OLYMPIA — Is transit fare enforcement unconstitutional?
That’s the question attorneys will argue this week in the state’s highest court, in a case that originated on a bus bound for Everett.
One side calls fare enforcement a violation of civil rights under the state constitution. The ACLU of Washington, the Washington Defender Association and the King County Department of Public Defense have submitted briefs, arguing fare enforcement is racist and inequitable.
The other side equates fare inspection to a justified and “minimal intrusion into passengers’ privacy.” Agencies teamed up to submit their own brief Tuesday, including Community Transit, Sound Transit, King County Metro and the Washington State Transit Association, which represents 31 public transit agencies.
They say the case could have grave implications for the way they operate.
Oral arguments are set for Thursday. What justices decide could ripple through transit agencies across the state. They could end fare enforcement as we know it. Or affirm its role.
A fake name
The case started almost four years ago.
On March 28, 2018, Zachery Meredith, 37, got on a Community Transit Swift Blue line bus headed north.
In Everett, two Snohomish County sheriff’s deputies got on after him. One boarded in the back, the other in front. One of them approached Meredith, offering a rote request:
“Proof of payment or ORCA card,” he said, according to court documents.
Meredith acted as if he had proof of payment. But after a “thorough search,” he came up empty-handed, documents say. Deputies ordered him off the bus, along with a handful of others who apparently hadn’t paid. They asked for identification.
Meredith allegedly gave the deputies a fake name. He said he was Jason McGumery, from Colorado. But he didn’t have his ID on him.
Deputies could find no record of the name, either in Washington or Colorado. They used a mobile identification device to collect fingerprints and matched them with a man named Zachery Meredith, who had a couple of warrants out for his arrest.
They booked Meredith into the Snohomish County Jail for investigation of obstructing a police officer. Staff there found a baggy of heroin in his pocket.
In May of that year, a jury found him guilty of making a false statement to a public servant. He was sentenced to 58 days in jail, which by then he had already served.
Meredith appealed the case to the county Superior Court, then the state Court of Appeals, and finally the state Supreme Court.
Along the way, public defenders have made the same argument over and over again: The act of fare enforcement amounts to an unconstitutional seizure.
In the Supreme Court petition, defense attorney Tobin Klusty points to Article 1, Section 7 of the state constitution, which states: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
Sheriff’s deputies acted without a search warrant, Klusty wrote. Yet he was still seized by the deputies, meaning no reasonable person would feel free to walk away from the encounter.
“Mr. Meredith was frozen,” Klusty wrote. “He had no choice but to comply. Failing to provide proof would have made him liable for a civil infraction.”
Representing the state, attorneys with the Snohomish County Prosecutor’s Office argued that riders consent to suspicionless seizure when they board the bus, for the limited purpose of fare inspection. Furthermore, they contend such seizures are authorized under the “special needs” exception to the Fourth Amendment of the U.S. Constitution, a narrowly construed exception when law enforcement can conduct searches and seizures if there’s a compelling enough governmental interest.
Often, those exceptions are made for the sake of public safety. Think of a school administrator searching a student’s backpack without a warrant, or people having to go through security screening at a courthouse.
Deputy prosecutor Nathan Sugg argued transit authorities “have a significant interest in providing effective and cost-efficient transit services,” and that fare inspection amounts to a minimal intrusion.
“It would frustrate the transit authorities’ interests to require probable cause or reasonable suspicion before an officer can contact a passenger to confirm the fare was paid,” Sugg wrote.
It would be impossible to tell whether a passenger has paid fare by just looking at them. Even meeting the low bar of a reasonable suspicion would be unfeasible.
“Passengers would have no incentive to pay the fare because the transit authority would have no means of confirming payment,” Sugg wrote. “In turn the transit authority could face reduced revenues resulting in reduced service to the very communities that rely on it.”
In an amicus brief, the ACLU of Washington and public defenders organizations say that justification isn’t enough.
“State here has failed to establish that the fare enforcement mechanism is ‘sufficiently productive to justify the intrusion’ into a constitutionally protected area of an individual’s life,” their attorneys wrote. “To the extent any such evidence exists, it appears to confirm that the fare enforcement mechanism is wildly unproductive.”
Community Transit’s Swift lines are what’s called “barrier-free transit.” There’s nothing in the way of getting on the bus. No turnstiles like you might see at a train station. Passengers don’t have to wait in time-eating lines to clunk in change as they board.
Instead, they pay at a kiosk outside the bus. If they don’t pay, no one’s going to stop them from getting on anyway. It’s an honor system with a catch: Someone might ask for proof of payment. Don’t have it, there might be consequences.
