Policing and Public Transportation (2022)

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32 TCRP LRD 58 violation.”429 The court stated that it would not “extend the law in this manner.”430 PART III – Liability in § 1983 Actions for Denial of Due Process or Denial of the Equal Protection of the Law XI. LIABILITY FOR DENIAL OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT IN § 1983 ACTIONS A. Due Process Claims under § 1983 for Violating an Accused’s Right to a Fair Trial A plaintiff has an action under § 1983 if he or she has been denied the right to a fair trial under the Sixth Amendment, for example, because of fabricated evidence,431 as well as for the de- nial of due process required by the Fifth, Sixth, and Fourteenth Amendments to the Constitution.432 For a § 1983 claim, a plain- tiff must prove that an investigating official fabricated evidence that would likely influence a jury’s decision; that the officer provided the information to prosecutors; and that, as a result, the plaintiff suffered a “deprivation of liberty.”433 An actual trial is not necessary as long as “‘the falsification caused material harm.’”434 The fact that a police officer had probable cause for an arrest is not a defense to a claim by a plaintiff for having been denied his or her right to a fair trial.435 In Randolph v. Metro. Transp. Auth.,436 the plaintiff ’s § 1983 action, as well as comparable claims under New York law, arose as a result of Randolph’s encounter with MTA police officers at Grand Central Station in New York City. Randolph, who used an electric wheelchair, was arrested for being in the Station Master’s Office (SMO) to recharge his wheelchair. Although an MTA 429 Id. 430 Id. 431 U.S. Const., 6th Amend. (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been commit- ted, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtain- ing witnesses in his favor, and to have the assistance of counsel for his defense.”) (emphasis supplied). 432 Nash v. Valvo, 2019 U.S. Dist. LEXIS 133867, at *1, 13 (W.D. N.Y. 2019) (Report and Recommendation of Magistrate Judge) (citation omitted). 433 Id. (citation omitted). 434 Id. (citation omitted). 435 Id. See also, Moroughan, 514 F. Supp.3d at 535 (stating that due process claims may arise that may be “redressed” under § 1983 “[w]hen a police officer ‘creates false information likely to influence a jury’s deci- sion and forwards that information to prosecutors,’” because “such ‘unconscionable action’” violates an accused person’s constitutional right to a fair trial) (citation omitted). 436 2018 U.S. Dist. LEXIS 98603, at *1 (S.D. N.Y. 2018), motion for new trial denied, 2019 U.S. Dist. LEXIS 62148, at *1 (S.D.N.Y., Apr. 11, 2019), appeal dismissed, 2019 U.S. App. LEXIS 35952, at *1 (2nd Cir., July 1, 2019). employee had authorized Randolph to charge his wheelchair in the SMO, the office was a separate waiting room open only to ticketed passengers. The MTA Police Department patrolled the SMO to verify passengers’ tickets. Randolph sued for false arrest, use of excessive force, denial of his right to a fair trial, failure to intervene, and supervisory liability.437 Randolph alleged that he was denied his right to a fair trial, because Officer Foy had included assertions in the summons that Randolph “had engaged in disorderly conduct and made unreasonable noise.”438 The court agreed that “‘[w]hen a police officer creates false information likely to influence a jury’s decision and forwards that information to prosecutors, [the officer] violates the ac- cused’s constitutional right to a fair trial … redressable in an action for damages under 42 U.S.C. § 1983.’”439 However, the court granted Officer Foy’s motion for a summary judgment. The court’s reasoning was that the officer’s inclusion in the sum- mons of the phrases “‘disorderly conduct’ and ‘unreasonable noise’ … [were] characterizations of behavior, reflecting an offi- cer’s qualitative assessment. They do not constitute descriptions of facts that could constitute fabricated evidence.”440 In addition, the court held that Randolph’s one court appearance did “not es- tablish that he suffered a deprivation of life, liberty, or property as a result of Foy’s conduct,” inasmuch as Randolph “was not detained in a jail or precinct.”441 B. Section 1983 Claims for Denial of Procedural Due Process A denial of procedural due process was at issue in Brown v. Metro. Tulsa Transit Auth.442 Brown was not provided with procedural due process before the Metropolitan Tulsa Transit Authority (MTTA) permanently banned him from riding MTTA buses because of Brown’s “repeated disruptive behavior.”443 (Brown, however, continued to ride a MTTA bus when a driver either did not recognize Brown or did not enforce Brown’s suspension.444) Although the MTTA’s rules stated that a failure to abide by its rules would permit the MTTA to remove 437 Randolph, 2018 U.S. Dist. LEXIS 98603, at *9. Because the facts relating to Randolph’s and the arresting officers’ conduct at the time of the arrest were sufficiently disputed, the district court denied the offi- cers’ motion for a summary judgment both on Randolph’s claim for false arrest and on the officers’ defense of qualified immunity. Id. at *15. The court found, too, that a material issue of fact existed on whether one defendant (Deras) assaulted Randolph by removing him from his wheelchair and pushing him to the ground. Id. at *19. In addition, Ran- dolph sued for false arrest, assault and battery, and negligence under New York law, as well as brought claims under the ADA and the Rehabilitation Act. Id. at *9-10. 438 Id. at *19 (internal quotation marks omitted). 439 Id. (citation omitted). 440 Id. at *20. 441 Id. at *21. 442 2014 U.S. Dist. LEXIS 57164, at *1 (N.D. Ok. 2014), aff’d 588 Fed. Appx. 849, at *1 (10th Cir. 2014). 443 Brown, 2014 U.S. Dist. LEXIS 57164, at *1, 4. 444 Id. at *5-6.

