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.

TCRP LRD 58 37 A preliminary issue was whether the plaintiffs’ putative class action satisfied the “commonality requirement” for certifica- tion of the case as a class action, meaning that the questions of law and fact in the case had be common to all members of the class.524 With respect to class certification, the court held that the plaintiffs had made a sufficient showing “that the CPD de- ployed a centralized stop and frisk program during the times relevant to this case” and “that the City knew, or should have known, that its stop and frisk program was associated with a risk of widespread Fourth Amendment violations.”525 The plaintiffs’ proof was credible also that the CPD implemented a department-wide stop and frisk strate- gy, failed to train its employees adequately in spite of well-document- ed and widespread constitutional violations, covered up evidence of police misconduct through the [Investigatory Stop Report] review process, and took all those actions through a hierarchical chain-of- command structure extending to the CPD’s highest levels.526 The court held that the plaintiffs’ Monell claim against the municipal defendants for failure to train could “‘rise to the level of an official government policy for purposes of § 1983.’”527 More specifically, however, a local government’s failure to train must amount to deliberate indif- ference to the rights of the citizens who the officers encounter. . . . Proof of deliberate indifference in the context of a failure to train case “can take the form of either (1) failure to provide adequate training in light of foreseeable consequences; or (2) failure to act in response to re- peated complaints of constitutional violations by its officers.”528 The court noted the plaintiffs’ averment that “the CPD’s con- tinuing deliberate indifference to Fourth Amendment violations places Plaintiffs at risk of future injury.”529 Granting, in part, the plaintiffs’ motion for class certification, the court held that the plaintiffs had “provided sufficient evidence of a common ques- tion of whether supervision and training deficiencies caused the alleged Fourth Amendment violations.”530 In a Massachusetts state court action, Commonwealth v. Long,531 not involving § 1983, the Supreme Judicial Court of Massachusetts recognized that there are “‘legitimate concerns regarding racial profiling and the impact of such practices on communities of color….’” Furthermore, in Massachusetts, it has long been held that “[t]he equal protection principles of the Fourteenth Amendment … and arts. 1 and 10 … [of the Massachusetts Declaration of Rights] prohibit discriminatory application of impartial laws.”532 524 Id. at *36-37 (citations omitted). 525 Id. at *30. 526 Id. at *39-40. 527 Id. at *42 (citation omitted). 528 Id. at *42-43 (citations omitted) (emphasis supplied). 529 Id. at *44 (citation omitted). 530 Id. at *44-45. 531 485 Mass. 711, 716, 152 N.E.3d 725 (Mass. Sup. Jud. Ct. 2020) (quoting Commonwealth v. Buckely, 478 Mass. 861, 871, 90 N.E.3d 767 (2018)). 532 Id., 485 Mass. at 717, 152 N.E.3d 725 (internal quotation marks omitted) (emphasis supplied). The Court held that the Superior Court abused its discretion by denying Long’s motion to suppress evidence. The defendant’s evidence was sufficient for a reasonable inference that the traffic stop that resulted in Long’s arrest was racially motivated. More- over, in its opinion, the court made a prospective announce- ment that it would revise its test for deciding when a stop was a racially motivated “discriminatory stop.”533 Finally, it may be noted that the Tri-County Metropolitan Transportation District of Oregon (TriMet) specifically prohibits all profiling, a term TriMet defines broadly to include any improper use of any protected classification, such as race, color, reli- gion, sex, age, national origin, ancestry, physical or mental disability, sexual orientation, marital or veteran status, family relationship, or other legally protected characteristic or status, as a basis for making a customer inquiry or taking an enforcement or compliance action.534 TriMet states that it does not use the above classifications as a factor in its decision to contact customers, to educate and in- form them, or to ensure their compliance with the TriMet Code. XIII. LIABILITY UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 FOR DISPARATE TREATMENT OR DISPARATE IMPACT A. Introduction The Federal Transit Administration (FTA) has provided guidance on Title VI of the Civil Rights Act of 1964 and the U.S. Department of Transportation’s Title VI regulations that apply to recipients of federal funds. As this section of the Digest discusses, public transportation authorities’ enforcement of policies or codes of conduct may constitute unlawful inten- tional discrimination or disparate impact discrimination under Title VI. B. Liability of Public Transportation Authorities for Disparate Treatment Section 601 of the 1964 Act provides that “[n]o person in the United States shall, on the ground of race, color, or national ori- gin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”535 The Supreme Court has held that § 601 proscribes only “intentional” discrimination.536 In Allstate Transp. Co. v. SEPTA,537 the plaintiff ’s 16-count complaint included a § 1983 claim alleging purposeful discrimi- nation by SEPTA in violation of both Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and 49 U.S.C. § 306(b), specifi- 533 Id., 485 Mass. at 712-713, 152 N.E.3d 725. 534 TriMet Field Operations – Supervisor – Working Conditions, Prohibited Practices: Profiling, SOP 311 (rev. 1/15/2015), Appendix A, Item 24. 535 42 U.S.C. § 2000d (2021). 536 Alexander v. Choate, 469 U.S. 287, 293, 105 S. Ct. 712, 716, L. Ed.2d 661, 667 (1985), but see Prakel v. Indiana, 100 F. Supp.3d 661 (S.D. Ind. 2015). 537 2000 U.S. Dist. LEXIS 3831, at *1 (E.D. Pa. 2000).

