Policing and Public Transportation (2022)

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30 TCRP LRD 58 an individual’s constitutional rights. For example, in Meza v. Jackson Twp.,400 there was a violent physical encounter between police officers and the owners of a home where the officers were responding to a noise complaint. A home surveillance camera recorded some of the incident when one officer (Donnelly) and the plaintiff ’s husband struggled for control of a door. As for what occurred, the court relied on the “‘facts as depicted in the recording….’”401 One of the plaintiff ’s § 1983 claims was for the officers’ fail- ure to intervene to prevent Officer Donnelly from violating Meza’s constitutional right against the use of excessive force. As the court summarized the applicable law, [a] police officer “has a duty to take reasonable steps to protect a victim from another officer’s use of excessive force, even if the exces- sive force is employed by a superior.” … For an officer “[t]o be liable under a failure to intervene theory, the plaintiff must have demon- strated that [her] underlying constitutional rights were violated, that the officer had a duty to intervene, and that the officer must have had a realistic and reasonable opportunity to intervene.” … “[W]here a plaintiff is unable to establish a claim for excessive force, he cannot establish a claim for failure to intervene.”402 The court held that qualified immunity barred the plain- tiff ’s claim for the officers’ failure to intervene, because the plaintiff had “not demonstrated [that] any of the officers had a ‘realistic and reasonable opportunity to intervene.’”403 In fact, the home video showed that the plaintiff ’s encounter with Officer Donnelly and several other officers “lasted a matter of seconds.”404 In Marshall, supra, one of the plaintiff ’s § 1983 claims was that Officer Gallaher failed to intervene to prevent a violation of Marshall’s civil rights. The court stated that “‘[l]aw enforce- ment officials have an affirmative duty to intervene to protect against the infringement of constitutional rights from conduct committed by other officers in their presence.’”405 Although there is no failure-to-intervene claim when the underlying constitu- tional claim has been dismissed,406 in Marshall’s case, because a § 1983 claim for false arrest was still viable, Marshall’s failure-to- intervene claim also continued to be viable.407 A failure-to-intervene claim was an issue also in Villegas v. City of El Paso,408 supra, a § 1983 case that arose out of a murder investigation. It is important to note that Villegas alleged that the officers conducting the investigation used a variety of co ercive tactics to obtain false evidence, including statements that im- 400 2021 U.S. Dist. LEXIS 115994, at *1 (D. N.J. 2021). 401 Id. at *17 (citation omitted). 402 Id. at *31 (citations omitted) (emphasis supplied). 403 Id. at *31-32 (citation omitted). 404 Id. at *33. 405 Marshall, 2020 U.S. Dist. LEXIS 172567, at *20 (citation omitted) (emphasis supplied). 406 Id. at *21 (citation omitted). 407 Id. 408 2020 U.S. Dist. LEXIS 34907, at *1 (W.D. Tex. 2020, aff ’d, Villegas v. Arbogast, 2021 U.S. App. LEXIS 4487, at *1 (5th Cir. Tex., Feb. 17, 2021) (per curiam) (Fifth Circuit affirming “for essentially the reasons given by the district court in its thorough opinion”). (A) For property removed from camping sites in counties other than Multnomah County, in a facility located in the same community as the camping site from which it was removed. (B) For property removed from camping sites in Multnomah County, in a facility located within six blocks of a public transit station. (c) Items that have no apparent value or utility or are in an insanitary condition may be immediately discarded upon removal of the home- less individuals from the camping site. (d) Weapons, controlled substances other than prescription medica- tion and items that appear to be either stolen or evidence of a crime shall be given to or retained by law enforcement officials. (7) (a) The unclaimed personal property shall be stored in an orderly fash- ion, keeping items that belong to an individual together to the extent that ownership can reasonably be determined. (b) The property shall be stored for a minimum of 30 days during which it shall be reasonably available to any individual claim- ing owner ship. Any personal property that remains unclaimed after 30 days may be disposed of or donated to a corporation described in section 501(c)(3) of the Internal Revenue Code as amended and in effect on December 31, 2020….399 Although no cases were located construing ORS Section 208.079, the statute provides some guidance regarding the ex- tent of due process that may or should be accorded to unaban- doned personal property, such as personal property belonging to homeless persons. X. LIABILITY UNDER THE FOURTH AMENDMENT IN § 1983 ACTIONS FOR A POLICE OFFICER’S FAILURE TO INTERVENE TO PREVENT ANOTHER POLICE OFFICER FROM VIOLATING AN INDIVIDUAL’S CIVIL RIGHTS A. Liability of a Police Officer for Failure to Intervene Depending on the circumstances, a police officer may have a duty to intervene to prevent another officer from violating 399 ORS §§ 203.079(3), (5), and (7) (as amended, eff. June 23, 2021) (emphasis supplied). Furthermore, ORS § 203.079(9) provides: (a) The 72-hour notice requirement under subsection (3) of this section does not apply: (A) When there are grounds for law enforcement officials to believe that illegal activities other than camping are occurring at an established camping site. (B) In the event of an exceptional emergency at an estab- lished camping site, including, but not limited to, possible site contamination by hazardous materials, a public health emergency or other immediate danger to human life or safety. (b) If a funeral service is scheduled with less than 72 hours’ notice at a cemetery at which there is a camping site, or a camping site is established at the cemetery less than 72 hours before the scheduled service, the written notice required under subsection (3) of this section may be posted at least 24 hours before removing homeless individuals from the camping site.

