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Is random boarding of vessels unconstitutional?

Michigan outlawed it. Ohio lawmakers are on course to prohibit it. Arkansas has declared it unconstitutional. If nothing else, the subject of random boarding of the nation’s recreational boaters is finally taking center stage.

Michigan lawmakers stirred the pot last year when they passed a bill prohibiting random stops of recreational boats for safety inspections. So it comes as no surprise that their action spilled over to neighboring Ohio where a similar bill is now rapidly moving through that legislature. But perhaps the biggest surprise is a recent Arkansas Supreme Court ruling that random boarding violates the Fourth Amendment.

First, Ohio’s House Bill 29, sponsored by Rep. Rex Damschroder, R-Fremont, had its final hearing Tuesday. It was unanimously passed out of committee and passage by the full house seems assured. The bill has broad support from Ohio’s boaters, the marine industry and the Ohio Division of Watercraft. Division chief Rodger Norcross might have summed things up in Ohio the best during his candid testimony:

“We are supportive of HB 29 and agree that it is common-sense legislation designed to encourage, rather than discourage, recreational boating,” Norcross told lawmakers. “In my time serving as chief, it has been made clear that excessive and random boardings of vessels by Division of Watercraft law enforcement are unacceptable,” he added.

Norcross later noted that while it’s currently his policy, confirming it in Ohio law assures boaters the policy won’t change with future administrations and that’s important.

The Michigan law (and Ohio’s HB-29 when it passes) covers state and local agency marine patrols. But Michigan’s waters include four of the five Great Lakes while Ohio has the largest part of Lake Erie. Those waters are also federal and, therefore, patrolled by the Coast Guard. Boaters have been complaining about excessive random Coast Guard boardings for several years.

When Michigan’s law passed, I asked the Coast Guard if it would follow the Michigan statute. The answer was: It’s up to the various sector commanders, but federal law allows random boarding and federal law trumps state law. And that brings me to Arkansas.

On Feb. 7 , the Arkansas Supreme Court (case: Arkansas v. Robert M. Allen) handed down a ruling that the random stopping of Allen’s boat was unreasonable and violated Allen’s constitutional rights under the Fourth Amendment.

Allen was randomly stopped for a safety equipment check by Sergeant Glenn Tucker of the Game and Fish Commission. Tucker proceeded to arrest Allen and charge him with intoxication. Allen entered a no-contest plea in District Court and then appealed the conviction to the Garland County Circuit Court.

That court granted Allen’s motion to dismiss, finding that Arkansas Game and Fish officers had no authority to stop and arrest Allen because “there was a complete lack of probable cause for this Defendant’s (Allen’s) stop.” The state appealed to the Arkansas Supreme Court, which upheld the lower court’s ruling.

The Supreme Court ruled that regardless of Arkansas’ law stating that Fish and Game Officers can stop boats for random safety inspections, they do not have the unfettered right to stop and check a boat at will. To do so without probable cause removes the Fourth Amendment protection from unreasonable search and seizure. In this case, randomly stopping Allen’s pontoon, which was “legally registered and illuminated . . . and being operated in an unremarkable fashion” . . . was “unreasonable and violated Defendant’s rights under the Fourth Amendment.”

The Arkansas decision settles it for the fish-and-game officers there. It certainly raises a comparable question for all other states. But it really opens an interesting question about the same actions of the Coast Guard. The Fourth Amendment to the U.S. Constitution applies to the states but it is the federal law of the land. And, under the rule of law, the actions of government officials are prescribed by the principles and laws that make up our legal system and do not reflect the arbitrary whims and caprices of the government officials themselves.

In other words, isn’t a policy of stopping and boarding recreational boats, whether by a local, state or federal officer including Coast Guard personnel, for random safety checks unconstitutional at all levels? It seems reasonable to assume so. At the very least, isn’t it clearly time for a thorough review of any such policies as we begin another summer of boating?

Comments

11 comments on “Is random boarding of vessels unconstitutional?

  1. Patriot

    You’re damn right it is! I’ve been saying this to people for years, and most don’t care to listen. The tactics and approach the USCG (and most marine patrol) uses are akin to letting the police randomly pull in your driveway, push open your front door, and rummage through your entire house. Unconstitutional to the core!

  2. Wilson Wright

    Says I “posted too quickly, slow down”..what does that mean…???

    Are they telling me I post to often…or trying to day, I post without merit ?

    If so I apologize…

  3. enginecom

    What I always understood under maritime law Customs can board any boat at any time for any reason. Your 4th amendment rights were put aside for the government to search for smugglers. With the coast and Great Lakes boardering international waters it seems right for CG as an agent of Customs to be able to board boats. Unfortunately all other local rentacops think they can do the same. The CG should also be under regulations to not board without probable cause to enforce customs laws. To board a recreational boat obviously not large enough to haul drugs and full of people is a stretch. If they were operating in a suspicious manner that adds another factor. Unfortunately law enforcement is given too wide a lattitude in most cases.

  4. bob

    We live on our trawler full time. It’s our home. I do not like being boarded for any reason. We have had m-60 mg’s pointed at us, 6 to 8 officers with gun’s out, and blocked ICW travil. What ever happened to all those nice guy’s in the coast guard who were out there to help us? I miss them, but I don’t miss the DHS……..

