The Washington Supreme Court ruled Thursday that a Snohomish County bus driver was “unlawfully seized” by law enforcement after failing to pay his fare.
However, the decision by a 5-4 majority emphasized that fare checks by designated transit staff were not eliminated entirely.
After lower courts ruled that fare enforcement is constitutional, the issue came to the state Supreme Court in 2021.
The case centered on law enforcement’s fare controls on public transit, with passengers paying in advance by purchasing a ticket or holding their ORCA card against a reader, rather than paying at entry or swiping through a turnstile. Fare collectors sometimes board the bus or train and ask passengers for proof that they have paid.
The arguments before the court concerned bus passenger Zachery Meredith’s experience in 2018. Meredith was aboard Community Transit’s Swift bus route between Everett Station and the Aurora Village Transit Center in Shoreline, where passengers checked their tickets before boarding at a Tap Newsstand. While riding, he was approached by three Snohomish County sheriff’s deputies, who asked him for proof that he had paid in advance.
“Without evidence that Meredith was informed that enforcing the fare on the bus may involve questioning by law enforcement officials, the state cannot discharge its burden of proving that Meredith voluntarily consented to such interaction simply by boarding,” it said in the lead opinion written by Justice Maria Yu.
Meredith’s attorney, Tobin Klusty, called Thursday’s verdict a “great result for Washington state citizens.” “The right to privacy has been given the protection it needs and deserves,” he said.
“It’s clear that law enforcement is going to the people and asking for proof of payment and issuing a related violation that fails constitutional screening,” Klusty said.
Sound Transit trains and the King County Metro’s RapidRide buses have relied on assigned private security guards instead of police for fare enforcement, with the ability to call law enforcement in the event of serious confrontations. Thursday’s ruling does not contain any orders directly affecting these two agencies.
In the Snohomish County incident, Meredith was approached by deputies from the start, and he had neither an ORCA card to tap nor a receipt showing he had paid. The deputies asked him to get off at the next stop.
When asked for his name, Meredith gave the deputies an alias. After finding no record of the name, deputies used a fingerprint reader to identify Meredith and found he had outstanding warrants in their system. MPs arrested him on investigations into false testimony.
After a district court jury found Meredith guilty of misrepresentation – a decision upheld in Snohomish County Superior Court – Attorney Tobin Klusty brought the case to the state Circuit Court of Appeals. There he argued that enforcement of fares by officials was an illegal invasion of privacy under the state constitution. The Court of Appeal disagreed.
In the state Supreme Court, Klusty similarly argued that fare enforcement constitutes an illegal seizure under the state constitution because drivers do not reasonably believe they can walk freely at that moment.
“By mere boarding of public transportation, individuals do not consent to a waiver of their constitutional right to be free from arbitrary and unpredictable seizures of the person,” Klusty argued in February 2022.
Prosecutors countered that fare enforcement is backed by decades of precedent and that passengers consent to fare enforcement when they board the bus or train. Attorney Nathan Sugg gave two reasons why Meredith’s stop was not unconstitutional:
“First, a reasonable driver consents to such a request when choosing to ride the Transit,” he told the judges. Second, he said, even if the court finds that a request for fare stubs by a law enforcement officer is a non-consensual seizure, the request is “justified under the special needs exception.”
Fare enforcement has come under intense scrutiny by transit companies in recent years, as data shows people of color have been disproportionately affected.
Thursday’s Supreme Court ruling emphasized those findings, also noting “the coercive effect that a weapon can have in a police operation known to disproportionately affect Black, Indigenous, Hispanic and Pacific Islanders due to reasonable ‘fear.'[s] how an officer with a gun will react to them.’ ”
Sound Transit has done away with its traditional fare ticket officials, using yellow and blue clad ‘fare ambassadors’ instead. The agency intends to give drivers several warnings and alternatives before issuing fines, starting at $50.
The pandemic has also turned fare collection in local transport upside down. Both Sound Transit and King County Metro suspended them for months. Low ridership and anemic enforcement mean the revenue flowing to agencies via fares is a fraction of what it was in 2019.
Sound Transit recently hired about 17 of its planned 26 fare ambassadors to advertise its trains and educate passengers, but has yet to issue fines or subpoenas for repeat violations. According to a staff report, an estimated 85% of passengers showed a fare receipt in early March. CEO Julie Timm has announced plans to mark “pay zones” on train platforms this year so people are spoken to while they wait, rather than showing proof of payment on board a crowded train.
At Metro, “there is no focus on fare enforcement at this time,” spokesman Al Sanders said, as the county continues to work out its future strategy.