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Ferry searches v. Fourth Amendment

Coast Guard guidelines intended to increase security levels on ferries raise significant constitutional questions, says Rep. Jay Inslee, D-Bainbridge Island, especially since the ferries are part of Washington’s highway system.

“It’s sort of like trying to stop every vehicle on I-90 and searching for contraband,” Inslee said in an interview Friday. “I’m not sure you can do that under the Fourth Amendment.”

Inslee had asked the Congressional Research Service to comment on the constitutional implications of the Coast Guard plan, which calls for “screening” of passengers and vehicles boarding the Washington State Ferries, with the level of scrutiny increasing with the risk of terror attacks.

The Research Service report, issued earlier this week, says the proposal would probably withstand a challenge brought under the 10th Amendment of the Constitution, which protects states’ rights, especially if the guidelines are proposed as “suggestions” rather than absolute requirements.

“But for some reason, the report didn’t address the issues under the Fourth Amendment, which is where the more serious concerns arise,” said Inslee, himself a lawyer.

The Fourth Amendment prohibits “unreasonable” searches, and has generally been interpreted as barring random vehicle searches in the absence of specific probable cause.

But Inslee said the Coast Guard proposals raise issues other than constitutional challenges.

“Beyond the constitutional questions, our first order of business is protection of the people’s right to commute,” said Inslee, who prompted such questions after receiving correspondence from state Rep. Phil Rockefeller, D-Bainbridge Island.

“Even if there is no constitutional violation, there is a practical (consideration),” he said.

Inslee and other lawmakers are concerned about hampering the ability of constituents to commute from their homes to work and back again if the security guidelines are implemented as proposed.

The Coast Guard proposed the new security protocol to state ferry officials last month, strongly encouraging them to adopt the regulations, although discussions were still set to commence among Coast Guard officials and representatives from the State Patrol and ferry service next month.

Lawmakers believe such measures will cause disruptions and traffic backups, a loss of revenue for the already ailing ferry system, and could cause schedule changes and fewer sailings.

But on Oct. 28, Coast Guard officials changed their approach after criticism from members of the state delegation. U.S. Sen. Patty Murray was assured the security measures wouldn’t be implemented without local input – except during a national emergency.

Inslee had scheduled a meeting with Coast Guard officials, including Adm. Erroll Brown, the regional commander for the Coast Guard yesterday. The meeting was to be held at an undisclosed location, followed by a press briefing.

Inslee did disclose that topics to be discussed included the concern over constitutional issues.

“We will be very demanding they share information regarding any security threats, if any,” Inslee added. “We also have to consider the real impact of these regulations on the ferry service. We are concerned the highly burdensome requirements could slow down ferry service.”

The proposed protocol is essentially too “cookie-cutter” by nature, Inslee said. Each ferry dock has a different capacity and different demands that have to be considered, he said.

The proposed security protocol would implement one part of a three-tier system, depending on the perceived terrorist threat level. Levels 2 and 3 — the moderate- and high-risk levels, respectively — would both require passenger, vehicle and baggage screening. Level 3 would be more like airport-style screening, with 100 percent of the passengers boarding ferries affected.

There are also the increased cost of providing such a high level of security to consider, Inslee said.

“We’ve been champions of the ferry service,” Inslee said of his congressional comrades. “We’d rather put funds toward the acquisition of a fast-ferry boat and passenger boats. That should be the higher priority.”

And while Inslee is supportive of providing security to his constituents, he said he is also sensitive to the daily needs of commuters in this region.

“Part of the pursuit of happiness is being able to get to your job,” he said. “We’re going to keep working on this.”

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