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. Read plaintiffs' complaint.

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 contended that the searches are suspicionless and warrantless, and violate the Fourth Amendment. Representing defendants Michael Cassidy and Robert Cabin was 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. Read the U.S. District Court decision.

The ACLU appealed the decision to the Second Circuit Court of Appeals in New York. We felt 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.

A three-judge panel rejected our appeal, however. Read the Second Circuit Court of Appeals decision.

The screenings began after passage in 2002 of federal legislation called the National Maritime Transportation Security Act. The law, and accompanying regulations, require 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 when filing the lawsuit.. “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 felt the searches were of dubious value, and ineffectual at best. They are hit-or-miss -- not every vehicle is searched, and of those that are, the searches are cursory. “This is a slippery slope we’re on here," he said when the suit was filed. "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.

Defendants in the case were 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.

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