National Academies Press: OpenBook

Policing and Public Transportation (2022)

Chapter: F. Whether Video Surveillance of Persons in a Public Space Violates the Fourth Amendment

« Previous: E. Whether a Fare Sweep Is Constitutional under the Fourth and Fourteenth Amendments
Page 24
Suggested Citation:"F. Whether Video Surveillance of Persons in a Public Space Violates the Fourth Amendment." National Academies of Sciences, Engineering, and Medicine. 2022. Policing and Public Transportation. Washington, DC: The National Academies Press. doi: 10.17226/26652.
×
Page 24
Page 23
Suggested Citation:"F. Whether Video Surveillance of Persons in a Public Space Violates the Fourth Amendment." National Academies of Sciences, Engineering, and Medicine. 2022. Policing and Public Transportation. Washington, DC: The National Academies Press. doi: 10.17226/26652.
×
Page 23

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

24 TCRP LRD 58 fronting [the officer], without regard to [the officer’s] underlying intent or motivation.’”303 Determining whether an officer’s use of deadly force was ex- cessive “‘depends only upon the officer’s knowledge of circum- stances immediately prior to and at the moment that [the of- ficer] made the split-second decision to employ deadly force.’”304 B. Factors that Determine Whether the Force Used Was Excessive The court’s opinion in Fuller v. Metro Atlanta RTA305 identi- fies some of the factors that are pertinent to deciding whether an officer’s use of force in a particular case was excessive. In August 2015, Fuller and two other persons, (Jackson and Williams), en- tered a MARTA station. After Jackson tapped her Breeze Card to pay her fare, Fuller followed her through the fare gate with- out paying the fare, all of which video surveillance recorded and Sergeant McWilliams observed. During an attempted arrest of Fuller, Sargent McWilliams shot Fuller with his Taser. Fuller sued for the use of excessive force in violation of the Fourth Amendment, as well as under state law for assault and battery and the infliction of emotional distress. On Fuller’s claim against Sergeant McWilliams, the court had to decide whether the level and type of force the officer used was “objectively rea- sonable” under the Fourth Amendment.306 Such a determina- tion “requires balancing the nature and quality of the intru- sion on the individual’s rights with the government interests at stake”307 and deciding “whether the officers’ conduct when mak- ing the arrest ‘was objectively reasonable or if it was an over- reactive, disproportionate action’” in relation to the severity of the crime and the suspect’s conduct at the time of the arrest.308 Other factors the court considered were whether Fuller “posed an immediate threat” to the officers’ safety or the safety of others and whether Fuller was resisting arrest or attempting to flee.309 In denying the defendants’ motion for a summary judgment, first, the court ruled that Fuller’s misdemeanor charges for dis- orderly conduct were not serious offenses.310 Second, based on Fuller’s version of what happened and the surveillance video, the officers used force that was “‘unnecessary and disproportion- ate’” and, consequently, “excessive under the circumstances.”311 303 Brietkopf, 41 F. Supp.3d at 242 (citations omitted) (some internal quotation marks omitted). 304 Id. at 243 (citations omitted) (some internal quotation marks omitted). 305 2018 U.S. Dist. LEXIS 233659, at *1 (N.D. Ga. 2018). See also, Fuller v. MARTA, 810 Fed. Appx. 781, at *1 (11th Cir. 2020) (holding that the court lacked jurisdiction to consider an interlocutory appeal brought by defendants—a transit authority and two of its officers— which challenged the denial of their motion for summary judgment based on qualified and official immunity, because the defendants’ argu- ments merely raised questions of the sufficiency of the evidence). 306 Fuller, 2018 U.S. Dist. LEXIS 233659, at *9. 307 Id. at *10 (citations omitted). 308 Id. at *11 (citations omitted). 309 Id. (citations omitted). 310 Id. at *13. 311 Id. at *14 (citation omitted). F. Whether Video Surveillance of Persons in a Public Space Violates the Fourth Amendment It has been held that video surveillance of a person in public or in an area that can be viewed by members of the public does not infringe a person’s civil liberty as an unlawful, warrantless search. A case in point is Hoffman v. City of New York.297 The plaintiff alleged that the City of New York and the Metropolitan Transportation Authority (MTA), in a conspiracy with private persons, caused the transit police to conduct “baseless fraudu- lent visual taping” of Hoffman for eleven years on public buses and subways in the city.298 The court held that “[w]hether or not a person has a constitutionally protected reasonable expectation of privacy is part and parcel of Fourth Amendment analysis,” because “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amend- ment protection.”299 The plaintiff did not have a “reasonable expectation of pri- vacy” protected by the Fourth Amendment, because “the sur- veillance and taping of Plaintiff took place in a physically non- intrusive manner while Plaintiff was on public transportation and knowingly exposing herself to the public.”300 Moreover, the plaintiff failed to allege that “any official policy or custom of the City of New York or the MTA … caused her constitutional rights to be violated.”301 VII. LIABILITY UNDER THE FOURTH AMENDMENT IN § 1983 ACTIONS FOR THE USE OF EXCESSIVE FORCE A. Whether the Force Used Was “Objectively Unreasonable” To prove a constitutional violation under § 1983 for the use of excessive force, a “plaintiff must show that the force used was ‘objectively unreasonable’ under the Fourth Amendment.” 302 As other courts have held, the “‘use of force is contrary to the Fourth Amendment’” when the force that was used was “‘objec- tively unreasonable in light of the facts and circumstances con- 297 1998 U.S. Dist. LEXIS 7459, at *1 (E.D. N.Y. 1998). 298 Id. at *1 (internal quotation marks omitted). 299 Id. *8 (citations omitted). 300 Id. at *8-9. 301 Id. at *7. 302 Kirk, 2001 U.S. Dist. LEXIS 2786, at *31. The court noted that “[t]he elements of assault and battery by police officers are identical to the elements of excessive force under 42 U.S.C. § 1983.” Id. at *29 (cita- tions omitted). For an assault claim, a plaintiff “must allege facts that support a finding that the defendant intentionally placed the plaintiff in reasonable fear of imminent harmful or offensive bodily contact,” whereas a claim for battery requires that “a plaintiff must introduce evi- dence tending to show that the defendant intentionally and wrongfully engaged in physical contact with the plaintiff without the plaintiff ’s con- sent.” Id. at *29-30 (citations omitted).

