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.

42 TCRP LRD 58 is denied permission to travel with the firearm, or is arrested for traveling with one, “Congress did not intend to create federal rights in Section 926A [that are] actionable under Section 1983.”600 There is “no evidence either in the text or structure of Section 926A that would indicate that Congress intended that police of- ficers tasked with enforcing state gun laws should be liable for damages when they fail to correctly apply Section 926A.”601 The court held that the officers involved in the three cases in Torraco were not subject to liability under § 1983 for false arrest. Even if the officers in two of the cases were aware of 18 U.S.C. § 926A, they had probable cause to believe that the individuals were violating N.Y. Penal Law Section 265.01(1).602 The officers also had probable cause to believe that the appellants did not satisfy the terms of § 926A.603 PART VI – Liability of a Public Transportation Authority as a Common Carrier for Negligent Policing XVI. WHETHER A PUBLIC TRANSPORTATION AUTHORITY AS A COMMON CARRIER IS SUBJECT TO A HIGHER STANDARD OF CARE IN ITS POLICING As a common carrier, a public transportation authority is subject to a higher standard of care, an issue that becomes important, for example, when a transportation authority alleg- edly was negligent in protecting a member of the public from a wrongful act, such as a criminal assault. In 2020, in VIA Metro. Transit v. Meck,604 the plaintiff Meck was injured when a bus operated by VIA made an abrupt stop. The Supreme Court of Texas held that “[b]ecause VIA’s primary function is the business of providing transportation to the gen- eral public for a fee, … VIA is a common carrier that owes its passengers the duty to exercise a high degree of care, regardless of whether it is a governmental entity that provides that service as a governmental function.”605 In Lieberman v. Port Auth. of N.Y. & N.J.,606 the plaintiff sued the Port Authority for injuries that she sustained when she was knocked down by a homeless man, who stole her purse, as she walked out of a bakery in the Port Authority Bus Terminal in New York City. New Jersey’s appellate division dismissed the complaint on the basis that the plaintiff was attempting to hold the Port Authority liable for activities that stemmed directly from the Port Authority’s failure to allocate police resources.607 600 Id. at 139 (emphasis supplied). 601 Id. at 137 (citation omitted). 602 Id. at 139-140. 603 Id. at 140. 604 620 S.W.3d 356 (Tex. 2020). 605 Id. at 365. The court also held that the state’s “Tort Claims Act waives governmental immunity for the negligence of common carriers under the high-degree-of-care duty when that duty applies to them.” Id. at 370. 606 132 N.J. 76, 78, 622 A.2d 1295, 1296 (N.J. 1993). 607 Id., 132 N.J. at 79, 622 A.2d at 1296. The Supreme Court of New Jersey reversed, thereby rein- stating the complaint. First, the court held that, although the Port Authority serves a governmental function, it is not im- mune from suit.608 Second, the court rejected the plaintiff ’s argu ment that the Port Authority, as the owner of the Terminal, is a common carrier that has “an enhanced duty of care to its customers.”609 “[N]ot only is there no case law establishing the Port Authority as a common carrier, the statutory definition of ‘common carrier’ would preclude such a designation.”610 Thus, the Port Authority was not subject to the high standard of care that a common carrier would have for an assault occurring in the Terminal.611 Third, the court held that the plaintiff could not hold the Port Authority liable allegedly for failing to provide adequate police protection. However, the court reversed the appellate division’s decision, because the Port Authority, which acts as a landlord by renting space to shops, businesses, and restaurants, does much more than operate a bus depot at the Terminal.612 The Port Authority’s engagement in non-governmental activities meant that it could be held liable for breaching its “duties of due care—even when those breaches involve injury to a party by a third person—as long as that injury is reasonably foreseeable.”613 The Port Authority’s dual role, as a governmental entity facilitat ing commuter travel and as a private enterprise renting space to various businesses, required a “fact-sensitive inquiry” to determine the Port Authority’s role at the time of the injury. The plaintiff ’s complaint could be read to allege that the Port Authority failed to provide reasonably safe premises for its “invitees.”614 The court reversed the judgment below and re- manded the case to the trial court to determine whether the Port Authority in its responsibility as the landlord of the Terminal had a “duty to provide better lighting, signs, security cameras, and other measures to increase commuter safety.”615 In Lopez v. Southern Cal. Rapid Transit Dist.,616 the question was whether the Southern California Rapid Transit District (RTD), a public corporation, has a duty to protect passengers aboard its buses from assaults by fellow passengers. The plain- tiffs were injured when there was a fight among passengers on an RTD bus. Although the bus driver was notified of the fight, the driver continued to operate the bus. The plaintiffs alleged that the RTD was aware of a history of violence on the bus route. The RTD argued that it was immune from liability under sev- eral sections of the California Government Code.617 However, the Supreme Court of California held that the RTD owed a duty to passengers and was not immune to a claim as described in 608 Id., 132 N.J. at 82, 622 A.2d at 1298. 609 Id., 132 N.J. at 85, 622 A.2d at 1299. 610 Id., 132 N.J. at 85, 622 A.2d at 1300. 611 Id., 132 N.J. at 86, 622 A.2d at 1300. 612 Id., 132 N.J. at 90, 622 A.2d at 1302. 613 Id. 614 Id., 132 N.J. at 93, 622 A.2d at 1304. 615 Id. 616 40 Cal.3d 780, 783, 710 P.2d 907, 908 (Cal. 1985). 617 Cal. Gov’t Code §§ 815.2, subdiv. (b), 820.2, and 845.

