Ferry Screenings Challenged

In October 2004 attorneys working with the American Civil Liberties Union of Vermont sued in U.S. District Court in Burlington to stop random security “screenings” put in place on Lake Champlain ferries.

The screenings are part of the federal government’s anti-terrorist activities. Motorists are asked to open their car trunks, and walk-on passengers are made to open bags and backpacks.

The suit contends that the searches are suspicionless and warrantless, and violate the Fourth Amendment. Representing defendants Michael Cassidy and Robert Cabin is William Nelson, a Middlebury lawyer acting as an ACLU cooperating attorney.

U.S. District Court Judge Garvan Murtha dismissed the lawsuit in March 2005, ruling that if the government says the searches are necessary, then they’re constitutional

The ACLU is appealing the decision to the Second Circuit Court of Appeals in New York. We feel that the courts can’t simply step aside and let the government decide what’s constitutional. Courts need to review the specifics of warrantless, suspicionless searches such as these and explain how they fit within the protections of the Fourth Amendment.

The screenings are the result of federal legislation called the National Maritime Transportation Security Act, passed in 2002. The law, and accompanying regulations, requires ferries and other vessels to develop security plans that must then be approved by the Coast Guard. Searches are not the only security measures that may be adopted; less intrusive measures may also be used, if they are effective in finding explosives and other weapons.

“We don’t disagree with the possible need for screenings on some ferries in some parts of the country,” Nelson said. “But the government must show a need to infringe on the privacy protections of the Fourth Amendment. The government has shown no such need for the Lake Champlain ferries. These are suspicionless searches, and courts have ruled such searches illegal.”

Cassidy feels the searches are dubious, and ineffectual at best. They are hit-or-miss -- not every vehicle is searched, and of those that are, the searches are cursory, he said. “This is a slippery slope we’re on here. The government’s apparent justification for these ferry searches could be equally applied to any bridge, street, or road anywhere and anytime. In effect, if these search practices are allowed, the entire relationship between the individual and the government is changed.”

Cassidy and Cabin use the ferries to commute to their jobs. Anyone refusing to be searched cannot board the ferries and must drive around Lake Champlain – lengthening the trip distance greatly.

The litigation names as defendants Secretary of the U.S. Department of Homeland Security Tom Ridge, Coast Guard officials, and the ferry company acting as agents of the federal government.

The suit is the first challenge of its kind to the new procedures.

Documents in the case, including briefs to the Second Circuit, can be found at http://users.adelphia.net/~wanelson/

News story Oct. 24 on appeal of this case (and also on appeal in Guiles student free speech case).

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