Policing and Public Transportation (2022)

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TCRP LRD 58 35 W ashington, D.C. after hours. They and other political demon- strators had protested the erection of a fence and a locked gate to keep homeless persons out at night. The government charged the appellants with unlawful entry, because they failed to vacate the station “on demand of lawful authority.”482 After their ar- rests, the appellants were denied admission to the United States Attorney’s pre-trial diversion program, for which, as first-time offenders, the appellants were eligible. First, the appellants argued that the government had selec- tively prosecuted them, because “‘similarly situated’—i.e., other eligible first-time offenders charged with unlawful entry— had been diverted from the criminal justice system, while they and all other charged political demonstrators had been prosecuted….”483 Second, the appellants asserted that the “government’s re- fusal to divert political demonstrators was based on invidi- ous discrimination against the exercise of First Amendment rights, resulting in a denial of equal protection under the Fifth Amendment.”484 The court agreed that the appellants’ selective prosecu- tion claims had to “be judged according to equal protection standards.”485 The appellants, therefore, had to “make a prima facie showing that: ‘(1) others similarly situated were not pros- ecuted, and (2) the selective prosecution being complained of was improperly motivated, i.e., it was based on an impermissible consideration such as race or a desire to prevent the exercise of constitutional rights.’”486 The two trial judges who had participated in the district court proceedings had decided “that the appropriate compari- son group for selective prosecution analysis was all persons who had participated the same night in the demonstration on behalf of the homeless at the same place (Farragut Station).”487 The ap- peals court, however, disagreed, holding that “the trial judges’ definition of ‘similarly situated’ to include only those persons arrested at the same time and place as appellants is much too narrow and would inevitably defeat any meaningful compari- son for selective prosecution purposes.”488 As for the second element needed to establish selective pros- ecution, the appeals court held that “[a]n ‘overtly discrimina- tory classification’ … is presumptively invalid.”489 In contrast, a showing of discriminatory purpose is required only “when a fa- cially neutral policy is alleged to have discriminatory impact.”490 Given the evidence that the appellants presented to the trial judges, the appeals court agreed that the United States Attorney had a policy of not diverting defendants in protest cases.491 The 482 Id. at 372. 483 Id. at 373. 484 Id. 485 Id. at 377 (citation omitted). 486 Id. (citations omitted). 487 Id. at 380. 488 Id. 489 Id. at 381. 490 Id. 491 Id. at 381, 382. appellants made “a prima facie showing of a government policy that, by its own terms, more severely punishes those who exer- cise protected constitutional rights than those who do not,”492 thereby “‘shift[ing] the burden of proof to the State to dispel the inference of intentional discrimination.’”493 The court reversed and remanded the case for the trial court to “hold an initial hearing to determine whether the govern- ment can give a ‘clear and reasonably specific’ explanation based on ‘legitimate reasons’ for denying diversion that would resolve the case without need for discovery and a full-blown evidentiary hearing.”494 However, if the appellants rebutted the government’s case, they were entitled to discovery and “a more comprehensive evidentiary hearing.”495 The appellants also argued that the government violated their First Amendment rights, because “the government with- held a valuable benefit—pretrial diversion—because of their political speech.”496 However, the appeals court could not re- solve the First Amendment issue as the trial judges had made insufficient findings.497 In Marom v. City of New York,498 supra, the Occupy Wall Street, or OWS, protestors, averred that the defendants, includ- ing the NYPD, “implemented two different policies regarding persons detained and arrested for non-criminal violations.”499 However, the court found that, “even assuming that defendants utilized a non-standard policing policy on March 17, 2012, plaintiffs fail to plausibly allege that it was applied selectively against OWS or with an intent to discriminate against OWS protestors.”500 In Marshall v. Port Auth. of N.Y. & N.J.,501 supra, Marshall also sued the defendants for deprivation of rights and denial of equal protection. The claims failed, because Marshall did not present “evidence of disparate treatment on the basis of race….”502 C. Liability for Disparate Impact Typically, in a disparate impact case, a plaintiff must identify a discrete practice.503 Thus, in a disparate impact case, rather than attack “‘an overall decisionmaking process …, [a plaintiff] 492 Id. at 382 (footnote omitted). 493 Id. (citation omitted). 494 Id. at 383 (citations omitted). 495 Id. at 384. 496 Id. at 373. 497 Id. at 385. 498 2016 U.S. Dist. LEXIS 28466, at *1 (S.D. N.Y. 2016), settled by, dismissed by, without prejudice, motion dismissed by, as moot, Rocek v. City of New York, 2020 U.S. Dist. LEXIS 43364, at *1 (S.D. N.Y., Mar. 11, 2020). 499 Marom, 2016 U.S. Dist. LEXIS 28466, at *40-41. 500 Id. at *43. 501 2020 U.S. Dist. LEXIS 172567, at *1 (S.D. N.Y. 2020). 502 Id. at *23 (citation omitted). 503 Darensburg v. Metro Transp. Comm’n, 611 F. Supp.2d 994, 1040 (N.D. Cal. 2009), aff’d, 2011 U.S. App. LEXIS 3007 (9th Cir., Cal., Feb. 16, 2011).