That’s what happened to Meredith.
Transit agencies say the barrier-free method is faster, less costly, more efficient. For generations, their lawyers wrote, public transit has been a balance of the desire for faster service and the need for fares to be paid.
Started in 2009, Swift lines were the first in the state to offer the ability to pay at the station, instead of on the bus. The boarding process is faster because people can enter through one of three doors.
Not every transit agency contracts law enforcement to carry out fare checks, but Community Transit does. In the 2022 budget, the agency dedicated about $4 million to pay for services from the sheriff’s office. Not all of that is necessarily for the purpose of fare enforcement. For example, the budget sets aside $200,000 to start a social worker program.
Another $700,000 goes to fare ambassadors. They don’t carry guns and don’t issue citations.
“CT’s fare enforcement philosophy is to lead with education,” spokesperson Monica Spain said in an email.
Fare checks happen daily. Every person is asked for proof of payment. No one should be singled out, she said.
Fare ambassadors and deputies with the sheriff’s office Transit Police Unit sometimes work together, or sometimes independent of each other. Deputies almost always give a warning first, Spain said, but repeat offenders might be fined $124, faced with charges — third-degree theft, a gross misdemeanor — or temporarily banned from taking the bus.
Spain said fare enforcement is “a relatively small portion” of the deputies’ work. They also patrol properties, investigate crimes and respond to medical emergencies.
During the pandemic, revenue generated by fares has plummeted. In 2019, Community Transit made over $23 million from fares. In each of the following two years, the agency made less than $10 million.
Officials hope that number will clear $13 million in 2022, about 5% of the budget. Community Transit’s goal is to have fares cover 20% of operating expenses, Spain noted.
That projection is subject to revision, budget writers noted. Whether fare revenue goes up depends on riders feeling comfortable enough to take the bus, the economy reopening and employees returning to work.
“Ridership will return to previous levels only when the concerns over the pandemic subside,” the budget says.
Marysville Mayor Jon Nehring, who sits on the board for Community Transit, saw a connection between fare enforcement and public safety.
At a Community Transit board meeting earlier this month, employees called in to express their concerns. They talked of the daily threats they receive. Of riders using drugs on the bus. Of people urinating and spitting and sometimes becoming physical.
Last March, one altercation on a Swift bus turned into a fatal shooting. A jury later convicted the gunman of first-degree manslaughter.
Nehring said he heard their concerns. He used the complaints as an opportunity to talk about fare enforcement.
“We’ve become far too lenient here in the transit industry,” Nehring said, “of just letting people ride … nobody checking if they’re paying, nobody really monitoring certain behavior.”
“I do think we as a board need to take a look at ensuring our drivers are safe, and that our law-abiding and paying customers are kept safe, as well,” he continued.
One by one, other board members chimed in to agree with Nehring’s take. They cast a wary eye on the Supreme Court arguments taking place, and blamed state laws passed last year that they believe prevent officers from intervening.
They saw Sound Transit as a cautionary tale. The agency has been operating without fare enforcement since 2020, when the pandemic hit. In September, Sound Transit started using “fare ambassadors” who educate rather than penalize. The pilot program is a response to data showing that Black riders have been disproportionately targeted. (King County Metro, which operates RapidRide buses that are similar to the Swift lines, has shared similar data.)
At a late January meeting, Sound Transit CEO Peter Rogoff gave a presentation called “Need for a Comprehensive Fares Strategy.”
He noted, based on observations during fare checks, evasion rates have jumped from 3% in 2019 to as high as 30% in 2020 and 2021. The “non-fare boarding rate,” which includes legitimate boardings such as kids under 6, has been between 40% and 70%.
“It is quite troubling in terms of the numbers we’re seeing,” Rogoff said. “… Put simply, our fare collection system relies overwhelmingly on an honor system, and our increasingly acute problem is that our riders aren’t honoring the system.”
Those numbers are subject to error margins. But in Rogoff’s eyes, the message is clear: The current trajectory is financially unsustainable.
Back in Snohomish County, Community Transit CEO Ric Ilgenfritz agreed with Nehring that it would be a good time to review the agency’s policies and assess safety measures. He did not comment on fare enforcement’s role.
“There’s a saying in the transit business that a safe system is a busy system,” he said. “And we’re operating a system at half the ridership we used to, and it’s not nearly as busy as it used to be, so that makes room for bad behavior.”
Ilgenfritz said he’ll report back with more information. He noted the myriad challenges facing transit agencies these days.
“It’s tough out there.”
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