Policing and Public Transportation (2022)

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6 TCRP LRD 58 violations only if “they were personally involved in the alleged constitutional deprivations.”9 Importantly, however, as the United States Supreme Court held in 1978 in Monell v. Dep’t of Soc. Servs.,10 “Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies,” mean- ing that “local governments . . . may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.”11 As discussed in Section II, infra, a plaintiff may institute a § 1983 action against a municipality or other unit of local government and/or their respective authorities and agencies for two specific categories of violations of the Constitution or other federal law. Judicial opin- ions may refer to such permissible § 1983 claims against muni- cipal and other local governmental authorities, such as public transportation authorities, as “Monell claims.” C. Concurrent Jurisdiction of Federal and State Courts of § 1983 Actions Both federal and state courts have jurisdiction to decide § 1983 claims.12 As stated in Mangiafico v. Town of Farmington,13 [s]ection 1983 claims often are filed in federal court, but state courts unquestionably “have concurrent jurisdiction over claims brought under § 1983.” . . . This does not mean, of course, that state courts hear- ing § 1983 claims are free to depart from United States Supreme Court precedent governing the construction and application of the federal statute. . . . The elements of a § 1983 action, and the defenses thereto, “are defined by federal law[,]” … and state courts applying § 1983 “may not expand or contract the contours” of the right to relief.14 Some statutes require the exhaustion of other remedies, such as the Prison Litigation Reform Act15 and the Individuals with 9 Bristol v. Queens County, 2013 U.S. Dist. LEXIS 41655, at *1, 17-18 (E.D. N.Y. 2013) (Report and Recommendation by Magistrate Judge) (citations omitted) (emphasis supplied), adopted by, claim dis- missed by, motion denied by, in part, motion denied by Bristol v. Queens County, 2013 U.S. Dist. LEXIS 38673, at *1 (E.D. N.Y., Mar. 18, 2013). 10 436 U.S. 658, 690, 98 S. Ct. 2018, 2035, 50 L. Ed.2d 611, 635 (1978) (emphasis in original) (overruling Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed.2d 492 (1961)). 11 Monell, 436 U.S. at 690-691, 98 S. Ct. at 2036, 50 L. Ed.2d at 635. 12 See Patsy v. Bd. of Regents, 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed.2d 172 (1982) (holding that exhaustion of administrative remedies was not a prerequisite to a § 1983 action because Congress assigned the role of protecting constitutional rights to the courts and did not intend that under most circumstances for civil rights claims to be initially addressed through state administrative procedures). However, as dis- cussed in this subsection of the digest, for some § 1983 claims, the Patsy decision is superseded by statute. See, e.g., Anderson v. XYZ Corr. Health Servs., 407 F.3d 674 (4th Cir. 2005) (Prison Litigation Reform Act of 1996 (PLRA)). 13 331 Conn. 404, 408, 204 A.3d 1138, 1142 (2019). 14 Id., 331 Conn. at 419, 204 A.3d at 1148 (citation omitted). 15 Porter v. Nussle, 534 U.S. 516, 519-520, 122 S. Ct. 983, 985, 152 L. Ed.2d 12, 18 (2002) (holding that the “exhaustion requirement” in 42 U.S.C. 1997e(a) “applies to all prisoners seeking redress for prison cir- cumstances or occurrences”). Section 1983 is based on the constitutional authority of Con- gress to enforce the Fourteenth Amendment. Section 1983 does not create, in and of itself, a cause of action.1 That is, § 1983 is not a source of substantive rights but merely provides a means for the vindication of violations of federal constitutional and statutory rights that are conferred elsewhere.2 “‘The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.’”3 As a federal district court in Pennsylvania explained, § 1983 incorporates common law tort principles of damages and causation, including the concept of proximate cause. When a plaintiff seeks to recover damages for injuries suffered during successive steps of state action—e.g., search, arrest, interrogation, detention, and trial—each stage of conduct must be separately judged by the constitutional stan- dard applicable to the particular right violated, whether Fourth, Fifth or Fourteenth Amendment.4 In sum, under § 1983, a plaintiff must demonstrate that he or she has been harmed, or otherwise adversely affected, by a defendant’s deprivation of a person’s right, privilege, or immu- nity that is conferred by the United States Constitution or other federal law.5 B. “Persons” Potentially Liable in a § 1983 Action Although all “persons” ostensibly are potentially liable under § 1983 for a civil rights violation, the courts have held that a state or state agency is not a “person,” i.e., not an actionable de- fendant, within the meaning of § 1983.6 Thus, neither a state nor a state agency may be sued under § 1983 for allegedly vio- lating an individual’s constitutional or other federal rights.7 A state official who is sued in his or her official capacity also is not a person within the meaning of § 1983.8 Defendants who are sued in their individual capacity may be held liable for § 1983 1 See McCann v. Borough of Magnolia, 2014 U.S. Dist. Lexis 48040, at *1 (D.N.J. 2014) (stating that because § 1983 is neither a source of substantive rights nor a means to redress common law torts, a § 1983 plaintiff must allege a violation of a federal right), aff’d, 2014 U.S. App. Lexis 21086, at *1 (3d Cir. 2014). 2 Mosely v. Yaletsko, 275 F. Supp.2d 608, 612 (E.D. Pa. 2003). 3 Moroughan v. City of Suffolk, 514 F. Supp.3d 479, 511 (E.D. N.Y. 2021) (quoting Wyatt v. Cole, 504 U.S. 158, 161, 112 S. Ct. 1827, 118 L. Ed.2d (1992)). 4 Padilla v. Miller, 143 F. Supp.2d 453, 471-472 (M.D. Pa. 1999) (citation omitted), amended, corrected by, Padilla v. Miller, 143 F. Supp.2d 479, 495 (M.D. Pa. 2001) (holding that “[c]ompensatory dam- ages for the harm sustained during the course of the wrongful detention of the plaintiffs will be awarded”). 5 Maine v. Thiboutot, 448 U.S. 1, 5, 100 S. Ct. 2502, 2503, 65 L. Ed.2d 555, 559 (1980). 6 A state transportation department is not a person subject to suit under § 1983. See, e.g., Vickroy v. Wisconsin Dep’t of Transp., 73 Fed. Appx. 172, 173 (7th Cir. 2003), cert. denied, Vickroy v. Wis. Dep’t of Transp., 540 U.S. 1107, 124 S. Ct. 1061, 57 L. Ed.2d 892 (2004). 7 Nichols v. Danley, 266 F. Supp.2d 1310, 1313 (D. N.M. 2003). 8 Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997).

