Policing and Public Transportation (2022)

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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).