel). 20 See, e.g., Johnson v. City of Cincinnati, 310 F.3d 484, 509 (6th Cir. 2002), cert. denied, 539 U.S. 915, 123 S. Ct. 2276 (Mem), 156 L. Ed. 2d 130 (2003). In a case in which the Sixth Circuit held that a city ordinance excluding individuals con- victed of a drug offense from certain drug-free zones, including areas in front of schools, was an unconstitutional infringement of their right to intrastate travel, the court observed that “[i]f the right to intrastate travel [were] a fundamental liberty inter- est, [the] court would have been required to apply strict scru- tiny, rather than the rational-basis standard of review…to evaluate constitutionality” of the restriction imposed on travel at issue in that case (emphasis supplied). See also Doe v. Miller, 298 F. Supp. 2d 844 (S.D. Iowa 2004) (Iowa district court struck down a state statute that prohibited convicted sex offenders from establishing a residence within 2000 feet of a school or child care facility on the basis that a broad definition of “residence” as defined by the statute would preclude sex offenders from residing or even traveling in large portions of the state, thus infringing on the fundamental right to travel.). 21 The Court in Wellford stated: “The right to travel…is a right to intrastate as well as interstate migration…. Moreover, the motive behind a challenged law and its actual effect on the right to travel are not relevant considerations in determining the appropriate standard of review.” Wellford, 343 F. Supp. 143, at 147–48. There is a difference between a residency re- quirement and a durational residency requirement; durational residency requirements are subject to greater scrutiny. Well- ford, 343 F. Supp. at 147–48, note 9. transit or on procedures used to exclude a patron from the use of transit facilities. The cases involving juvenile curfews present some is- sues that are analogous to transit.22 Even if some users have a fundamental right to travel, not all users (e.g., minors) necessarily have a fundamental right to do so. Although the holdings in the juvenile curfew cases are not uniform, the majority view seems to be that the laws do not impair a fundamental right.23 It appears that the courts would be inclined to apply either the lowest standard of review (i.e., the rational basis test) or possibly an intermediate standard of review to issues such as an agency’s restrictions on riders’ use of the system or procedures on barring or suspending them from the system.24 Another analogous area is the anti-cruising ordi- nances, which the courts have upheld as an appropriate time, place, and manner restriction on the “right” to intrastate travel.25 In Lutz v. City of York, Pa.,26 al- though the court held that there was a constitutionally protected right to intrastate travel, the city’s anti- cruising ordinance was an allowable restriction of that right. The cruising ordinance was subjected to interme- diate scrutiny and upheld because it was “nar- rowly tailored to meet significant city objectives.”27 Most courts have supported limitations on the right when there is a compelling governmental interest and the law or regulation is narrowly tailored to fit that interest. A few cases have supported the general principle in Lutz that intrastate travel deserves a certain level of consti- tutional protection.28 In sum, no authority has been located holding that there is a connection between any constitutional right and the exclusion of someone from the transit system. In any case, the standard of review a court would apply to regulations that permit the agency to bar patrons from using an intrastate public transportation system on the ground of security or on other reasonable 22 Douglas G. Smith, A Return to First Principles? Saenz v. Roe and the Privileges or Immunities Clause, UTAH L. REV. 305, 349 (2000), hereinafter cited as “Smith.” 23 Smith, UTAH L. REV. 351–52. 24 Hutchins v. District of Columbia, 338 U.S. App. D.C. 11, 18–19, 188 F.3d 531, 538 (D.C. Cir. 1999) (D.C. Circuit held that “juveniles do not have a fundamental right to be on the streets at night without adult supervision” (emphasis sup- plied)). 25 See Comment, Gregory J. Mode, Wisconsin, A Constitu- tional Right to Intrastate Travel, and Anti-Cruising Ordi- nances, 78 MARQ. L. REV. 735, 736–49 (1995). 26 899 F.2d 255 (3d Cir. 1990). 27 Id. at 270. 28 Snowden v. State, 677 A.2d 33 (Del. 1996) (Upholding the constitutionality of an anti-stalking statute, although it impli- cated the stalker’s right to travel freely); Townes v. City of St. Louis, 949 F. Supp. 731 (E.D. Mo. 1996) (Applying the Lutz intermediate scrutiny test to uphold a city ordinance placing traffic barriers in residential areas resulting in less convenient access to some residents’ homes).

9grounds is not conclusive given a lack of case law spe- cifically on point.29 However, based on the cases relied upon in this Report, a court will most likely apply a standard of judicial review no higher than that of in- termediate scrutiny. IV. RESTRICTIONS ON THE USE OF TRANSIT FACILITIES AND THE FIRST AMENDMENT Restrictions in transit areas on speech or expressive conduct may implicate the First Amendment.30 In the survey for this Report, the transit agencies were asked whether there were state or transit agency laws, regu- lations, or policies applicable to the agency regarding when, how, and under what circumstances transit fa- cilities may be used for political expression or protest. 29 Townes, 949 F. Supp. at 734. 30 In Hague v. Committee for Indus. Org. (CIO), 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939), the Court extended First Amendment protection in matters involving “speech-plus- conduct” by developing the public forum doctrine in recognition of the importance of the discussion of public affairs in public streets, parks, and facilities. See also David M. O’Brien, 2 CONSTITUTIONAL LAW AND POLITICS: CIVIL RIGHTS AND CIVIL LIBERTIES 636 (5th ed. 2002). The concept of a public forum has been expanded to include municipal auditoriums, side- walks, shopping centers, criminal trials, and the public areas surrounding schools, courthouses, embassies, and state capital buildings. Id. at 637. However, in Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 107 S. Ct. 2568, 96 L. Ed. 2d 500 (1987), the Court struck down a “First Amendment free zone,” which banned all First Amendment opinion, solicitations, and canvassing in a central airport ter- minal as being overly broad. Three years later, the Court, how- ever, in United States v. Kokinda, 497 U.S. 720, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990), held in a plurality opinion that post offices may ban all solicitations on their property.

10 TABLE 4.1—PERCENTAGE OF TRANSIT AGENCIES REPORTING LAWS, REGULATIONS, OR POLICIES APPLICABLE TO USE OF TRANSIT FACILITIES FOR POLITICAL EXPRESSION OR PROTEST Agencies Having Laws, Regu- lations, or Policies Agencies Not Having Laws, Regulations, or Policies Response Not Clear 30% (18 of 60) 50% (30 of 60) 20% (12 of 60) Eighteen agencies (30 percent) reported that there were such state or transit agency laws, regulations, or policies. Virtually all transit agencies responding to the survey stated that their facilities are not to be used for political expression or protest. Moreover, 30 agencies (50 percent) responded there were no laws, regulations, or policies applicable to them. Some of the agencies re- sponded that their actions had to comply with federal and state constitutional law on political expression or protest. A publication entitled, Restrictions on Speech and Expressive Activities in Transit Terminals and Facili- ties, TCRP Digest No. 10 (1998), provides a more de- tailed discussion of free speech and the public forum doctrine. However, the limited public forum doctrine applies when the government opens a nonpublic forum to the public but limits expressive activity to certain kinds of speakers or to the discussion of certain sub- jects. Although a subway platform has been cited as an example of a limited public forum,31 several cases hold that transit facilities are not public fora.32 In a limited public forum, the “‘government is free to impose a blan- ket exclusion on certain types of speech, but once it al- lows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.”33 Once opened as a public forum, a government is not obligated to retain its public forum characteris- tics, but while serving as a public forum, it retains the same constitutional privileges as any other public fo- rum.34 The government has no obligation to allow access to all persons who wish to exercise their right to free speech on every type of government property.35 31 Hotel & Rest. Employees Union v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 547 (2d Cir. 2002); see also A.C.L.U. v. Mineta, 319 F. Supp. 2d 69 (D.D.C. 2004). 32 People of the State of N.Y. v. Schrader, 162 Misc. 2d 789, 617 N.Y.S.2d 429 (N.Y. Crim. Ct., N.Y. County 1994); Young v. N.Y. City Transit Auth., 903 F.2d 146, 154 (2d Cir. 1990) (Beg- ging as First Amendment speech). 33 Hotel & Rest. Employees Union, 311 F.3d 534, 545–46 (2d Cir. 2002), quoting from Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir. 1991). 34 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-6, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983). 35 Kevin Francis O’Neill, Disentangling the Law of Public Protest, 45 LOY. L. REV. 411, 419 (1999), hereinafter cited to as “O’Neill.” Insofar as reasonable time, place, and manner re- strictions on the exercise of speech, the courts apply the intermediate test of scrutiny pursuant to which the courts have upheld a wide range of legislative restric- tions.36 The restrictions need not be the least restrictive or the least intrusive means of achieving the govern- ment’s end.37 Restrictions are constitutional “so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are view-point neu- tral.”38 Government “restrictions on the volume of speech do not necessarily violate the First Amendment, even when that speech occurs in an area traditionally set aside for public debate.”39 The transit authority may allow limited access to its subway stations, such as for public speaking; the distri- bution of written noncommercial materials; and the solicitation for religious, political, and charitable pur- poses, and, at the same time, fine a member of a politi- cal organization for selling the organization’s newspa- per on a subway platform in violation of the authority’s policy.40 A transit system may also restrict political ad- vertisement; however, it must do so in a viewpoint- neutral manner.41 As discussed in Part VI.A of the Re- port, it is constitutional for a transit system to prohibit begging based on reasons of public safety as a reason- able limitation on speech in a nonpublic forum.42 In addition, users of public transportation are a cap- tive audience and have the right to be left alone—i.e., not to have to endure loud or obtrusive speech or noise.43 On the other hand, the “First Amendment [does 36 Id. at 475–76. 37 Id. at 438–39. 38 Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 807, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). 39 City of Seattle v. Eze, 111 Wash. 2d 22, 759 P.2d 366, 371 (1988). 40 Rogers v. New York City Transit Auth., 89 N.Y.2d 692, 680 N.E.2d 142, 657 N.Y.S.2d 871 (N.Y. 1997). 41 ACLU v. Mineta, 319 F. Supp. 2d 69, 78 (D.D.C. 2004). (Determining that a subway’s restriction on pro-marijuana legalization advertisements would have been constitutional but for the fact that the regulation was not viewpoint-neutral and could not survive heightened scrutiny analysis). 42 People of the State of N.Y. v. Schrader, 162 Misc. 2d 789, 617 N.Y.S.2d 429 (N.Y. Crim. Ct., N.Y. County 1994). 43 Note, James J. Zych, Hill v. Colorado and the Evolving Rights of the Unwilling Listener, 45 ST. LOUIS U. L.J. 1281,

11 not secure] to each passenger on a public vehicle…a right of privacy substantially equal to [the] privacy to which [one] is entitled in his own home.”44 When speech is forced upon a captive audience or when the speech constitutes a nuisance, “the law will operate to protect the ‘unwilling listener.’”45 In Lehman v. Shaker Heights,46 the Court held that the city, through a man- agement agreement with its public transportation con- tractor, could prohibit political advertising on public buses. The Court noted that the public forum analysis was not appropriate because “[t]he streetcar audience is a captive audience. [The audience] is there as a matter of necessity, not of choice.”47 Although restrictions must be viewpoint neutral,48 the issue of the reasonableness of the restrictions is not at issue if the transit agency has not opened any facility for the purpose of political or other speech or expressive conduct. The transit agencies’ responses indicate that in general they prohibit political expression or protest on or in transit property or facilities. Hence, their property has not been opened for expressive activity by members of the public.49 Transit agencies may want to be careful 1305 (2001), hereinafter cited as “Zych.” See Public Utilities Com. of D.C. v. Pollak, 343 U.S. 451, 468, 72 S. Ct. 813, 96 L. Ed. 1068 (1952) (Speaker’s rights more limited when traveling on a public thoroughfare); Kovacs v. Cooper, 336 U.S. 77, 89, 69 S. Ct. 448, 93 L. Ed. 513 (1949) (Government can impose re- strictions on sound amplification trucks). 44 Pollak, 343 U.S. at 463 (Transit radio program in street- cars and buses did not violate First and Fifth Amendments). 45 Zych, 45 St. LOUIS U. L.J. 1307. 46 418 U.S. 298, 94 S. Ct. 2714, 41 L. Ed. 2d 770 (1974). 47 Lehman, 418 U.S. at 302, quoting from Public Utilities Comm’n v. Pollak, 343 U.S. 451, 468. See also Hill v. Colorado, 530 U.S. 703, 718, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000) (“[O]ur cases have repeatedly recognized the interests of un- willing listeners in situations where ‘the degree of captivity makes it impractical for the unwilling viewer or listener to avoid exposure.’”); United States v. Hicks, 980 F.2d 963, 965 (5th Cir. 1992) (Freedom of speech defense rejected in a case where the defendants refused to turn off a boom-box that could interfere with the airline’s navigational system). 48 See New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 134 (2d Cir. 1998). Furthermore, as one commen- tator has written, “restrictions must serve a compelling gov- ernment interest and be narrowly tailored to achieve that in- terest. The government may, however, impose content-neutral time, place and manner restrictions…so long as those restric- tions are ‘narrowly tailored to serve a significant government interest,’ and must ‘leave open ample alternative channels of communicati(ng) the message.’” O’Neill, 45 LOY. L. REV. 475, quoting from Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), quoting from Clark v. Community for Creative Non- Violence, 468 U.S. 288, 293 (1984). A speech restriction does not leave open ample alternative channels if the speaker is left unable to reach his intended audience. O’Neill, 45 LOY. L. REV. 443. 49 See People of the State of N.Y. v. Schrader, 162 Misc. 2d 789, 617 N.Y.S.2d 429, 437 (N.Y. Crim. Ct., N.Y. County 1994); whenever creating or designating a limited public fo- rum. As noted, in a limited public forum the govern- ment may impose a blanket-exclusion on certain types of speech, “but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre….”50 In sum, the transit authority is a nonpublic forum unless the transit authority designates some part of the facilities as a public forum, i.e., creates a limited public forum. The transit authority may place reasonable time, place, and manner restrictions on the exercise of speech in a limited public forum and may forbid certain exercises of speech as long as the transit authority treats all genres of speech equally. Any attempt by the transit authority to limit the content of speech would be subject to strict scrutiny by the courts. Content-neutral restrictions are subject to intermediate scrutiny.51 Fi- nally, the transit authority may act reasonably to pro- tect its captive audience from excessive noise and even from certain forms of speech (e.g., begging, certain of- fensive advertising). V. TRANSIT AGENCY’S RESPONSE TO SECURITY THREATS OR SUSPICIOUS ACTIVITY There is an important issue regarding the right of transit authorities to eject or exclude persons who con- stitute a danger to other passengers, even more so since the terrorist attacks of September 11, 2001. Transit security, however, has been a concern and the subject of extensive research both prior to and after the 9/11 at- tacks.52 Young v. N.Y. City Transit Authority, 903 F.2d 146, 154 (2d Cir. 1990). 50 Hotel & Rest. Employees Union, 311 F.3d at 545–46, quot- ing from Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692. 51 See Los Angeles Alliance for Survival v. City of L.A., 22 Cal. 4th 352, 93 Cal. Rptr. 2d 1, 993 P.2d 334 (Calif. 2000), and authorities discussed therein. 52 See, e.g., ANNABELLE BOYD & JOHN P. SULLIVAN, EMERGENCY PREPAREDNESS FOR TRANSIT TERRORISM (TCRP Synthesis 27, 1997); JEROME A. NEEDLE & RENEE M. COBB, IMPROVING TRANSIT SECURITY (TCRP Synthesis of Transit Practice 21, 1997), available at http://nationalacademies.org /trb/publications/tcrp/tsyn21.pdf; BRIAN MICHAEL JENKINS, PROTECTING PUBLIC SURFACE TRANSPORTATION AGAINST TERRORISM AND SERIOUS CRIME: AN EXECUTIVE OVERVIEW (Mineta Transportation Institute College of Business, Report 01-14, 2001) (Discussing, inter alia, intelligence and threat analysis, physical barriers, access control and intrusion detec- tion, chemical and biological defense, public communications, and training); FEDERAL TRANSIT ADMINISTRATION, TRANSIT WATCH TOOLKIT (2004), available at http://transit-safety.volpe. volpe.dot.gov/Security/TransitWatch/Toolkit.asp; FEDERAL TRANSIT ADMINISTRATION, PUBLIC TRANSPORTATION SYSTEM SECURITY AND EMERGENCY PREPAREDNESS PLANNING GUIDE (2003), available at http://transit-safety.volpe.dot.gov/

