FO­CUS

Soundings - - Contents - By Kim Kavin

The ACLU, and a boat owner who re­ceived a $75 safety ci­ta­tion, are su­ing Penn­syl­va­nia for con­duct­ing a sus­pi­cion­less board­ing.

Fred Karash says that, right from the start, the whole thing felt like a shake­down. He and four friends were cruis­ing aboard his 23-foot boat on Lake Erie in May 2016 when he saw lights swirling and a Penn­syl­va­nia Fish & Boat Com­mis­sion pa­trol ves­sel ap­proach­ing. “They said, ‘Dis­en­gage your boat. We’re go­ing to come aboard and do a safety check,’” the 38-year-old Karash re­calls. “I said, ‘I don’t need one,’ and they said, ‘Get ready for us to tie off and come aboard.’ So I com­plied. I didn’t feel that I had much of a choice.”

Karash says he re­mem­bers at least three wa­ter­ways con­ser­va­tion of­fi­cers be­ing there. He says one strad­dled the two boats while an­other came aboard and asked him to turn on his blow­ers and open the boat’s en­gine com­part­ment, per­haps look­ing for smuggled goods. Find­ing noth­ing out of or­der, Karash says, the of­fi­cer on board his boat then asked to see his fire ex­tin­guisher. He was told to beep his horn. “Every­thing was work­ing,” Karash says.

Fi­nally, Karash says, the of­fi­cer asked him and his friends to hold up five wear­able life jack­ets, one for each per­son aboard.

“We did, and I had more jack­ets and throw­ables on my boat,” he says. “But he said, ‘That one’s not a wear­able de­vice.’ It was a Type II. The Coast Guard-ap­proved packet that comes with it, there are in­struc­tions on how to wear it, and it says that it’s wear­able.”

Karash said the of­fi­cer then dis­em­barked back to the pa­trol ves­sel, un­tied it from the boat and told him and his friends to wait while a ticket was is­sued, for fail­ure to carry enough life jack­ets.

“They pushed off,” he says. “They went a good quar­ter- mile away. We were jok­ing that they prob­a­bly had high-tech lis­ten­ing de­vices to lis­ten to us. I don’t know if they were run­ning my record or what. They said, ‘Wait here, we’ll be back with your ticket.’”

Karash and his friends were wait­ing so long, he said, that they took out fish­ing poles and dropped some hooks in the wa­ter. He fig­ures they fished for at least a half hour while wait­ing for the of­fi­cers to re­turn. “And they al­ready had my fish­ing li­cense and my driver’s li­cense,” he says.

The of­fi­cers came back, he says, and told him that they could tow his boat ashore, but that in­stead, they would give him a loaner life jacket that he could re­turn at a ma­rina. They is­sued him a ticket with a $75 fine, and they left. A half-hour later, he says, the sun went down. “It was a crappy end,” he says, “to a beau­ti­ful day in May.” Now, two years later, Karash and the Com­mon­wealth of Penn­syl­va­nia are both await­ing a Su­pe­rior Court rul­ing about what hap­pened that day on Lake Erie. An at­tor­ney with the Amer­i­can Civil Lib­er­ties Union of Penn­syl­va­nia is rep­re­sent­ing Karash, and the case could af­fect the way judges na­tion­wide rule in sim­i­lar cases when boaters feel their rights have been vi­o­lated.

At is­sue is whether Karash was sub­ject to a ran­dom, sus­pi­cion­less search with­out a war­rant, in violation of his rights not only un­der Penn­syl­va­nia’s Con­sti­tu­tion, but also un­der the U.S. Con­sti­tu­tion.

Put an­other way: Is it le­gal for of­fi­cers to stop and search any boat they want, when­ever they want, wher­ever and how­ever they feel like search­ing?

It’s a ques­tion that boaters have asked for more than a gen­er­a­tion, and not just when en­coun­ter­ing state-level pa­trols. The U.S. Coast Guard also main­tains the right, in­clud­ing in coastal wa­ters, to board “any ves­sel, in­clud­ing kayaks, ca­noes and per­sonal wa­ter­craft, at any time to en­sure the safety of those aboard and oth­ers nearby.”

