TriMet Exclusions: One wrong step

This article is reprinted from STREET ROOTS


This past July, at the Tigard Transit Center, Chris Tejero was arrested and slapped with two misdemeanor charges after he boarded TriMet’s WES Commuter Rail line without paying for a ticket.
He was arrested despite the fact that the conductor gave him permission to board because the ticket kiosk wasn’t working properly.
During trial, a jury listened to testimony from the WES line’s conductor. Tejero had also provided his attorney with bank statements showing a history of consistent payments.
The jury acquitted Tejero, but not before taxpayers paid for his arrest, jail processing and time spent by court staff who were present for multiple courtroom appearances. Plus, 12 registered voters were summoned to the courthouse to hear Tejero’s case. It took the jury 20 minutes to find him not guilty.
Tejero’s story exemplifies what defense attorneys claim are common petty cases that contribute to a significant waste of diminishing court resources. They also say that in some cases, serious criminal charges are pressed in scenarios where a simple ticket or warning would be more appropriate.

Transit troubles

TriMet has a history of filling Multnomah County courts. After it cracked down on fare compliance in 2011, floods of people went to the Justice Center to get their fines reduced or to fight tickets on what has become known as “TriMet Tuesdays.”
For boarding TriMet’s WES line, Tejero was charged with “interfering with public transit,” or IPT — a Class A misdemeanor, which carries the same weight as a drunken driving or misdemeanor assault charge. The definition of IPT allows transit officers to issue this serious criminal charge in circumstances that – were they to take place anywhere other than on transit property – usually would result in a ticket or Class C misdemeanor.
A Class A misdemeanor is punishable by up to one year in prison. A Class C misdemeanor is punishable by up to 30 days in jail.
Attorney Chris O’Connor, with Metropolitan Public Defender Services, explains that interfering with public transit isn’t what it sounds like.
“The things most people think of as ‘interfering’ are very different than what is getting charged,” he says.
“The overwhelming majority of IPT cases are for re-entry onto a bus or MAX train or platform after previously being excluded. It is very rare to see someone charged with this crime for actually interfering with the vehicle or stopping the vehicle.”
Jane Fox, a public defender who handles cases in Multnomah County’s Community Court, says IPT charges make up 25 percent of her caseload, and it’s rare that a client actually interfered with a transit vehicle. Because most IPTs only go to Community Court in Multnomah County, Fox handled about 420 IPT cases last year.
Fox says 99 percent of her clients charged with IPT are accused of entering TriMet property while under an “exclusion.” She says in many cases, the rider has no idea they were excluded from TriMet property at the time of arrest, so it comes as a surprise when they find themselves facing significant criminal charges.
Most people receive temporary exclusions from TriMet property for not paying fares, but in some cases exclusions are issued for behavioral reasons.
“The way TriMet counts the exclusion is not how normal people would count. The exclusion says it’s 30 days, but it doesn’t start until 11 days after you get (cited),” Fox says. “So (the offenders) count 30 days, but there’s still another week, so they get back on the bus and get another charge.”
TriMet’s Notice of Exclusion form states that the exclusion begins “on the eleventh business day following the date of issuance of this exclusion.” While there are two places where the officer issuing the citation can write the date of the incident, nowhere on the form does it indicate the actual start and end date of the exclusion.
Tejero was excluded as the result of his July arrest. He says that during that period, on days when he wasn’t able to find a ride, he had to walk for two hours to get to work.
Metropolitan Public Defender Erica Rothman has defended clients in both Multnomah and Washington counties. She was instrumental in prompting a bill in this legislative session that would change IPT’s definition. The change would mean that people who did no more than set foot on TriMet property when they weren’t supposed to no longer would face a serious criminal charge.
She says she has up to four or five clients per week facing charges from transit police, and it’s usually an IPT charge.
Under a Class A misdemeanor, people are more likely to be jailed, at least briefly, when they are being processed. But the charge can bring an actual jail sentence too, Rothman says.
“Within both counties that I’ve practiced in, I’ve seen people sentenced to jail time on these matters, upwards of 30 days in some cases,” says Rothman. “And I don’t want to say these are exceptional cases, because I’ve seen so many of them,” she says.
According to data compiled by the Oregon Criminal Justice Commission, for those who received jail sentences resulting from IPTs from 2010 to April 2014, the average sentence in Washington County was 28 days. In Multnomah County, the average sentence was 15 days at a cost of $2,520 for each inmate. During the same time period, Multnomah County dismissed 31 percent of issued IPT cases. (Washington County dismissed 9 percent and Clackamas dismissed nearly 10 percent.)
Many of the people Rothman says she’s seen facing this charge are homeless or mentally ill. She says it’s often people who ride the MAX to stay warm, or to get to social services spread out across the tri-county area, but who lack money for the fare.
Sara Mulroy, who also works as a public defender in Multnomah County, says she had a client who was homeless and had been racking up IPT charges for a long time for taking the MAX or sitting in bus shelters while he was excluded. “Almost always, he was stopped by officers that knew him,” she says.
Her client was able to finally get housing and a bus pass, she says. “However, he still was picking up these IPTs when he was riding on the bus,” says Mulroy. “And this was once he had a bus pass! He had valid fare, he was riding on the bus to services he needed, and he was still stopped and charged with them as crimes because he was excluded.”
Another side effect, Rothman says, is that IPT plays a significant role in what she calls the “trafficking of petty warrants.” Sometimes when people get charged with an IPT in one county, they already have an IPT or other misdemeanor charge pending in another county. They get arrested and booked into jail, which causes them to miss their court date for the first IPT. So the judge overseeing the arraignment they missed places a hold on them so they can be shipped to his or her county’s jail to await court on the IPT in that jurisdiction.
“They just get passed back and forth from one jail to another,” she says.
While public defenders Rothman, Fox and O’Connor say IPT charges are burdening the courts and wasting resources, there isn’t any comprehensive data available on just how much these types of cases are costing Oregon courts.
According to Transit Police Division spokesman Sgt. Matt Engen, 840 IPTs were issued metro-wide in 2014. In Portland, 533 were issued. Engen says he would “not argue” with the statement that most IPTs are issued for entering TriMet property while under exclusion.
Engen says IPTs aren’t issued for non-payment of fare alone, but can be issued if someone refuses to leave transit property after being told to do so, as that may delay the train or bus from continuing on schedule.
According to a 2010 report prepared by the University of Oregon for the Criminal Justice Commission, the average cost of prosecuting a misdemeanor in Oregon is $1,679. This includes all court costs, but does not include the expense of incarceration or arrest.
Using this average, it is estimated that local courts spent approximately $1.4 million in costs on IPT charges in the Portland-metro area last year. This estimate does not include costs associated with arresting offenders, transporting them and lodging them in county jails.

