Policing and Public Transportation (2022)

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34 TCRP LRD 58 not in of itself have content.”465 The rule supported a signifi- cant governmental interest by “promoting and protecting the safety and aesthetics of the City’s beach….”466 The rule was nar- rowly tailored, because “any affirmative encounter that would qualify as begging or solicitation is inherently disruptive to one’s privacy….”467 XII. LIABILITY OF PUBLIC TRANSPORTATION AUTHORITIES IN § 1983 ACTIONS FOR THE DENIAL OF THE EQUAL PROTECTION OF THE LAW BASED ON DISPARATE TREATMENT OR DISPARATE IMPACT A. Liability for Disparate Treatment The Equal Protection Clause of the Fourteenth Amendment “commands that no state shall ‘deny to any person within its juris diction the equal protection of the laws.’”468 At its core, the Equal Protection Clause prohibits the disparate treat- ment of similarly situated individuals. … “To establish a violation of the Equal Protection Clause based on selective enforcement, a plain- tiff must ordinarily show the following: (1) that the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of consti- tutional rights, or malicious or bad faith intent to injure a person.”469 A federal district court in New York has identified three principal types of discrimination that violate the Equal Protec- tion Clause. A plaintiff may (1) “point to a law or policy that expressly classifies persons on [an improper basis];” (2) “identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner;” or, (3) “al- lege that a facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus.”470 In Joyce v. City & County of San Francisco,471 the plaintiffs’ class action alleged, inter alia, that the city’s “Matrix Program” violated the Equal Protection Clause of the Fourteenth Amend- ment. Although the Matrix Program “encompass[ed]a wide range of services to the City’s homeless, the Program simulta- neously contemplate[d] a rigorous law enforcement compo- nent aimed at those violations of state and municipal law which arguably are committed predominantly by the homeless”472 However, a [p]redicate to an equal protection clause violation is a finding of gov- ernmental action undertaken with an intent to discriminate against a particular individual or class of individuals. Such intent may be evinced by statutory language, or in instances where an impact which 465 Id. 466 Id. 467 Id. at 1247. 468 Marshall, 2020 U.S. Dist. LEXIS 172567, at *23 (citations omit- ted) (footnote omitted). 469 Id. (citations omitted) (footnote omitted) (emphasis supplied). 470 Marom, 2016 U.S. Dist. LEXIS 28466, at *39-40 (citations omitted). 471 846 F. Supp. 843, 858 (N.D. Calif. 1994). 472 Id. at 845-846. cannot be explained on a neutral ground unmasks an invidious dis- crimination. Under the latter approach, a neutral law found to have a disproportionately adverse effect upon a minority classification will be deemed unconstitutional only if that impact can be traced to a discriminatory purpose.473 The court held that the plaintiffs had not demonstrated a likelihood of success on the merits of their equal protection claim, because “the City’s action has not been taken with an evinced intent to discriminate against an identifiable group,” such as the homeless.474 In addition, the Matrix Program likely would be judged on a rational basis test, rather than on one of “heightened scrutiny.”475 The court’s reasoning was that only in those cases in which “the challenged action is aimed at a suspect classification, such as race or gender, or premised upon the ex- ercise of a fundamental right, will the governmental action be subjected to a [test of] heightened scrutiny.”476 The court denied the plaintiffs’ motion for an injunction. In another case, Roulette v. City of Seattle,477 a federal dis- trict court in Washington state rejected a constitutional chal- lenge by homeless persons to a Seattle ordinance that prohibited persons from sitting or lying on public sidewalks, ostensibly to eliminate a public safety hazard.478 The court held that the side- walk ordinance did not violate the Fourteenth Amendment’s “guarantee of equal protection by not treating all similarly situ- ated persons alike.”479 Rather, “because plaintiffs have failed to demonstrate that the sidewalk ordinance infringes on any con- stitutionally protected rights, it follows that they have not es- tablished any equal protection violation resulting from such an infringement.”480 B. Selective Prosecution in Violation of the Equal Protection Clause Plaintiffs have brought § 1983 cases in which they alleged selective prosecution of them by the government. Selective prosecution, as another genre of intentional discrimination, violates the Equal Protection Clause, because the government has chosen a person, when compared to others similarly situ- ated, for selective or discriminatory treatment. For example, the plaintiffs alleged selective prosecution in violation of the Equal Protection Clause in Federov v. United States.481 The appellants (Federov and Donne) were arrested for refusing to leave the Farragut West Metro Station in 473 Id. at 858 (citations omitted) (emphasis supplied). 474 Id. 475 Id. at 859. 476 Id. (citation omitted). 477 850 F. Supp. 1442 (W.D. Wash. 1994), aff’d, 78 F.3d 1425 (9th Cir. 1996), reprinted as amended on denial of rehearing and suggestion for rehearing en banc, 97 F.3d 300 (9th Cir. 1996). 478 Roulette, 850 F. Supp. at 1445. The court also held that the ordi- nances did not violate either procedural or substantive due process under the Fourteenth Amendment. 479 Id. at 1449. 480 Id. 481 600 A.2d 370 (D.C. App. 1991) (rehearing en banc).

