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Does Fare Enforcement Infringe on Rights to Privacy?

The Washington state Supreme Court will consider whether enforcing fares on public transit systems violates passengers’ rights. If upheld, the court’s ruling could have statewide ramifications.

(TNS) — On March 18, 2018, three Snohomish County, Wash., sheriff's deputies boarded a bus in Everett and asked Zachery Meredith to prove he'd paid for his ride. That act of fare enforcement violated his civil rights under the state constitution, Meredith's lawyer argues.

After being rejected by lower courts, the argument has now found its way to the Washington state Supreme Court, where the justices will weigh whether fare enforcement represents an unconstitutional incursion into passengers' right to privacy.

If Meredith's case is successful, transit agencies could be stripped of the authority, granted by the state, to pace the aisles of trains and buses, querying riders for evidence they'd tapped their ORCA cards or bought a ticket. The implications for Sound Transit, King County Metro's RapidRide routes, Snohomish County's Community Transit and other agencies that employ fare enforcement officers are significant.

"There are statewide ramifications for transit in Washington state that will flow from this case," said Nathan Sugg, a deputy prosecuting attorney with the Snohomish County Prosecutor's Office who's representing the state in the case.

But for Tobin Klusty, attorney for Meredith, a rejection of the case — which is being supported by the ACLU of Washington, King County Department of Public Defense and the Washington Defender Association — would signal an endorsement of unlawful search and seizures by law enforcement officers. The government "could conduct investigations without any reasonable suspicion or any suspicion of unlawful activities simply because they want to make sure the law's being enforced," he said.

Proof of Payment

The question at the center of the case is not whether it's legal to charge for public transit but whether it's legal to ask for proof of payment.

Meredith was riding on Community Transit's Swift bus line between Everett Station and the Aurora Village Transit Center in Shoreline. The Swift bus is a form of rapid transit in which passengers pay before boarding and enter and leave through any door to expedite stops.

When the three officers got on the bus and asked for payment, Meredith initially told them he had it, according to court documents. But, after patting his pockets, he did not have an ORCA card or receipt. The officers ordered him to exit and followed him off the bus. Under questioning, Meredith gave the officers a fake name. When the name did not appear in any databases, police identified Meredith using a fingerprint device and found he had outstanding warrants. The officers arrested him on suspicion of making false statements.

In district court in Everett, Meredith's lawyer sought to have the statement to officers and the evidence collected from the fingerprint device suppressed, arguing that the act of officers asking for proof of payment constituted an unlawful seizure. The court denied the motion and a jury sided against Meredith. The conviction was upheld in Superior Court.

Meredith then brought his case to the Division I Court of Appeals. The court also rejected the argument, saying that, by choosing to board the bus, Meredith had consented to the seizure.

Klusty then petitioned the Supreme Court to take the case. Oral arguments are scheduled for Feb. 17.

Meredith's case relies on whether fare enforcement officers asking for proof of payment constitutes a warrantless seizure or restraint. Klusty argues yes because, in that moment, Meredith had no choice but to engage with the officers.

"No reasonable person in Mr. Meredith's position would have believed that he could terminate the encounter or decline to answer since doing so would have made him liable for an infraction under" the state statute authorizing fare enforcement, Klusty wrote in his petition.

The court of appeals said Meredith had consented to the officers' questioning by boarding the bus in the first place, but Klusty disagrees.

"The statutes do not warn passengers that law enforcement may make requests, and effectively seize them, without any reason to believe they did not have proof of fare," he wrote.

The argument is similar to one made in Maryland last year. The state's highest court there sided with the train passenger, concluding his Fourth Amendment right against a suspicionless search and seizure had been violated when the agency conducted a "fare sweep."

In an interview, Klusty compared the interaction to unlawful traffic stops, noting that officers must have reasonable suspicion to pull someone over. In turn, whether fare enforcement officers are authorized to query passengers indiscriminately has "pretty broad implications in what the government can do in invading an individual's private affairs," he said.

Magda Baker, an attorney with the Washington Defender Association, said this case is simply asking the court to affirm the status quo that limits search and seizures. Arguing that someone consents to questioning by using a public service disproportionately targets people of color and low-income communities, she said.

"The government can't exchange a good for giving up a constitutional right," she said.

In its response to Klusty's petition, the state says Meredith had no reasonable right to privacy as a passenger. Anyone could have observed him boarding and riding the bus and no personal information is divulged in providing proof of payment. Officers engaging with individuals in public and asking for identification does not qualify as a seizure, the state argued.

"If asking a person for identification ... in a public place is not a seizure under the constitution, then certainly asking for proof of fare compliance cannot be a seizure," the state argues.

Sugg, with the Snohomish County Prosecutor's Office, who recently took over the case on behalf of the state, said he's confident the Supreme Court will follow the lead of lower courts. "Every court has found that this was not an unconstitutional seizure, simply asking someone for their fare," he said in an interview. "The statutes that give the authority to do that are straightforward and clear."

Disproportionate Enforcement

Scrutiny of fares and their enforcement has grown in recent years, even before recent protests against police misconduct. A 2018 audit of King County Metro's RapidRide lines found enforcement was disproportionately landing on homeless riders and that those citations were mostly going unpaid. Data from Sound Transit between 2015 and 2019 showed that Black riders received 22% of the agency's citations despite making up just 9% of its riders. The disproportionality became even more severe as those citations escalated into misdemeanors.

Both King County Metro and Sound Transit have temporarily suspended fare enforcement on trains and RapidRide lines. Sound Transit has piloted a "fare ambassador" program for the last year. The ambassadors are asking for proof of payment but are not currently issuing citations. The Sound Transit board will hear an update on the program Thursday, as well as recommendations for changes to fare enforcement, said spokesperson Rachelle Cunningham. Those recommendations could include increasing the number of warnings individuals receive and creating new ways to resolve disputes outside of the court system.

But fare collection remains a large part of transit agencies' budgets. Sound Transit calculates it will take in $8.3 billion in fare revenue through 2046. "If we have a gap that fare is not covering then it's going to have to come from somewhere else," Cunningham said.

Community Transit in Snohomish County aims to cover 20% of its operating expenses through fare revenue, said spokesperson Monica Spain, although 2020 was well below that because of the pandemic. The agency conducts fare enforcement on its two Swift rapid transit lines, as well as on nonrapid lines, using a mix of unarmed "ambassadors" and police officers contracted through the Snohomish County Sheriff's Office. Not paying the fare can result in a $124 fine.

King County Metro collected about $167 million in fare revenue in 2019. Al Sanders, spokesperson for Metro, said the agency knows that "because mobility is a human right, the ability to pay a fare cannot be a barrier to using transit." Metro has worked to provide subsidized rates for youth and seniors as well as those with lower incomes and disabilities. The county agency is currently reexamining fare-enforcement practices. However, going fare-free would necessitate finding new revenue sources or reducing service, Sanders said.

Spokespeople for Sound Transit, Community Transit and King County Metro all declined to comment on the pending legal case.

Part of Sugg's argument in court is that finding fare enforcement to be unconstitutional would place enormous burden on transit agencies. They'd be left with three options, he said: function on a true honor system, with no enforcement; build infrastructure such as turnstiles; or make the entire system free to ride.

Klusty acknowledged that a ruling in his client's favor would necessitate big changes for some agencies. But, he said, "my biggest concern is just ensuring that people's constitutional rights are protected."

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