Transit fare inspections are upheld by WA Supreme Court

The Washington Supreme Court ruled Thursday that a bus rider in Snohomish County was "unlawfully seized" by law enforcement after not paying his fare.

However, the 5-4 majority ruling emphasized it wasn't tossing out fare-inspections by designated transit personnel altogether.

After lower courts found fare enforcement to be constitutional, the question came before the state Supreme Court in 2021.

At the heart of the case were the fare checks carried out by law enforcement on public transit where riders pay in advance by buying a ticket or tapping their ORCA cards at a reader rather than paying upon entry or swiping through a turnstile. Fare enforcement staff sometimes board the bus or train and ask riders for proof they’ve paid.

The arguments before the court involved the experience of bus passenger Zachery Meredith in 2018. Meredith was aboard Community Transit's Swift bus line, a rapid transit route between Everett Station and the Aurora Village Transit Center in Shoreline, where riders tap their cards at a kiosk before boarding. While riding, he was approached by three Snohomish County sheriff's deputies, who asked for proof he'd paid in advance.

"Without evidence that Meredith was informed that fare enforcement on the bus may involve questioning by law enforcement officers, the State cannot meet its burden of proving that Meredith voluntarily consented to such an interaction merely by boarding," said the lead opinion, written by Justice Mary Yu.

Sound Transit and King County Metro's RapidRide buses have relied on contracted private security guards instead of police to do fare checks, with the ability to call law enforcement in the event of serious confrontations.

In the Snohomish County incident, Meredith had neither an ORCA card to tap nor a receipt showing he'd paid, so deputies asked him to disembark at the next stop.

When asked for his name, Meredith gave the deputies an alias. After failing to find any record of the name, the deputies identified Meredith using a fingerprint reader and found he had outstanding warrants in their system. The deputies arrested him on investigation of making false statements.

After a district court jury found Meredith guilty of making false statements — a ruling upheld in Snohomish County Superior Court — attorney Tobin Klusty took the case to state appellate court. There, he argued that the fare enforcement by officers was an illegal invasion of privacy under the state constitution.

The court disagreed.

At the state Supreme Court, Klusty made a similar argument, that fare enforcement constitutes illegal seizure under the state constitution because riders do not have a reasonable belief that they are free to walk away in that moment.

“By merely walking onto public transportation, individuals do not consent to a waiver of their constitutional right to be free from arbitrary and erratic seizures of the person,” Klusty argued in February 2022.

The state's attorneys countered that fare enforcement is supported by decades of precedent and that riders consent to fare enforcement when they board the bus or train. Attorney Nathan Sugg offered two reasons the stop of Meredith was not unconstitutional:

“First, a reasonable rider consents to such request when they do choose to ride transit,” he told the justices. Second, he said, even if the court finds that a request for proof of fare by a law enforcement officer is a nonconsensual seizure, the request is "justified under the special needs exception.”

Fare enforcement has came under intense scrutiny by transit agencies in recent years amid data showing it disproportionately affected people of color.

The Supreme Court ruling Thursday emphasized those findings, and also mentioned "the coercive effect that a weapon can have in a

police encounter, which is known to disproportionately affect Black, Indigenous,

Latinx, and Pacific Islanders based on reasonable ‘fear[s] of how an officer with a

gun will react to them.’ ”

Sound Transit has done away with its traditional fare enforcement officers, and wrote new rules that will give riders several warnings and alternatives before they're made to pay.

The pandemic, too, upended fare collections on local transit. Both Sound Transit and King County Metro suspended them for months. Low ridership and anemic enforcement mean the revenue coming into the agencies via fares is just a fraction of what it was in 2019.

Sound Transit is hiring low-key "fare ambassadors" to canvass its trains, and educate riders, but has yet to re-impose fines or citations for repeat violations. As of early March, an estimated 85% of passengers were showing proof of fare, a staff report said.

At Metro, "currently there is no emphasis on fare enforcement," said spokesperson Al Sanders, as the county continues to work out its future strategy.