In 1986, a na­tional pol­icy was an­nounced to crack down on drug

traf­fick­ing, and there were re­ports of USCG in­spec­tions in­creas­ing, with the agency say­ing its ac­tions were based on a nearly 200-year-old statute up­held by the U.S. Supreme Court in 1983. In 1987, a Great Lakes sailor was fea­tured in The New York Times for chal­leng­ing a USCG safety in­spec­tion aboard his 32-foot boat, claim­ing the sus­pi­cion­less search was unconstitutional.

“If the law gives them the right to stop boats and search them with­out cause,” the boater told The Times, “then the law should be changed.”

The law was not changed, and the ar­gu­ment re­mains — to­day, in the form of boaters like Karash, with lawyers in his case say­ing that Penn­syl­va­nia’s Con­sti­tu­tion pro­vides stronger pro­tec­tion of per­sonal liberty than even the U.S. Con­sti­tu­tion does.

Ac­cord­ing to at­tor­neys for both sides in Karash’s case, 28 states now al­low boat­ing safety checks with­out prob­a­ble cause, while 15 states re­quire some level of sus­pi­cion be­fore an of­fi­cer can stop and board a boat; only four states, how­ever, have seen their reg­u­la­tions chal­lenged up to the ap­pel­late court level, pro­duc­ing rul­ings that judges in other states typ­i­cally con­sider when cases come be­fore them.

And in those ap­pel­late-level cases, the rul­ings are mixed. In Ohio and Ore­gon, judges ruled that sus­pi­cion­less searches vi­o­late boaters’ rights, while in Texas and Louisiana, the rul­ings went the other way.

“The ques­tion is whether Penn­syl­va­nia will be like the 28 states that will al­low this, or do we go in the di­rec­tion of the 15 states that re­quire sus­pi­cion,” says Wayne Mel­nick, act­ing chief counsel for the Penn­syl­va­nia Fish & Boat Com­mis­sion.

Un­til Karash de­cided to fight his $75 ticket, Penn­syl­va­nia’s up­per-level courts had never even been asked to rule on the mat­ter, says his ACLU at­tor­ney, Sara Rose. Af­ter all, most peo­ple ei­ther don’t know how to fight, or can’t be both­ered to hire an at­tor­ney to fight, a low-level fine.

“Who’s go­ing to hire a lawyer for a $75 ci­ta­tion?” she says. “It would cost you 10 to 100 times as much as the ci­ta­tion.”

Karash’s $75 ticket is called a sum­mary of­fense, the low­est pos­si­ble level in Penn­syl­va­nia, like a speed­ing ticket for an au­to­mo­bile driver. In fight­ing the sum­mons, Karash at first was no dif­fer­ent from ev­ery­body who’s ever tried to win in lo­cal court af­ter get­ting caught in a back-road speed trap.

But he’s also a pe­di­atric nurse who served as a medic in the U. S. Army from 200306, in­clud­ing 2½ years sta­tioned in South Korea, and he saw a higher-level need to fight as well. He felt not only that he hadn’t com­mit­ted any of­fense, but also that any ev­i­dence the of­fi­cer might present against him in court was ob­tained dur­ing a search of his boat that vi­o­lated the U.S. Con­sti­tu­tion.

“I took an oath to that Con­sti­tu­tion to pro­tect against en­e­mies foreign and do­mes­tic,” he says. “That has to mean some­thing. I signed a blank check, in­clud­ing giv­ing my life, to pro­tect these lib­er­ties, and I don’t want to be at home and see them eroded.”

Karash tried, at the first-level Mag­is­te­rial District Court, to have the case tossed out. He had no lawyer and rep­re­sented him­self. He didn’t ar­gue about hav­ing enough life jack­ets or bring in wit­nesses to sup­port his version of events; in­stead, he ar­gued that the whole case should be dropped be­cause the search of his boat was unconstitutional.