  5. GTO PATRIOT

    Norm Schultz has been putting out erroneous information on this subject since May 2012 in an article in Great Lakes Scuttlebutt. His information is becoming a little more informative as time goes on, but he continues to imply that state laws also effect the U.S. Coast Guard. They does not. I have a letter in my possession from D.M. Fears, Chief,
    Office of Law Enforcement, U.S. Coast Guard and I quote, “While the Coast Guard is sensitive to the concerns of the boating public, our officers are not constrained by the prohibitions in the State of Michigan’s new law. I guess you could say if a U.S. Coast Officer decides to NOT randomly stop you he is accepting state law. That is categorically not the case. This is a safety issue. If some Sunday afternoon recreational boater believes the U.S. Coast Guard can’t randomly stop him his safety and the officer’s safety is in jeopardy. Personally I don’t care who has jurisdiction or what they can do. I do believe, however; that clear accurate information should be disseminated to the public.
    If anyone is interested in this letter please contact me at gtodom@mi.rr.com

  6. Lex Filipowski

    My name is Lex Filipowski and I am the first person who took a stand against the unconstitutional police stops with no probable cause in the name of “Safety Checks” on The Hudson River. I was stopped 4 times in 2 days on a 4 mile stretch of the Hudson River with no probable cause being “asked” to do safety checks. I was stopped numerous times after that over the years.

    I was treated like a criminal and when I had the audacity to ask why they were stopping me again and again I was threatened with arrest if I didn’t follow their “orders. I started a group called Freedom To Go Boating and write numerous articles about the unconstitutional stops and harassment by various police agencies on the Hudson River. I decided to change it and worked for 4 years along with my good friend and Publisher of Boating On The Hudson Magazine on putting an end to those Unconstitutional stops. After 4 Years, The New York Times and The Associated Press Picked up the story and ran it nationally.

    We held an on water boat protest on the Hudson River and the day after that another newspaper called me asking me to comment on a press release Senator Schumer of NY issued after reading the New York Times article. He saw the insanity of it and wanted to change it. I worked very closely with Senator Schumer on that issue going forward and we did a join press conference in Cold Spring New York a few months later. Boardings by local police went down hugely however, there were a few police agencies that continued to harass boaters. The Senator has been incredibly supportive of Boaters rights but we now have to take it to the New York State level.

    I ask you to call and e-mail the Governor of New York as well as the state assembly and state senate and ask them to create a law assuring recreational boaters be left alone on all New York Waterways if they are simply enjoying the beautiful rivers and lakes of New York. Help support our continued freedoms which is the bedrock of which the United States of America was founded upon.

    Thank you for your help and support!
    Lex Filipowski
    President and Founder
    Freedom To Go Boating
    Lex@X2112.com

  7. Capt. Rob Chichester

    I have no problem cooperating with the USCG or local authorities for the purposes of random stops or safety inspections. I view it as a positive thing…particularly if a random stop could remove an unsafe or otherwise impaired boat or operator from the environment.

    The ruling in Mr. Allen’s case would seem to suggest that it is acceptable to operate a vessel while impaired if a law enforcement officer cannot determine a priori that such a violation has occurred.

    Furthermore, how does this relate to boardings that may take place when recreational vessels are returning from seaward? Are those also prevented thus weakening border defenses?

    Safe boating is a privilege and all of us in the community should support safe boating and all of those are called upon to enforce the relevant regulations.

  8. William D. MD

    I assume Mr. Allen was the operator of his vessel. By his initial no contest plea I also assume he was an impaired operator. That makes him the same as other drunk drivers, which are pulled over during random check point set ups. I do not hear anyone complaining about taking drunk drivers off the street. I also do not hear an uproar about 4th amendment violations with regards to check points aimed at catching drunk drivers.

    Maybe what we ought to be discussing is limitations on the type of information that can be derived from random stops. If my home was my boat and I was not deemed to be impaired while operating same, I would not think it appropriate for any boarding, entry, or search.

  9. Bob B

    The supreme court has ruled that warrant-less searches may be conducted at the boarders (hence the random baggage screenings at airports and boarder crossings). Further we are all screened and scanned at airports to prevent weapons etc aboard aircraft. Other posters here have mentioned the random DUI checkpoints used by local law enforcement agencies.

    In the CFR (commission of the federal register) I found the following:

    46 CFR 26.15-1 – May board at any time.

    May board at any time.
    (a) To facilitate the boarding of vessels by the commissioned, warrant, and petty officers of the U.S. Coast Guard in the exercise of their authority, every uninspected vessel, as defined in 46 U.S.C. 2101(43), if underway and upon being hailed by a Coast Guard vessel, must stop immediately and lay to, or must maneuver in such a way to permit the Coast Guard boarding officer to come aboard. Failure to permit a Coast Guard boarding officer to board a vessel or refusal to comply will subject the operator or owner of the vessel to the penalties provided in law.
    (b) Coast Guard boarding vessels will be identified by the display of the Coast Guard ensign as a symbol of authority and the Coast Guard personnel will be dressed in Coast Guard uniform. The Coast Guard boarding officer upon boarding a vessel will identify himself to the master, owner, or operator and explain his mission.
    [CGFR 65-50, 30 FR 16656, Dec. 30, 1965, as amended by CGD 72-132R, 38 FR 5750, Mar. 2, 1973; CGD 95-027, 61 FR 25997, May 23, 1996]

    If I am correct an “uninspected vessel” is one which is carrying passengers for hire – and therefore recreational boats do not fall under this provision. I don’t know how the coasties could tell the difference between the two however.

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