12 As the General Accounting Office (GAO) observed in 2002, “[a]bout one-third of terrorist attacks worldwide target transportation systems, and transit systems are the mode most commonly attacked.”53 According to a study published in April 2004 by the American Public Transportation Association (APTA), the association found that “[n]ew security measures have been adopted since [September 11, 2001] by 88.3 percent” of transit agencies responding to [APTA’s] survey, and “74.2 per- cent have increased security measures that were al- ready in place.”54 APTA states that some of transit’s important security needs are radio communications systems, including operational control redundancy; se- curity cameras on board vehicles; controlled access to facilities and secure areas; security cameras in stations; and automated vehicle locator systems.55 Based on its survey responses, APTA estimates that a total of $6 billion is needed for transit security—$5.2 billion in capital needs and $800 million in annual operating needs.56 At the federal level, the Department of Homeland Se- curity (DHS),57 formerly the Office of Homeland Secu- rity (OHS), Department of Transportation (DOT), Fed- eral Transit Administration (FTA), and the Transportation Security Administration (TSA) have responded to transit security needs and issues.58 One of Publications/security/PlanningGuide.pdf; FEDERAL TRANSIT ADMINISTRATION, STANDARD PROTOCOLS FOR MANAGING SECURITY INCIDENTS INVOLVING SURFACE TRANSIT VEHICLES (2002), available at http://transit-safety.volpe.dot.gov/ Publications/security/FTASTandards.pdf; FEDERAL TRANSIT ADMINISTRATION, HANDBOOK FOR TRANSIT SAFETY AND SECURITY CERTIFICATION (2002), available at http://transit- safety.volpe.dot.gov/…/Additional/Safety_and_Security_Certific ation_Guidelines.pdf. See BOYD MAIER & ASSOCIATES, TRANSIT SECURITY HANDBOOK (Volpe National Transportation Systems Center, 1998) (Specifically addressing terrorism prevention activities). 53 See U.S. GENERAL ACCOUNTING OFFICE, REPORT TO CONGRESSIONAL REQUESTERS, MASS TRANSIT, FEDERAL ACTION COULD HELP TRANSIT AGENCIES ADDRESS SECURITY CHALLENGES 2 (Dec. 2002) hereinafter “GAO Report,” available at http://www.gao.gov/cgi-bin/getrpt?GAO-03-263. 54 American Public Transportation Association, “Survey of United States Transit System Security Needs and Funding Priorities” (Washington, DC, April 2004), at 11, available at http://www.apta.com/services/security/security_survey.cfm, hereinafter cited as “APTA Study.” 55 APTA Study, supra note 54, at 5. 56 Id. at 11. 57 With the passage of the Homeland Security Act on Novem- ber 25, 2002, TSA was transferred to the new DHS, which as- sumed overall responsibility for transportation security. 58 See Statement of Gerald L. Dillingham [Director of Civil Aviation Issues for the U.S. General Accounting Office, Wash- ington, DC], National Commission on Terrorist Attacks Upon the United States (April 1, 2003), available at http://www.9- 11commission.gov/hearings/hearing1/ the “primary missions of the DHS is to secure and pro- tect the United States’ transportation system, including aviation, mass transit, maritime and port security, pipelines, and surface transportation.”59 Although TSA’s focus initially was on aviation security, the agency is now focusing on mass transit as well.60 After 9/11, FTA developed a National Transit Response Model that pro- vided “guidance to the U.S. transit industry in respond- ing to the various [DHS] threat level designations.”61 In September 2002, the GAO also reported on the challenges in securing mass transit systems, on the steps that transit agencies had taken to enhance secu- rity, and on the federal role in transit security.62 DHS and DOT have taken “significant steps” to enhance rail and transit security in the last 2 years in cooperation with public and private entities that own transit and rail systems.63 Their efforts include a mass transit K-9 rapid deployment program, transit inspection, educa- tion and awareness, and several uses of technology, including biological, chemical, and high explosive coun- termeasures.64 In May 2004, DHS and TSA announced new initiatives on passenger rail and transit security, “which is the first time in the history of mass transit that the federal government has taken the leadership witness_dillingham.htm. After 9/11, the Agency found that by December 2002, when it visited 10 transit agencies, the agen- cies had implemented new security initiatives or increased the frequency of existing activities: agencies had assessed vulnerabilities, provided additional train- ing on emergency preparedness, revised emergency plans, and conducted multiple emergency drills. Several agencies…had also implemented innovative practices to enhance safety and secu- rity, such as training police officers to drive buses and imple- menting an employee suggestion program to solicit ideas for im- proving security. Id. 59 Note, Owen Bishop, A ‘Secure’ Package? Maritime Cargo Container Security After 9/11, 29 U. DENV. TRANSP. L. J. 313– 14 (2002). 60 See Transportation Security Administration, TSA Mass Transit Group, available at http://www.tsa.gov/public/ display?theme=154. 61 Federal Transit Administration, “Federal Transit Admini- stration Transit Threat Level Response Recommendation,” available at http://transit-safety.volpe.dot.gov/security/ SecurityInitiatives/ThreatLevel/default.asp. 62 “Mass Transit, Challenges in Securing Transit Systems,” U.S. Senate, Subcomm. on Housing and Transportation, Com- mittee on Banking, Housing and Urban Affairs (Sept. 18, 2002) (Statement of Peter Guerrero, Director, Physical Infrastructure Issues); see also FBI LAW ENFORCEMENT BULLETIN (Jan. 1, 1999) (Reporting that mass transit was a terrorist target). 63 See Department of Homeland Security, available at http://www.dhs.gov/dhspublic/display?content=3377 (Rail and transit security initiatives). 64 Id.

13 role in setting a federal security standard for passenger rail and mass transit systems.”65 The FTA notes that “[t]ransit systems must continue to enhance their security systems, facilities and vehicle designs to ensure the safety and security of the riding public.”66 The FTA states that it will “[c]onsistent with the recommendations of the President's Commission on Critical Infrastructure Protection…identify possible key terrorist targets in transit and evaluate the economic consequences of disruption to transit service in those markets. Core systems that may be vulnerable to ter- rorist acts will need to develop fail-safe interventions.”67 Some of the means of enhancing transit security are “accessing transit vulnerabilities, examining current transit systems terrorism prevention programs, [and] identifying technologies….”68 FTA’s activities include the development of an advanced multi-sensor system that incorporates full data fusion.69 The FTA’s goal is to “tie together ten or fewer Urban Chemical Release De- tector (UCRD) multi-sensor detector instruments that will be installed in a variety of locations within a sub- way station.”70 In addition, the agency will develop a detailed “validation of the Subway Environmental Simulation Chemical and Biological (SESCB) numerical modeling code.”71 According to the agency, a “fully vali- dated code can be used to confidently predict the possi- bility of identifying and quantifying the threat created from the release of a variety of chemical and biological agents.”72 A third goal is the expansion of back- ground/interferant measurements “to acquire and ana- lyze background data using the UCRD system hard- ware in a variety of subway stations in wide ranging 65 Transportation Security Administration (Transcript of DHS Under Secretary Asa Hutchinson on Rail Security, May 20, 2004), available at http://www.tsa.gov/public/ display?theme=47&content=09000519800a64d8. 66 See Federal Transit Administration, “Crime Prevention and Anti-Terrorism,” available at http://www.fta.dot.gov/ 11227_11229_ENG_HTML.htm. By designing the physical environment in a way that deters criminal behavior, transit agencies improve the quality of life on their systems by reducing both the fear and incidence of crime, including the vulnerability of the system to an act of terrorism. Through this program, the Federal Transit Administration (FTA) will demonstrate innovative security technologies, system design, and rail and bus vehicle security enhancements….” Id. 67 Id. 68 Id. …Of particular importance will be a risk assessment of the range of transportation services at airports served by rapid transit lines. The FTA will also develop a computer model for application in field operations that simulates the transit envi- ronment, including medical triage, contingency transit, emer- gency evacuation routes, and vulnerable locations points, which will aid security personnel in responding to catastrophic transit events. Id. 69 Id. 70 Id. 71 Id. 72 Id. environmental conditions.”73 The FTA will collect and analyze data on safety and security concerns to provide the agency with a basis for identifying key safety and security issues. Legislation was proposed in Congress in both 2004 and 2005 aimed at increasing rail and public transportation security at the state and local level.74 There are numerous initiatives and programs at the state and local level dealing with transit security and counterterrorism.75 Among the measures implemented or considered for implementation include greater elec- 73 Id. 74 For the latest legislative information, see American Public Transportation Association, legislative update, available at http://www.apta.com/government_affairs/positions/washrep/20 04september17.cfm. See, e.g., H.R. 153, Rail and Public Trans- portation Security Act of 2005 (January 4, 2005), available at http://thomas.loc.gov/cgi-bin/bdquery/ z?d107:HR00153:@@@X; see also H.R. 4476, Rail Transit Secu- rity and Safety Act of 2004 (June 1, 2004), 108th Cong., 2d Sess., available at http://www.theorator.com/bills108/hr4476. html; CONF. REP. S. 2854, Intelligence Reform and Terrorism Prevention Act of 2004 (Dec. 7, 2004) (Re: S. 2854 and H. REP. 796; H.R. Rep. 5082, Public Transportation Terrorism Preven- tion and Response Act of 2004, 108th Cong., 2d Sess., October 6, 2004 (Proposing to authorize the Secretary of Transportation “to award grants to public transportation agencies and over- the-road bus operators to improve security, and for other pur- poses….”); and see Hearing, Public Transportation Security, H.R. Committee on Transportation and Infrastructure, Sub- comm. on Highways, Transit & Pipelines (June 24, 2004), available at http://www.house.gov/transportation/highway/06- 22-04/06-22-04memo.html (Including Statement of Robert Jamison, Deputy Administrator, Federal Transit Administra- tion, available at http://www.house.gov/transportation/ highway/06-22-04/Jamison.pdf, noting that FTA has “under- taken an aggressive nationwide security program with the full cooperation and support of every transit agency involved,” con- centrating on funding for training, emergency preparedness, and public awareness). 75 See Florida Public Transportation Anti-Terrorism Re- source Guide, (National Center for Transit Research (www.nctr.usf.edu/pdf/Transit%20Terrorism%20Resource%20 Guide.pdf), Tampa, Florida) (Outlining a variety of law en- forcement initiatives, including the creation of seven regional domestic security task forces, more law enforcement and other “first responder” training, establishment of a statewide anti- terrorism database, and the undertaking of certain chemical and biological attack initiatives); “Eyes and Ears” Campaign, Bay Area Rapid Transit (May 2004), available at http://www.bart.gov/news/features/features20040526.asp; Maine Homeland Security, available at http://www. mainesecurity.com/Homeland_Security.htm; “Preparing Your System for Terrorism,” Maryland Rural Transit Assistance Program, RTAP Update (Baltimore, Md., Sept. 2003); Massa- chusetts Bay Transportation Authority, “Security Initiatives,” available at http://www.mbta.com/traveling_t/safety_index. asp.

14 tronic surveillance,76 and protection against chemical and biological attacks.77 In May 2004, New York City proposed a ban on photography on New York City’s subways and buses to deter surveillance by terrorists of the nation’s largest mass transit system.78 No cases were located challenging any of the foregoing laws or initiatives for infringing personal liberty. VI. TRANSIT AGENCY’S RESPONSE TO CRIMINAL ACTIVITY, PANHANDLING, AND SEX OFFENDERS A. Criminal Activity Although the importance of the above mentioned ini- tiatives regarding security threats and suspicious activ- ity can not be understated, transit agencies’ general response to crime is also important. The FTA notes that “at transit agencies where the ‘no tolerance’ [policy] has been in effect…crime is considerably lower than on those systems where minor infractions are tolerated.”79 As for law enforcement and transit, APTA found that of 120 transit agencies responding to its survey, 16.7 per- cent have their own dedicated transit police. “[M]ost transit agencies with their own law enforcement or- ganization are larger systems, primarily rail or multi- modal systems and a few very large bus systems. Dedi- cated security personnel in addition to transit police are employed by 25.8 percent of respondents.”80 APTA also found elsewhere that Law enforcement service is provided by state and local governments under paid contracts for 35.8 percent of re- sponding transit systems and provided without payment for an additional 34.2 percent of respondents. The re- maining responding systems did not specify the arrange- ment through which the local law enforcement function is provided to their agency. Dedicated security personnel are contracted for by 56.7 percent of responding agencies and 10 percent make other arrangements for security personnel. In all cases municipal, county, and state law enforcement officers would also provide a security func- 76 See Joey Campbell, Security Concerns Attract Operators to Advances in Video Surveillance, METRO MAGAZINE, Feb.–Mar. 2002, at 48, available at http://www.metro-magazine.com/ t_featpick.cfm?id=90503364. See also PATRICIA MAIER & JUD MALONE, ELECTRONIC SURVEILLANCE TECHNOLOGY ON TRANSIT VEHICLES (TCRP Synthesis of Transit Practice 38, Transportation Research Board, 2001), available at http:// nationalacademies.org/trb/publications/tcrp/tsyn21.pdf. 77 See ANTHONY J. POLICASTRO & SUSANNA P. GORDON, THE USE OF TECHNOLOGY IN PREPARING SUBWAY SYSTEMS FOR CHEMICAL/BIOLOGICAL TERRORISM (American Public Transpor- tation Association, May 1999). 78 See http://news.boston.herald.com/localRegional/view. bg?articleid=29028. 79 See Federal Transit Administration, “Crime Prevention and Anti-Terrorism,” available at http://www.fta.dot.gov/ 11227_11229_ENG_HTML.htm. 80 APTA Study, supra note 54. tion consistent with local law whether or not a formal contractual arrangement exists.81 As for responding to security threats, criminal activ- ity, or disruptive conduct, transit agencies for this Re- port were asked whether there were state or transit agency laws, regulations, or policies applicable to the agency on when, how, and under what circumstances transit personnel could refuse service to or eject a tran- sit user from the facilities. It should be noted that 17 of 60 respondents, or about 28 percent, reported that they rely also or exclusively on the police and the judicial system concerning problems on transit vehicles; thus, the success of such an approach depends upon rapid action by the police and the courts and not on written transit procedures. 81 APTA Study, supra note 54, at 7.