He lost, and ap­pealed to Penn­syl­va­nia’s Court of Com­mon Pleas. Where he promptly lost again. “He tried to sup­press the ev­i­dence from the search, the ev­i­dence of not hav­ing enough life jack­ets, by ar­gu­ing that the search was unconstitutional,” Rose says. “He did that at ev­ery level. But (to) those courts — this is just a $75 ci­ta­tion. They’re not think­ing about the Con­sti­tu­tion. It’s not usu­ally on their radar.”

Karash kept fight­ing, next in Penn­syl­va­nia’s Su­pe­rior Court, which is­sued a de­ci­sion from a three- judge panel. There, to many peo­ple’s sur­prise, the av­er­age guy fight­ing the ev­ery­day PFD ci­ta­tion won. That’s when the Com­mon­wealth ap­pealed. “Alarmed that the Su­pe­rior Court de­ci­sion would cur­tail their un­fet­tered dis­cre­tion to search any boat on Penn­syl­va­nia’s wa­ter­ways at any time,” Rose wrote on the ACLU’s web­site, the Com­mon­wealth “asked the en­tire Su­pe­rior Court to hear the case.”

And that is where things stand to­day. The Com­mon­wealth’s ap­peal means that the three- judge panel’s rul­ing has been elim­i­nated, and a nine- judge panel is weigh­ing the ev­i­dence anew, with a rul­ing from the larger body ex­pected in the next six to 12 months.

In front of the nine-judge panel, Karash had the ACLU at­tor­ney help­ing him ar­gue his bigger-pic­ture points. The group reached out to Karash, Rose says, af­ter be­ing im­pressed by how far he’d got­ten on his own.

“We thought it was an im­por­tant Fourth Amend­ment is­sue,” she says. “We knew that the state was go­ing to be well rep­re­sented, and we thought we’d try to level the play­ing field here.”

The Com­mon­wealth’s ar­gu­ment, Mel­nick says, is that the law al­lows of­fi­cers to stop and con­duct a safety in­spec­tion of any boat with­out sus­pi­cion of wrong­do­ing. The law

in Penn­syl­va­nia has been clear on that point for decades, he says, with a goal of en­sur­ing boater safety and con­ser­va­tion of re­sources.

“We’ve been do­ing things this way since the ’80s,” Mel­nick says. “This is the first time one of our safety in­spec­tions has been chal­lenged like this.”

The Com­mon­wealth also has a fi­nan­cial rea­son to want to con­tinue busi­ness as usual. Fines is­sued dur­ing stops like Karash’s gen­er­ate sig­nif­i­cant in­come for the Penn­syl­va­nia Fish & Boat Com­mis­sion. Ac­cord­ing to the Pitts­burgh Post-Gazette, the agency col­lected $ 659,934 in fines and penal­ties dur­ing the 2016-17 fis­cal year alone.

Rose says Karash’s case also is likely to af­fect boaters far be­yond Penn­syl­va­nia’s borders. Judges in all 50 states are likely to take note of the Com­mon­wealth’s Su­pe­rior Court rul­ing, she says, no mat­ter which way it goes.

“While the Penn­syl­va­nia Su­pe­rior Court de­ci­sion would not be prece­den­tial to other states, if a chal­lenge were to arise else­where, courts would take it into con­sid­er­a­tion,” she says. “The three-judge panel con­sid­ered other cases that had arisen in other states, and there is a split among the states. So the more courts that rule that these searches are unconstitutional, the more likely it is that courts in the next state will rule the same way.”

The Penn­syl­va­nia case is so key to po­ten­tially tip­ping the na­tion­wide judicial bal­ance, Rose says, that if Karash loses this time around, the ACLU is likely to help him ap­peal to Penn­syl­va­nia’s Supreme Court.

“We think it’s an im­por­tant is­sue,” she says. “If the de­ci­sion from the Su­pe­rior Court says that there is no rea­son needed to stop and search a boat, we would prob­a­bly want the Penn­syl­va­nia Supreme Court to re­view that.”

