Black riders face stiffest transit penalty at rates more than six times that of whites

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A TriMet fare inspector checks a passenger's fare on a MAX train. Photo courtesy of the Portland Tribune.

The misdemeanor charge can interfere with housing, jobs

The video shows what most people saw: a TriMet rider, 25, black, male, tall, standing aside a squad car on a summer afternoon, surrounded by three police officers. The issue? A disturbance on a bus. 

What you hear, though, are shouts from the other riders.

“He didn’t do anything.” 

“He has his ticket.” 

“He didn’t cuss at them and he has a ticket.”

As the scene unfolds, it seems like nobody knows why someone is being arrested.

Even Brandon Dean, the man in the handcuffs, who after spending 10 hours hungry in a jail cell downtown, is still unsure. 

Failing to have a valid TriMet ticket can lead to a variety of sanctions (See box). Sitting behind bars, Dean faced two charges. The first was theft of services, for failing to have a valid fare, a minor misdemeanor akin to shoplifting. The second charge was interfering with public transit for holding up the bus. It’s a more serious misdemeanor charge, with penalties on par with driving drunk or a domestic assault.

Eventually, Dean was released and he walked home to near Southeast 145th Avenue and Division Street, where all the police action went down, wondering what most everybody else wondered, too: Why, exactly, did he get arrested?  

In the video, it seems police verified Dean had a ticket to be on the bus he presumably disturbed, though it’s not mentioned in the police report. Bus driver accounts diverged sharply from Dean’s own statements, in which he insists he’d showed his fare. They also diverge from witness accounts to police about what exactly happened on the bus. And, in the end, prosecutors dropped the theft-of-service charge.

All told, it’s a tale that underscores tensions between TriMet and some of its African-American riders.

A study TriMet commissioned last year found no bias in the agency’s fare-enforcement practices. And yet, an analysis of racial disparities for this series showed African-Americans are disproportionately charged with the most serious of transit violations — a finding confirmed in an independent analysis by local prosecutors.

Serious charge, significant disparity

African-American transit users had long complained they were targeted for enforcement on trains and buses.

So, last year, at TriMet’s request, Portland State University’s Criminal Justice Policy Research Institute studied two years of enforcement data and found that fare inspectors and supervisors did not disproportionately charge African-American riders with skipping fares. 

However, that study did find that African-American riders were more likely than whites to be excluded from trains and buses. At the time, TriMet characterized the variances found in the PSU study as slight. And when the data are sliced one way, disparities were slight.

What the study did not include, however, was a thorough analysis of another common charge — one that Dean got: interfering with public transit, known as IPT.

Our analysis, which includes 10 years of state court data, shows that African-Americans have been charged with IPT at a rate up to 6.4 times the rate of white riders over the past decade.  

TriMet did not track IPTs, however, because only sworn police officers, not TriMet personnel, can enforce an IPT charge.

However, many — and likely most — of those IPT charges came from local police working on the regional Transit Police Division, which uses 68 cops from 15 police agencies spanning three counties. (Our analysis, part of a series on disparities in Oregon’s criminal justice system, showed that 77 percent of all charges of interfering with public transit in the past decade were charged by the Portland Police Bureau, followed by 8 percent by Gresham Police.)

The Transit Police Division is run by the Portland Police Bureau but is closely tied to — and funded by — the transit agency and its mission is to discourage crime throughout the TriMet system.

Nonetheless, TriMet chose not to include statistics linked to transit police when its reports of slight disparities made headlines in December 2016. (See Sidebar)

That meant a lot of cases weren’t reflected in the data. 

Cases like Dean’s. 

Ordinary day gone wrong

Before the scuffle with police, Dean’s day was an ordinary one. He left his house and boarded a bus at 148th and Division on July 25, heading to a job as a parking attendant at the Portland International Airport. 

He was tired. He’d worked 10 hours the day before. And he says that explains, in part, why he accidentally spent the cash for his fare on food. 

Dean agreed to pay for his fare through a TriMet phone app and got an OK from the driver to get on the bus. He took a seat and attempted to add electronic tickets on his phone with the app, but his credit card didn’t work. 

What followed might have been a simple misunderstanding. 

Dean says when the TriMet app rejected his card, he called his girlfriend to use hers. The driver’s account makes clear that the phone call became a flashpoint: He saw Dean talking on the phone instead of getting straight to the fare.

In Dean’s account, he got his girlfriend’s credit card number, paid for a ticket with the phone app and, within a few blocks, flashed his phone forward so the driver could see he had a valid ticket. The driver disputes that he ever saw a ticket — just a blank screen. He asked to see the fare again. And Dean bristled.

Dean said he took issue with the second request. He’d already shown his ticket, he said. He was tired. He wanted to get to work. And he didn’t see a reason to keep proving that he had paid.

The driver pulled the bus to the side of the road near 145th Avenue and Division and asked Dean if he wanted to get off or wait for a supervisor.