15 TABLE 6.1—PERCENTAGE OF AGENCIES WITH LAWS, REGULATIONS, OR POLICIES ON EJECTION OF USER AS SECURITY THREAT OR FOR DISRUPTIVE CONDUCT Agencies Reporting Laws, Regulations, or Policies Agencies Reporting No Known Laws, Regulations, or Policies Response Not Clear 52% (31 of 60) 35% (21 of 60) 13% (8 of 60) Thirty-one agencies (52 percent) stated that there were such laws, regulations, or policies applicable to the agencies. Twenty-one agencies (35 percent) responded that there were none, or that they were not aware of any. One agency from California noted that the Califor- nia Public Utilities Code Section 99170(a)(1) and the California Penal Code Section 640(b)(6) address this boisterous behavior issue. For example, Section 99170(a)(1) of the Public Utilities Code provides in part that: (a) No person shall do any of the following with respect to the property, facilities, or vehicles of a transit district: Operate, interfere with, enter into, or climb on or in, the property, facilities, or vehicles owned or operated by the transit district without the permission or approval of the transit district. Interfere with the operators or operation of a transit ve- hicle, or impede the safe boarding or alighting of passen- gers…. As for a specific transit policy applicable to security threats or disruptive conduct, 15 agencies (25 percent) appeared to have a policy, but only seven agencies (about 12 percent) indicated that it was a written pol- icy. The remaining responses were unclear on whether, regardless of the existence of any state laws or regula- tions, there was a specific transit agency policy. Several agencies responded that any security threat or disrup- tive conduct would be referred to a supervisor. An important aspect of a transit agency’s response to threats to public safety is the need to react to possible acts of terrorism or suspicious activity, including the detention of suspicious persons or the removal of suspi- cious articles from transit facilities. When trying to pro- tect facilities and users from suspicious activity and the like, a transit agency, of course, must be concerned with possible violations of the Fourth Amendment’s prohibi- tion against unreasonable searches and seizures and with a transit user’s other rights to due process or pri- vacy. Judicial precedents illustrate the circumstances in which agencies may detain or search individuals or property in, on, or near transit facilities.82 82 See United States v. Rivera, 247 F. Supp. 2d 108 (D. P.R. 2003) (Court denied motion to suppress search conducted in shopping mall based on the authority of custom agents to con- duct an extended search.); United States v. 12,200 Ft. Reels of Super 8mm Film, 413 U.S. 123, 125, 93 S. Ct. 2665, 37 L. Ed. 2d, 500 (1973) (“[S]earches of persons or package at the na- The transit agency may need to identify and detain suspicious persons, as well as react to suspicious or abandoned packages or other items. To be reasonable, “an arrest or search must be based on probable cause and executed pursuant to a warrant.”83 There are excep- tions to the probable cause and warrant requirements in cases of “investigatory detentions, warrantless ar- rests, searches incident to a valid arrest, seizure of items in plain view, exigent circumstances, consent searches…and searches in which the special needs of law enforcement make the probable cause requirement impracticable.”84 If reasonable suspicion exists, the po- lice may detain a person to ascertain his or her iden- tity.85 Reasonable cause for a stop and frisk (conducted without the necessity of having a warrant) may be based on information supplied by another person and does not have to be based on the officer’s personal ob- servation.86 Proper investigatory detentions, however, must be supported by an objective, credible reason, but not one necessarily indicative of criminality.87 The detention of personal effects is governed by the same standards as in Terry v. Ohio,88 i.e., the officer may in appropriate circumstances, and in an appropri- tional borders rest on different considerations and different rules of constitutional law from domestic regulation….”). 83 Jeremy J. Calysn et al., Investigation and Police Practice: Warrantless Searches and Seizures, 86 GEO. L. J. 1214 (1998), hereinafter cited as “Calysn et al.” 84 Id. at 1214. 85 Id. at 1220–21, citing Terry v. Ohio, 392 U.S. 1, 6–7, 22–23 (Brief seizure by police based on reasonable suspicion of crimi- nal activity is “narrowly drawn” exception to the Fourth Amendment’s probable cause requirement). 86 Adams v. Williams, 407 U.S. 143, 147–8, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). 87 People v. McIntosh, 96 N.Y.2d 521, 755 N.E.2d 329, 730 N.Y.S.2d 265 (N.Y. 2001) (Police officer lacked objective, credi- ble reason to request everyone on a bus, including defendant, to produce tickets and identification). Compare with People v. McIntosh, 274 A.D.2d 740, 711 N.Y.S.2d 547 (A.D., 3d Dept. 2000) (Intermediate appellate court held that the officer had a reasonable basis for belief that criminal activity was afoot, warranting further inquiry of bus passenger and his compan- ion where the officer observed them trying to conceal some- thing as the officer approached when bus was traveling in area known for drug activity). 88 Terry v. Ohio, 392 U.S. 1, 6–7, 22–23, 885 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

16 ate manner, approach a person for purposes of investi- gating possibly criminal behavior, even though as yet not enough for probable cause to make an arrest.89 “[S]earches conducted as part of a general regulatory scheme, done in furtherance of administrative goals rather than to secure evidence of a crime, may be per- missible under the Fourth Amendment without a par- ticularized showing of probable cause,”90 but it must be shown that the decision to search a particular person is not “subject to the discretion of the official in the field.”91 The police may detain property without prob- able cause but not search it without probable cause,92 but a warrant may not be necessary to search an aban- doned container.93 As a general matter, the authorities have the power to arrest or disperse demonstrators who engage in ob- trusive, unruly, or violent behavior but judicial defer- ence to the government authorities’ response may dis- appear if, for example, the police “overreact.”94 B. Panhandling or Begging As for panhandling or begging on transit facilities, transit agencies were asked whether there were appli- cable state or transit agency laws, regulations, or poli- cies on the regulation or expulsion of persons engaged in panhandling or begging in or on transit facilities. 89 United States v. Place, 462 U.S. 696, 703–4, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). 90 United States v. Bulacan, 156 F.3d 963, 967 (9th Cir. 1998). 91 Camara v. Municipal Court, 387 U.S. 523, 532–33, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). 92 Smith v. Ohio, 494 U.S. 541, 543–44, 110 S. Ct. 1288, 108 L. Ed. 2d 464 (1990). 93 United States v. Procopio, 88 F.3d 21, 26-7 (1st Cir. 1996), cert. denied, 519 U.S. 1138 (1997) (After property left openly in public place, its examination by government agents was not unreasonable under the Fourth Amendment); United States v. Scott, 975 F.2d 927, 930 (1st Cir. 1992). 94 Washington Mobilization Comm. v. Cullinane, 566 F.2d 107, 128 (D.C. Cir. 1977) (Upheld “failure-to-move-on provi- sion” in D.C. Code as a reasonable regulation and recognized expansive police powers, for example, to enforce “police line”); Lamb v. City of Decatur, 947 F. Supp. 1261 (C.D. Ill. 1966) (Police officers who sprayed pepper spray on a group of peace- ful demonstrators did not qualify for immunity from civil rights action); see Kevin Francis O’Neill, Detangling the Ideas of Pub- lic Protest, 45 LOY. L. REV. 411, 519 (1999).

17 TABLE 6.2—PERCENTAGE OF TRANSIT AGENCIES HAVING STATE OR TRANSIT AGENCY LAWS, REGULATIONS, OR POLICIES CONCERNING PANHANDLING OR BEGGING Transit Agencies Having Laws, Regulations, or Policies Transit Agencies Not Having Laws, Regulations, or Policies Transit Agencies with Specific Agency Policy 37% (22 of 60) 53% (32 of 60) 10% (6 of 60) Thirty-two agencies (53 percent) responded that there were no state or transit agency laws, regulations, or policies of which they were aware that applied to pan- handling or begging. Twenty-two agencies (37 percent) said that there were such state or transit agency laws, regulations, or policies. Six transit agencies or 10 per- cent noted that the agency had a specific policy that applied to panhandling or begging. One agency advised that it was aware of a provision of the Santa Monica Municipal Code, Section 4.54.020, that defines “solicita- tion” as any request made in person seeking an immediate dona- tion of money or other item of value. A person shall not be deemed to be in the act of solicitation when he or she pas- sively displays a sign or gives any other indication that he or she is seeking donations without addressing his or her solicitation to any specific person, other than in response to an inquiry by that person. Under Section 4.54.030 of the municipal code, solicit- ing is prohibited at “(a) [b]us stops;” and on “(b) [p]ublic transportation vehicles or facilities.” Indeed, there are a number of cases upholding ordi- nances that prohibit begging on transit facilities. Al- though in Young v. N.Y. City Transit Authority,95 the Second Circuit held that begging on the subway “falls far outside the scope of protected speech under the First Amendment,” the same court in Loper v. N.Y. City Po- lice Dept.96 held that there is no significant distinction 95 903 F.2d 146, 154 (2d Cir. 1990). 96 Loper v. N.Y. City Police Dep’t, 999 F.2d 699 (2d Cir. 1993). In Loper, the Second Circuit struck down N.Y. Penal Law § 240.35(1) (McKinney 1989), which prohibited begging in public places throughout New York. The court held that no compelling state interest was served by “excluding those who beg in a peaceful manner from communicating with their fellow citizens.” Id. at 705. Furthermore, the total ban was “neither content neutral nor narrowly tailored, [and thus could not] be justified as a proper time, place or manner restriction on pro- tected speech, regardless of whether or not alternate channels are available.” Id. Of interest is Thompson v. City of Chicago, 2002 U.S. Dist. LEXIS 4813 (E.D. Ill. 2002), involving the city’s enforcement of its anti-panhandling ordinance. Apparently on the basis of the Loper decision, the City directed that the police were not to enforce the ordinance. The evidence, however, was that the police had continued to do so. Thus, a motion for an injunction was not moot because the City had not established that there is “‘no reasonable expectation that the putatively illegal conduct will be repeated, and that there are no remain- between begging for charity for oneself and asking for charity for persons other than oneself, with both being protected under the First Amendment. However, in the Young case, even assuming arguendo that begging was protected speech, the court held that 21 NYCRR Section 105.6 did not violate the First Amendment and vacated the district court’s judgment enjoining various defen- dants from enforcing a prohibition against begging in their public transit facilities.97 Although not essential to its decision, the court in the Young case noted that a subway is not a public forum in which begging and panhandling must be permitted. The transit authority [n]ever intended to designate sections of the subway sys- tem, including platforms and mezzanines, as a place for begging and panhandling. Nor does the amended regula- tion abrogate our holding in [Gannett Satellite Informa- tion Network, Inc. v. Metropolitan Transportation Author- ity, 745 F.2d 767, 773 (2nd Cir. 1984)] that the subway system is not a traditional or designated public forum….98 In People v. Schrader,99 the court upheld a ban on begging under 21 NYCRR 1050.6[b][2]. First, the court agreed that “begging constitutes protected speech under the First Amendment and should be analyzed under the same standards as have been applied to other forms of solicitation.”100 Second, however, begging could be law- fully banned in the subway. The court held that “[t]he New York City transit system is a nonpublic forum, containing at most, a limited forum open only to some speech activities, but expressly not extended to beg- ging.”101 Second, the ban on begging “while allowing other forms of solicitation is a reasonable distinction in light of the [transit authority’s] concerns with public safety and the avoidance of congestion in providing its transportation services.”102 Because the transit system is a nonpublic forum, the transit authority “is not re- quired to choose the least restrictive means of regulat- ing begging.”103 ing effects of the alleged violation,’” quoting Ragsdale v. Tur- nock, 841 F.2d 1358, 1365 (7th Cir. 1988). 97 Young, 903 F.2d 146, 161. 98 Id. at 162. 99 162 Misc. 2d 789, 617 N.Y.S.2d 429 (N.Y. Crim. Ct., N.Y. County 1994). 100 617 N.Y.S.2d at 435. 101 Id. at 437. 102 Id. 103 Id. at 438.

18 As in the Schrader case, challenges to laws prohibit- ing begging may be challenged also on state constitu- tional grounds, because a state constitutional provision may “provide[] greater speech protection than the First Amendment….”104 In Los Angeles Alliance for Survival v. Los Angeles,105 groups and individuals sought to en- join the enforcement of a county ordinance prohibiting certain forms of aggressive solicitation. The California Supreme Court granted the request of the U.S. Court of Appeals for the Ninth Circuit to address what the proper standard was under the California Constitu- tion’s liberty of speech clause for analyzing the constitu- tionality of ordinances governing the public solicitation of funds. The California Supreme Court noted that re- quests for the immediate payment of money—“while often encompassed within and protected by the liberty of speech clause—may create distinct problems and risks that warrant different treatment and regula- tion.”106 In ruling that the ordinance in question, which in part banned “all solicitation…in public transporta- tion vehicles and within 10 feet of such vehicle stops,”107 was content-neutral, the court held that the ordinance was subject to intermediate scrutiny rather than strict scrutiny. The court wrote, moreover, that the United States Supreme Court reviews regulations of solicita- tion as content-neutral restraints of speech,108 and that “a restriction is content-neutral if it is ‘justified without reference to the content of the regulated speech.’”109 Al- though the California Supreme Court agreed that the California liberty of speech clause is broader and more protective than the First Amendment’s freedom of speech clause in all applications,110 the regulation in question was both content-neutral and well within the government’s police power.111 C. Sex Offenders Special problems arise in connection with the transit authority’s interest in protecting passengers from sex offenders. Transit agencies were asked whether with respect to a known sex offender (such as someone iden- tified in a registry required by state law) there were applicable state or transit agency laws, regulations, or policies on when, how, and under what circumstances the agency could refuse service to or eject the person from the facilities. 104 Id. at 434. 105 22 Cal. 4th 352, 93 Cal. Rptr. 2d 1, 993 P.2d 334 (Calif. 2000). 106 993 P.2d at 335. 107 Id. at 340, quoting from Clark v. Community for Non- Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 2211 (1984). 108 Id. at 336, citing, e.g., United States v. Kokinda, 497 U.S. 720, 730, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990). 109 993 P.2d at 343. 110 Id. at 342. 111 Id. at 348.

