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).