Dean says his only thought was, “I have my ticket, I’m already running late.” All along, he said, he thought he was being given an option to stay on the bus and talk to a supervisor, not the option to stay on the bus and get arrested. 

“I didn’t hear any of that. If I did, I would have said, ‘You know what, this is baloney, but I’m going to get off the bus because I don’t want to go to jail. I got to go to work.’”

Other passengers offered to pay for another ticket for Dean. The driver refused. When a second bus came, Dean flashed his phone again and got on it. But after a conversation between the two drivers the second bus stayed parked. 

The second driver said she, too, didn’t see a ticket on the phone. Again, Dean was asked to get off the bus. Witnesses said they saw Dean show his phone to both drivers, but none of the witnesses were in a position to see whether a ticket appeared on the screen.    

Eventually, a supervisor arrived with a police sergeant. Again Dean refused to get off the bus, asking instead to talk on board. By then, he said, his motivation was fear. He didn’t want to be left on the side of the road with police and no witnesses.

When a third bus arrived and the rest of the passengers got off, Dean followed. By then a police officer and a sheriff’s deputy had arrived too. All were assigned to the Transit Police Division. They arrested Dean and charged him with theft of service (for riding the bus without proof of fare) and interfering with public transit (because he held up the bus instead of getting off).

There’s no mention in the police report of whether the supervisor or sergeant checked Dean’s fare. In the video, it seems clear one officer had.

By then, Deans says, police seemed intent on finding a reason to charge him, not determining the reason why they were there. 

“The supervisor didn’t have an explanation for why I was getting arrested,” Dean said. “The sheriff didn’t know. Nobody knew.” 

He insists he had his ticket all along. There’s nothing in the police report that confirms that claim.

But neither is there anything that disputes it, other than the statements of the bus drivers, both of whom made statements that Dean was swearing at the drivers, which witnesses disputed.

In fact, the police reports also show inconsistency among the officers about why they arrested Dean – whether for theft for failing to pay the fare or a disturbance.

“It’s dispiriting”

Local defense attorneys say Dean’s story — or stories like it — are common on TriMet. So common, in fact, that when asked about a different incident in which a rider was charged with interfering with public transit, public defender Chris O’Connor was able to recite details without ever seeing the file.

Words like “officer safety” are common when a fare evader is taken to the ground, he said, and “mere conversation” tends to kick off a bad exchange.

O’Connor says he’s read enough reports to get a good sense whether a charge of resisting is warranted, or tacked on to a fare evasion citation without justification.  

“I can read a police report and know whether it’s real,” O’Connor said. “You can see the CYA (‘cover your ass’) cases. It’s frustrating because it does become pretty routine.” 

Fighting the charges takes time. A person can sit for several hours on five or six different dates just to get a trial, O’Connor says. And those court appearances can threaten jobs, cost money and add up to lots of time on TriMet, or cause logistical problems for those who can no longer ride. Those accused of interfering with public transit are routinely allowed to enter a simple plea of guilty in exchange for community service. For many, that offer becomes an attractive alternative to probation, suspended sentences, or a long wait for a time-consuming trial. 

A TriMet fare inspector writes a citation for a rider. Photo courtesy of the Portland Tribune.

But those plea deals come back to bite people later, O’Connor said, after cases pile up and a more serious crime lands someone higher on a sentencing grid. “It’s dispiriting,” he said.

The theft-of-service charge never did stick to Dean, who insisted he had a valid ticket on his phone. But prosecutors charged him with the IPT, a misdemeanor, like a lot of other African-Americans. Between May 2015 and April 2016, the most recent year for which data is available, African-Americans were charged with IPT 182 times – a full third of all charges.

District attorneys react

Not everybody who is cited for fare evasion on TriMet thinks they were a target. Chad Fowler, 28, a recent African-American transplant from Baltimore, was caught skipping the fare in one of TriMet’s standard enforcement checks at Skidmore Fountain in May 2015. When the doors opened and he stepped off, there he was, in a corral of passengers, often dubbed “the funnel,” being asked by a fare inspector to show a valid ticket for the ride.

“I kind of brought it upon myself,” Fowler shrugged. One hundred and seventy-five dollars later, he said he’d learned. 

The Portland State University study found that this type of fare check at MAX stations doesn’t result in disparities for citations for those who skip the fare. Nor do the walk-throughs by fare inspectors, who occasionally board a light-rail car and check the fares of all the passengers.

PSU criminologist Brian Renauer, in examining the practices, found African-Americans were twice as likely to earn citations for fare-skipping than their white counterparts during platform- and on-board-inspections. But he found no disparity, since African-Americans also self-reported being twice as likely to skip the fare in a TriMet survey.

But Renauer also noted that African-Americans made up 22 percent of those excluded from trains and buses in the years he examined, though they only made up 18 percent of incidents of fare evasion.       

