Policing and Public Transportation (2022)

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TCRP LRD 58 45 However, various news outlets have reported that, for a variety of reasons, police forces in some areas have been unable, or even unwilling, to enforce such mandates and orders.647 In February 2021, The Washington Post described some of the difficulties that transportation authorities were having in complying with the fed- eral order requiring masks on trains and buses.648 An earlier ar- ticle, dated July 17, 2020, in The Wall Street J ournal, reported that in some area police forces were not enforcing mask mandates.649 PART VIII – Public Transportation Authorities’ Effective Use of Public Relations, Law Enforcement Organization and Contractual Structures, and Administration of Law Enforcement and Training XVIII. PUBLIC TRANSPORTATION AUTHORITIES’ EFFECTIVE USE OF COMMUNITY POLICING AND PUBLIC RELATIONS As discussed in this section, public transportation authori- ties are striving to make effective use of community policing and public relations to improve their policing. Some public trans- portation authorities provided documents and other informa- tion for the digest that demonstrate the authorities’ emphasis on including their community in law enforcement.650 A U.S. Department of Justice (DOJ) article stresses the im- portance of the relationship between the police and the affected communities they serve to achieve more effective policing. The article recommends that law enforcement agencies be transpar- ent and accountable in their policing and that communities acknowledge and discuss the challenges facing them. The DOJ recommends that police forces take “steps to reduce bias and improve cultural competency,” focus on collaboration and visi- bility in the community, and promote “internal diversity and en- sure professional growth opportunities within police forces.”651 As for what is meant by the term community policing, the Bi-State Development Agency (MetroLink) notes that the DOJ’s 647 See Tom Knight, Why law enforcement isn’t enforcing mask man- dates, The Hill (July 30, 2020), https://thehill.com/changing-america/ opinion/509859-why-law-enforcement-isnt-enforcing-mask-mandates (last accessed Jan. 31, 2022). 648 Luz Lazo, Lori Aratani, and Justin George, Transportation agencies wrestle with new federal mask mandate (February 1, 2021), https://www. washingtonpost.com/local/trafficandcommuting/transportation-mask- mandate/2021/02/01/32aa36d8-64b8-11eb-8c64-9595888caa15_story. html (last accessed Jan. 31, 2022). 649 Jim Carlton, Mandatory Mask Laws Aren’t Enforced as Coronavi- rus Continues to Spread, The Wall Street Journal (July 17, 2020), https://www.wsj.com/articles/mandatory-mask-laws-arent-enforced-as- coronavirus-continues-to-spread-11594978200 (last accessed Jan. 31, 2022). 650 See Appendix A, and Items and attachments thereto that are ref- erenced in this Section XVIII of the digest. 651 U.S. Dep’t of Justice, Community Relations Services, Toolkit for Policing, Why Police-Community Relationships Are Important, https:// www.justice.gov/crs/file/836486/download (last accessed Jan. 31, 2022). Community Oriented Policing Services (COPS) describes com- munity policing as “a philosophy that promotes organizational strategies, which support the systematic use of partnerships and problem-solving technique[s], to proactively address the im- mediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.”652 King County Metro defines community policing as a con- cept that requires police officers, transit employees, and cus- tomers to work together in creative ways [to] help solve contemporary transit security problems related to crime, fear of crime, social and physical disorder and transit system decay. The philosophy is predicated on the belief that achieving these goals requires that police departments develop a new relationship with people in the community, allowing them greater voice in setting local priorities, and involving them in efforts to improve the overall quality of life on mass transit. It shifts the focus of police work from handling random calls to solving problems.653 MetroLink advises that community policing especially applies to transit security for which “the primary goal” is to secure “the system through proactive and collaborative ef- forts to change negative behavior on public transportation systems. . . . [C]ommunity policing is proactive and focuses on developing and maintaining relationships between officers and riders to build mutual trust and respect.”654 Community polic- ing has been described as a collaborative partnership between a “law enforcement agency or agencies and the individuals and organizations—including public transit agencies—that they serve, and anyone with a stake in the community. The public should be involved in prioritizing public safety problems.”655 As for the impact of public relations on the success of public transportation authorities’ policing, MetroLink states that “the media can be a powerful conduit [to affect] public perception of law enforcement, security, crime, and fear of crime. The media can assist with publicizing community concerns and available solutions.”656 According to the DOJ, the concept of community policing embraces, for example, the following principles and objectives: • Shifting the focus of police work from responding to individual inci- dents to addressing problems primarily identified by the community and the police. Community stakeholders can employ problem-solv- ing approaches to supplement traditional law enforcement methods. • Citizen and Officer empowerment is paramount. Officers must be permitted to work with the community so that the responsibility of problem solving can be shifted to the community. This process takes time, trust and commitment from all levels of the agency. 652 MetroLink, Technical Memo – Security Training, [here- inafter MetroLink, Security Training], Appendix A, Item 4, at 3 (internal quotation marks omitted). 653 King County Metro, Transit Resource Officer, Standard Operating Procedures (Sept 1, 2017), Appendix A, Item 14, at ¶ 6.1. See also, Appendix A, Item 14 (Appendix 1, Community Meetings). 654 MetroLink, Security Training, supra note 652, Appendix A, Item 4, at 3. 655 Id. at 4. 656 Id.