TCRP LRD 58 23 ality, on the basis of the individual circumstances.’”290 In doing so, a court must balance three factors: (1) the gravity of the pub- lic concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty.291 The Maryland Court of Appeals was not persuaded that MTA’s “primary purpose” in directing officers to conduct fare sweeps on Light Rail trains is apparent from the record of the suppression hearing. There was no foundational testimony showing that the officers know, as a matter of MTA policy, what the purpose of a fare sweep is, much less the “primary purpose” of this type of fare inspection. Nor did the officers identify any particular purpose of a fare sweep as MTA’s primary purpose[] or testify that there are no other purposes of a fare sweep beyond those defense counsel asked about.292 The court held that the State failed to establish that the spe- cial needs exception applied.293 The court also rejected the State’s argument that the search was constitutional based on the attenuation doctrine, i.e., that “the discovery of the warrant for Carter’s arrest attenuated the taint of the unlawful seizure.”294 As discussed in Section VI. C, supra, if the attenuation doctrine applies, then evidence is admis- sible that the exclusionary rule would have precluded. Whether the attenuation doctrine applies depends on (1) the temporal proximity between the unlawful conduct and the discovery of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. The Maryland Court of Appeals, focusing on the third element, held that the discovery of an outstanding warrant did not “attenuate the taint of an illegal agency program that requires officers to search for open warrants as part of the program.”295 The court concluded by stating that its “holding reinforces for MTA and all other state and local agencies that they should proceed with caution when implementing a program of war- rantless, suspicionless seizures.”296 290 Id. (citation omitted). 291 Id. (citations omitted) (quotation marks omitted). 292 Id., 472 Md. at 79, 244 A.3d at 1066. The Maryland Court of Appeals found that the “differences between a fare sweep conducted by multiple officers and a fare inspection conducted by an individual offi- cer suggest the possibility (but in no way conclusively demonstrate) that a different primary purpose underlies these methods of fare enforce- ment.” Id., 472 Md. at 68-69, 244 A.3d at 1059 (footnote omitted). 293 Id., 472 Md. at 71, 244 A.3d at 1061. The court “conclude[d] that the record is insufficient to determine the primary purpose of a fare sweep. Because we do not know the primary purpose of a fare sweep, we also do not know whether it is necessary to undertake the three-part balancing analysis set forth in Brown v. Texas, 443 U.S. at 51, let alone what the result of that analysis would be. In short, we cannot say one way or the other whether the special needs exception applies….” Id. 294 Id. 295 Id., 472 Md. at 75, 244 A.3d at 1063. 296 Id., 472 Md. at 76, 244 A.3d at 1064. train and announce that all passengers must show their tickets or passes.”281 During one such sweep, Carter told an officer that he did not have a ticket. After the officer obtained identifying informa- tion on Carter, which disclosed the existence of a warrant for Carter’s arrest, the officers discovered, while attempting to arrest Carter on the outstanding warrant, that Carter was carrying a gun. Carter argued that the fare sweep constituted a warrantless seizure that was not based on reasonable suspicion. The Maryland Court of Appeals held that the State failed to establish at a suppression hearing that Carter’s seizure was con- stitutional. The State conceded that Corporal Russell “seized” Carter when announcing the fare sweep, because “during a fare sweep a passenger generally is not free to leave ... without show- ing proof-of-payment.”282 However, at the time of the sweep, the officer did not suspect “that Carter had committed any criminal offense, including fare evasion.”283 The court held that Carter’s seizure violated the Fourth Amendment, unless the fare sweep came within one of the recognized exceptions to the warrant requirement, and, if the fare sweep did not, then Carter’s subse- quent admission that he did not have a ticket “was the fruit of an unlawful detention.”284 Besides arguing unsuccessfully that Carter had consented to the search, the State argued that the fare sweep was “constitu- tional under the ‘special needs’ exception to the Fourth Amend- ment warrant requirement.”285 As discussed in Section VI. D, supra, pursuant to the special needs doctrine, the “courts may uphold the constitutionality of a program of seizures without individualized suspicion, where the program is designed to serve ‘special governmental needs, beyond the normal need for law enforcement,’”286 such as “sobriety checkpoints along state roads….”287 In Carter, the court applied a two-step analysis to determine whether the special needs exception applied. [T]he “primary purpose” served by the program must be an objec- tive other than the governmental body’s “general interest in crime control.” … If the primary purpose of the program is to advance the general interest in crime control – in other words, to “uncover evidence of ordinary criminal wrongdoing” … – then the program is presumptively unconstitutional under the Fourth Amendment.288 “If the State establishes that the program is not ‘a general crime control device,’ … then the analysis proceeds to the sec- ond step.”289 The second step requires an evaluation of the fare sweep program’s “‘reasonableness, [and] hence, its constitution- 281 Carter, 472 Md. at 44, 244 A.3d at 1045. 282 Id., 472 Md. at 57, 244 A.3d at 1053 (internal quotation marks omitted). 283 Id., 472 Md. at 57-58, 244 A.3d at 1053. 284 Id., 472 Md. at 58, 244 A.3d at 1053. 285 Id., 472 Md. at 63, 244 A.3d at 1056. 286 Id. (citation omitted). 287 Id. (citation omitted). 288 Id., 472 Md. at 64, 244 A.3d at 1057 (citations omitted). 289 Id., 472 Md. at 65, 244 A.3d at 1057 (citations omitted).