TCRP LRD 58 5 POLICING AND PUBLIC TRANSPORTATION Larry W. Thomas, The Thomas Law Firm, Washington, DC INTRODUCTION This digest analyzes constitutional issues and cases arising under the Civil Rights Act of 1871, 42 U.S.C. § 1983, for alleged violations by public transportation authorities of individuals’ constitutional or other federal rights in the course of the author- ities’ policing of their stations and other facilities and property. The digest is organized in nine parts and 21 sections. Part I discusses civil rights claims under § 1983, including whether a public transportation authority may be liable for a claim because of a policy or custom of the authority that violates § 1983, or because of the authority’s deliberate indifference to an individual’s constitutional or other federal rights; whether a police officer has qualified immunity to § 1983 claims; and whether a police officer’s mistake of fact or law affects the of- ficer’s qualified immunity in § 1983 cases. Part II addresses § 1983 claims against public transportation authorities and police officers for alleged false arrest or false imprisonment, unlawful searches and seizures, use of exces- sive force, malicious prosecution or abuse of process, invasion of privacy, as well as for a police officer’s failure to intervene to prevent another officer’s violation of a person’s civil liberties. Part III analyzes § 1983 claims against public transportation authorities or police officers for the alleged denial of a defen- dant’s right to due process, including a defendant’s right to a fair trial, and for the denial of procedural due process caused by laws that are allegedly unconstitutionally vague or overbroad. Part III analyzes § 1983 claims by plaintiffs seeking redress for the al- leged denial of his or her right to the equal protection of the law under the Fourteenth Amendment, including claims for dispa- rate treatment, disparate impact, and discriminatory profiling. Part III also discusses liability of public transportation authori- ties under Title VI of the Civil Rights Act of 1964 for disparate treatment or disparate impact. Part IV discusses § 1983 actions by homeless persons under the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment against laws that limit or prohibit their use or occupancy of public property or space, such as sta- tions and other property belonging to a public transportation authority. Part V analyzes the issue of whether under the Second Amendment public transportation authorities may regulate or prohibit the carrying of firearms by members of the public in or on a means of public transportation. Part VI examines the question of whether a public trans- portation authority is a common carrier and, thus, is subject to a higher standard of care when the authority is sued for neg- ligence for failing to protect passengers from assaults by other passengers or for negligent policing. Part VII reviews public health and safety directives or man- dates issued by the federal and state governments during the COVID-19 pandemic and discusses actions that public trans- portation authorities took and passengers’ compliance with public health mandates, such as those requiring passengers to wear face masks. Part VIII discusses public transportation authorities’ effec- tive use of public relations to support their policing, analyzes the authorities’ law enforcement organizational and contractual structures, and examines their administration of law enforce- ment, including their use of community policing. The digest highlights agreements and policies that public transportation authorities are using to structure and organize their policing, including their use of inter-agency and inter-force agreements. Part IX discusses best practices that some public transporta- tion authorities have adopted for the policing of their stations, vehicles, and other property, including best practices for the col- lection of fares and detection of fare evasion. PART I – Civil Rights Claims under 42 U.S.C. § 1983, Prerequisites for Liability of Public Transportation Authorities, Qualified Immunity of Police Officers, and the Effect of a Police Officer’s Mistake of Fact or Law on Liability under § 1983 I. POLICING BY PUBLIC TRANSPORTATION AUTHORITIES AND CIVIL RIGHTS CLAIMS UNDER 42 U.S.C. § 1983 A. Introduction The digest analyzes cases brought by plaintiffs against pub- lic transportation authorities pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, for alleged violations of the plain- tiffs’ constitutional and other federal rights resulting from the authori ties’ policing of their stations, facilities, and other prop- erty. Section 1983 states that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....