Policing and Public Transportation (2022)

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38 TCRP LRD 58 cally for unlawful retaliation in violation of Title VI.538 Allstate alleged that SEPTA failed to take action on Allstate’s applica- tion for recertification as a Disadvantaged Business Enterprise (DBE) and that SEPTA intentionally altered the design of its 1997 Request for a Proposal (RFP) to preclude Allstate from bidding. A federal district court in Pennsylvania held, first, that Allstate could not maintain a retaliation claim under § 1983, be- cause the 1997 RFP was unrelated to Allstate’s prior 1993 con- tract with SEPTA.539 However, Title VI, 42 U.S.C § 2000d, which “prohibits inten- tional racial discrimination against participants in, applicants for, or intended beneficiaries of a federally funded program,”540 was a basis for a retaliation claim.541 Title VI rights were specifically created by Congress to prevent dis- crimination on the basis of race by anyone who receives federal funds. Title VI language prohibiting “exclusion from participation in … federally assisted programs” naturally includes applicants for partici- pation in federally funded programs.542 The court held that Allstate’s evidence was sufficient to cre- ate a genuine issue of material fact on its recertification claim. “ Allstate … pointed to weaknesses, implausibilities, inconsis- tencies, contradictions and incoherencies in SEPTA’s explana- tion of its administration of Allstate’s application for DBE re- certification [that are] sufficient to create a genuine issue of material fact and allow a factfinder to rationally infer pretext.”543 Thus, based on Allstate’s allegation that SEPTA failed to act on Allstate’s application for its DBE recertification, the court denied SEPTA’s motion for a summary judgment on Allstate’s claim for retaliation. C. Liability of Public Transportation Authorities for Disparate Impact Section 602 of Title VI applies to facially neutral laws, regu- lations, or policies that have an unlawful disparate impact on persons protected by Title VI. Section 602 provides, in part, that [e]ach Federal department and agency which is empowered to extend Federal financial assistance to any program or activity ... is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the finan- cial assistance in connection with which the action is taken.544 The Supreme Court has held that no private right of action exists under § 602 to enforce disparate impact regulations and policies.545 538 Id. at *65-66. 539 Id. at *67-68. 540 Id. at *68 (citations omitted). 541 Id. at *68, 70. 542 Id. at *70 (citations omitted). 543 Id. at *77 (citations omitted). 544 42 U.S.C. § 2000d-1 (2021). 545 Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed.2d 517 (2001). A Circular issued by the FTA, FTA C 4702.1B,546 furnishes guidance on Title VI and the U.S. DOT’s Title VI regulations.547 The regulations prohibit “recipients of Federal financial assis- tance … from, among other things, using criteria or methods of administering its program which have the effect of subject- ing individuals to discrimination based on their race, color, or national origin.”548 Thus, [i]n accordance with 49 CFR part 21 and Title VI case law, if an other- wise facially neutral program, policy, or activity will have a discrimi- natory impact on minority populations, that program, policy, or ac- tivity may only be carried out if (1) the recipient can demonstrate a substantial legitimate justification for the program, policy, or activity; (2) there are no comparably effective alternative practices that would result in less-disparate impacts; and (3) the justification for the pro- gram, policy or activity is not a pretext for discrimination.549 The FTA Circular provides guidance on how transit providers should handle their prior decisions that may have had a disparate impact. If a transit provider determines, based on its monitoring activities, that prior decisions have resulted in a disparate impact on the basis of race, color, or national origin, the transit provider shall take correc- tive action to remedy the disparities to the greatest extent possible, and shall discuss in the Title VI Program these disparate impacts and actions taken to remedy the disparities.550 The FTA Circular advises that “[p]ersons alleging intentional discrimination (i.e., disparate treatment) may bring a court ac- tion seeking to enforce Title VI but cannot do so with regard to allegations of discrimination based on agency disparate impact regulations. Disparate impact claims may be filed with the Fed- eral agency.”551 PART IV – Liability of Public Transportation Authorities in § 1983 Actions on Behalf of Homeless Persons XIV. LIABILITY UNDER THE EIGHTH AMENDMENT IN § 1983 ACTIONS CHALLENGING LAWS DIRECTED AT THE HOMELESS Of concern to public transportation authorities is how to address homeless persons’ use of stations and other facilities.552 546 FTA Circular C 702.1B, “Title VI Requirements and Guidelines for Federal Transit Administration Recipients” (Oct. 1, 2012), [herein- after FTA Circular], https://www.transit.dot.gov/sites/fta.dot.gov/files/ docs/FTA_Title_VI_FINAL.pdf (last accessed Jan. 31, 2020). 547 See 49 C.R.R. § 21.1 (nondiscrimination in federally assisted programs of the Department of Transportation and effectuation of Title VI of the Civil Rights Act of 1964) and 23 C.F.R. part 200 (implement- ing Title VI compliance program). 548 FTA Circular, supra note 546, at Chap. I-6, ¶ 6 (internal quota- tion marks omitted). 549 Id. at Chap. I-8-9 (Title VI, column 2). 550 Id. at Chap. IV-10, ¶ 6. 551 Id. at Chap. I-9 (Title VI, column 2) (emphasis supplied). 552 One source states that an “an overwhelming 91% of transit agen- cies reported homelessness as an issue, with 31% weighing it as a major

