Policing and Public Transportation (2022)

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TCRP LRD 58 49 A “risk-based” security program “should reflect the environ- ment in which the system operates.”702 Consequently, “[l]arger, multi-model systems with large fleets and multiple facilities re- quire a strategic security strategy that comprehensively addresses all elements of the system.”703 A data-driven methodology is essential because the data are used to “address the risk and pro- vide protection and mitigations to transit employees, passengers, the public and the infrastructure.”704 Effective security is multi- faceted and includes “the ability to deter, delay, detect, respond, and recover” with an emphasis on the facets’ “redundancy.”705 Best practices may be identified through the application of CPTED principles to “evaluate environmental conditions and utilize intervention methods to control human/criminal behav- ior to reduce the perception and/or fear of crime.”706 As stated, CPTED-strategies rely on the use of “natural surveillance, natu- ral access control, territorial reinforcement, and maintenance.”707 Essential factors, such as “knowledge of the behavior of people, crime generators, the physical environment, and the space of an area,” are used in “the project planning and design stages, imple- mented in construction, and maintained during operations.”708 Recommended best practices include the use of technology that is intended specifically to enhance security, such as closed- circuit television (CCTV)709 for which an agency must have the requisite policies and training “to address both safety/security and [the] liability risk of the system.”710 The Best Practices Re- port addresses police and security staffing, including meet- ing “certain baseline conditions” that are required for effective staffing,711 and discusses the advantages of having “in-house transit police” and “in-house transit security.”712 As for the use of contracted policing and security, [d]epending on the number of jurisdictions involved in the alignment or system, agencies may utilize a single entity or multiple entities joined together to provide transit policing services. There are multiple transit agencies that utilize this model: Caltrain contracts with one entity, the San Mateo County Sheriff ’s Office. TriMet contracts with approximately fifteen Portland-area law enforcement agencies.713 702 Id. See also, Comprehensive Security Program for Metro Partner Collaboration and Stakeholder Engagement Plan (July 2, 2019); Metro System Security Strategy (Jan. 21, 2020); and Second Amendment and Renewal to Police Service Agreement (MetroLink/St. Louis County) (July 1, 2021), Appendix A, Items 3, 5, and 8. 703 MetroLink, Best Practices Report, supra note 699, Appendix A, Item 2, at 5. 704 Id. 705 Id. 706 Id. at 7. 707 Id. 708 Id. 709 Id. at 11. 710 Id. 711 Id. at 15. 712 Id. at 18. 713 Id. at 20. It may be noted that MetroLink’s Best Practices Report in- cludes a summary of standards and best practices.714 B. Best Practices to Consider regarding Fare Collection and the Prevention of Fare Evasion Although some public transportation authorities may not agree on some, or even all, of the approaches covered in this subsection, several public transportation authorities offered various best practices for fare collection and the prevention of fare evasion. 1. Fare Evasion and Enforcement As defined in California, fare evasion means “entering an enclosed area of a public transit facility beyond posted signs prohibiting entrance without obtaining valid fare, in addition to entering a transit vehicle without valid fare;” the “[m]isuse of a transfer, pass, ticket, or token with the intent to evade the payment of a fare;” or the “[u]nauthorized use of a discount ticket….”715 A first or second violation is “punishable by a fine not to exceed two hundred fifty dollars ($250) and by com- munity service for a total time not to exceed 48 hours over a period not to exceed 30 days….”716 A third or subsequent vio- lation constitutes “a misdemeanor punishable by a fine of not more than four hundred dollars ($400) or by imprisonment in a county jail for a period of not more than 90 days, or by both that fine and imprisonment.”717 However, California law authorizes a public transportation authority to enact an ordinance permitting the imposition of an administrative penalty for fare evasion.718 California also authorizes public transportation authorities to “contract with a private vendor or governmental agency for the processing of notices of fare evasion or passenger conduct violation, and notices of delinquent fare evasion or passenger conduct viola- tion….”719 However, a “public transportation agency shall not establish penalty amounts that exceed one hundred twenty-five dollars ($125) upon a first or second violation and two hundred dollars ($200) upon a third or subsequent violation.”720 As for best practices for detecting fare evasion, a King County Metro SOP is intended “to help Metro Transit Police Deputies identify the preferred method of detecting fare evasion and the best practices for enforcing fare policy so as to maximize both the safety of Metro employees and the collection of appropriate 714 Id. at Appendix A (no page numbers) of the Best Practices Report, Appendix A, Item 2. 715 Cal. Pen. Code §§ 640(c)(1)-(3) (2022). 716 Cal. Pen. Code §§ 640(a)(1) (2022). 717 Id. 718 Cal. Pub. Util. Code § 99580(a), (b)(1) (2022). 719 Cal. Pub. Util. Code § 99580(c)(1) (2022). 720 Cal. Pub. Util. Code § 99580(e) (2022). Public transportation authorities are authorized to allow persons under the age of 18, in lieu of paying a fare evasion penalty, to perform community service. Cal. Pub. Util. Code § 99580(g)(1).