19 TABLE 6.3—PERCENTAGE OF TRANSIT AGENCIES REPORTING STATE OR TRANSIT AGENCY LAWS, REGULATIONS, OR POLICIES APPLICABLE TO REFUSAL OF SERVICE OR EJECTION OF KNOWN SEX OFFENDERS Transit Agencies Having Such Laws, Regulations, or Policies Transit Agencies Not Having Such Laws, Regulations, or Policies Response Not Clear/ No Response 8% (5 of 60) 80% (48 of 60) 12% (7 of 60) Forty-eight agencies (80 percent) responded that there were no applicable state or transit agency laws, regulations, or policies in these situations, whereas only five agencies (8 percent) indicated that there were. One agency responded that because it was a small agency, “we identify such known offenders to our driv- ers. They are closely monitored and followed when on the premises.” Two other agencies reported that they worked closely with the Department of Corrections or the police department; one agency said that “[w]e re- ceive photographs of Level 3 offenders. [The Depart- ment of Corrections] will inform us if their restrictions include…buses or transit facilities.” Another agency responded that as part of the plea agreement for per- sons convicted of sex offenses that occur on transit property, the offender may be permanently banned from transit facilities. By 1995, at least 44 states required sex offenders to register with authorities when they move into a com- munity. In addition, at least 27 states now have com- munity notification statutes.112 The Supreme Court re- cently upheld laws requiring the registration of sex offenders.113 Previously, the courts had held that New Jersey’s analogous “Megan’s Law,” N.J.S.A. 2C:7-1 to -5 (Registration) and N.J.S.A. 2C:7-6-11 (Community Noti- fication), did not violate the constitutional rights of sex offenders, notwithstanding “our country’s fundamental belief that criminals, convicted and punished, have paid their debt to society and are not to be punished fur- ther.”114 Without a nexus to the rider’s behavior on transit, it may be risky for a transit authority to exclude someone 112 Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911, 1989 (1995), hereinafter cited as “Baker,” quoting Lawrence Wright, A Rapist's Homecoming, THE NEW YORKER, Sept. 4, 1995, at 56, 68. 113 Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 164 (2003) (Court upheld a “Megan’s Law” in Alaska—the Alaska Sex Offender Registration Act). 114 Doe v. Poritz, 662 A.2d 367, 372 (N.J. 1995). However, “[p]ublic notification implicates a privacy interest in nondisclo- sure, and therefore triggers due process.” Id. at 417. Compare E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997) (Holding that a sex offender registration law inflicting additional punishment and placing the burden of persuasion on the offender violated the due process requirements of the registrant). on mere suspicion or even if the agency knew that the individual was a previously convicted sex offender. One court rejected the claim that even a psychiatrist would be able to identify a sex offender: “A review of the cases in other jurisdictions does not persuade us that it is generally accepted in the medical or legal communities that psychiatrists possess such knowledge or capabili- ties.”115 No authority has been located indicating that it would be a sufficient reason to bar a transit user from the system simply because he or she is a registered sex offender.116 The Supreme Court of Illinois has held that a statute providing for the revocation of driver’s licenses of those convicted of enumerated sex offenses was un- constitutional because the law had no relation to the legislative goal of highway safety.117 Without the sanction of state law or a court order, a transit agency’s decision or action in barring a known (or suspected) sex offender from the transit system pos- sibly would trigger at the very least the requirements of due process in the form of reasonable notice and an op- portunity for a pre-suspension hearing. As seen, how- ever, less than 10 percent of the agencies responding to the survey indicated that the agencies have any laws, regulations, or policies upon which they would be able to rely to bar a registered or otherwise known sex of- fender from transit facilities. In sum, the transit authority may refuse service to unruly or apparently dangerous or threatening patrons in the interest of protecting other passengers or the operator. The transit authority may question a person to ascertain his or her identity if there is a reasonable 115 State v. Cavello, 88 N.J. 508, 443 A.2d 1020, 1027 (1982). See United States v. St. Pierre, 812 F.2d 417, 420 (8th Cir. 1987) (“[N]o showing that the scientific community recognized the existence of identifiable traits common to rapists”). No cases were located that address the question of whether a sex offender should be considered disabled or otherwise be pro- tected from alleged discrimination under the Americans with Disabilities Act or state mental health legislation. 116 For example, see Validity and Application of Statute or Regulation Authorizing Revocation or Suspension of Driver’s License for Reason Unrelated to Use of, or Ability to Operate, Motor Vehicle, 18 A.L.R. 5th 542. 117 People v. Lindner, 127 Ill. 2d 174, 535 N.E.2d 829, 129 Ill. Dec. 64 (Ill. 1989); People v. Priola, 203 Ill. App. 3d 401, 561 N.E.2d 82, app. denied, 567 N.E.2d 339.

20 suspicion of possible criminal activity, even though there is as yet an insufficient basis for an arrest based on probable cause. The same rule applies to detaining a suspicious package. Although convicted sex offenders may be identified and/or registered in accordance with state law, the transit authority may be unable to bar them from the transit facilities unless the state law or possibly a court order or judgment requires or author- izes the agency to bar the registered offender. VII. TRANSIT AUTHORITIES AND PATRONS’ USE OF SERVICE ANIMALS It is unlawful to discriminate against a person using or seeking to use a place of public accommodation solely because that person has a disability and is accompanied by a guide dog, hearing dog, or other service animal.118 Access to transportation facilities is specifically covered by the Americans with Disabilities Act (ADA).119 Under 42 U.S.C. § 12132, “no qualified individual with a dis- ability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Section 12148(a) of the ADA makes it clear that a “designated public transportation program or activity” must be conducted such that “when viewed in the en- tirety the program or activity is readily accessible to and useable by individuals with disabilities.”120 Under § 12141, the phrase “designated public transportation” includes bus, rail, intercity, or commuter rail transpor- tation “that provides the general public with general or special service (including charter service) on a regular and continuing basis.” Section 12181 et seq. of the ADA covers public accommodations and services operated by private entities, including, for example, terminals, de- pots, and stations used for specified public transporta- tion. Section 12184(a) states that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transporta- 118 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; 28 C.F.R. pt. 35 and pt. 36, § 36.302(c)(1); 49 U.S.C. § 41705; N.Y. CIV. RIGHTS LAW § 47; N.Y. TRANSP. LAW § 147; and N.Y. City Admin. Code (Human Rights) § 8-102 (4) and (18), and § 8-107.4 and § 8-107 (15); 56 Regulations of the City of New York (RCNY) (Department of Parks and Recreation) § 1-04 (i). 119 42 U.S.C. § 12101(a)(5). See also 14 AM. JUR. 2d Carriers § 829, at 222 (“A carrier’s duty to not discriminate against dis- abled passengers is now governed also by the Americans with Disabilities Act.”). 120 See, however, Melton v. Dallas Area Rapid Transit, 391 F.3d 669 (5th Cir. 2004) (Public transit authority not required by ADA or Rehabilitation Act to make reasonable modification to its para-transit service; Kiernan v. Utah Transit Auth., 339 F.3d 1217 (10th Cir. 2003) (para-transit rider not entitled to preliminary injunction where agency terminated para-transit eligibility to riders with mobility devices exceeding the dimen- sions of a common wheelchair). tion services provided by a private entity that is primar- ily engaged in the business of transporting people and whose operations affect commerce.” The term “specified public transportation” means transportation by bus, rail, or any other conveyance that provides the general public with general or special service on a regular and continuing basis.121 Under § 12205, for litigation or ad- ministrative proceeding ensuing because of violations of the ADA, attorney’s fees are recoverable by the prevail- ing party (other than by the United States). Title 28, Part 35, of the Code of Federal Regulations (C.F.R.), applies to nondiscrimination on the basis of disability in state and local services. Part 36 of the regulations covers nondiscrimination on the basis of disability by public accommodations and in commercial facilities. Title 49, Part 37, of the C.F.R. applies to ser- vice animals in the context of transportation services. The section applies to public and private entities.122 The entity “shall permit service animals to accompany indi- viduals with disabilities in vehicles and facilities.”123 In Americans Disabled for Accessible Public Transp. v. Skinner,124 the U.S. Court of Appeals for the Third Circuit construed a number of provisions establishing the obligations of recipients of federal financial assis- tance to provide accessible public transportation for the disabled and held in general that “the statutes delegate broad powers to the Secretary to promulgate regula- tions, detailing minimum criteria,” which in the court’s view had to be upheld “if the balance they strike repre- sents a permissible reading of the statutes….”125 In response to “Commonly Asked Questions About Service Animals in Places of Business,” the Department of Justice advises that a service animal is any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a dis- ability. If they meet this definition, animals are consid- ered service animals under the ADA regardless of whether they have been licensed or certified by a state or local government…. If you are not certain that an animal is a service animal, you may ask the person who has the animal if it is a ser- vice animal required because of a disability. However, an individual who is going to a restaurant or theater is not likely to be carrying documentation of his or her medical condition or disability. Therefore, such documentation generally may not be required as a condition for providing service to an individual accompanied by a service animal. Although a number of states have programs to certify service animals, you may not insist on proof of state certi- fication before permitting the service animal to accom- pany the person with a disability….126 121 42 U.S.C. §12181, § 301.42(10). 122 49 C.F.R. § 37.167(a). 123 49 C.F.R. § 37.167(d). Other requirements are set forth in § 37.167(b) and (e) to (j). 124 881 F.2d 1184 (3d Cir. 1989). 125 American Disabled for Accessible Public Transp., 881 F.2d at 1198. 126 See http://www.usdoj.gov/crt/ada/qasrvc.htm.

21 The Justice Department advises that “[t]he service animal must be permitted to accompany the individual with a disability to all areas of the facility where cus- tomers are normally allowed to go. An individual with a service animal may not be segregated from other cus- tomers.”127 Also, as provided under the N.Y. Civil Rights Law Section 47-b(2), a person with a disability who is accompanied by a service animal may keep the service animal in his or her immediate custody. There are other provisions in the ADA that are of in- terest. The ADA has specific provisions governing com- plaints, administrative and legal action, and enforce- ment. Although federal circuit courts of appeals have held that a state is not immune under the 11th Amendment from an action in federal or state court for a violation of the ADA,128 the Supreme Court in 2001, reversing an 11th Circuit decision, held in Board of Trustees of the University of Alabama v. Garrett129 that suits in federal court by state employees to recover damages by reason of the state’s failure to comply with Title I of the ADA are barred by the 11th Amendment. The 14th Amendment does not require states to make special accommodations for the disabled, as long as their actions are rational. The ADA’s legislative record fails to show that Congress identified a history and pat- tern of irrational employment discrimination by the States against the disabled. Congress targeted the ADA at employment discrimination in the private sector only.130 However, 11th Amendment immunity does not extend to local governmental units such as cities and counties.131 Thus far, no cases have been located regarding issues transit operators may have encountered under federal and state laws with respect to the handling of service animals and what action is appropriate under the cir- cumstances. However, in Johnson v. Gambrinus Com- pany/Spetzl Brewery,132 the court held that under the ADA the brewery had to change its policy to allow a service animal (guide dog) to accompany a blind person on a tour of the facility. “[T]he legislative history of Ti- tle III makes clear that Congress concluded that it is a reasonable modification for places of public accommoda- tion with animal restriction policies to allow individuals with disabilities full use of service animals.”133 It is dis- 127 See http://www.usdoj.gov/crt/ada/qasrvc.htm. 128 See, e.g., Muller v. Costello, 187 F.3d 298, 308 (2d Cir. 1999) (Congress abrogated 11th Amendment immunity from suit under the ADA; “[t]he evil that Congress sought to combat by passing the ADA was irrational discrimination against per- sons with disabilities.”). 129 531 U.S. 356 (2001). 130 The Court explained that discrimination by states justify- ing the abrogation of 11th Amendment immunity is distin- guishable from the Voting Rights Act of 1965, where Congress was reacting to a marked pattern of unconstitutional action by the states. 531 U.S. at 373. 131 Id. at 357. 132 116 F.3d 1052 (5th Cir. 1997). 133 Johnson, 116 F.3d at 1061. criminatory to refuse to alter a “no pets” rule for a per- son with a disability who uses a guide or service dog.134 The owner of the brewery, who relied on the Food, Drug, and Cosmetic Act, 21 U.S.C. § 342, was concerned about physical contamination (dog hair in the beer), but failed to show that ADA modifications would alter fun- damentally the nature of or jeopardize the safety of the public accommodation.135 The transit authority would have the burden of show- ing why a service animal would jeopardize the opera- tion. The transit authority must be aware that various animals for a variety of reasons may qualify as service animals and that the agency may not be able to deter- mine readily whether a passenger has a disability re- quiring the use of a service animal. VIII. LIABILITY OF TRANSIT AUTHORITIES AND OTHERS FOR VIOLATIONS OF CONSTITUTIONAL RIGHTS A. Federal Law: 42 U.S.C. § 1983 The elements of a § 1983 claim are that (a) the plain- tiff was deprived of a right secured by the U.S. Consti- tution or the laws of the United States and that (b) the plaintiff was subjected to this deprivation by a person acting “under color of state law.”136 Although there are also state laws allowing damage claims for violation of constitutional rights, there are important differences in the laws. State constitutional rights are often more ex- pansive than federal constitutional rights; however, a violation of a right conferred by a state constitution or state law will not support a federal § 1983 claim.137 State governments are immune from suit under 42 U.S.C. § 1983 because of the 11th Amendment and con- siderations of federalism.138 Thus, individual states, their departments and agencies, and their officials act- ing in their official capacities are not deemed “persons” subject to suit under § 1983.139 However, the Supreme Court in Monell v. Department of Social Services140 held that municipalities and local governments are "persons" within the meaning of § 1983, stating: 134 Id. at 1061, n.6 citing H.R. REP. NO. 485 (III), 101st Cong., 2d Sess. 59 (1990). 135 Johnson, 116 F.3d at 1061–62. 136 McGuire v. Ameritech Services, Inc., 253 F. Supp. 2d 988, 997 (S.D. Ohio 2003) (State, however, had 11th Amendment immunity in this case). 137 Gail Donohue & Jonathan I. Edelstein, Life After Brown: The Future of State Constitutional Tort Actions in New York, 42 N.Y.L. SCH. L. REV. 447, 491 (1998), hereinafter “Donohue & Edelstein.” 138 Donohue & Edelstein, 42 N.Y.L. SCH. L. REV. at 491. 139 Hockaday v. Texas Dep’t of Criminal Justice, 914 F. Supp. 1439, 1444–45 (S.D. Tex. 1996). 140 Monell v. Department of Social Services, 436 U.S. 658, 690–91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), discussed in Reed v. City and County of Honolulu, Hawaii, 76 Haw. 219, 873 P.2d 98, 106 (Haw. 1994).

22 Congress intended municipalities and other local gov- ernment units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declara- tory, or injunctive relief where, as here, the action that is alleged to be unconstitutional, implements or executes a policy statement, ordinance, regulation, or decision offi- cially adopted and promulgated by that body's officers. However, the Court went on to explain that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, in- flicts the injury that the government as an entity is re- sponsible under § 1983.141 A federally regulated private company may be a “state actor” for the purpose of a § 1983 action.142 In Elam Const., Inc. v. Regional Transp. Dist., 143 in which it was alleged that the actions of the district’s board of directors violated the plaintiffs’ First Amendment rights, the court held that the Regional Transportation District was a “person” and could be sued under § 1983 since the RTC was not an arm of the state for 11th Amendment purposes. Although transit authorities may be subject to § 1983 claims, a plaintiff must assert that the existence of a governmental policy or custom was the cause of his or her claim.144 B. State Law Many states permit recovery of damages for viola- tions of constitutional rights; for example, “[a] direct action against the State for its violations of free speech is essential to the preservation of free speech.”145 Transit 141 Monell, 436 U.S. at 694. 142 United States v. Davis, 482 F.2d 893, 904 (9th Cir. 1973) (Search by an airline employee pursuant to governmental regu- lations was one performed under color of state law because the “search was part of the overall, nationwide anti-hijacking ef- fort….” Id.). 143 980 F. Supp. 1418, 1421–22 (D. Colo. 1977), aff’d, 129 F.3d 1343, cert. denied, 523 U.S. 1047, 118 S. Ct. 1363, 140 L. Ed. 2d 513 (1998). 144 Torries v. Knapich, 966 F. Supp. 194 (S.D. N.Y. 1997). See Monell v. Department of Social Services of City of N.Y., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (“[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”). See, however, Covington v. City of N.Y., 916 F. Supp. 282, 288 (S.D. N.Y. 1995) (Action may be based on the government’s “deliber- ate indifference” in training and supervising of its employees regarding persons’ constitutional rights); and Walker v. City of N.Y., 974 F.2d 293, 297 (2d Cir. 1992) (Three pronged test for establishing state actor’s “deliberate indifference”). 145 Corum v. University of N.C., 330 N.C. 761, 413 S.E.2d 276, 289 (N.C. 1992) (Professor had cause of action under 42 agencies were asked whether in their state the agency could be held liable in tort for a violation of a provision of the state constitution. U.S.C.A. § 1983 and direct cause of action under state constitu- tion against university vice-chancellor in his official capacity).

