Port Authority’s cite-and-check is Pittsburgh’s stop-and-frisk

See Philip Bump, The Facts About Stop and Frisk, Washington Post (September 16, 2016)

This past Saturday, the Pittsburgh Post-Gazette published an article that identified several criticisms of the “cite-and-check” policy that Port Authority of Allegheny Authority’s cite-and-check is Pittsburgh’s stop-and-frisk. Much like stop-and-frisk, the net effect of cite-and-check will be to: make public space (in this case public transit) less accessible, reinforce the sentiment that “New Pittsburgh” is unwelcoming to poor and minority residents, and most importantly for the purposes of this discussion, contribute to mass incarceration in our region. Port Authority definitely should reconsider cite-and-check, but if it moves forward with this misguided policy, there are steps that stakeholders such as District Justices can take to push back against the negative consequences.

I. Cite-and-check: the policy and its criticisms.

According to the Post-Gazette article, cite-and-check will require police officers to do two things when a rider is suspected of not paying bus fare: issue the rider a citation and check the rider for outstanding warrants. Critics argue that cite-and-check is “heavy-handed,” could lead to racial profiling, and runs counter to the Sanctuary City model. In response, Port Authority argues that: racial profiling will be prevented by, “[police officers] simply going… systematically through the group and check[ing] everyone;” a two-month education campaign will inform riders of how to pay under the new cashless fare system; checking for warrants is standard procedure when a police officer detains a person for investigatory purposes; and increasing police presence on busses is a direct response to an increase in assaults on bus drivers and confrontations over fare payment.

One critic suggested that these responses were disingenuous, which implies that cite-and-check is grounded in ulterior motives. Without attempting to pass upon the state-of-mind of Port Authority officials, some of Port Authority’s responses appear to be incomplete. Why would an officer check a “group” of riders for warrants because one rider in the group is suspected of not paying fare? How will an education campaign about the cashless fare system help teens and poor people that rely heavily on cash because they do not have bank accounts? What evidence can Port Authority provide to support the claim that there has been an increase in assaults on drivers and confrontations over fare payment? What evidence can Port Authority provide to support its conclusion that increasing the presence of police officers on busses will cause a reduction in the number of assaults and confrontations that occur on busses?

II. Port Authority’s cite-and-check is Pittsburgh’s stop-and-frisk

I believe the most important question went unasked in the Post-Gazette article: isn’t Port Authority’s new cite-and-check policy tantamount to New York City’s controversial stop-and-frisk policy? If so, are Allegheny County residents comfortable with Port Authority officials advancing this “tough on crime” approach.

Stop-and-frisk arises from the “broken windows” theory of policing, and “empower[s] [New York police officers] to detain and search people for often-vague pretexts,” such as “furtive movements,” “casing a victim or location,” and even “other.” The effectiveness (or not) and constitutionality (or not) of stop-and-frisk was a common theme of the 2016 presidential campaign. Trump advocated for expanding stop-and-frisk, as a tool that was necessary to maintain “law and order.” Sanders and Clinton argued that stop-and-frisk should be dismantled as unconstitutional and an ineffective deterrent of crime.

Cite-and-check mirrors stop-and-frisk in several respects. It empowers officers to briefly detain or conduct “investigatory stops” of people that are suspected of not paying fare. It further empowers officers to use vague pretexts to justify investigatory stops. Not paying fare may seem like a specific (as opposed to vague) basis for suspicion. However, suspicion of not paying fare could easily extend beyond an after-the-fact scenario to an inchoate or attempt scenario, where an officer suspects that a person intends to not pay fare because of the person’s appearance, body language, or apparent association with a particular group.

Additionally, while cite-and-check does not expressly empower officers to frisk or pat down a suspect’s outer garments, it reasonably can be assumed that these and other more invasive searches will result from encounters that begin as cite-and-check stops. In the recent United States Supreme Court case of Utah v. Strieff, the Court ruled that unconstitutional investigatory stops (i.e. stops that are unsupported by reasonable suspicion of criminal activity) are justified when the investigating officer discovers an active warrant against the stopped suspect. This case stands for one of the few doctrines (the “attenuation doctrine”) in American criminal law where the ends justify the means.

Finally, stop-and-frisk takes advantage of the “Terry Frisk” doctrine, and cite-and-check similarly takes advantage of the attenuation doctrine. Thus, both policies encourage suspicionless stops, albeit on differing constitutional grounds. As Justices Kagan and Sotomayor noted in their respective dissents in Strieff, 1 in 10 Pennsylvanians has an active warrant at any given time (Pennsylvania has 12.8 million residents and 1.4 million active warrants). The vast majority of these warrants have arisen from traffic citations and other petty offenses. Moreover, active warrants tend to be concentrated in poor and minority communities. For example, recent studies found that Ferguson, MO had 16,000 active warrants but only 21,000 residents, and Cleveland, OH had 100,000 warrants but only 300,000 residents. See Strieff (Justices Kagan and Sotomayor, Dissenting).

III. Cite-and-check will harm the region by contributing to mass incarceration

With my own criticism of cite-and-check, I begin as I always do — by acknowledging that we as a society over rely on policing and incarceration as solutions to our social problems. It has become axiomatic that the United States imprisons more of its citizens than any country in the world; in the last thirty years our prison population has more than quadrupled and our police have become increasingly militarized. This “mass incarceration” approach to solving our social problems doesn’t make economic sense, and reducing our reliance on incarceration likely makes our communities safer.

Policies that contribute to mass incarceration destabilize communities. When an officer issues you a citation for not paying fare, you’ll have to miss work to go to court. If you miss court instead a warrant could be issued for your arrest. Or you could be found guilty by default, in which case a $300 fine will be assessed against you. If you fail to pay the fine on time a warrant could be issued for your arrest. This is a vicious cycle for a poor person that has enough trouble keeping food on the table and avoiding eviction; it is a cycle that revolves around the relative ease of revoking a person’s liberty over $2.50.

Beyond mass incarceration, I believe that cite-and-check will deter those who depend on public transportation the most from its use. For example, the Chief Justice of the Supreme Court of California recently spoke out against ICE agents that were “stalking” undocumented workers at courthouses in her state. She argued that this practice was disrupting the administration of justice because defendants, witnesses and other parties to court cases were not coming to court out of fear of capture by ICE. One can imagine a similar scenario under cite-and-check: a single mother knows that she has a warrant out for failure to pay a traffic ticket, and she is afraid that she will encounter a cite-and-check while taking the bus to work, so she spends her rent on a cab or Uber, or she risks losing her job by making a regular practice of missing work until the warrant is cleared.

Ultimately, we have to ask ourselves if cite-and-check is part-and-parcel with the divisive politics of the likes of Trump. Is it offering a vision for the future of our region that is based on strengthening community bonds through patience, toleration and understanding? Is cite-and-check really who we want to be? What if Port Authority moves forward with cite-and-check despite its criticisms? Will the District Justices that preside over failure to pay fare-cases issue fines? Or will they offer restorative solutions that address not the “offense” of not paying fare, but the root cause of the behavior that is associated with this offense?

Elected, Independent, District Judge in Pittsburgh, PA. Access to justice is essential to a vibrant and equitable democracy. he/him/his