Trials & Litigation

Lawyer Makes Federal Case Out of Transit Ban for Arguing About Rider's Constitutional Rights

In a one-year period between Oct. 1, 2011 and Sept. 30, a Portland, Ore., transit agency issued only 23 bans to riders because they allegedly made excessive noise.

One was to Jennie Bricker, who is not only an attorney but a partner of Stoel Rives, one of the city’s biggest and best-known corporate law firms. With the backing of the American Civil Liberties Union, she has made a federal case out of the Oct. 5, 2011 incident that resulted in her 30-day ban from the TriMet system, reports the Oregonian.

She says in the federal suit she filed last week that she was banned for 30 days by TriMet agent Larry Boltjes after she called out to him and said she disagreed, after hearing him argue with another rider at the Sunset Transit Center in Cedar Hills. Boltjes, she contended, told the man he should stop talking and said he had no free-speech rights at the station.

A TriMet spokeswoman said a rider would not be excluded from using the system for simply expressing an opinion, but the transit agency declined to discuss the litigation with the newspaper.

Its regulations, the Oregonian says, prohibit “excessive or unnecessary noise, including boisterous and unreasonably loud conduct, within any district vehicle or district station with the intent to cause inconvenience, annoyance or alarm to the public, district personnel, or a peace officer, or with a reckless disregard to the risk thereof.”

Attorney Chip Paternoster, who represents Bricker for the ACLU of Oregon, tells the newspaper the rules are too vague and overinclusive:

“Part of the problem is that the code, as written, doesn’t give a bright line of what it means to annoy or harass or make excessive noise,” he said, adding: “It doesn’t give what I’d call a classic fire-in-a-crowded-theater moment.”

Bricker lost a Portland administrative hearing at which she protested the 30-day ban, arguing that it was the content rather than the noise level of her comment that the TriMet agent who excluded her had found objectionable. She then appealed the hearing officer’s decision in Multnomah County Circuit Court. After a state-court judge determined that federal court was the proper forum for her free-speech case, she filed the U.S. District Court case.

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