TCRP LRD 58 39 Some localities have enacted laws that prohibit homeless per- sons from creating camps or shelters on public property. The courts’ rulings, however, diverge on whether such laws crimi- nalize homeless persons, simply because of their homeless sta- tus, in violation of the Equal Protection Clause of the Fourteenth Amendment or the Cruel and Unusual Punishments Clause of the Eight Amendment.553 In Tobe v. City of Santa Ana,554 the Supreme Court of California held that a Santa Ana sidewalk ordinance did not impose a punishment based on a person’s “‘involuntary status of being homeless.’” In Benson v. City of Chicago,555 supra, the plaintiff argued that the ordinance at issue violated the Eighth Amendment’s provision against cruel and unusual punish- ments. The court rejected the claim on the basis that the ordi- nance only “requires that a person leave the property of another when notified to do so.”556 In contrast, in Jones v. City of Los Angeles,557 decided by the Ninth Circuit, homeless plaintiffs challenged a section of the Los Angeles Municipal Code, alleging that the section un- constitutionally criminalized the plaintiffs for “sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles’s city limits.” Based on the record, the Ninth Circuit found that there was “substantial and un- disputed evidence that the number of homeless persons in Los Angeles far exceeds the number of available shelter beds at all times….”558 The court held that the city had “encroached upon Appellants’ Eighth Amendment protections by criminalizing the unavoidable act of sitting, lying, or sleeping at night while being involuntarily homeless.”559 Moreover, the enforcement of the ordinance against homeless persons who “cannot obtain issue.” CMG Financial, “Transit Agencies Improve Impact on Homeless Population” (Nov. 21, 2018), https://www.cmgfi.com/blog/transit-agen- cies-improve-impact-on-homeless-population (last accessed Jan. 31, 2022). Transit police have limited options, such as arresting homeless individuals for trespassing or transporting those with mental illness or an addiction, at least temporarily, to emergency rooms or hospitals. Id. For example, In October 2017, the Bay Area Rapid Transit (BART) issued a Service Advisory that stated that “[t]he national homeless crisis can be visible in BART stations and on trains as homeless people use BART for shelter” but that BART does “not have the internal resources that homeless people need.” BART Service Advisory (Oct. 16, 2017), https://www.bart.gov/news/articles/2017/news20171016-1 (last accessed Jan. 31, 2022). In response, BART has developed a “coordi- nated and comprehensive approach that maintains a safe and clean environment for riders—while connecting homeless people who seek shelter in [BART’s] system to services and resources.” Id. 553 “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. 554 40 Cal. Rptr.2d 402, 423, 892 P.2d 1145, 1166 (Cal. 1995) (foot- note omitted). 555 2006 U.S. Dist. LEXIS 77390, at *1 (N.D. Ill. 2006). 556 Id. at *8. 557 444 F.3d 1118, 1120 (9th Cir. 2006) (citation omitted), vacated by, remanded by, dismissed by Jones v. City of L.A., 505 F.3d 1006 (9th Cir. 2007) (by reason of a settlement of the case). 558 Jones, 444 F.3d at 1132. 559 Id. shelter” violates the Cruel and Unusual Punishments Clause of the Eighth Amendment.560 Nevertheless, the court’s decision did not “prevent[] the state from criminalizing conduct that is not an unavoidable consequence of being homeless, such as panhandling or obstructing public thoroughfares.”561 In Joyce v. City & County of San Francisco,562 supra, the plain- tiff ’s class action alleged that the city’s Matrix Program encour- aged rigorous enforcement of state and municipal laws that also applied to violations “arguably . . . committed predominantly by the homeless.” Although the city stated that there were few ar- rests for Matrix-related offenses, the plaintiffs characterized the program “as one in which ‘homeless people are cycled through the criminal justice system and released to continue their lives in the same manner, except now doing so as criminals.’”563 The plaintiffs argued that the “City’s failure to provide suf- ficient housing” meant that “homelessness on San Francisco streets is cognizable as a status.”564 The court did not concur, be- cause, in the court’s opinion, “status cannot be defined as a func- tion of the discretionary acts of others.”565 Although the court recognized that there are cases “extending unconstitutional sta- tus penalizations to acts of the homeless,”566 the court was un- willing to extend the Eighth Amendment to acts that are “war- ranted by governing authorities.”567 The court’s concern was that declaring homelessness to be a status would have a “devastating impact on state and local law enforcement efforts….”568 Denying the plaintiffs’ motion for an injunction, the court held that the Matrix Program did not “unconstitutionally” punish a “‘state’ of homelessness.”569 The plaintiffs had “not demonstrated a prob- ability of success on the merits of [their] claim.”570 Moreover, the issuance of an injunction was premature as the plaintiffs had not 560 Id. at 1136. 561 Id. at 1137 (citation omitted). 562 846 F. Supp. 843, 845-846 (N.D. Calif. 1994). 563 Id. at 849 (citation omitted) (some internal quotation marks omitted). 564 Id. at 857. 565 Id. (footnote omitted). The court stated that it must approach with hesitation any argument that science or statistics compels a conclusion that a certain condition be defined as a status. The Supreme Court has determined that drug addiction equals a status, and this Court is so bound. But the Supreme Court has not made such a deter- mination with respect to homelessness, and because that situation is not directly analogous to drug addiction, it would be an untoward excursion by this Court into matters of social policy to accord to homelessness the protection of status. Id. at 858. 566 Id. at 855, 856 (citing Pottinger v. Miami, 810 F. Supp. 1551, 1561- 65 (S.D. Fla. 1992)). 567 Joyce, 846 F. Supp. at 857. 568 Id. at 858. 569 Id. at 853. 570 Id. at 858. The court also was not persuaded that the plaintiffs were likely to succeed on the merits of their claim that the Matrix Pro- gram violated their right to travel. Id. at 860-861.