50 TCRP LRD 58 fare.”721 The SOP discusses enforcement techniques to prevent fare evasion.722 2. Use of Fare Enforcement Officers For many public transportation authorities, police depart- ments conduct fare enforcement, such as the NYPD in MTA stations in New York, the Metro Transit Police Department for WMATA, and the MBTA Transit Police Department in Boston.723 However, some public transportation authorities prefer to use Fare Enforcement Officers (FEO) rather than law enforcement officers to verify that a passenger paid a fare. For example, in 2018 BART shifted most inspection duties to civil- ian inspectors.724 In December 2020, the Sound Transit Board committed the Seattle area to “replac[ing] fare enforcement security contractors with fare ambassadors.”725 Although King County Metro’s Transit Police Deputies are authorized to conduct fare enforcement, FEOs primarily han- dle fare enforcement.726 The FEOs ride designated routes for the purpose of enforcing payment of fare, as well as to provide customer service.727 The FEOs are contract employees who are managed by Metro Transit Personnel working in Metro Transit’s security section. Presently, the FEOs are assigned to Rapid Ride coaches that provide customers with proof of payment. 3. Decriminalization of Fare Enforcement Some articles argue that public transportation authorities should decriminalize fare enforcement and identify some agen- cies that are considering or that have made such a change.728 Decriminalization does not mean necessarily that “fare eva- sion is allowed, just that it is treated as a civil offense where the penalty is a fine, not a criminal charge.”729 One argument for decriminalization is that, based on law enforcement data, the 721 King County Metro, Fare Enforcement Operations, Standard Operating Procedures – Section 12 (Apr. 1, 2010), Appendix A, Item 15, at ¶ 12.0. 722 Id. at ¶ 12.5. 723 Id. at 21-22. 724 Id. at 22. 725 Id. at 23. 726 Id. at 1. 727 Id. at ¶ 12.8. 728 Peter Johnson, How transit agencies are reforming fare enforcement (Nov. 15, 2018), https://seattletransitblog.com/2018/11/15/how-transit- agencies-are-reforming-fare-enforcement-part-3-of-3/ (last accessed Jan. 31, 2022); Steven Higashide, How to Win the Fight for Fair and Equitable Transit (Nov. 4, 2019), https://nextcity.org/featureshow-to-win-the-fight- for-fair-and-equitable-transit (last accessed Jan. 31, 2022); The Human Impact of Unjust Fare Enforcement, Move Minnesota, (May 14, 2021), https://www.movemn.org/the-human-impact-of-unjust-fare- enforcement/ (last accessed Jan. 31, 2022). 729 Angie Schmitt, 6 Principles for a Transit System That Makes Your City More Fair and Just (July 17, 2018), https://usa.streetsblog. org/2018/07/17/6-principles-for-a-transit-system-that-makes-your- city-more-fair-and-just/#:~:text=A%20handful%20of%20localities%20 and%20transit%20agencies%20have,penalty%20is%20a%20 fine%2C%20not%20a%20criminal%20charge (last accessed Jan. 31, 2022). criminalization of passengers’ non-payment of fare is discrimi- natory, because minorities and disadvantaged groups “receive a disproportionate percent of citations relative to ridership.”730 Since December 13, 2018, fare evasion has not been a crime under TriMet’s revised code.731 However, another approach to decriminalizing fare enforcement may be not to prosecute fare-evaders, many of whom possibly may be homeless. In New York, for example, the district attorney for Manhattan, elected in November 2021, released a memorandum after taking office stating that the office would not prosecute individuals for failing to pay a public transportation fare.732 Although some articles argue in favor of the use of civil- ians for fare inspection and/or the decriminalization of fare enforcement,733 no studies were located for the Report regarding public transportation authorities’ experience either with the use of civilian inspectors to verify passengers’ payment of their fare or with the decriminalization of fare evasion. 4. Avoidance of Detention Some public transportation authorities may have a policy to avoid detaining a person for suspected fare evasion. TriMet’s SOP 306, which applies to bus and max platform inspections, states that “in all inspection situations” officers are not to “detain any person or prevent their exit or departure from any TriMet property or TriMet vehicle. A person announcing or choosing to depart should be allowed to do so.”734 5. Officer’s Use of Discretion A best practice may be to authorize officers to use their dis- cretion on how to approach or handle instances of fare evasion. For example, a King County Metro SOP authorizes its FEOs “to exercise limited discretion while conducting Fare Enforcement operations.”735 The SOP constrains the use of discretion “to as- sure fair and consistent implementation of Fare Enforcement procedures” and “to avoid the perception that customers are not 730 Transit Center, Safety for All (July 12, 2021), at 21, https://transit- center.org/publication/safety-for-all/ (last accessed Jan. 31, 2022), [hereinafter Transit Center]. 731 Robert Altstadt, TriMet Board approves revision to TriMet Code to clarify proof of payment required to ride TriMet News, (November 14, 2018) (stating that “[t]he Board [of TriMet] approved Ordinance 351 on Wednesday, Nov. 14, 2018, which will change TriMet Code effective Dec. 13, 2018,” https://news.trimet.org/2018/11/trimet-board-approves- revision-to-trimet-code-to-clarify-proof-of-payment-required-to- ride/#:~:text=Fare%20evasion%20is%20not%20a%20crime%20The%20 revision,furthers%20TriMet%E2%80%99s%20efforts%20to%20 make%20fare%20evasion%20non-criminal (last accessed Jan. 31, 2022). 732 Sonia Moghe, Manhattan district attorney announces he won’t prosecute certain crimes, CNN (Jan 6, 2022), https://www.cnn. com/2022/01/06/us/alvin-bragg-manhattan-district-attorney-crimes- prosecution/index.html (last accessed Jan. 31, 2022). 733 Transit Center, supra note 730. 734 TriMet, Bus and MAX Platform Inspections, SOP 306 (July 17, 2014), Appendix A, Item 22, at ¶ 2.1. 735 King County Metro, Fare Enforcement – Standard Operating Procedures, SOP-TS 507, Use of Discretion (Apr. 15, 2019), Appendix A, Item 17, at § 4.0.