Policing and Public Transportation (2022)

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.

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.