Mel­nick — who told Sound­ings that Karash’s version of events dif­fers from that of the of­fi­cer’s, who “said he didn’t even step foot on the boat” and that the en­tire episode “started off as a fish­ing li­cense check”— said the case boils down to bal­anc­ing “a le­git­i­mate gov­ern­men­tal in­ter­est in boater safety ver­sus a le­git­i­mate in­ter­est in pri­vacy. The courts have ac­knowl­edged that both ex­ist. There’s a le­git­i­mate in­ter­est in mak­ing sure peo­ple have PFDs, for safety, and there’s a le­git­i­mate in­ter­est in mak­ing sure peo­ple don’t get ha­rassed.”

Karash, mean­while, is stick­ing to his story and his case. He says his will to pro­ceed is not about money; he doesn’t stand to make any, even if he wins. He’s spent about $1,000 so far to avoid pay­ing his orig­i­nal $75 fine.

He’s not so much an­gry as he is frus­trated, he says, in­clud­ing by the fact that the Com­mon­wealth is con­tra­dict­ing his version of what

hap­pened aboard his boat.

“Cops change their sto­ries all the time,” Karash says. “That’s not any­thing new. They’re trained in what to do in or­der to get a con­vic­tion. They’ll say they would never per­jure them­selves — that’s not true. I was there. I know what hap­pened.”

Karash says his case is about where the line ul­ti­mately gets drawn in terms of per­sonal liberty, a point that he and Rose say he has made by fil­ing a half-dozen other cases in the Com­mon­wealth as well.

“He’s fought traf­fic tick­ets,” she says. “He’s fought other things. He is a per­son who stands up for his con­sti­tu­tional rights. Thank good­ness for peo­ple like him.”

Per­haps most iron­i­cally, Karash doesn’t even have a like­li­hood of run­ning into a wa­ter­ways con­ser­va­tion of­fi­cer ever again. He sold his boat, say­ing that his friends soured on the idea of go­ing boat­ing with him af­ter that day, and that he needed money to take some time off and travel this sum­mer — on land.

He says he just doesn’t want what hap­pened to him to hap­pen to any­body else.

“They’re say­ing that be­cause you choose to op­er­ate a boat, you give up all your rights,” he says. “What’s the limit of that search? Can they make me pee in a cup? Draw my blood? Pull my hair fol­li­cles? Some neu­tral per­son has to in­ter­pret what’s al­lowed and what the lim­i­ta­tions are. He could’ve stopped me seven or eight times from noon till 8 o’clock and still be within his rights, and they’re not do­ing any­thing about it.”

Mel­nick says that as a prac­ti­cal mat­ter, that kind of con­stant in­ter­ac­tion with wa­ter­ways con­ser­va­tion of­fi­cers is un­likely.

How­ever, he adds, there are times of year when of­fi­cers do per­form a high rate of sus­pi­cion­less checks, and when boaters and an­glers sim­ply ac­cept them.

“We have less than 100 of­fi­cers for the whole Com­mon­wealth,” Mel­nick says. “You won’t see wa­ter­ways con­ser­va­tion of­fi­cers ev­ery day, but if you do see one when you’re out fish­ing, they have the statu­tory right to check your li­cense. The open­ing day of trout sea­son is a big day when peo­ple get their li­censes checked. You wear it on your hat or your shirt, and they see it and they move on.”

Karesh isn’t think­ing about those odds. He’s think­ing about his own score­board, which he de­scribes with a laugh, in a way that sounds any­thing but funny.

“I’m 6-and-0 against the state right now,” Karash says. “They’ll figure it out soon enough.”

“Who’s go­ing to hire a lawyer for a $75 ci­ta­tion? It would cost you 10 to 100 times as much as the ci­ta­tion.” — Sara Rose, ACLU at­tor­ney

Penn­syl­va­nia Fish & Boat Com­mis­sion wa­ter­ways con­ser­va­tion of­fi­cers per­form a safety check.

ACLU at­tor­ney Sara Rose

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