Random boat inspections deemed unconstitutional by court

By: Mike Parker

HARRISBURG, Pa (WHTM) — The Pennsylvania Fish and Boat Commission (PFBC) is considering an appeal of a court decision deeming random boat inspections unconstitutional.

The 2-1 decision, filed Monday by the Pennsylvania Superior Court, reversed a conviction handed down by a Magisterial District Court and later upheld in Erie County Common Pleas Court. The case stemmed from a 2016 incident involving a boater on Lake Erie who was subject to a random PFBC inspection, in which a Waterways Conservation Officer discovered the boater had an inadequate number of wearable personal flotation devices aboard the boat. Law requires the number of wearable PFDs equal the number of people on the boat. The boater was issued a $75 fine, given a life vest by officers, and allowed to continue to boat.

In its decision, a Superior Court judge explained that the random check of boaters without suspicion of wrongdoing violates protections afforded under the 4th Amendment, regarding unreasonable search and seizure. Because this is the first time the issue was argued in Pennsylvania courts, judges cited guidance from several previous, similar state and federal cases.

“We’ve been enforcing the law for a long time,” said John Arway, Executive Director of the PA Fish and Boat Commission. “This is unprecedented for us. We’ve never been challenged before. We want to protect the safety of the boater. We do not want to see them put themselves in a position where they’re going to drown or get in an accident.”

Arway disagreed with the court’s suggestion that PFBC officers could adopt a similar inspection process that is currently used by police conducting DUI checkpoints on Pennsylvania roadways.

“There is a difference between the rules of the road on the water, and the rules of the road on land,” said Arway. “There are no lines to cross on the water to help determine if someone is driving under the influence.”

Midstate boaters reacted mostly positively to the court decision. In Goldsboro, Jesse Dellen, Jr. said he believes the PFBC has become too aggressive in cracking down on boating under the influence, or BUI, while not enforcing other laws. While he agrees with laws meant to keep the waters safe for all boaters, including families, he believes the random safety checks have infringed upon law abiding boaters ability to enjoy the water.

“It’s like, what did I do?” said Dellen. “If I’m throwing (beer) cans overboard, or I’m going too close to the No Wake buoys, I could see them pulling me over. They shouldn’t be able to pull you over for no reason, because I bet they pull more people over for no reason than they do for an actual reason.”

Dellen says he has had interaction with PFBC officers who are very friendly and courteous, while others are intimidating, and can ruin an otherwise enjoyable day on the water. He recalls incidents of officers boarding his boat, only to determine there were no infractions occurring.

“The siren goes on. There’s the stress of the whole thing when an officer with a gun and his hand on his hip comes up to you for no reason,” said Dellen.

In another incident, Dellen says he had just received new registration decals in the mail, and had not yet placed them on his boat. He was just leaving the dock outside of his home to give a boat ride to a friend who was battling cancer, when an officer immediately pulled up to the boat to question him about the missing decals. Dellen says he offered to return home immediately to get the decals. In that case, the officer was understanding, and allowed him to continue on his short ride with his friend.

“This is a welcome change,” said Justin McShane, a Harrisburg Attorney who has represented clients in BUI cases. “Because it allows a lot of people that were doing nothing wrong, not to be bothered.”

McShane says the court decision brings to light the constant struggle between keeping boaters safe and infringement on people’s rights to freely enjoy the water without unreasonable intrusion by the government.

“I do suspect it will be appealed up to the Pennsylvania Supreme Court,” added McShane. “Whether they’ll accept it or not, I don’t know.”

Arway says while his agency’s law enforcement and legal staffs review the court decision and decide on whether or not to pursue an appeal, PFBC will continue to operate as normal, including performing random safety checks.

“We believe that we’re doing the right thing when it comes to protecting the public safety on the water,” he said.