36 TCRP LRD 58 must identify the particular element or practice within the pro- cess that causes an adverse impact.’”504 Although not involving policing, the case of Darensburg v. Metro. Transp. Comm’n505 is an example of alleged disparate impact. The plaintiffs maintained that the Metropolitan Trans- portation Commission’s (MTC) disproportionate emphasis on rail expansion projects over bus expansion projects in its Re- gional Transit Expansion Plan (RTEP) had a disparate impact on minorities. The Darensburg plaintiffs brought their action for dispa- rate impact under Cal. Gov’t Code § 11135. As explained by the district court, unlike Title VI, 42 U.S.C. § 2000d, et seq., which prohibits discrimination in federally funded programs, California’s statute provides a private right of action in disparate impact cases.506 As under Title VI of the United States Code, for a prima facie case of disparate impact discrimination under Cal. Gov’t Code Section 11135, a plaintiff must show that certain outwardly neutral practices have “a significantly adverse or dis- proportionate impact on minorities [caused] by the defendant’s facially neutral acts or practices.”507 The Ninth Circuit affirmed the district court’s decision, al- beit on a different basis.508 As the appeals court summarized the case, the district court granted a summary judgment to the MTC on the plaintiffs’ intentional discrimination claims “but al- lowed the disparate impact claims to continue to trial.”509 After a trial, the district court held that the “[p]laintiffs had established a prima facie case of disparate impact discrimination only as to MTC’s conduct in disproportionately selecting and allocat- ing funding to rail projects, as opposed to bus projects, in the RTEP.”510 The district court’s finding on disparate impact shifted the burden of proof back to the MTC, but the MTC was able to demonstrate that it had a “substantial legitimate justification” for its conduct.511 The burden of proof then shifted back to the plaintiffs, but the plaintiffs failed “to prove the existence of a less discriminatory, equally effective alternative….”512 The Ninth Circuit held that the plaintiffs failed to prove their disparate impact claim. First, the plaintiffs’ statistical analysis did not establish that “an expansion plan that emphasizes rail projects over bus projects will harm minorities.”513 Second, without “a more precise statistical measure, . . . no court could 504 Darensburg, 611 F. Supp.2d at 1040 (citation omitted). 505 636 F.3d 511, 514 (9th Cir. 2011). “The MTC is the transporta- tion planning, coordinating[,] and financing agency for the nine-county San Francisco Bay Area. MTC is the designated recipient of numerous federal and state funding sources[] and is responsible for allocating those funding sources that are within its control to various transit oper- ators and projects.” Id. at 515. 506 Cal. Gov’t Code § 11139. 507 Darensburg, 611 F. Supp.2d at 1042 (citations omitted). 508 Darensburg v. Metro. Transp. Comm’n, 636 F.3d 511 (9th Cir. 2011). 509 Id. at 514. 510 Id. 511 Id. 512 Id. 513 Id. at 515-516. possibly determine whether MTC’s long-term expansion plan will help or harm the region’s minority transit riders.”514 The appeals court found that the “MTC’s RTEP does not af- fect solely bus riders or solely AC Transit riders—it affects an entire integrated transit system’s users. Thus, we must analyze the impact of the plan on minorities in the population base ‘affected . . . by the facially neutral policy.’”515 There was no evi- dence “that San Francisco Bay Area minorities are adversely af- fected by the RTEP,” because the plaintiffs’ statistics “say nothing about the particular ridership of the planned expansions.”516 Thus, the court held that the plaintiffs failed to provide statistical evidence demonstrating that the projects included in the 2006 amendment to the RTEP would have “an adverse impact on minorities.”517 The court surmised that “[i]t is entirely plausible that an RTEP with a heavy emphasis on rail could significantly benefit Bay Area minorities.”518 Because the plaintiffs failed to prove that the MTC’s plan would have a discriminatory impact, the Ninth Circuit also held that its decision precluded “any inference of intentional discrim- ination” by the MTC.519 The plaintiffs’ evidence was insufficient for the court to conclude that the MTC’s decisions on the 2006 RTEP were motivated by their adverse effects on the plaintiffs.520 D. Liability for Racial Profiling The courts have held, whether caused by disparate treatment or disparate impact, that racial profiling as a method of policing is unconstitutional. As a federal district court in New York stated in Floyd v. City of New York,521 “[b]ecause there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted. ‘The impact of the official action—whether it bears more heavily on one race than another—may provide an important starting point.’” In Smith v. City of Chicago,522 the plaintiffs’ class action al- leged that the City of Chicago, the Chicago Police Department (CPD), a former CPD Superintendent, and other defendants “maintained a policy or custom of unconstitutional stops and frisks of Chicago residents by the CPD, [that were] conducted without reasonable articulable suspicion in violation of the Fourth Amendment and the principles set forth in Terry v. Ohio….”523 514 Id. at 515. The district court adjudicated the plaintiffs’ disparate impact claim under Cal. Gov’t Code § 11135. The court stated that “federal law provides important guidance in analyzing state disparate impact claims” and that “the state burden-shifting framework for ana- lyzing disparate impact cases parallels the federal one….” Id. at 519 (citations omitted). 515 Id. at 520-521 (citation omitted). 516 Id. at 520. 517 Id. at 522. 518 Id. 519 Id. at 523. 520 Id. (citation omitted) (some internal quotation marks omitted). 521 959 F. Supp.2d 540, 558 (S.D. N.Y. 2013) (footnote omitted). 522 2021 U.S. Dist. LEXIS 164683, at *1 (N.D. Ill. 2021). 523 Id. at *4 (citation omitted).