TCRP LRD 58 29 [for which] the government as an entity is responsible under § 1983.’”392 In Pottinger, supra, the plaintiffs alleged that the City of Miami “has a pattern and practice of seizing and destroying their personal property or forcing them to abandon it at arrest sites in violation of the Fourth, Fifth and Fourteenth Amendments.”393 The court found “that the arrests and confiscations of property were pursuant to a City policy and that City officials were aware of such a policy toward the homeless.”394 The court held that the “plaintiffs’ property rights are protected by the fourth amend- ment [sic] and that the City is liable on this count.”395 In Lavan, supra, the court also held that the City of Los Angeles “is required to provide procedural protections before permanently depriving Appellees of their possessions.”396 The city “violates the Due Process Clause of the Fourteenth Amend- ment when it prescribes and enforces forfeitures of property ‘[w]ithout underlying [statutory] authority and competent pro- cedural protections,’” and “‘individuals must receive notice and an opportunity to be heard before the Government deprives them of property.’”397 Some states or local governments have established proce- dures to safeguard and inventory personal property belonging to the homeless. For example, the Oregon statute, discussed in Section IX.A, supra, which applies to a local government that clears a homeless campsite, requires, in part: (3) Except as provided in subsection (9) of this section, at least 72 hours before removing homeless individuals from an established camping site, law enforcement officials shall post a written notice, in English and Spanish, at all entrances to the camping site to the extent that the entrances can reasonably be identified.398 … (5) (a) All personal property at the camping site that remains unclaimed after removal shall be given to a law enforcement official, a local agency that delivers social services to homeless individuals, an out- reach worker, a local agency official or a person authorized to issue a citation described in subsection (10) of this section, whether notice is required under subsection (3) of this section or not. (b) The unclaimed personal property must be stored: 392 Pottinger, 810 F. Supp. at 1561 (quoting Monell, 436 U.S. at 694). 393 Id. at 1570 (emphasis supplied). 394 Id. at 1570, N 29. 395 Id. at 1570 (footnote omitted). 396 Lavan, 693 F.3d at 1032 (citations omitted) (emphasis supplied). 397 Id. (quoting Vance v. Barrett, 345 F.3d 1083, 1090 (9th Cir. 2003) and United States v. James Daniel Good Real Prop., 510 U.S. 43, 48, 114 S. Ct. 492, 126 L. Ed.2d 490 (1993) (some internal quotation marks omitted)). 398 Emphasis supplied. Regarding the written notice, ORS § 203.079(6) provides that, at a minimum, the notice must state: (a) Where unclaimed personal property will be stored; (b) A phone number that individuals may call to find out where the property will be stored; or (c) If a permanent storage location has not yet been deter- mined, the address and phone number of an agency that will have the information when available. abandoned personal property and thus relinquished his expec- tation of privacy therein[] turns on intent” and “whether the People’s proof was sufficient to establish an unequivocal intent to abandon the property [that was] seized.”386 The court found that the defendant’s actions in placing personal property in a wall where it was found and walking away a short distance were “in- sufficient to constitute abandonment.”387 Because “privacy is a constitutionally protected right, it is the People’s burden to over- come the presumption against its waiver.”388 The court affirmed the trial court’s decision that granted the defendant’s motion to suppress the physical evidence. However, in Patton v. State,389 the Supreme Court of Delaware decided that the defendant had abandoned his property, a back- pack. The defendant had been found guilty of a firearms viola- tion. The issue on appeal was whether the Family Court prop- erly denied his motion to suppress evidence, which the police found in his backpack and for which the police did not secure a search warrant. The State argued that a warrant was not re- quired, because the backpack was left in plain view or had been abandoned. The court held that the test is whether, based on the totality of the circumstances, “Patton objectively abandoned the backpack.”390 Unlike the courts in Lavan and Pottinger, supra, which held that the Fourth Amendment protects a person from unreason- able interference in his or her personal property, regardless of a person’s right to privacy, the court in Patton decided that, on the ground of privacy, Patton had abandoned his backpack. “When someone leaves personal property in plain sight, in a busy place, and departs the area, that person has no reasonable expectation of privacy in the abandoned personal property.”391 The court affirmed the Family Court’s denial of the defendant’s motion to suppress evidence. C. Due Process Requirements of the Fourth Amendment that Apply to the Seizure and/or Disposal of Personal Property The question addressed in this subjection is whether a public transportation authority, amenable to suit under § 1983, must provide some measure of constitutional due process before tak- ing and/or disposing of personal property, such as the personal property of homeless persons. As discussed in Section III. A. of the digest, “[a] local government may be liable under 42 U.S.C. § 1983 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 386 Id., 172 A.D.2d at 458, 568 N.Y.S.2d at 805 (citation omitted) (emphasis supplied). 387 Id., 172 A.D.2d at 458-459, 568 N.Y.S.2d at 805 (citation omitted). 388 Id. (citation omitted). 389 2019 Del. LEXIS 220, at *1, 2, 210 A.3d 687 (Del. 2019). 390 Id. (footnote omitted). 391 Id. (footnote omitted).