It was that gap, said Multnomah County District Attorney Rod Underhill, that caused local district attorneys to announce in January that they will no longer charge TriMet riders like Dean with interfering with public transit. 

The prosecutors, who serve Multnomah, Washington and Clackamas counties, were concerned that higher levels of IPT charges issued to African-Americans were the result of the exclusions that Renauer had noticed. That’s because passengers caught riding a bus or train after being excluded often were among those charged with interfering with public transit.

It’s these cases to which transit police were called. And these cases — or cases like Dean’s that originate with police — in which disparities jump.

IPT cases can originate for a variety of reasons: conflicts with bus or rail operators, disturbances on light rail-platforms, or automobile drivers who — either accidentally or otherwise — delay trains with their vehicles. TriMet’s data, however, doesn’t break out those details, or include information from any of the cases in which IPTs originate with police. 

For that reason, it’s impossible to say how many of the IPT charges began with fare inspectors excluding people from riding TriMet and how many were tied to other factors, including interactions with transit police.

But last summer, Multnomah County prosecutors shared with TriMet that black riders on its system were being charged with IPT at rates at least seven times the rate of whites over the preceding three years.

Lt. Tony Silva, a transit police supervisor, says only those who actually delay bus or train service are charged with IPT. With 330,000 TriMet trips a day, including up to 600 buses at peak times and about 66 trains and 103 platforms, even one train or bus stalled by a problem passenger can create a cascade of troubles.

“In the peak hours when all those trains are running, if you stop one train for 10 minutes you can see how quickly that dominos back and the whole system gets stopped,” Silva said. “And so that’s part of the reason to keep the system moving. And people depend on it.” 

Absent data, TriMet revises

TriMet officials say they don’t have the ability to collect data to show how their efforts to keep the trains and buses running on time are intersecting with the criminal justice system.

Better data about IPTs and theft of services might help the community better understand why so many African-Americans are being charged.

But TriMet officials said the charges are investigated by police, not TriMet, and handled in the criminal justice system. “These criminal charges never enter the TriMet system, and we do not have the ability to track them,” officials said in a statement.

TriMet is working on solutions intended to keep people out of the criminal justice system for fare-related fines, however. Things like paying reduced fines or doing community service to opt out of the case before it heads to court.

And TriMet has taken over control of its own hearing process, in which those excluded from riding can dispute the exclusion or get partial permissions to ride.

That will make it easier to retool exclusions so that people aren’t faced with the dilemma of, for example, riding excluded or not getting to a job or to school.

In early March, the Portland Tribune reported that TriMet is directing its bus operators to accept partial payment instead of full fare and not exclude nonpaying riders from buses. Instead, TriMet tells drivers to alert dispatchers who can send police, if available.

They say they’re not getting soft on crime. They still plan to expand the amount of fare inspections on the system and educate riders about consequences for violations — and how to ask for help if they’re too harsh. And, they plan to increase training for operators on how to de-escalate encounters like the one with Dean.

The best of justice

Dean’s handcuffs were loose. They came off. It was an accident. Still, even after he told the officers he’d come loose, there was a whole lot of restraining him in the back of the car until his hands were bound again, till he was squished up trying to breathe and wondering how far it would all go.

“I was just thinking about all those videos and thinking, ‘I don’t want to be another hashtag,’” Dean said.

Thoughts of home, still so close, whipped through his mind. He thought about running home and locking the door. He imagined calling for help and waiting to see how it all turned out. 

Still, even after they took his shoelaces and put him in a cell for 10 hours, after he missed his shift at work and went hungry, then had to walk home from downtown because, ironically, there were no buses running when they let him out very early in the morning, none of that was the hard part.

To ask Dean, the hard part came later. 

When the video of it all hit Facebook, filmed by another rider on the bus, and his life became something that wasn’t his anymore. Phone calls from the media. People who stopped him on the street (“Oh, you’re that guy”). Messages that besieged his Facebook page. After the handcuffs, the jail cell, the anger, too. What got him was that uninvited stardom. The unwelcome trade of his private life for this one lived on stage. 

“It was just too much attention,” he said. “It was something that really took a toll on me. My head. My body. At times I didn’t want to pick up my phone or see my phone, text messages. … I was, like, drained. It was like working every day of your life and not sleeping either, with your 2-year-old running around you.”

Later, Dean says his public defender couldn’t understand why he wouldn’t just take the deal — a conviction with community service only. But he had a problem with that. He didn’t think he’d done anything wrong.

“The whole scenario was just backwards,” he said. 

And start to finish, even in the court, it stayed that way. In the end, the advice he got was the advice he didn’t want: to say he was guilty, to sign a paper that said he “knowingly and unlawfully remained on a public transit vehicle.” Just to be done with it.

In his mind it was far afield from justice, however practical. And yet, somehow, it was the best the justice system could do.

He took the deal.

This story was amended from an earlier version to correct the number of train platforms on the TriMet system, provide attribution to a comment, and clarify TriMet’s policy on partial payment.

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