TCRP LRD 58 33 or expel an individual,445 the rules did not include a procedure whereby a rider could contest a suspension or ban.446 In a prior appeal, the Tenth Circuit held that the MTTA’s rules “constrained its discretion to deny services,” because the rules created a “legitimate claim of entitlement to access MTTA transportation as long as a patron complies with the rules.”447 The appeals court remanded the case to the district court to consider the issue of whether Brown received sufficient process. In the proceedings on the remand to the district court, the “MTTA argue[d] that plaintiff had notice of MTTA’s complaint procedures and [that] he could have contested his ban[] but that he failed to take advantage of the procedures available to him.”448 However, the appeals court had held already that, under the Due Process Clause, Brown “had a property interest in riding the bus….”449 Thus, Brown had to be afforded “‘an opportunity for a hearing before he is deprived of any significant property interest.’”450 Brown had not received a pre-deprivation hearing before he was banned.451 As there was “no formal post-depri- vation procedure,” Brown could not “have waived his right to post-deprivation process to challenge the ban.”452 The district court entered a permanent injunction that re- quired the MTTA to provide Brown a hearing to determine whether the ban should remain in place. At the hearing, Brown had to be permitted “to make arguments and present evidence in support of his request to rescind the ban.”453 C. Section 1983 Actions Challenging Laws for Being Unconstitutionally Vague or Overbroad An aggrieved plaintiff may challenge the constitutionality of a statute or ordinance on the basis that the statute or ordinance is void for vagueness or is overbroad. In Benson v. City of Chicago,454 the plaintiff alleged that while she was sleeping in a chair near a baggage area at O’Hare Air- port, two police officers issued her a citation for trespassing in violation of Section 8-4-050 of the City of Chicago Municipal Code. The citation directed Benson to appear for an administra- tive hearing on a certain date, but it was unclear whether the arrest ing officers appeared for the hearing. The court terminated the proceeding in Benson’s favor. Benson sued only the city for declaratory relief that the trespass ordinance was unconstitu- tionally vague.455 445 Id. at *5 (citation omitted). 446 Id. at *6 (citation omitted). 447 Id. at *6-7 (citation omitted). 448 Id. at *8-9 (citation omitted). 449 Id. at *10 (citation omitted). 450 Id. at *11 (citation omitted). 451 Id. at *12. 452 Id. at *18. 453 Id. at *21 (footnote omitted). Although Brown made no showing of damages that he sustained because of the ban, Brown was entitled to nominal damages. Id. at *19. 454 2006 U.S. Dist. LEXIS 77390, at *1 (N.D. Ill. 2006). 455 Id. at *2, 3. A state statute (or city ordinance) is “unconstitutionally vague within the meaning of the Due Process clause of the Fourteenth Amend- ment” when it fails to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”456 In spite of any questions regarding the ordinance and Benson’s citation, the court held that there is “nothing vague about an ordinance that prohibits remaining on property after receiving notice from the owner to depart.”457 In Chad v. City of Fort Lauderdale,458 supra, the plaintiffs challenged the City’s rules and regulations that were intended to prevent “nuisance activity” on the beach, including Rule 7.5(c) prohibiting soliciting, begging, and panhandling. After the court denied the plaintiffs’ motion for a preliminary injunction, the plaintiffs’ moved for a summary judgment. The plaintiffs argued that the rules violated the Fourteenth Amendment for being vague or overbroad, or both, as well as violated the First Amendment for being an unconstitutional limitation on free speech.459 The court held that the city’s Rule 7.5(c) was not void for vagueness: The void-for-vagueness doctrine is linked to the Due Process clause of the Fourteenth Amendment. Generally, the doctrine is rooted in notions of providing “fair notice and warning” to citizens of what any particular legislation prohibits or allows. The doctrine requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact to prevent “arbitrary and discriminatory enforcement.”460 The court held that “[t]he absence of more limiting language than the terms themselves, ‘begging, panhandling, solicitation,’ is the very thing that saves the rule from vagueness. Had the City attempted to tailor the rule to only ‘aggressive’ types of solicita tion, the rule might very well have failed….”461 As for the plaintiffs’ argument that Rule 7.5(c) was over- broad, “[t]he threshold issue … [was] whether begging, pan- handling and solicitation are types of expression entitled to First Amendment protection.”462 Although Rule 7.5(c) applied to conduct protected by the First Amendment, the court held that the rule, nevertheless, “still qualifie[d] as a reasonable time, place and manner restriction on protected speech.”463 The rule was content-neutral, because it “‘applie[d] even-handedly to persons aspiring to solicit, beg or panhandle along the beach and adjacent sidewalk regardless of their agenda.’”464 What the rule prohibited was begging and soliciting “regardless of what the purpose or message behind the begging or solicitation may be. This form is simply a way of communicating[] and does 456 Id. at *3 (citation omitted). 457 Id. at *6. 458 66 F. Supp.2d 1242, 1243 (S.D. Fla. 1998). 459 Id. at 1244. 460 Id. (citation omitted). 461 Id. at 1245. 462 Id. at 1245-1246. 463 Id. at 1246 (footnote omitted). 464 Id. (citation omitted).