Next: VII. LIABILITY UNDER THE FOURTH AMENDMENT IN 1983 ACTIONS FOR THE USE OF EXCESSIVE FORCE »
Policing and Public Transportation Get This Book
×
MyNAP members save 10% online.
Login or Register to save!
Download Free PDF

Compliance with transit-equipment and operations guidelines, FTA financing initiatives, private-sector programs, and labor or environmental standards relating to transit operations are some of the legal issues and problems unique to transit agencies.

The TRB Transit Cooperative Research Program's TCRP Legal Research Digest 58: Policing and Public Transportation provides a comprehensive analysis of constitutional issues and summarizes current laws and practices that apply to policing by public transportation agencies.

Supplemental to the Digest is Appendix A: Agreements, Policies, Reports, and Other Documents Provided by Public Transportation Authorities for the Report.

  1. ×

    Welcome to OpenBook!

    You're looking at OpenBook, NAP.edu's online reading room since 1999. Based on feedback from you, our users, we've made some improvements that make it easier than ever to read thousands of publications on our website.

    Do you want to take a quick tour of the OpenBook's features?

    No Thanks Take a Tour »
  2. ×

    Show this book's table of contents, where you can jump to any chapter by name.

    « Back Next »
  3. ×

    ...or use these buttons to go back to the previous chapter or skip to the next one.

    « Back Next »
  4. ×

    Jump up to the previous page or down to the next one. Also, you can type in a page number and press Enter to go directly to that page in the book.

    « Back Next »
  5. ×

    To search the entire text of this book, type in your search term here and press Enter.

    « Back Next »
  6. ×

    Share a link to this book page on your preferred social network or via email.

    « Back Next »
  7. ×

    View our suggested citation for this chapter.

    « Back Next »
  8. ×

    Ready to take your reading offline? Click here to buy this book in print or download it as a free PDF, if available.

    « Back Next »
Stay Connected!