Changing the law

On Feb. 2, Rep. Lew Frederick, D-Portland, introduced the bill Rothman helped instigate, House Bill 2826. It would amend what constitutes “interfering with public transit,” making someone who is caught on TriMet property without a ticket or under an exclusion no longer subject to the criminal charge.
Frederick says IPTs are an example of regulations used to disproportionately target low-income people, immigrants and people of color.
“If you’re an immigrant, and you’re not understanding what the system is like, and you end up with a fine once, and then you get another fine – those things continue to build up and you might not even know you’re getting fined for them,” says Frederick. “That can build up to where you are so far in debt that there is no way for you to even try to get out of it, and you have a long record of Class A misdemeanors, which doesn’t help you at all, either.”
If the law is changed, police could instead charge people who unlawfully enter TriMet property with second-degree criminal trespassing, but this charge is currently a Class C misdemeanor and carries substantially lesser penalties, says Frederick’s legislative assistant, Sue Hagmeier.
O’Connor says other charges easily can flow from an IPT arrest. “Potentially, if the person has contraband or reacts poorly (for example, refuses to immediately obey an order to stop or follow another police command), charges like possession or interfering with a peace officer might follow,” says O’Connor.
In Tejero’s case, he was charged with theft of services for not paying the $2.50 fare, and then IPT, he says, when he argued against giving the arresting officer his identity. “I have rights,” says Tejero. He says he didn’t want to disclose his identity when he had done nothing wrong.
Jamie Trinkle, a law student working in conjunction with Bus Riders Unite – a transit riders advocacy group – says BRU has received stories from riders who say transit officers ask for identification before asking for proof of payment on TriMet property.
The evidence gathered by BRU has been mainly anecdotal, but based on conversations with transit riders, BRU believes that people of color and – echoing Rothman’s concerns – people with mental disabilities and people experiencing homelessness are approached disproportionately by security on TriMet properties. (The Oregon Criminal Justice Commission found that 54 percent of those charged with IPT between 2010 and April of 2014 were white, and 27 percent were African American — far above TriMet’s estimates on African-American ridership, which TriMet says is in the single digits.)
“There’s a huge need for reform in the interfering with public transit criminal code,” says Trinkle, pointing out that the offenses it includes can be covered by other criminal charges. “It’s really unnecessary, and it just winds up providing fodder to over-criminalize folks who are being targeted by TriMet police.”
Additionally frustrating, say O’Connor and Fox, is the burden TriMet places on the court system. “They use a lot of public resources,” says Fox.
“TriMet doesn’t have to pay for the jail, the public defender, the court systems cost or anything like that,” says O’Connor. “I think the rest of the taxpayers in the rest of Oregon do not realize the cost in money, court time, jail time and other expenses that the current statute allows. I suspect the county and the legislature will be very surprised when they see how much they can save in public defense funds, jail costs, court time and the like by passing Rep. Frederick’s bill. TriMet and its enforcers would retain the ability to arrest and charge people who actually interfere with the flow of public transportation, but would stop wasting time and money on people who have purchased a ticket and are not interfering with other people’s ability to use public transit.”
Frederick says he has not done an analysis to see what the cost savings of this bill might be. The bill’s been referred to the House Committee on Judiciary for review.
According to Steve O’Hagan, the deputy district attorney in charge of transit unit prosecution for Multnomah County, between Jan. 1, 2014 and March 1 of this year, 88 percent of the 610 IPT cases prosecuted in the county were for entering TriMet property while under exclusion and for actions such as walking on MAX rails or other areas where the public is not permitted.
O'Hagan says keeping IPTs at a Class A level of misdemeanor is “important for maintaining TriMet as a functioning public transit system.” He says that with Class C misdemeanors, “there’s not the same ability to monitor and assess behavior on the back end.”
“There are times when drug treatment or criminal treatment and services are put into place when someone is on probation for an A misdemeanor, and that, in my experience, is not the case with C misdemeanors,” says O’Haga