23 TABLE 8.1—PERCENTAGE OF TRANSIT AGENCIES ADVISING THEY MAY BE HELD LIABLE IN TORT FOR A VIOLATION OF THE STATE CONSTITUTION Percentage of Transit Agencies Reporting They May be Held Liable Percentage of Transit Agencies Reporting “No” or “Not Known” 48% (29 of 60) 52% (31 of 60) The respondents were about evenly divided, with 29 transit agencies (48 percent) responding that their agency could be held liable in tort for a violation of an individual’s rights under the state constitution. Thirty- one transit agencies (52 percent) reported that their transit agency could not be held liable or did not know whether their transit agency could be held liable for such a violation. In Brown v. State of New York,146 the court held that the violation in question was a constitutional tort, which was defined to be “any action for damages for violation of a constitutional right against a government or individual defendants.”147 Under the holding in Brown, “almost any civil wrong could be classified as a [constitutional] tort.”148 Under Brown, there must be a threshold determination of whether the right sought to be enforced is self-executing, followed by an analysis of whether a damage remedy is a necessary and appropri- ate means of enforcing the right.149 Some courts have held that the entire state constitution or the state’s Bill of Rights is self-executing. One authority notes that it has not yet been determined whether local govern- ments, for example, in New York could be held liable for state constitutional torts, although dicta suggests that such lawsuits may be maintained.150 However, according to judicial authority, government employees may not be sued in their individual capacities for constitutional torts in New York.151 Another important issue is whether the state and/or its instrumentalities or subdi- visions have waived sovereign immunity in respect to claims for constitutional torts.152 In responding to the survey, several transit agencies advised that they could be held liable under federal law 146 89 N.Y.2d 172, 674 N.E.2d 1129, 652 N.Y.S.2d 223 (1996). 147 Donohue & Edelstein, 42 N.Y.L. SCH. L. REV. 459, quoting from Brown, at 674 N.E.2d at 1132. 148 Id. at 460. 149 Id. at 471. 150 Id. at 528; but compare Martinez v. Saunders, 2004 U.S. Dist. LEXIS 10060 (S.D. N.Y. June 2, 2004) at 24. 151 Martinez v. Sanders, 2004 U.S. Dist. LEXIS 10060 at 24 (S.D. N.Y. 2004). 152 See Board of County Comm’rs v. Sundheim, 926 P.2d 545, 549–50 (Colo. 1996) (An implied cause of action did not exist for violation of state constitutional rights, and the Colorado Government Immunity Act, waiving Colorado’s sovereign im- munity in certain situations, does not specifically include the violation of a citizen’s state constitutional rights.). for violating an individual’s constitutional rights. On a related matter, some courts have held that, because damage remedies are available under federal law, 42 U.S.C. § 1983, against state officials in their individual capacities, there is no need to imply a state constitu- tional cause of action against state officials in their in- dividual capacity.153 Courts in Alaska, New Hampshire, North Carolina, and Ohio have held that no right of action exists under the state constitution if alternative remedies are available.154 Finally, it has been suggested that the standard of care in a constitutional tort case is more than mere negligence. In traditional tort law, causes of action are divided into those which require intent and those which may be estab- lished by mere negligence. In civil rights jurisprudence, however, mere negligence is not sufficient, although a number of intermediate standards such as deliberate in- difference, reckless disregard and unnecessary and wan- ton conduct will support liability under 42 U.S.C. 1983 in certain circumstances.155 Transit authorities may not be immune from actions for constitutional torts and will need to be careful in the adoption of transit policies governing the refusal of ser- vice or the suspension or barring of transit users, as well as in the training and supervision of employees. Transit authorities may have an even wider range of exposure under a state constitution or state law that provides more protection than the federal constitution. Both federal and state constitutions must be considered in the adoption of a transit policy that allegedly re- stricts the rights of transit users. IX. LEVEL OF JUDICIAL SCRUTINY APPLICABLE TO TRANSIT AGENCIES’ POLICIES OR PROCEDURES ON BARRING TRANSIT USERS As discussed in the next sections, some transit agen- cies have policies regarding the temporary suspension or permanent expulsion of transit users. This section of the Report discusses the legal tests that the courts may choose to apply in determining the constitutionality of such policies or procedures. The distinction between a right and a fundamental right is quite important in the courts’ determination of the level of judicial scrutiny to 153 See Donohue & Edelstein, 42 N.Y.L. SCH. L. REV. at 529. 154 Id. at 493. 155 Id. at 532.

24 apply when deciding whether a burden or restriction on travel is constitutional.156 Although there is considerable confusion and dis- agreement among the courts regarding which test to apply,157 the courts may apply one of three tests— rational basis, intermediate scrutiny, or strict scrutiny. The first approach is the rational basis test, which is the minimal standard of review that the courts apply in reviewing the constitutionality of legislation or regula- tions. Where the democratic process (e.g., elections) adequately protects conflicting interests, the courts ap- ply minimal or rational basis scrutiny.158 The challenged legislation is upheld if it “‘bear[s] some rational rela- tionship to legitimate state purposes.’”159 A second approach that requires or allows a some- what higher level of scrutiny than the rational basis test is the test of intermediate scrutiny, which the courts apply to “important rights that should be subject to more searching judicial review….”160 The courts have applied intermediate scrutiny to cases arising under the Due Process and Equal Protection Clauses involving restrictions on commercial speech and on travel.161 The third and highest level of scrutiny is the most searching kind of review—strict scrutiny. Legislation allegedly infringing civil rights, including certain fun- damental rights, is subject to a standard of review based on strict scrutiny. The courts use a higher level of scrutiny where those affected by legislative action can- not defend their interests effectively in the political arena.162 For example, if a law is a disadvantage to a “suspect-class” or impinges on a fundamental right pro- tected by the Constitution, the law is subject to strict scrutiny. To survive such intensified review, the classi- fication must promote a compelling governmental inter- est and be narrowly tailored to serve that interest.163 As soon as the Court deems a right to be fundamental, the courts must apply strict or an intensified level of scru- tiny, a test that requires the government to show a “compelling justification” for the law.164 156 A more exacting standard of review is required of legisla- tion that impairs constitutional rights that are held to be fun- damental rights, such as those enumerated in the Bill of Rights. United States. v. Carolene Products Co., 304 U.S. 144, 153, 58 S. Ct. 788, 82 L. Ed. 1234 (1938) (Harlan Fiske Stone, J.). See 2 CONSTITUTIONAL LAW AND POLITICS: CIVIL RIGHTS AND CIVIL LIBERTIES 1279 (5th ed. 2000). 157 Douglas A. Smith, A Return to First Principles? Saenz v. Roe and the Privileges or Immunities Clause, UTAH L. REV. 305, 345–46 (2000), hereinafter “Smith.” 158 United States v. Carolene Products, 304 U.S. at 152–53, n. 4 (1938). 159 See Smith, UTAH L. REV. 342–43 (2000). 160 Id. at 347. 161 See id. at 345. 162 United States v. Carolene Products, 304 U.S. at 153 (1938). 163 Smith, UTAH L. REV. 343 (2000). 164 Attorney General of N.Y. v. Soto-Lopez, 476 U.S. 898, 904, 106 S. Ct. 2317, 2321, 90 L. Ed. 2d 899 (1986) (“A…law impli- The nature of the right to travel determines the level of scrutiny that a court will apply (e.g., strict scrutiny, intermediate scrutiny, minimal scrutiny) in reviewing government action that affects the right. As discussed, it does not appear that there is any authority holding that there is a constitutional right to travel aboard transit. Unless there is some basis for applying strict scrutiny (e.g., racial discrimination), it appears that the courts at most would apply a standard of intermediate scrutiny, and, if the restriction satisfied the test, would uphold reasonable time, place, or manner restrictions on a patron’s use of transit facilities. X. DUE PROCESS STANDARDS APPLICABLE TO TRANSIT AGENCIES’ PROCEDURES FOR REFUSAL OF SERVICE In general, the 14th Amendment’s guarantee of due process is fully applicable to proceedings conducted by state and local government agencies.165 When a statute expressly or impliedly allows a tran- sit authority to expel a user or suspend a user from the system, there is a possibility the law will be attacked on the ground of lack of due process for being vague or overbroad. A. Vague or Overbroad Laws To determine whether a penal law is unconstitution- ally vague, first, the statute must provide adequate notice of what conduct is prohibited, and, second, the statute must not be drafted in a manner that fosters arbitrary or discriminatory enforcement.166 Legislation is vague “when a legislature states its proscriptions in terms so indefinite that the line between innocent and condemned conduct becomes a matter of guesswork.”167 Legislation is not unconstitutionally vague if the law’s prohibitions are ones that an ordinary person exercising common sense would be able to understand and with cates the right to travel when it actually deters such travel, [or] when impeding travel is its primary objective.” Id. at 903); Smith, UTAH L. REV. 347 (2000); see also William Mann, All the (Air) Rage: Legal Implications Surrounding Airline and Gov- ernment Bans on Unruly Passengers in the Sky, 65 J. AIR. L. & COM. 857, 866 (2000) (“A law that does implicate the right to travel is subject to strict scrutiny by the courts.”). 165 New York State National Organization for Women v. Pa- taki, 261 F.3d 156, 163 (2d Cir. 2001), cert. denied, 534 U.S. 1128, 122 S. Ct. 1066, 151 L. Ed. 2d 969 (2002). 166 People v. Webb, 184 Misc. 2d 508, 709 N.Y.S.2d 369 (Crim. Ct., New York County, 2000) (Portion of a rule that prohibited “authorizing access to or use of” subway was uncon- stitutionally vague where it was alleged that the defendant had unlawfully “allowed” certain persons to enter subway sta- tion. Id. at 709 N.Y.S.2d 371). 167 LAURENCE H. TRIBE, CONSTITUTIONAL LAW § 12-31, at 1033 (2d ed. 1988), quoting Richmond Med. Ctr. for Women v. Gilmore, 11 F. Supp. 2d 795, 812 (E.D. Va. 1998).

25 which he or she can comply.168 Moreover, a regulation must be sufficiently clear to warn a party regarding what is expected of him or her.169 Before an agency can sanction someone for a failure to comply with regula- tory requirements, the agency must either put appro- priate language into the regulation itself or at least refer to it in the regulation. General references to a regulation’s policy or underlying purpose will not pro- vide fair notice as required by procedural due process.170 Vague regulations may cause individuals to avoid con- stitutionally protected behavior in which they would otherwise engage if the boundary of legal behavior was clearly established.171 Where there are clear regulatory guidelines for tran- sit officials and others, the courts tend “to give great leeway to predictive judgments based on a matter within the agency’s sphere of expertise.”172 Due process issues arise whenever a transit authority relies on gen- eral or vague laws proscribing certain conduct or if the authority acts without specific statutory or regulatory guidance. However, when determining whether a regu- lation or law is vague, a court must recognize that words are inherently imprecise, and therefore “‘mathe- matical certainty’ is unattainable.”173 In City of Seattle v. Eze,174 the court ruled that an ordinance barring “loud or raucous behavior” that “unreasonably disturbs oth- ers” was not unconstitutionally vague: “A person of or- dinary understanding would be capable of determining that conduct such as Eze’s was prohibited under the ordinance.”175 In Lewis v. Searles, the court held that although there was no specific quantifiable area demar- 168 M & Z Cab Corp. v. City of Chicago, 18 F. Supp. 2d 941, 948 (N.D. Ill. 1998) (Procedural due process analysis requires the court to undertake a two-step process: court must deter- mine whether plaintiffs were deprived of a protected interest in life, liberty, or property, and, if the plaintiffs were deprived of such an interest, the court must then determine what process was due with respect to that deprivation. Id. at 946). 169 General Elec. Co. v. United States EPA, 53 F.3d 1324, 1328–29 (D.C. Cir. 1995). 170 Trinity Broadcasting of Fla., Inc. v. FCC, 211 F.3d 618, 630 (D.C. Cir. 2000). 171 Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). 172 Hutchins v. District of Columbia, 338 U.S. App. D.C. 11, 30, 188 F.3d 531, 542 (D.C. Cir. 1999). 173 Lewis v. Searles, No. 2:02-CV-259, 2002 U.S. Dist. LEXIS 20673, at *9-10 (D. Vt., Oct. 23, 2002) quoting Grayned, 408 U.S. at 110. 174 111 Wash. 2d 22, 759 P.2d 366, 367 (Wash. 1988). 175 The Eze case was followed in State v. Glas, 147 Wash. 2d 410, 54 P.3d 147, 154 (Wash. 2002) (Constitutionality pre- sumed “where the statute’s purpose is to promote safety and welfare, and the statute bears a reasonable and substantial relationship to that purpose”); State v. Baldwin, 111 Wash. App. 631, 45 P.3d 1093, 1102 (Wash. App. Div. 1, 2002) (“Im- possible standards of specificity not required”); and City of Spokane v. White, 102 Wash. App. 955, 10 P.3d 1095, 1097 (Wash. App., Div. 3, 2000). cating every single right of way, a statute restricting political advertisement signs from public right of ways was not vague.176 Additionally, a statute allowing an official to cancel a driver’s license of one whom the offi- cial believes would be “inimical to public safety or wel- fare” on the highways has been upheld.177 One sees the term “overbroad” used most often with respect to laws claimed to violate the First Amend- ment.178 The court in American Civil Liberties Union v. Mineta179 explained the difference between vague and overbroad: A vague law “denies due process by imposing standards of conduct so indeterminate that it is impossible to ascertain just what will result in sanctions….” “[A] law that is overbroad may be perfectly clear but impermissibly purport to penalize protected First Amendment activity.” Even a “clear and precise enact- ment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” A statute is overly broad “only if ‘it reaches a substantial number of impermissible applications,’” sweeping within its reach both protected and unprotected expression and conduct.” “The mere fact that one can conceive of some impermissi- ble applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.”180 (Citations omitted). A breach of the peace statute may be constitutionally insufficient to restrict free speech181 or assembly.182 In 176 Lewis v. Searles, No. 2:02-CV-259, 2002 U.S. Dist. LEXIS 20673, at *9 (D. Vt., Oct. 23, 2002). 177 Askildson v. Commissioner of Public Safety, 403 N.W.2d 674, 676 (Minn. App. 1987). 178 See Parks v. Finan, 385 F.3d 694, 702-3 (6th Cir. 2004); Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65 (1st Cir. 2004) (Certain MBTA regulatory guidelines regarding rejection of advertising held not unreasonably vague or overbroad), but see State v. Ausmus, 336 Ore. 493, 85 P.3d 864 (Ore. 2003) (An Oregon statute proscribing disorderly conduct was held to be overbroad because a person ordered to disperse violates [the law] regardless of whether or not any harm results from the refusal to disperse, the continued congregation with others, or the proscribed men- tal state. Thus, the statute applies to an individual who, in re- sponse to an order to disperse, abandons whatever activity in which they were engaged that made the order lawful in the first place, but continues peaceably to congregate with others, with the intent to cause public inconvenience, annoyance, or alarm or recklessly creates the risk of causing public inconvenience, an- noyance or alarm. Id. at 871). 179 319 F. Supp. 2d 69 (D. D.C. 2004). 180 Id. at 76–77. 181 Cantwell v. Connecticut, 310 U.S. 296, 304, 91 S. Ct. 1686, 84 L. Ed. 1213 (1940); see O’Neill, 45 LOY. L. REV. at 485–87 (“[I]ndirect regulation of expressive conduct is usually accom- plished by enforcing general prohibitions against undesirable conduct—statutes proscribing breach of the peace, [disorderly] conduct, disturbing a lawful meeting, or ‘annoying pedestri- ans’—[as a means of] punishing controversial speech.”). 182 Coates v. City of Cincinnati, 402 U.S. 611, 615, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971) (Court struck down an ordinance

