Policing and Public Transportation (2022)

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TCRP LRD 58 51 treated equally.”736 The FEOs may use their discretion when “ex- tenuating circumstances justify variation from routine [fare en- forcement] processes and procedures;” however, FEOs must be “mindful of [King County] Metro’s Non-Discrimination Policy when making these decisions.”737 6. Adoption of a Non-discrimination Policy King County Metro has issued a Fare Enforcement SOP on non-discrimination. The SOP defines the basic responsibilities of FEOs and the Fare Enforcement Supervisor and outlines how fare inspections are to be monitored to assure that discrimina- tion does not occur.738 The SOP directs FEOs not to discrimi- nate based on age, race, religion, gender, physical disability, or economic status.739 7. Prohibition of Profiling As discussed in Section XII. D, infra, TriMet prohibits the use of profiling. TriMet defines the term broadly to include any “improper use of any protected classification, such as race, color, religion, sex, age, national origin, ancestry, physical or mental disability, sexual orientation, marital or veteran status, family relationship, or other legally protected characteristic or status….”740 8. Best Practices for the Detection of Fare Evasion a. Use of a Sweep Strategy An approach that some public transportation authorities use to detect fare evasion is a Sweep Strategy.741 MetroLink states that the practice reduces the risk of “profiling[,]” the targeting of inspections to certain passengers with a specific profile. Accusations of profiling have been leveled against transit agencies and featured in their local media. Some accusations have been accompanied by legal action. Many transit agencies are responding to these allegations by review- ing their inspection strategies to remove the potential for bias.742 MetroLink’s Best Practices Report discusses the practices of other public transportation authorities to detect fare evasion. For example, San Diego’s MTS inspection teams conduct blanket inspections of light rail trains on a routine basis by train teams who work “beats.” A beat is the light rail service between two set stations. Train teams get on a light rail train at a specific station and ride to another specified station.743 736 Id. 737 Id. at ¶ 6.0. 738 King County Metro, Security Standard Operating Pro- cedures, SOP-TS 514: Non-discrimination Procedures (June 12, 2018), Appendix A, Item 16, at ¶ 1. 739 Id. at ¶ 4.0. 740 TriMet Field Operations – Working Conditions – Pro- hibited Practices: Profiling, SOP 311 (1/15/2015), Appendix A, Item 24, ¶ 3.0. 741 MetroLink, Best Practices Report, supra note 699, Appendix A, Item 2, at 29. 742 Id. 743 Id. (emphasis supplied). Metro Transit Police in Minneapolis also use sweeps to control fare evasion. Metro Transit Police officers are required to perform a systematic check of all people starting at one end of the train and proceeding to the other. Officers who are working the platform must check all people as they queue up and must avoid picking out individuals.744 It is reported that TriMet’s “[s]taff start[s] at the ends of a vehicle and move[s] to the center or start at the center and move to the ends. Staff are instructed to sweep entire vehicles and not target individual people.”745 b. Use of a Targeted Strategy An approach by some public transportation authorities to fare enforcement is to use a targeted strategy “to focus their activities;” however, the use of targeting may make transit pro- viders “more susceptible to allegations of profiling.” 746 According to the Best Practices Report, WMATA in Washington, D.C., TriMet in Portland, and MTS in San Diego target areas based on fare evasion data.747 For example, WMATA uses area targeting as its primary fare enforcement strat- egy. WMATA police officers analyze crime statistics along with data from bus operators and station agents to identify high crime and high fare evasion areas and then focus[] its police activities in those areas. WMATA also positions its police officers near entry and exit gates on its rail system as a deterrent and to target “hoppers” and “piggy-backers.”748 Finally, for more information, please refer to the information and documents provided in Appendix A to the digest. CONCLUSION The digest discusses numerous categories of § 1983 claims for alleged constitutional violations involving policing by public transportation authorities: false arrest or false imprisonment, unlawful searches and seizures, use of excessive force, malicious prosecution or abuse of process, invasion of privacy, and failure of an officer to intervene to prevent another officer’s civil rights violations. A judicial finding that there was probable cause for an arrest may preclude some § 1983 claims, such as for false ar- rest or false imprisonment. Probable cause exists when there is sufficient evidence to warrant a prudent person to believe that a suspect committed or is committing an offense. Pursuant to the Supreme Court’s decision in Monell, supra, a plaintiff may bring a § 1983 action against a municipal or other local government or agency thereof, such as a public transporta- tion authority, for a violation of a plaintiff ’s constitutional rights. However, such claims are limited to constitutional violations caused by an authority’s policy or custom or its deliberate in- difference to a plaintiff ’s constitutional and other federal rights. Clearly, a policy or custom is established if a public transporta- tion authority promulgates or adopts it. However, a policy or 744 Id. (emphasis supplied). 745 Id. 746 Id. WMATA in Washington DC, TriMet in Portland, and MTS in Sand Diego each target areas based on fare evasion data. Id. 747 Id. 748 Id. (emphasis supplied).

52 TCRP LRD 58 custom need not be formalized in a rule or regulation or even in a written document. Thus, in § 1983 cases, a plaintiff may prove the existence of a policy or custom if an action or decision by an official with policy-making authority on behalf of the authority violated a plaintiff ’s constitutional or other federal rights. As the digest discusses, in some cases, a plaintiff had sufficient proof that an authority’s unlawful practice had become so permanent or well-settled as to imply that policymakers had assented con- structively to the policy or custom. A defendant’s failure to act may be evidence of a policy or custom. Although one failure to act may be insufficient, in one case, three occasions of a public transportation authority’s inaction were sufficient to establish a policy or custom of inaction. A plaintiff ’s § 1983 action may be based on a public trans- portation authority’s deliberate indifference to a plaintiff ’s con- stitutional rights. For example, a plaintiff may have sufficient evidence that a public transportation authority and its super- visory officials made a deliberate choice not to train their em- ployees fully, in spite of an obvious need for training and the likelihood that an individual’s constitutional rights would be violated. Deliberate indifference also may be established based on adequate evidence that a public transportation authority and its supervisory officials knew of a pattern of unconstitutional acts by their subordinates but failed to take remedial action. A public transportation authority is not liable under the doc- trine of respondeat superior for a police officer’s violation of an individual’s constitutional or other federal rights; however, the authority may be liable when the authority’s policy or custom or its deliberate indifference was the cause of the officer’s violation. In § 1983 actions against a police officer in his or her individual capacity, the officer may have qualified immunity when the offi- cer acted in good faith, and it was objectively reasonable for the officer to believe that his or her actions did not violate a plain- tiff ’s clearly established constitutional right. Even if a police officer makes a mistake of fact or law, as long as the officer’s mistake was objectively reasonable under the cir- cumstances, a police officer may be entitled to qualified immu- nity. Based on recent Supreme Court precedent, if a defendant is subjected to extreme circumstances that a reasonable officer or official would or should have recognized as likely violating the Constitution, a court may determine that the officer or official is not entitled to qualified immunity.