TCRP LRD 58 41 Act584 “shall not knowingly carry 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 control of a public transportation facility paid for in whole or in part with public funds.”585 Some public transportation authorities also have regulations or rules of conduct that prohibit firearms and other weapons in or on their property.586 However, the prohibition in Section 1050.8(c) of the New York MTA’s Rules of Conduct, which does not apply to law enforcement personnel, also does not apply to “persons to whom a license for such weapon has been duly issued and is in force” as long as the “weapon is concealed from view….”587 In Kachalsky v. County of Westchester,588 the question was whether “New York’s handgun licensing scheme violate[s] the Second Amendment by requiring an applicant to demonstrate ‘proper cause’ to obtain a license to carry a concealed handgun in public….”589 In its discussion of the Heller and McDonald de- cisions, the Second Circuit explained that [w]hat we know from these decisions is that Second Amendment guarantees are at their zenith within the home. … What we do not know is the scope of that right beyond the home and the standards for determining when and how the right can be regulated by a govern- ment. This vast “terra incognita” has troubled courts since Heller was decided. Although the Supreme Court’s cases applying the Second Amendment have arisen only in connection with prohibitions on the possession of firearms in the home, the Court’s analysis suggests, as Justice Stevens’s dissent in Heller and Defendants in this case before us acknowledge, that the Amendment must have some application in the very different context of the public possession of firearms. Our analysis proceeds on this assumption.590 As the Second Circuit acknowledged, New York generally prohibits the possession of firearms without a license; most of the licenses that are granted are limited by place or profession.591 In Kachalsky, the plaintiffs/appellants’ action targeted the con- stitutionality of the license authorized by N.Y. Penal Law Sec- tion 400.00(2)(f). Subsection (2)(f) states: “A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to … have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof….” Section 400.00(2)(f) is 584 430 Ill. Comp. Stat. 66/1, et seq. (2022). 585 430 Ill. Comp. Stat. 66/65(a)(8) (2022). 586 N.Y. MTA, Rules of Conduct and Fines, § 1050.8, Weapons and other dangerous instruments, http://web.mta.info/nyct/rules/ TransitAdjudicationBureau/Rules%20of%20Conduct%20and%20 Fines.pdf (last accessed Jan. 31, 2022), [hereinafter MTA Rules of Con- duct and Fines] (stating that the terms weapon or dangerous instrument include, but are not be limited to, a firearm, switchblade knife, box- cutter, straight razor or razor blades that are not wrapped or enclosed in a protective covering, gravity knife, sword, shotgun or rifle). 587 Id. 588 701 F.3d 81 (2nd Cir. 2012), cert. denied, 2013 U.S. LEXIS 3132 (U.S., Apr. 15, 2013). 589 Id. at 83 (emphasis supplied). 590 Id. at 89 (footnote omitted) (citations omitted) (second sentence, emphasis supplied). 591 Id. at 86. the only license in New York authorizing the carrying of a con- cealed handgun not related to employment or the place of pos- session of the handgun.592 Section 400.00(2)(f) only authorizes the issuance of a license to a carry a concealed handgun when a person has proper cause for a license.593 The Kachalsky court held that under the statute “‘[a] general- ized desire to carry a concealed weapon to protect one’s person and property does not constitute proper cause.’”594 The court held that “the concealed carrying of handguns in public is ‘out- side the core Second Amendment concern articulated in Heller: self-defense in the home.’”595 The Second Circuit upheld New York’s one-hundred-year-old law that extensively regulated the possession of a handgun in public.596 However, the licensing-requirement for proper cause that was at issue in Kachalsky is again at issue. On April 26, 2021, in N.Y. State Rifle & Pistol Ass’n v. Corlett,597 the Supreme Court granted a Petition for Writ of Certiorari in which the petition- ers sought review of a decision by the Second Circuit that again affirmed the constitutionality of the proper cause requirement. On November 3, 2021, the Court heard oral arguments in N.Y. State Rifle & Pistol Ass’n v. Bruen, No. 20-843, as the action is now styled. B. Section 1983 Claims Arising out of Interstate Travel with a Firearm A public transportation authority’s operations may be in- terstate. Some important precedents relevant to § 1983 actions have involved air travel and 18 U.S.C. § 926A regulating the Interstate Transportation of Firearms.598 Although involving interstate air travel, in Torraco v. Port Auth.,599 supra, a consolidation of three appeals, the Second Circuit held that, if a person traveling interstate with a firearm 592 Id. (citations omitted) (emphasis supplied). 593 Id. 594 Id. (citations omitted) (some internal quotation marks omitted) (emphasis supplied). 595 Id. at 84 (citations omitted). 596 Id. at 101. 597 141 S. Ct. 2566, 209 L. Ed.2d 590 (2021). 598 Section 926A provides: Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be con- tained in a locked container other than the glove compart- ment or console. 599 615 F.3d 129 (2nd Cir. 2010).