26 Wisconsin v. Antonicci,183 the court held that a state statute proscribing disorderly conduct was not over- broad. The court stated that the law was not so broad that its sanctions may apply to conduct protected by a “constitutional right to travel,” which the court held was not absolute in any case.184 It is not only potentially disorderly motorists and transit patrons who may be entitled to travel: “victims also have a constitutional right to travel and that right includes the right to move freely about the sidewalks and streets of the commu- nity.”185 B. Notice and Hearing Generally, due process requires that an individual be given notice and an opportunity for a hearing before the state may permanently deprive someone of life, liberty, or property.186 Moreover, it has been held that an agency may not impose even a temporary suspension without providing the core requirements of due process: adequate notice and a meaningful hearing.187 Nonethe- less, the concept of due process is flexible and varies that prohibited sidewalk meetings by three or more people conducted “in a manner annoying to persons passing by” and held that “public intolerance or animosity” cannot be the basis for abridging the rights of free assembly and association. Id. at 614–15). 183 2004 Wis. App. 186, 687 N.W.2d 549, 2004 Wisc. App. LEXIS 682 (2004). 184 Wisconsin, 2004 Wis. App. LEXIS 682, at **13. The court further stated that [t]he mere “passive following” of another vehicle will not qualify for conviction. The statute does not proscribe activities inter- twined with protected freedoms unless carried out in a manner which is violent, abusive, indecent, profane, boisterous or unrea- sonably loud, or conduct similar thereto, and under circum- stances in which such conduct tends to cause or provoke a dis- turbance. Prohibition of conduct which has this effect does not abridge constitutional liberty. Id. (citations omitted). 185 Id. at 14. 186 M & Z Cab Corp. v. City of Chicago, 18 F. Supp. 2d 941 (N.D. Ill. 1998) (Court upheld post-deprivation hearing). Id. at 946–7. 187 Sloan v. Department of Housing & Urban Dev., 343 U.S. App. D.C. 376, 231 F.3d 10, 18 (D.C. Cir. 2000). Assuming due process is required, generally the following elements must be satisfied: “(1) Adequate notice of the charges; (2) Reasonable opportunity to prepare for and meet them; (3) An orderly hear- ing adopted to the nature of the case; and (4) A fair and impar- tial decision.” See Note: The Silent Treatment: Perpetual In- School Suspension and the Education Rights of Students, 81 TEX. L. REV. 1637, 1644, 1658–59 (hereinafter cited as “In- School Suspension”), citing Buttny v. Smiley, 281 F. Supp. 280, 288 (D.C. Colo. 1968); Whitfield v. Simpson, 312 F. Supp. 889, 894 (E.D. Ill. 1970); and Ector County Indep. Sch. Dist. v. Hop- kins, 518 S.W.2d 576, 581 (Tex. Civ. App., El Paso 1975) (Call- ing for an evaluation of fundamental fairness in light of the totality of the circumstances.). with the particular situation.188 Thus, the procedural protections required by the Due Process Clause must be determined with reference to the rights and interests at stake in the particular case.189 Although there are cases involving constitutional rights in which the courts have held that a pre-deprivation notice and hearing is re- quired before the termination of a right or benefit, it appears that in many situations only a notice and some form of hearing are required.190 In deciding whether agency procedures comport with the requirements of due process, the courts do not defer to the agency’s judgment or discretion.191 What process is due necessar- ily depends on the right that is under consideration, the exigency of the situation, and what alternate means are available.192 Although the standard appears to leave room for the agency to decide that administrative fac- tors favor using one means rather than another,193 whatever rules the agency chooses to adopt, even if it adopts some rules gratuitously, the agency must follow them.194 C. Whether Barring a Transit User Implicates a Constitutional Right to Travel As stated, the threshold issue is what constitutional, statutory, or other right is affected by the transit agency’s action. Although restrictions on intrastate travel may be subject to less scrutiny by the courts (i.e., rational basis or intermediate level of scrutiny rather than strict scrutiny), the U.S. Supreme Court has held that “[t]he right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due proc- ess of law under the Fifth Amendment.” (Emphasis sup- plied.) 195 One appellate court has held, however, that a State’s denial of a driver’s license for an applicant’s re- fusal to provide his social security number did not vio- late the applicant’s right to interstate travel, because there is no fundamental right to drive.196 In the intrastate travel cases, the courts have re- jected the application of a test of strict scrutiny in favor 188 In-School Suspension, supra note 1877, 81 TEX. L. REV. 1658–59. 189 Id. at 1644 (Discussing Goss v. Lopez, 419 U.S. 565, 574 (1975)). 190 M & Z Cab Corp., 18 F. Supp. 2d at 946. 191 Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 869 (9th Cir. 2003). 192 Ricketts v. City of N.Y., 181 Misc. 2d 838, 688 N.Y.S.2d 418, 424 (Sup. Ct., New York County, 1999). See M & Z Cab Corp. v. City of Chicago, M & Z Cab Corp. v. City of Chicago, 18 F. Supp. 2d 941 at 946. 193 Reno v. Flores, 507 U.S. 292, 305, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993). 194 Wilkinson v. Legal Services Corp., 27 F. Supp. 2d 32, 47– 48 (D. D.C. 1998). 195 Kent v. Dulles, 357 U.S. 116, 125, 78 S. Ct. 1113, 2 L. Ed. 2d 1204 (1958), [overruled as stated in Regan v. Wald, 468 U.S. 222, 82 L. Ed. 2d 171, 104 S. Ct. 3026, 1984 U.S. LEXIS 134, 52 U.S.L.W. 4966 (1984)]. 196 Miller v. Reed, 176 F.3d 1202, 1206 (9th Cir. 1999).

27 of one of rational basis or at most intermediate scru- tiny.197 According to the courts, governments must enjoy some degree of flexibility to regulate travel.198 In the Hutchins case, where the court was urged to reject the D.C. curfew law, the court refused to apply a test of strict scrutiny and settled instead on one of intermedi- ate scrutiny in deciding that the law restricting after- hours movement of juveniles was constitutional.199 In its effort to clarify the law, the D.C. Circuit held that it was necessary to examine the factual premises upon which the legislature based its decision, the logical con- nection the remedy has to those premises, and the scope of the remedy employed.200 It appears that these same considerations would be relevant to the transit author- ity’s decision on how to regulate conduct in or on its facilities. Significantly, “[m]inor restrictions on travel simply do not amount to the denial of a fundamental right….”201 D. Whether Removing or Barring a Transit User Implicates a Property Right It has been held that “[p]rocedural due process is only implicated where there has been a taking or deprivation of a legally protected liberty or property interest.”202 No 197 Lutz v. City of York, 899 F.2d 255, 269 (3d Cir. 1990). 198 According to the court in Hutchins v. District of Columbia, 338 U.S. App. D.C. 11, 28–29, 188 F.3d 531, 541, the law re- stricting travel involved in that case only had to be “‘substan- tially related’ (rather than narrowly tailored) to the achieve- ment of ‘important’ (rather than compelling) government interests,” a somewhat different and more relaxed definition of the intermediate standard. Court opinions have been remiss, however, in clearly explaining the applicable doctrines. In con- trast to the Hutchins case, according to the court in the Lutz case, to survive the intermediate scrutiny test a law must be fashioned or “narrowly tailored” to meet significant govern- ment interests—not necessarily compelling ones. Lutz, 899 F.2d at 269. The Lutz opinion is very helpful in that it reviews the prior relevant case law. However, in contrast to the Su- preme Court’s decision in Saenz v. Roe, 526 U.S. 489, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (1999), the Third Circuit in Roe v. Anderson, C.A. 9, 134 F.3d 1400 (Cal. 1998), upholding an anti- cruising ordinance, held that there was a constitutional right of intra-state travel growing out of the doctrine of substantive due process and that the 14th Amendment’s Privileges or Im- munities Clause was not a source of an implied fundamental right of intrastate travel. 199 Hutchins, 188 F.3d at 540–41. As the D.C. Circuit held in Hutchins, “[n]either the Supreme Court nor the lower federal courts have expounded upon—explained in doctrinal terms— the phrase ‘substantial relationship.’” Id. at 542. 200 Id. at 542; “[T]he cruising ordinance passes muster as a reasonable time, place and manner restriction on the right of localized intrastate travel.” Lutz, 899 F.2d at 270 (emphasis added). 201 Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991). 202 Fortuna’s Cab Service, Inc. v. City of Camden, 269 F. Supp. 2d 562, 564 (D. N.J. 2003) (Taxi operators had no prop- erty interest in taxi-stands relocated by the city). precedent has been located, however, holding or even implying that transit patrons have a property interest in the use of transit facilities. One claiming that a city ordinance creates a public right must “show more than a ‘unilateral expectation’ of the property interest; they must prove a ‘legitimate entitlement’ to that interest.”203 Assuming a transit rider relied on a state law or local ordinance for a claim that there was a right to ride by virtue of a property interest in public transit, it would have to be shown that the law or ordinance “expressly created” a property right. The creation of such a prop- erty right is unlikely because it “would interfere with the [agency’s] ability to maintain public transportation and safety” in or on its facilities.204 Thus, no authority has been found holding that a transit user has either a right to travel aboard transit or a property right in the use of transit. Nevertheless, “there has been general, although not uniform agreement that” whenever the government is involved in the ownership and operation of property used by the public, such as housing, the government’s ownership is a sufficient basis on which to invoke fed- eral constitutional due process protection for those af- fected by the government’s actions.205 Although no cases have been located specifically involving a passenger’s due process rights if temporarily barred or suspended from using transit facilities, what kind of due process is necessary has been addressed in a wide variety of analogous situations.206 “[N]ormally, when an…administrative agency is about to take action ad- 203 Id. 204 Id. 205 Tenant’s Right to Hearing, 28 A.L.R. FED. 742; see also Rodriquez v. Towers Apartments, Inc., 416 F. Supp. 304 (D. P.R. 1976). 206 Tenant’s Rights, Under Due Process Clause of Federal Constitution, to Notice and Hearing Prior to Imposition of Higher Rent or Additional Service Charges for Government- Owned or Government-Financed Housing, 28 A.L.R. FED. 739; Validity and Application of Statute or Regulation Authorizing Revocation or Suspension of Driver’s License for Reason Unre- lated to Use of, or Ability to Operate, Motor Vehicle, 18 A.L.R. 5th 542; Right of Student to Hearing on Charges before Suspen- sion or Expulsion from Educational Institution, 58 A.L.R. 2d 903; Right to Notice and Hearing Prior to Termination of Medi- caid Payments to Nursing Home under Medicaid Provisions of Social Security Act, 37 A.L.R. FED. 682; Actions by State Offi- cial Involving Defendant as Constituting “Outrageous” Conduct Violating Due Process Guaranties, 18 A.L.R. 5th 1; Violation of Due Process Clause by Municipal Ordinance Prohibiting House to House Soliciting and Peddling Without Invitation, 35 A.L.R. 2d 365; Vagueness as Invalidating Statutes or Ordinances Dealing with Disorderly Persons or Conduct, 12 A.L.R. 3d 1448; Sufficiency of Notice and Hearing before Revocation or Suspen- sion of Motor Vehicle Driver’s License, 60 A.L.R. 3d 427, § 3[A]; Validity, Construction, and Application of Loitering Statutes and Ordinances, 72 A.LR. 5th 1; “State-Created Danger,” or Similar Theory, as Basis for Civil Rights Action under 42 U.S.C.A. § 1983, 159 A.L.R. FED. 37.