44 TCRP LRD 58 On January 31, 2021, after the Acting Secretary of Homeland Security determined that a national emergency existed, the TSA issued a Security Directive implementing the President’s Execu- tive Order and the related order of the CDC. The TSA’s Secu- rity Directive applies to “aircraft, train road vehicle, vessel . . . or other means of transport,”632 as well as transportation hubs and facilities, including bus terminals.633 The Security Directive specifies that an owner/operator notify passengers, “at the time tickets are purchased or when other wise booking transportation and at the time the convey- ance departs it location after boarding passengers,” that refusing “to wear a mask is a violation of federal law….”634 Furthermore, if an individual refuses to comply with an instruction given by the owner/operator with respect to wearing a mask, the owner/operator must: 1. Deny boarding; 2. Make best efforts to disembark the individual as soon as practi- cable; or 3. Make best efforts to remove the individual from the transportation hub/facility.635 On April 30, 2021, the TSA extended the face mask require- ment for all transportation networks, including public transpor- tation, through September 13, 2021636 and later to January 18, 2022.637 On June 10, 2021, the CDC announced that it was amend- ing its Face Mask Order so as not to “require people to wear a mask in outdoor areas of conveyances . . . or while outdoors at transportation hubs.”638 When people are “in indoor areas of conveyances or while indoors at transportation hubs,” they are not required to wear a mask, for example, “while eating, drink- ing, or taking medication for brief periods of time.”639 Notably, an analysis by the Congressional Research Service (CRS) of the statutory authority of federal agencies to issue the foregoing directives concludes that “the scope of federal agen- cies’ existing statutory authority to mandate masks is an open legal question.”640 632 See authority granted by 42 C.F.R. 70.1. 633 TSA Security Directive, supra note 626. 634 Id. at 2. 635 Id. at 4. 636 Id. See National Press Release, Transportation Security Administration (April 30, 2021) (stating that the TSA “is extending the face mask requirement for individuals across all transportation net- works throughout the United States, including at airports, onboard commercial aircraft, on over-the-road buses, and on commuter bus and rail systems through September 13”), https://www.tsa.gov/news/press/ releases/2021/04/30/tsa-extends-face-mask-requirement-airports-and- throughout (last accessed Jan. 31, 2022). 637 Reuters, supra note 628. 638 Centers for Disease Control and Prevention, Requirement for Face Masks on Public Transportation Conveyances and at Transportation Hubs, supra note 625 (emphasis supplied). 639 Id. at 2 (emphasis supplied). 640 Adkins, CRS, supra note 624. On April 18, 2022, in Health Freedom Def. Fund, Inc. v. Biden, 2022 U.S. Dist. LEXIS 71206, at *1, 2 (M.D. Fla. 2022), a federal district court in Florida ruled that the CDC’s However, it is also notable that the FTA amended its Master Agreement to require grant recipients to comply with COVID- 19 face mask requirements.641 The FTA’s Master Agreement ap- plies to all grants, cooperative agreements, and loans authorized by federal public transportation law or administered by FTA and “subjects noncompliant grant recipients to potential FTA civil enforcement actions that may result in the withholding of federal funds.”642 B. Compliance with State and Local Face Mask Mandates At the state level, whether there are also state and/or local face mask mandates, and the degree of success that law enforcement agencies are having in enforcing the mandates, must be deter- mined on a state-by-state basis.643 In the state of Washington, for example, according to the Municipal Research and Services Center (MRSC),644 [w]hile all agencies are required to follow state face mask require- ments, the local board of health and local health officer also have the authority to enact local rules and regulations as are necessary in order to preserve, promote and improve the public health, and to provide for the control and prevention of any dangerous, contagious or infec- tious disease (RCW 70.05.060; RCW 70.05.070). WAC 246-100-070 requires that local law enforcement enforce those orders.645 The MRSC notes also that “the Washington State Constitu- tion, Article XI, Section 11[,] provides broad authority to cities and towns to act in the event of an emergency, stating: ‘Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.’”646 mask mandate exceeded the agency’s statutory authority, as well as vio- lated the Administrative Procedure Act’s requirements for rulemaking by the agency. In granting the plaintiffs’ motion for summary judg- ment, the district court vacated the CDC’s mask mandate and remanded it to the agency. On April 21, 2022, the CDC and other defendants/ appellants appealed the district court’s decision to the Eleventh Circuit, case number 22-11287. On May 31, 2022, the appellants filed their brief. 641 Id. at 2. 642 Id. 643 Kate Mabus, Mask mandates by states: As COVID cases spike, see what the rules are where you live, USA Today, https://www.usatoday.com/ story/news/nation/2021/07/27/mask-requirements-state/8087357002/ (updated Aug. 3, 2021) (last accessed Jan. 31, 2022). An example of a local government’s order on the use of face masks is the St. Louis County Department of Public Health’s face mask order, dated July 26, 2021, a copy of which is included as Item 10 in Appendix A to the digest. 644 MRSC “is a nonprofit organization that helps local governments across Washington State better serve their communities by providing legal and policy guidance on any topic.” https://mrsc.org/Home/ About-MRSC.aspx (last accessed Jan. 31, 2022). 645 Ask MRSC - Coronavirus (COVID-19) FAQs for Local Governments, Emergency Powers Generally, Can a local agency issue an order requiring people to wear face masks in public buildings or public transit facilities? https://mrsc.org/Home/Explore-Topics/Public-Safety/ Emergency- Services/Public-Health-Emergencies/Coronavirus-COVID-19-FAQs. aspx, (Updated June 4, 2021) (last accessed Jan. 31, 2022). 646 Id.