Policing and Public Transportation (2022)

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40 TCRP LRD 58 shown the existence of “the continuing injury predicate,” a nec- essary finding for granting injunctive relief.571 The plaintiffs’ argued, moreover, that the Matrix Program violated the Due Process Clauses of the United States and California Constitutions, because the program “employ[ed] punitive policing measures against the homeless for sleeping in public parks….”572 However, the court held that the plaintiffs had failed to demonstrate a likelihood of success on their claim that they were being denied the equal protection of the laws under the Fourteenth Amendment.573 PART V – Policing and § 1983 Claims Arising under the Second Amendment XV. THE SECOND AMENDMENT AND WHETHER PUBLIC TRANSPORTATION AUTHORITIES MAY REGULATE OR PROHIBIT THE POSSESSION OF FIREARMS A. Whether Public Transportation Authorities May Regulate or Prohibit the Carrying of Firearms in or on their Facilities In District of Columbia v. Heller,574 in a 5-4 decision, the Supreme Court invalidated certain District of Columbia gun control laws on the ground that they violated the Second Amendment to the Constitution.575 The Court held that the Constitution protects an individual’s right to keep and bear arms in the home for self-defense; thus, the District of Columbia had to permit Heller to register his handgun and had to issue a license to him to carry it in his home.576 However, Justice Scalia’s opinion clarified that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and gov- ernment buildings….”577 In McDonald v. City of Chicago,578 the petitioners challenged laws enacted by the city of Chicago and the village of Oak Park that effectively banned the possession of handguns in their juris dictions. For example, the Chicago Municipal Code Section 8-20-040(a) provided that “‘[n]o person shall . . . possess . . . any firearm unless such person is the holder of a valid registration certificate for such firearm” but also prohibited the “registration 571 Id. at 861. 572 Id. 573 Id. at 858. 574 554 U.S. 570, 628, 128 S. Ct. 2783, 2818, 171 L. Ed.2d 637 (2008). 575 See D.C. Code §§ 7-2501.01(12), 7-2502.01(a), and 7-2502.02(a) (4). 576 Heller, 554 U.S. at 635, 128 S. Ct. at 2822, 171 L. Ed.2d at 683-684. 577 Id., 554 U.S. at 626, 128 S. Ct. at 2816-2817, 171 L. Ed.2d at 678 (footnote omitted). 578 561 U.S. 742, 750, 130 S. Ct. 3020, 3026, 177 L. Ed.2d 894, 904 (2010). of most handguns, thus effectively banning handgun possession by almost all private citizens who reside in the City.”579 The Supreme Court held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amend- ment, thereby making the Second Amendment binding on the states: “It is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”580 Notwithstanding the foregoing, landmark holding, Justice Alito’s opinion for a plurality of the Court reaffirmed the Court’s opinion in Heller, supra, that “recognized that the right to keep and bear arms is not ‘a right to keep and carry any weapon what- soever in any manner whatsoever and for whatever purpose.’”581 The Court reversed the judgment of the Seventh Circuit and re- manded the case for further proceedings. Some states prohibit the possession of firearms on a means of public transportation.582 As a federal district court stated in Torraco v. Port Authority,583 [i]n many states, either by statute or regulation, different kinds of fire- arms are regulated in different ways, e.g., by caliber, or barrel length, or even age (of either the firearms or the owner, or both). In addi- tion, many states have varying regulations within the State, either by county or municipality (as does New York). An Illinois statute provides that even an individual having a license issued pursuant to the state’s Firearm Concealed Carry 579 Id. 580 Id., 561 U.S. at 778, 130 S. Ct. at 3042, 177 L. Ed.2d at 921. 581 Id., 561 U.S. at 786, 130 S. Ct. at 3047, 177 L. Ed.2d at 926 (cita- tion omitted). 582 See, e.g., Colo. Rev. Stat. § 18-9-118 (2022) (“A person commits a class 6 felony if, without legal authority, he has any loaded firearm or explosive or incendiary device, as defined in section 9-7-103, C.R.S., in his possession in, or carries, brings, or causes to be carried or brought any of such items into, any facility of public transportation, as defined in section 18-9-115(4));” 430 Ill. Comp. Stat. 66/65(a)(8) (2022) (prohib- iting a licensee from knowingly carrying a firearm on or into “[a]ny bus, train, or form of transportation paid for in whole or in part with public funds, and any building, real property, and parking area under the con- trol of a public transportation facility paid for in whole or in part with public funds”); Mo. Rev. Stat. § 578.305(4) (2022) (providing in part that “[a]ny passenger who boards a bus with a dangerous or deadly weapon or other means capable of inflicting serious bodily injury con- cealed upon his person or effects is guilty of the felony of “possession and concealment of a dangerous or deadly weapon” upon a bus. Posses- sion and concealment of a dangerous and deadly weapon by a passenger upon a bus shall be a class C felony….”); N.M. Stat. Ann. § 30-7-13(A) (2022) (stating that “[i]t is unlawful for any person without prior approval from the company to board or attempt to board a bus while in possession of a firearm or other deadly weapon upon his person or effects and readily accessible to him while on the bus. Any person who violates the provisions of this subsection is guilty of a misdemeanor”); and S.C. Code Ann. § 58-23-1830(a)(3) (2022) (providing that “[i]t is unlawful for any passenger to commit any of the following acts in a bus or any other public transportation vehicle . . . (3) carry or possess any weapon….”). 583 539 F. Supp.2d 632, 644 (E.D. N.Y. 2008) aff’d, 615 F.3d 129 (2nd Cir. 2010).

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.