28 verse to a citizen, on the basis of ‘adjudicative facts,’ due process entitles the citizen at some stage to have notice, to be informed of the facts on which the agency relies, and to have an opportunity to rebut them.”207 When limitations exist on agency discretion to termi- nate or extend benefits, procedural due process must be afforded.208 The threshold issue triggering this analysis is whether the agency’s action affects either a liberty interest or a property interest.209 In Goldberg v. Kelly, 210 the Court held that welfare benefits are a matter of statutory entitlement for persons qualified to receive them and procedural due process is applicable to their termination. Consequently, a pre-determination eviden- tiary hearing was necessary to provide the welfare re- cipient with procedural due process.211 However, in Mathews v. Eldridge,212 the Court held that an evidentiary hearing was not required prior to the termination of Social Security disability payments. After reviewing the agency’s procedures, the Court held that the situation was distinguishable from Goldberg v. Kelly. According to the Mathews Court, requiring an evidentiary hearing in all cases prior to the termination of disability benefits would entail fiscal and administra- tive burdens out of proportion to any countervailing benefit. The Court further held that the administrative procedures prescribed under the Social Security Act fully comported with due process, because the claimant was given an opportunity to submit additional argu- ments and evidence to the agency before termination of the benefit. As held in Mathews, “‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’”213 Three factors to consider are (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of the interest by the use of the procedures and the possible value, if any, of additional procedural safeguards; and (3) the government’s interest, including the fiscal and 207 Thomas v. City of N.Y., 143 F.3d 31, 36, n.7 (2d Cir. 1998), quoting Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971) citing, inter alia, Londoner v. Denver, 210 U.S. 373, 52 L. Ed. 1103, 28 S. Ct. 708 (1908). 208 Occean v. Kearney, 123 F. Supp. 2d 618, 623–24 (S.D. Fla. 2000). 209 Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999) (“Only after finding the deprivation of a protected interest do we look to see if the State's procedures comport with due process.” Id.). 210 Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970) [overruled as stated in State ex rel. K.M. v. W. Va. Dep’t of Health & Human Res., 212 W. Va. 783, 575 S.E.2d 393, 2002 W. Va. LEXIS 241 (2002)]. 211 Id. at 262. 212 424 U.S. 319, 340, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). 213 Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972). administrative burdens that the additional or substi- tute procedures would entail.214 The Mathews test remains today as a key test applied by federal courts when assessing whether actions taken by the government meet procedural due process re- quirements. In Gilbert v. Homar,215 the Supreme Court applied the Mathews balancing test to determine that a state university could delay a pre-termination hearing for an employee arrested on drug charges while sus- pending the employee without pay. The court found that only slight harm would befall the employee by missing a paycheck. The delay would be brief and the university had a strong interest in quickly removing an employee arrested on drug charges.216 The determina- tive factor was the third Mathews prong: that no addi- tional procedures such as a pre-suspension hearing would alleviate the problem of the suspension. The court held that a pre-suspension hearing would only encourage the employer to make a rash decision, most likely against the employee.217 The Mathews test was applied again in June 2004 by the Supreme Court in a review of the process that was due to enemy combatants in U.S. custody from the war on terror when raising habeas corpus. In Hamdi v. Rumsfeld,218 the Supreme Court applied the Mathews test and held that civilians detained by the U.S. as al- leged enemy combatants must be granted “notice of the factual basis for his classification, and a fair opportu- nity to rebut the Government's factual assertions before a neutral decision-maker.”219 The Supreme Court de- termined that the government had a strong interest in detaining these individuals and continuing to detain enemy combatants. However, the petitioners were enti- tled to some form of hearing when challenging the en- emy combatant classification because the question of habeas corpus bears directly on the legitimacy of the continued internment of the alleged combatants.220 The Supreme Court held that the alleged combatants must have a hearing because of the strong private interests that the combatants have in such a hearing. To allay concerns of the government, the hearing itself may be specially tailored to address the uncommon burden that the hearings could place on the executive branch while the nation was still in a state of conflict.221 To determine whether agency procedures accord with the constitutional guarantee of due process, the courts, thus, examine the context of each case. Different levels of process are required in different situations.222 In de- 214 Id. at 335. 215 520 U.S. 924, 117 S. Ct. 1807, 138 L. Ed. 2d 120 (1997). 216 Id. at 933–34. 217 Id. at 934–35. 218 Hamdi v. Rumsfeld, 124 S. Ct. 2633, 159 L. Ed. 2d 578, 2004 U.S. LEXIS 4761 (S. Ct. June 28, 2004). 219 Id. 124 S. Ct. at 2648. 220 Id. 221 Id. 222 AT&T Communications of the Southwest, Inc. v. South- western Bell Tel. Co., 86 F. Supp. 2d 932, 951 (W.D. Mo. 1999),

29 termining whether an agency’s denial of a formal hear- ing violated due process, the court considers the private interest affected by the government’s action, the risk of erroneous deprivation without the required safeguard, and the government’s interest in avoiding additional procedures.223 Cases analogous to the transit agency’s right to bar users have arisen in a variety of contexts, including, for example, public housing, public schools, revocation of driver’s licenses, and others.224 Although it may be necessary to provide a notice to the affected person, not every situation requires that a full evidentiary hearing be provided before or after the government’s action.225 For example, although the due process clause extends limited protection to public hous- ing tenants, it has been held that such tenants do not have a right to a full adversary hearing before a rent or service charge increase is proposed or implemented.226 There is in this context a right to a notice but not a right to a hearing.227 In contrast to transit users, public school students facing temporary suspension or expulsion may have liberty and property interests that qualify for protection under the Due Process Clause of the 14th Amend- ment.228 Similar to intrastate travel, the Court “has never declared that the right to an education is a fun- damental right under the United States Constitu- tion;”229 thus, class attendance is a privilege and not a right. In Goss v. Lopez,230 however, the Court held that Ohio, having chosen to extend the right to an education to people of appellees’ class generally, could not with- draw that right on grounds of misconduct, absent fun- damentally fair procedures to determine whether the misconduct had occurred, and must recognize a stu- dent’s legitimate entitlement to a public education as a property right protected by the Due Process Clause. Thus, “[e]ven though education is not a fundamental right or liberty, the Court has granted students a prop- rev’d in part, vacated in part, 236 F.3d 922 (2001), cert. granted, judgment vacated, 535 U.S. 1075, 122 S. Ct. 1958 (2002). 223 Commercial Drapery Contractors, Inc. v. United States, 133 F.3d 1, 6-7 (D.C. Cir. 1998). 224 Francis v. Barnes, 69 F. Supp. 2d 801 (E.D. Va. 1999), aff’d, 208 F.3d 208. 225 Shelton v. Consumer Products Safety Comm’n, 277 F.3d 998, 1007 (8th Cir. 2002), cert. denied, 537 U.S. 1000, 123 S. Ct. 514, 154 L. Ed. 2d 395 (2002). 226 Tenant’s Right to Housing, 28 A.L.R. FED. at 742. 227 Id. at 750. See also Tenants’ Procedural Rights Prior to Eviction or Termination of Benefits Under § 8 of the Housing Act of 1937, 81 A.L.R. FED. 844. 228 Goss v. Lopez, 419 U.S. 565, 574, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). 229 In-School Suspension, supra note 188, 81 TEX. L. REV. 1643, citing San Antonio Independent Sch. Dist. v. Rodriquez, 411 U.S. 1, 35, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) (Texas’s school finance system passed the rational basis test.). 230 Goss v. Lopez, 419 U.S. 565, 574, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). erty right to the education that is provided by the gov- ernment.”231 In Plyler v. Doe,232 the Court held “If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here.” Based on Plyler and other cases, the right to transit may be more than a mere governmental benefit.233 In contrast, the courts have applied more stringent due process protection in cases involving the suspension or revocation of driver’s licenses.234 As stated, however, no precedents have been located imposing any requirements of due process on transit agencies when barring transit users. Assuming ar- guendo that a suspended rider is entitled to due proc- ess, it is unclear what measure of due process would actually be due under the circumstances.235 Neverthe- less, due process does not necessarily require that no- tice and a hearing occur before there is some depriva- 231 In-School Suspension, supra note 187, 81 TEX. L. REV. 1644. 232 457 U.S. 202, 230, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) (Plaintiffs were illegal immigrant school-age children who chal- lenged Texas educational laws that required undocumented children to pay a tuition fee to enroll in classes. The Court rejected the claim that illegal aliens were a suspect class but affirmed the lower court’s rulings that it was unnecessary to decide whether the statute would survive a “strict scrutiny” analysis because the discrimination embodied in the statute was not supported by a rational basis. 457 U.S. at 208. 233 The Plyler decision “implies an ‘intermediate’ level of scru- tiny for state regulation of education.” In-School Suspension, supra note 187, 81 TEX. L. REV. 1646. As the article notes, “[o]stensibly applying the rational basis test,” the Court in Plyler did state that education is more than “some governmen- tal ‘benefit’ indistinguishable from other forms of social welfare legislation.” See id. Although there is a split of authority at the state level, “[s]everal state courts have declared that their con- stitutions provide a fundamental right to education and that any state practice attacked as an alleged violation of that right requires justification under strict scrutiny.” See id. at 1650, citing authorities from California, Connecticut, Kentucky, and Pennsylvania. 234 In Bell v. Burson, 402 U.S. 535, 541–42, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971), the Court held that except in emergency situations, due process requires that when a state seeks to terminate a driver’s license, it must afford notice and opportu- nity for a hearing appropriate to the nature of the case before the hearing becomes effective. The driver generally has the right to cross-examine witnesses and to confront his accusers at the hearing. Id. See Sufficiency of Notice and Hearing before Revocation or Suspension of Motor Vehicle Driver’s License, 60 A.L.R. 3d 427. 235 JOHN E. NOWAK & RONALD D. ROTUNDAL, CONSTITUTIONAL LAW 8 § 13.1–13.2, 13.7–13.9 (3d ed. 1986 & Supp. 1988) (Unless a plaintiff can show that he or she has been deprived of a “property” or “liberty” interest, then there is no right to due process.).

30 tion of the affected person’s right.236 Notice and a right to a post-deprivation hearing accompanied by the right to petition the courts for redress may adequately pro- tect an affected person’s due process rights.237 The model of a full evidentiary hearing is not required in every circumstance, and, as long as the affected person is given a full and fair opportunity to present his case, confrontation and cross-examination of witnesses may not be necessary.238 Furthermore, in informal administrative hearings, the concept of due process generally demands fewer procedural safeguards.239 For example, due process does not invariably require the administrative decision- maker to hear or view the witness’s testimony.240 Due process does not require oral argument and live witness testimony for all agency determinations.241 A telephonic hearing in regard to the revocation of a driver’s license has been upheld.242 Although administrative burden is a factor to consider under the Supreme Court’s Mathews test, mere administrative burden alone cannot ordinar- ily serve as a rationale for slighting serious due process rights.243 The fact that the same agency serves both as the prosecutor and as the judge in an administrative adjudication is not, in and of itself, enough to make out a due process violation.244 As discussed in the public school suspension and other cases, the notice and the hearing may be simulta- neous in some situations or the hearing may occur after the government has acted to suspend the privilege or benefit at issue.245 “By and large, school authorities have the power to define the offenses for which a student may be expelled from school; that power can be exer- cised with wide discretion, so long as it is reasonably exercised.”246 It should be noted that “school board regu- 236 M & Z Cab Corp. v. City of Chicago, 18 F. Supp. 2d 941, 946–47 (N.D. Ill. 1998) (Defendants not constitutionally enti- tled to provide taxicab companies a hearing before placing a hold on taxicab medallions pending revocation hearing). 237 Towers v. City of Chicago, 979 F. Supp. 708, 714–16 (N.D. Ill. 1997). 238 Ricketts v. City of N.Y., 181 Misc. 2d 838, 688 N.Y.S.2d 418, 424 (Sup. Ct., New York County, 1999), citing Taddonio v. Heckler, 609 F. Supp. 689, 694 (E.D. Pa. 1985). 239 Cooper v. Salazar, 196 F.3d 809, 814 (7th Cir. 1999). 240 Allston v. Gaines, 158 F. Supp. 2d 76, 80 (D. D.C. 2001). 241 Southern Utah Wilderness Alliance v. Bureau of Land Management, 147 F. Supp. 2d 1130, 1146–47 (D. Utah 2001). 242 Muir v. Nebraska Dep’t of Motor Vehicles, 260 Neb. 450, 618 N.W.2d 444, 449 (2000). 243 Penobscot Air Services, Ltd. v. FAA, 164 F.3d 713, 724 (1st Cir. 1999). 244 Cobb v. Yeutter, 889 F.2d 724, 731 (6th Cir. 1989). 245 In People v. Giacopelli, 171 Misc. 2d 844, 655 N.Y.S.2d 835, 841 (Justice Ct., N.Y. Rockland County 1997), the court upheld a hearing conducted concurrently with the summary suspension of a drunk-driving defendant’s driver’s license at the time of the arraignment. 246 In-School Suspension, supra note 187, at 1637, 1641 (2003). lations that describe behavior calling for expulsion are usually very specific.”247 Thus, in a wide variety of situations, the courts have held that the minimal due process afforded by the gov- ernment was satisfactory.248 Based on cases in some- what analogous contexts, it appears that the transit authority would be acting reasonably if, pursuant to its established procedures, it first barred the transit user immediately for being a security or other risk and thereafter provided notice and a “rudimentary” oppor- tunity to be heard “as soon as practicable.”249 The “ru- dimentary” hearing required in connection with “short suspensions” in the public school context does not nec- essarily mean that there has to be an “opportunity for the one suspended to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the inci- dent.”250 However, in an “unusual situation,” even a short suspension could require “something more than rudimentary procedures….”251 A longer suspension or permanent bar expulsion could require “more formal procedures.”252 As stated, no cases were found holding that a transit agency’s act of barring or suspending a transit user from the system is a deprivation of a right or otherwise triggers some requirements of due process. For agencies already having written procedures for barring a rider, it appears that the courts would apply no more than in- termediate scrutiny in reviewing laws or procedures applicable to a suspension or bar. In any case, if some due process were required, at most a notice and an op- portunity for a post-suspension or -bar hearing with a right of redress to the courts probably would be suffi- cient. As for sex offenders, although notification and registration laws may help to identify them to the tran- sit authority, the transit authority may have to provide 247 Id. at 1641. 248 Metro County Title, Inc. v. FDIC, 13 F.3d 883, 887–88 (5th Cir. 1994) (Upholding informal FDIC procedures); Luckett v. Jelt, 966 F.2d 209 (7th Cir. 1992), cert. denied, 507 U.S. 922, 113 S. Ct. 1287 (Upholding Illinois Human Rights Act proce- dures even though certain adversarial-type processes were not available); Johnson v. Rodriquez, 943 F.2d 104, 110 (1st Cir. 1991), cert. denied, 502 U.S. 1063, 112 S. Ct. 948 (Upholding proceedings before the Massachusetts Commission Against Discrimination (MCAD) where the plaintiff had an opportunity to present his case before the MCAD and proceedings were conducted in full accordance with state law); Stuart v. Depart- ment of the Interior, 109 F.3d 1380, 1385 (9th Cir. 1997) (No violation of due process where the Bureau of Indian Affairs cancelled an installment contract for a land purchase without a pre-cancellation hearing). 249 Goss, 419 U.S. at 582–83. See LAWRENCE F. ROSSOW & JERRY R. PARKINGSON, THE LAW OF STUDENT EXPULSIONS AND SUSPENSIONS 3 (1989) (Due process considerations are the same for expulsions and suspensions). 250 Id. at 583. 251 Id. at 584. 252 Id.