TCRP LRD 58 31 lation where the need for training was patently obvious.”417 The court held that the plaintiff had provided “sufficient evidence” on which a reasonable jury could find that Jackson Township, not only was “deliberately indifferent in investigating claims of excessive force against its police department,” but also “had a custom of failing to properly investigate internal affairs com- plaints preceding this incident.”418 On the other hand, with respect to Meza’s claim that the Township failed to train its officers, the court stated that “[a] plaintiff ’s claim ‘is at its most tenuous’ when it ‘turns on a fail- ure to train.’”419 Nevertheless, the court held that the plaintiff had provided sufficient evidence of the Township’s failure “‘to provide specific training that has a causal nexus with [the plain- tiff ’s] injury….’”420 In Villegas, supra, the plaintiff brought a Monell claim against the City of El Paso for failure to intervene.421 Allegedly, the El Paso Police Department’s policy or practices included coercing and falsifying witness statements and suppressing evidence, as well as failing to train or supervise its officers adequately on the proper conduct of investigations.422 The court denied the city’s motion for a summary judgment, because “[t]he sheer number of abuses alleged and the degree of coordinated involvement of multiple members of the El Paso police department show a plausible accepted standard of practice within the department rising to the level of unwritten custom.”423 Moreover, because of the “extensive coordination” of members of the police depart- ment, it was reasonable to infer “that a policymaker had at least constructive knowledge of the misconduct alleged.”424 The court held that the plaintiff had stated “a claim for municipal liability under an implied policy theory.”425 However, the court did not agree that the plaintiff had stated a claim for municipal liability for failure to intervene: “[C]ities are held accountable via Monell for officers’ constitutional viola- tions only where city policy is the moving force behind officer misconduct.”426 Although the City of El Paso allegedly had “an informal policy encouraging officers to turn a blind eye to con- stitutional violations and become bystanders,”427 the plaintiff ’s theory was based on “an informal policy of acquiescence….”428 Such an informal policy would result in the city being held “liable for inaction even if the factfinder determines [that] the City is not responsible for the underlying constitutional 417 Id. at *36-37 (citation omitted). 418 Id. at *40 (citation omitted). 419 Id. at *42 (citation omitted). 420 Id. (citation omitted). 421 Villegas, 2020 U.S. Dist. LEXIS 34907, at *22-23. 422 Id. at *39 (footnotes omitted). 423 Id. at *43 (footnote omitted) (emphasis supplied). 424 Id. at *42 (footnote omitted) (emphasis supplied). 425 Id. at *44 (emphasis supplied). 426 Id. at *47 (footnote omitted). 427 Id. at *48 (footnote omitted). 428 Id. plicated the plaintiff and a false confession by the plaintiff, who recanted the next day. After the plaintiff ’s conviction at a second trial and the court’s imposition of a sentence of imprison ment for life, a later state court habeas corpus proceeding determined that the incriminating statements against Villegas that the indi- vidual officers took were obtained by “‘illegal and coercive methods.’”409 The court held that the Fourteenth Amendment’s guarantee of the right to a fair trial prohibits the use of excessive force, the knowing fabrication of evidence, and the obtaining of a “conviction with testimony that government agents know is false.”410 However, Villegas also alleged that the defendant officers were liable for failing to intervene to prevent their fellow offi- cers’ violations of Villegas’s constitutional rights.411 The court held that an officer is liable under § 1983 under a theory of “by- stander liability” when the officer knows that a fellow officer is violating an individual’s constitutional rights; the officer has a reasonable opportunity to prevent the harm; and the officer chooses not to act.412 The court found that all of the officers were present at vari- ous points during the interrogation, that they participated in the use of coercive interrogation tactics, and that they knew that the plaintiff ’s “confession was false but used it anyway.”413 Consequently, the plaintiff ’s complaint was sufficient to state a claim for the officers’ failure to intervene.414 Moreover, the court found that another officer, although not physically present to witness his other officers’ constitutional violations, was aware of the officers’ misconduct and participated in his fellow officers’ suppression of evidence.415 B. Liability of a Transportation Authority for Failure to Train a Police Officer In Meza, supra, the case involving a violent encounter, recorded by a home surveillance camera, between homeowners and police officers who were responding to a noise complaint, the plaintiff brought a § 1983 claim against Jackson Township for failure to train and supervise the police. The court held that, if a municipal “policy or custom does not facially violate federal law, causation may only be established by ‘demonstrat[ing] that the municipal action was taken with delib- erate indifference as to its known or obvious consequences.’”416 A plaintiff may establish deliberate indifference “either by showing a pattern of violations which puts the municipal employee on notice that a new program is necessary or a single incident vio- 409 Villegas, 2020 U.S. Dist. LEXIS 34907, at *9 (footnote omitted). 410 Id. at *15 (footnotes omitted). 411 Id. at *22. 412 Id. at *14 (footnote omitted). 413 Id. at *17 (footnote omitted). 414 Id. at *23. 415 Id. at *31, 36. 416 Id. at *36 (citation omitted) (some internal quotation marks omitted) (emphasis supplied).