Policing and Public Transportation (2022)

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TCRP LRD 58 43 the plaintiffs’ complaint.618 “[T]he duty imposed upon carriers by Civil Code section 2100 includes a duty to protect passengers from assaults by fellow passengers.”619 Moreover, common car- riers are subject to a statutory duty requiring that they provide “safe carriage” to “individuals who have accepted the carrier’s offer of transportation and have put their safety, and even their lives, in the carrier’s hands.”620 The court stated that Cal. Gov’t Code Section 845 was not implicated by the case.621 Section 845 provides that “[n]either a public entity nor a public employee is liable for failure to estab- lish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” The plaintiffs did not allege that the “RTD was negligent in failing to provide police personnel or armed guards on board its buses.. . .”622 Rather, the gravamen of plaintiffs’ complaint [was] that the bus driver, who was already hired by RTD and was present on the scene and aware of the violent disturbance, did absolutely nothing to protect plaintiffs, but simply continued to drive the bus as if nothing was wrong.623 The California Supreme Court, which ruled that the trial court erred when it dismissed the plaintiffs’ complaint, reversed and remanded the case. PART VII – Public Transportation Authorities and Public Health and Safety XVII. PUBLIC TRANSPORTATION AUTHORITIES’ COMPLIANCE WITH PUBLIC HEALTH AND SAFETY MEASURES A. Federal Agencies’ Orders during the COVID-19 Pandemic Requiring the Wearing of Face Masks when Using Public Transportation On January 21, 2021, President Joseph R. Biden issued an Executive Order directing federal agencies to require the wear- ing of face masks in a range of transportation contexts nation- wide.624 Thereafter, as discussed below, the Centers for Disease 618 Lopez, 40 Cal.3d at 783, 710 P.2d at 908. 619 Id., 40 Cal.3d at 785, 710 P.2d at 909 (stating that “[v]irtually all courts and all commentators who have considered the issue have con- cluded that a common carrier’s duty to its passengers includes a duty to protect them from assaults by fellow passengers”). See id., 40 Cal.3d at 786, 710 P.2d at 910 (citations omitted). 620 Id., 40 Cal.3d at 790, 710 P.2d at 912. 621 Id., 40 Cal.3d at 792, 710 P.2d at 914. 622 Id. 623 Id. 624 Executive Order, Promoting COVJD-19 Safety in Domestic and International Travel (Jan. 21, 2021), https://www.whitehouse.gov/ briefing-room/presidential-actions/2021/01/21/executive-order-pro- tecting-worker-health-and-safety/ (last accessed Jan. 31, 2022); Bryan L. Adkins, Legal Issues Related to Transportation Mask-Wearing Man- dates, Congressional Research Service, at 1 (April 12, 2021), [hereinafter Adkins, CRS] https://crsreports.congress.gov/product/ pdf/LSB/LSB10589 (last accessed Jan. 31, 2022). Control and Prevention (CDC),625 the Transportation Security Administration (TSA),626 and the Federal Transit Administra- tion (FTA)627 issued directives requiring passengers to wear a face mask when traveling on a covered mode of public transpor- tation. The TSA later extended its mandate of April 30, 2021, to January 18, 2022.628 On January 29, 2021, pursuant to 49 U.S.C. § 114, the CDC issued an order requiring that passengers and personnel wear masks that cover the mouth and nose when on covered modes of transportation and at transportation hubs.629 The CDC order applies to commercial and public transportation, including trains, buses, and train stations. The order states that, effective February 3, 2021, [c]onveyance operators must continue to require all people onboard to wear masks when boarding and disembarking, and for the dura- tion of travel, unless they are located in outdoor areas of the convey- ance (if such outdoor areas exist on the conveyance). Operators of transportation hubs must require all persons to wear a mask when entering or while located in the indoor premises of a transportation hub.630 Furthermore, the CDC order stated: All passengers on public conveyances (e.g., airplanes, ships, ferries, trains, subways, buses, taxis, ride-shares) traveling into, within, or out of the United States (including U.S. territories) as well as conveyance operators (e.g., crew, drivers, conductors, and other workers involved in the operation of conveyances), regardless of their vaccination status, are required to wear a mask over their nose and mouth. Unless otherwise required by the operator, or federal, State, tribal, territorial, or local government, people are not required to wear a mask when located in outdoor areas of a conveyance (if such outdoor areas exist on the conveyance).631 625 Centers for Disease Control and Prevention, Requirement for Face Masks on Public Transportation Conveyances and at Transporta- tion Hubs (updates as of June 10, 2021), https://www.cdc.gov/ coronavirus/2019-ncov/travelers/face-masks-public-transportation. html (last accessed Jan. 31, 2022). 626 U.S. Department of Homeland Security, Transportation Security Administration, Security Measures - Mask Requirements, Security Direc- tive (SD 1582/84-21-01) (eff. February 1, 2021), [hereinafter TSA Secu- rity Directive], https://www.tsa.gov/sites/default/files/sd-1582_84-21- 01.pdf (last accessed Jan. 31, 2022). 627 Federal Mask Requirement for Transit, Master Agreement Amend- ment, https://www.transit.dot.gov/TransitMaskUp#:~:text=FTA%E2% 80%99s%20Master%20Agreement%20contains%20the%20stan- dard%20terms%20and,includes%20enforcement%20actions%20 FTA%20may%20take%20for%20non-compliance (last accessed Jan. 31, 2022). 628 Reuters, U.S. will extend COVID-19 transport mask mandate through Jan. 18, [hereinafter Reuters], https://www.reuters.com/ business/healthcare-pharmaceuticals/exclusive-us-expected-extend- transportation-mask-mandate-through-jan-18-sources-2021-08-17/ (last accessed Jan. 31, 2022). 629 Centers for Disease Control and Prevention, Requirement for Face Masks on Public Transportation Conveyances and at Transportation Hubs, supra note 625. See also, Adkins, CRS, supra note 624, at 1. 630 Centers for Disease Control and Prevention, Order: Wearing of face masks while on conveyances and at transportation hubs, at 1, https://www.cdc.gov/quarantine/masks/mask-travel-guidance.html (last accessed Jan. 31, 2022). 631 Id.

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.