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April 1, 2023

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Transit fare inspections are upheld by Washington Supreme Court

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OLYMPIA — The Washington state Supreme Court upheld fare enforcement checks on public transit as legal Thursday, but ruled that deputies wrongfully detained a Snohomish County man when he didn’t show proof of payment on a bus.

The decision does not tell transit agencies how to carry out fare enforcement, and it appears unlikely to change the daily experience of most riders. “The government has a general need for fare enforcement on barrier-free transit,” justices agreed.

Three justices concluded that the role of armed police inside a transit vehicle, telling someone to produce fare and ID, was coercive during the 2018 incident. Two others found a lack of proof that deputies were authorized to conduct fare inspections for Community Transit. That adds up to a five-judge majority who criticized how the specific fare check was done, yet all nine still recognized a right of transit agencies to conduct fare inspections.

Community Transit’s Swift buses in Snohomish County, as well as King County Metro RapidRide buses, Sound Transit light rail, and Sounder commuter trains, rely on spot checks of passengers, instead of turnstiles or fare gates, to compel payment. These “barrier free” methods reduce costs to build rail stations, and in the case of buses they allow quick loading through all doors.

The arguments before the court involved the experience of bus passenger Zachery Meredith. He was aboard Community Transit’s Swift bus line, between Everett Station and the Aurora Village Transit Center in Shoreline, where most riders tap their ORCA fare cards at roadside kiosks before boarding. While riding, he was approached by a Snohomish County sheriff’s deputy, who asked for proof he’d paid in advance. The encounter ended in an arrest.

Meredith sued, and after lower courts found fare enforcement to be constitutional, the case reached the state Supreme Court in 2021.

“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.

“We do not strike down any statute permitting designated persons to request proof of fare payment on barrier-free transit systems,” Yu concluded. “We reject only the particular method of fare enforcement used here, given the lack of legal justification in the record. Our holding is necessary both to preserve the constitutional privacy rights of transit passengers and to mitigate the known, racially disproportionate impact of such fare enforcement practices.”

Meredith’s attorney, Tobin Klusty, called Thursday’s ruling a great result for the residents of Washington state. “The right to privacy was given the protection it needs and deserves,” he said.

“Clearly, having law enforcement going up to people and requesting proof of payment, and issuing an infraction that goes with that, does not pass constitutional muster,” Klusty said.

Community Transit CEO Ric Ilgenfritz responded in a statement that the ruling keeps current fare-enforcement statutes intact. “We are reviewing the ruling as well as our own procedures to ensure we are in compliance with the law and treating all of our customers fairly,” he said. Swift buses do provide civilian “service ambassadors” to help customers use transit, a feature other transit agencies have emulated, he said.

Sound Transit trains and King County Metro’s RapidRide buses have historically 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.

By contrast, Meredith was approached from the outset by deputies. He carried neither an ORCA card to tap nor a receipt showing he’d paid. The 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 — 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 appellate 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.

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

Yu’s opinion, co-signed by Chief Justice Steven González and Justice Sheryl Gordon McCloud, echoed 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.’ “

Meredith is white, but “the practice as a whole is something that had to be evaluated by the court,” Klusty said Thursday.

In a dissenting opinion, Justice Debra Stephens questioned the idea that fare-checking Meredith was coercive, or a “seizure,” given there was no force and the deputy struck a conversational tone of voice.

Stephens wrote that Meredith knew he could be fare-checked, and “for over a century we have recognized that that ‘it is incumbent upon the [passenger] to produce a ticket showing his right to transportation, when called upon . . . or pay the fare in money, or peaceably leave.’”

But there were also unusual circumstances that day. Sheriff’s deputies conducted a fare emphasis patrol with two in uniform canvassing the bus, and one following in a marked car — unlike Community Transit’s own usual method for civilian Swift ambassadors to approach people first, then work with deputies as needed, Yu’s ruling explained.

Nathan Sugg, Snohomish County deputy prosecuting attorney, said he interprets Thursday’s decision to say that police and deputies may still be involved in fare enforcement, in roles to be chosen by Community Transit. Only three of nine justices objected to having law enforcement conduct fare enforcement, he said.

Sugg also said there actually is a contract between the transit agency and Sheriff’s Office, but it wasn’t entered as evidence in the Meredith case.

Sound Transit has done away with traditional fare enforcement officers, who promptly evicted or ticketed nonpayers, in favor of educational “fare ambassadors” dressed in yellow and blue. The agency intends to give riders warnings and alternatives before fines are charged, starting at $50. Meanwhile, transit agencies have created a discount ORCA LIFT fare card where low-income adults can travel for only $1 per trip. Youth ride free.

The pandemic 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 has recently hired about 17 of its planned 26 fare ambassadors, to canvass trains, and educate riders, but has yet to reimpose fines or citations for repeat violations. As of early March, an estimated 85% of passengers were showing proof of fare, a staff report said. CEO Julie Timm has announced plans this year to mark “fare paid zones” on the station platforms, so people will be approached to show proof-of-payment while waiting, rather than onboard a crowded train.

“We’ll review the decision and determine if it has implications for our fare inspection activities. We won’t speculate ahead of a close review,” said Sound Transit spokesperson Rachelle Cunningham.

Metro Transit, which has been rethinking equity and enforcement since early 2021, has yet to choose a new fare collection philosophy. “We expect riders to pay the correct fare even though enforcement is currently suspended,” said spokesperson Sean Hawks.

Lately, some Metro drivers have been operating regular buses similar to RapidRide, where they open multiple doors at busy stations, and riders pay by an unofficial honor system.

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