31 some level of due process before excluding known of- fenders from the transit system. As seen in this part of the Report, a transit agency may need specific laws, regulations, or policies before deciding to bar a user from the transit system on a temporary or permanent basis. Before barring a transit user, a notice may be required, but there seems to be no reason that the notice could not be issued immediately or “on the spot” to the user. In the public school situa- tion, it has been held that on the basis of a property right or otherwise the student has a right to an educa- tion. Nevertheless, it is permissible for school officials to bar students for misconduct without providing a full due process hearing. To some extent, the transit agency has the discretion to decide in its policies or procedures the kind of hearing and right to appeal that are to be provided to users who engage in illegal or inappropriate conduct. Based on current law, the transit policies and procedures discussed in the next part of this Report would seem to satisfy the requirements of due process. XI. TRANSIT AGENCY PROCEDURES FOR BARRING OR EXCLUDING TRANSIT USERS As noted, many transit agencies reported that they have laws, regulations, or policies permitting them to bar users temporarily from transit facilities for various kinds of conduct and in some cases even permanently. Some transit agencies have procedures that require the giving of a notice to the user (e.g., a “notice of exclusion” or “banning notice”), and provide for some type of hear- ing and appeal. Other transit agencies reported having no such laws, regulations, or policies and advised that they rely on the attorney responsible for the agency to obtain a judicial restraining order. Where the agency has its own policy, it is possible that a user barred from service would challenge the procedures for being vague or unreasonable or failing to provide the user with ade- quate notice or a sufficient hearing. Thus, as seen from the previous part of this Report, the level of scrutiny that the courts would apply in reviewing the agency’s policies or actions is quite important. Transit agencies were asked whether their state or transit agency have any laws, regulations, or policies that set forth procedures (e.g., notice and/or hearing) regarding the temporary or permanent suspension of transit users from the system. TABLE 11.1—PERCENTAGE OF AGENCIES REPORTING STATE OR TRANSIT AGENCY LAWS, REGULATIONS, OR POLICIES ON SUSPENSION OF USERS Agencies Reporting Laws, Regulations, and Policies Agencies Relying on General Statutory Au- thority Agencies Reporting No Laws, Regulations, or Policies Not Known 28% (17 of 60) 15% (9 of 60) 50% (30 of 60) 7% (4 of 60) Seventeen transit agencies (28 percent) reported that the state or agency had such laws, regulations, and policies regarding suspension of users. Another nine agencies (15 percent) reported that they relied on gen- eral statutory authority, such as laws against trespass- ing, to suspend users. Thirty agencies (50 percent), however, reported that they had no state or transit agency laws, regulations, or policies authorizing sus- pension of users. As discussed in this section, the kinds of policies and procedures that transit agencies have are important. Some transit agencies provided copies of applicable regulations, policies, or procedures, some of which are summarized briefly below. The Appendix contains selec- tions of the more extensive policies provided by several transit agencies. Several agencies have policies govern- ing what kind of conduct is prohibited, the process the agency uses in barring a user on a temporary or per- manent basis from the system, the appeals process available to the user, and the offenses and periods of time for which a user may be suspended or barred. First, as to the kinds of prohibited conduct and en- forcement procedures, one agency has 30 pages of “Rules of Conduct” and 17 pages of detailed “Procedures and Enforcement Guidelines” relating to its rules.253 Of interest also is that the agency’s guidelines have a “Three Strikes Policy”: For conduct not amounting to a violation of another ap- plicable state or local law bearing a greater penalty or criminal sanction than is provided, a person who commits a civil infraction in a [transit agency] vehicle or while on [transit agency] property may receive up to three (3) ver- bal or written warnings before an exclusion of service is issued.254 253 Confidential Survey Response. 254 Id.

32 In addition, the agency also has a “Zero Tolerance Pol- icy:” All criminal activity, including misdemeanor criminal ac- tivity which takes place on board [transit agency] vehicles or while on any [transit agency] facility or property, re- gardless of the situation, shall be handled with Zero Tol- erance. When an arrest citation is warranted, law en- forcement support will be requested if not already present, and the arrest citation shall be issued.255 The agency’s guidelines provide detailed procedures on the refusal of service and ejection of transit users. For example, the guidelines provide in part that “pas- sengers who have three documented incidents of refusal of service and/or ejection for failure to comply will be formally issued a letter of exclusion of service.”256 The guidelines provide for a formal tracking system and the creation of a “passenger file” for the reporting and documentation of incidents, as well as for correspon- dence between the agency and the user.257 Furthermore, the agency has a “security alert folder:” Passengers who are currently excluded from service will have a Security Alert Form filled out, with picture at- tached, and placed in the Security Alert Folder. The pur- pose of this folder is for operator information only. Files and photographs will not be posted on any bulletin board. This information is provided on a “need to know basis.” Folders will be maintained in the file cabinet at [the tran- sit agency’s] main office drivers’ room. Each supervisor will maintain an updated copy of the folder for use in Dispatch and on the road….258 The Guidelines provide for “Exclusion of Service Let- ters” and set forth the criteria for the issuance of the same: A letter of exclusion will be issued for: 1. Any violation resulting in arrest, citation, or ejection by a law enforcement officer; 2. Any violation of [a specific provision of the Rules of Conduct]; 3. An accumulation of three or more denials of ser- vice/ejections under the Three Strikes Policy. Letters of Exclusion will be for a minimum of seven (7) days.259 The guidelines, which set forth the required informa- tion, including the period of the exclusion and the rea- son therefore, state that such a letter “may be issued on the spot by a supervisor.”260 The duration of the exclu- sion “may be shorter or longer depending on the cir- cumstances of each case,” but the guidelines provide for periods of exclusions for each offense.261 Under the guidelines, a person violating a letter of exclusion is subject to arrest, apparently for trespass. The foregoing 255 Id. 256 Id. 257 Id. 258 Id. 259 Id. 260 Id. 261 Id. requirements and conditions are noted also in the agency’s Rules of Conduct, which set forth a procedure for a suspension and an appeal from an exclusion order. Two agencies reported having definite periods of time, based on the offense, for which the user may be suspended or barred from the system. Table 11.2 illus- trates one agency’s policy concerning the period of time that a user may be excluded from the system.

33 TABLE 11.2—ONE AGENCY’S PERIODS OF EXCLUSION OF A USER FROM TRANSIT SYSTEM FOR OFFENSES First Offense Up to 90 days Second Offense 91–180 days Third Offense 181–365 days Each Subsequent Offense Up to 365 days As seen in Table 11.3 below, another agency has five categories of temporary and permanent suspensions. Although the response did not identify the grounds for each category of suspension, the categories themselves are of interest: TABLE 11.3—ONE AGENCY’S PERIODS OF SUSPENSION OF A USER FROM THE TRANSIT SYSTEM 1 to 2 months The user may ride the buses but may not come to the terminal 3 to 6 months Where no crime committed; category applies to anyone barred by the police or agency supervisors for misbehaving in the terminal or on the bus 1 full year Anyone arrested on the charge of the commission of a misdemeanor (user threatens a transit employee but does not actually touch the employee) 2 years Anyone arrested in the terminal or on the bus on the charge of commission of a felony 2 years to life Anyone who actually touches a transit agency employee and/or all weapon charges while at the terminal or on the buses Another agency provided a copy of its procedures on “Passenger Conduct” that proscribe certain kinds of conduct, including a prohibition of engaging in illegal activity or “[a]cting in a manner threatening to the safety of drivers or passengers or engaging in seriously disruptive or objectionable behavior that interferes with and/or disturbs the operation of the vehicle.”262 The memorandum continues: Violators of the above prohibitions may have their riding privileges suspended by [the agency’s] Operations Man- ager. Before such a suspension is issued, the passenger will be given a chance to provide his/her version of the situation. After such a suspension is issued, the passen- ger may pursue his right to appeal the suspension as pro- vided herein. The decision to suspend, as well as the length of suspensions, depends on the severity and dis- ruptiveness of the prohibited action. If riding privileges are suspended, the individual will be placed on a one (1) year probation. An additional violation during the proba- 262 Id. tion period may result in permanent suspension of riding privileges.263 Although there are no cases on the degree of due process required of transit agencies, several transit agencies responding to the survey appear to have clear policies and procedures that comport with or even ex- ceed the level of due process required by the courts in other situations as discussed earlier in this Report. Several of the agencies responding to the survey have policies and procedures that cover the kinds of prohib- ited conduct, the form of notice and circumstances un- der which the agency may suspend a user, the duration of suspensions, and some form of hearing and appeal. Transit authorities lacking such guidelines may want to have policies and procedures on which they may rely 263 Id.

34 when having to bar a transit user for security or other reasons.264 CONCLUSIONS As seen from the survey of 60 transit agencies, about 62 percent of the agencies responding advised that they had had instances in the past 3 years when they had to bar transit users on the basis of being a security threat, for threatening another user, or for engaging in begging or other unacceptable behavior. As seen, when the cate- gories are separated by specific types of behavior, there are some categories for which transit agencies have not had many, if any, incidents. As for having procedures governing how to respond to problems or incidents, 53 percent of the agencies reported having some proce- dures, but it appears that only about 22 percent had any form of written procedures. In general, a common carrier may refuse service to a passenger if the carrier has a reasonable cause to be- lieve that the safety or convenience of its passengers will be endangered by another user. No authority was located holding that a patron’s use of transit implicates a constitutional right to travel. Assuming arguendo that a user has a right to use the transit system, the prevailing view among the courts appears to be that any such right is not a fundamental right. Because use of the transit system is not a fundamental, constitu- tional right, the courts are likely to use a lower level of judicial scrutiny when reviewing the legality of an agency’s restrictions on the user’s right to use the sys- tem or the agency’s policies or procedures for suspend- ing a user’s right to use the system. Restrictions in transit areas on speech or expressive conduct may implicate the First Amendment. About 30 percent of the agencies responding reported having state or transit agency laws, regulations, or policies on when, how, and under what circumstances transit fa- cilities could be used for political or other expression or expressive conduct. However, virtually all transit agen- cies that responded stated that their facilities were not to be used for political expression or protest. The issue of the reasonableness of the transit agency’s restrictions is not an issue if the agency has not opened any facility for the purpose of the exercise of free speech or expres- sive conduct. Even if there is limited permission granted for the exercise of First Amendment rights, access to a nonpub- lic forum can be restricted as long as the restrictions are reasonable, content-neutral, and not an effort to suppress expression merely because public officials op- pose the speaker’s view. As for other limitations on loud 264 Phillip T.K. Daniel et al., Suspension and Expulsion in America’s Public Schools: Has Unfairness Resulted from a Nar- rowing of Due Process?, 13 HAMLINE J. PUB. L. & POL’Y 1, at 14. As the article notes, many states have passed legislation detailing extensive procedures that must be followed by school districts when a student is punished with suspension or expul- sion. behavior, government restrictions on the volume of speech do not necessarily violate the First Amendment, even when that speech occurs in an area traditionally set aside for public debate. In the instances when the transit agency has opened an area for public expression, it appears that the agency may impose reasonable time, place, and manner restrictions. About 52 percent of the agencies reported having laws, regulations, or policies applicable to the agency regarding when, how, and under what circumstances transit personnel could refuse service or eject transit users or others from the facilities. As for a specific tran- sit policy applicable to security threats or disruptive conduct, 15 agencies (25 percent) appeared to have a policy, but only seven agencies (12 percent) clearly indi- cated that it was a written policy. As for panhandling or begging, about 37 percent of the agencies said that there were state laws or transit agency laws, regulations, or policies applicable to the agency regarding the regulation or expulsion of persons engaged in panhandling or begging in or on transit fa- cilities. At least 44 states require sex offenders to register with authorities when they move into a community. In addition, at least 27 states now have community notifi- cation statutes. The Supreme Court recently upheld laws requiring the registration of sex offenders. How- ever, only about 8 percent of the agencies responding to the survey indicated there were any applicable state or transit agency laws, regulations, or policies on when, how, and under what circumstances the agency could refuse service to or eject a known sex offender (such as someone identified in a registry required by state law) from transit facilities. Without the sanction of state law or a court order, the transit agency’s action in barring a known sex offender from the transit system likely would trigger due process requirements in the form of reasonable notice and an opportunity for a pre-or post- suspension hearing. However, it does not appear that many transit agencies have laws, regulations, or poli- cies in place on which they would be able to rely. As for service animals, thus far no cases have been located regarding issues transit systems may have en- countered under federal and state laws with respect to the handling of service animals and what action is ap- propriate under the circumstances. However, transit agencies should be aware that various animals for a number of reasons may qualify as service animals and that the agency may not be able to determine readily whether a passenger has a disability requiring the use of a service animal. Suspension or expulsion of a transit user, depending on the circumstances, could give rise to a claim for damages, for example, under 42 U.S.C. § 1983, that a person has been deprived of a federal constitutional right by a person acting “under color of state law.” It has been held that individual states, their departments and agencies, and their officials acting in their official capacities are not deemed “persons” subject to suit un- der § 1983. Although municipalities and local govern-

35 ments are deemed to be “persons” subject to suit under § 1983, even if a transit agency were subject to a § 1983 claim, a plaintiff must establish that the existence of a governmental policy or custom was the cause of his or her injuries. As noted in the Report, many states permit recovery of damages for violations of constitutional rights. In responding to the survey, about 48 percent of transit agencies stated that their agency could be held liable in tort for a violation of an individual’s rights under the state constitution. Transit agencies are interested in the extent of due process that must be afforded to users when the agency must bar them from the facilities for violating the law, being a security threat, being loud or threatening other passengers or the operator, or engaging in numerous other activities that the transit agencies have identified as unacceptable. As discussed in the Report, a regula- tion or policy must be sufficiently clear to warn a party regarding what is expected of him or her. Before an agency can sanction someone for a failure to comply with regulatory requirements, the agency must have appropriate language in the applicable regulation or policy. Where there are clear regulatory guidelines for transit officials and others, the courts tend to give great leeway to judgments based on a matter within the agency’s sphere of expertise. Due process issues arise whenever a transit authority relies on general or vague laws proscribing certain conduct or if the authority acts without specific statutory or regulatory guidance. Al- though some agencies reported having specific policies and procedures on which to rely when barring a user from transit facilities, many agencies responding to the survey either had no policies or were relying on policies that apparently are not in writing. Despite the absence of cases addressing the issue of whether transit agencies must afford due process to a rider who is barred or suspended, it could be argued that an agency may not impose even a temporary sus- pension without providing some level of due process. Several of the agencies responding to the survey pro- vided copies of their reasonably explicit and detailed policies and procedures. What process is due necessarily depends on the right that is under consideration, the exigency of the situation, and what alternate means are available. The standard appears to leave ample room for the agency to decide that administrative factors fa- vor using one means rather than another. The courts have held in numerous situations that a notice and only a rudimentary hearing are constitutionally sufficient. As the U.S. Supreme Court held in Mathews v. El- dridge, due process is flexible and calls for such proce- dural protections as the particular situation demands.265 Although it may be necessary to provide a notice to the affected person, not every situation requires that a full evidentiary hearing be provided before or after the government’s action. Assuming due process require- ments were held to apply, the agency may be able to bar or exclude transit users subject only to some rudimen- 265 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). tary due process. Notice and a right to a post- deprivation hearing accompanied by the right to peti- tion the court for redress may adequately protect an affected person’s due process rights. The model of a full evidentiary hearing is not required in every circum- stance. At informal administrative hearings, the con- cept of due process generally demands fewer procedural safeguards. As discussed in the public school suspension and other cases, the notice and the hearing may be simulta- neous in some situations or the hearing may occur after the government has acted to suspend the privilege or benefit at issue. Based on cases in analogous contexts, it appears that the transit authority would be acting reasonably if, pursuant to its established procedures, it first gave notice and barred the transit user immedi- ately for being a security or other risk and thereafter provided an opportunity to be heard as soon as practi- cable. A longer suspension or permanent bar expulsion could require “more formal procedures.”266 The transit policies and procedures discussed in the Report or included in the Appendix seem to satisfy the requirements of due process. However, as seen, only about 30 percent of transit agencies responding to the survey indicated there were state or transit agency laws, regulations, or policies that set forth procedures (e.g., notice and/or hearing) regarding the temporary or permanent suspension of transit users from the system. Thus, some agencies do have policies governing what kind of conduct is prohibited, the process the agency uses in barring a user on a temporary or permanent basis from the system, the appeals process available to the user, and the offenses and periods of time for which a user may be suspended or barred. It should be noted that a few recent cases suggest that the courts could be moving in the direction of hold- ing that there is a fundamental right to travel intra- state. If so, the courts could move also in the direction of applying a higher level of scrutiny when reviewing laws, regulations, or policies that permit transit agen- cies to suspend or bar users from the system. Transit agencies may want to promulgate policies and proce- dures if they do not now have them or review the ones they do have to ascertain whether they are sufficiently specific and afford adequate protection both to the user and the agency in situations where they may have to refuse service on a temporary or permanent basis. 266 Goss, 419 U.S. at 584.