Is random boarding of vessels unconstitutional?

[hellosailor]

Andy, I would say that again your examples disprove your theory. The Alien & Sedition Act was ruled unconstitutional, so in effect the USSC did rule on that issue and made the states' point of contention moot. Likewise, the illegality of the draft was made moot during the Civil War when the draft, and the state militias, supplied the bulk of all troops. The legality of the draft has been formally established as an extension of the state and federal militias. All states except Florida mandate state militia service, and under 10(?)USC the federal government mandates federal militia service. That's become the legal foundation of the whole draft system so agian, while a state can say "Nyah nyah!" eventually the issue gets resolved, the state doesn't get the last word all by itself. The various attempts by states to force an issue (literally force it) are the reason why the National Guard system was implemented and "militia" turned into a dirty word.
Legality? Today is all in what the courts rule, and they have a long tradition of seeing boats as unprotected by the law. That's unlikely to change. Citing nullifcation theory is like citing the theory that the income tax is illegal. It only shows you're not seeing the whole background of the issue.

Lake-
In a caffiene-deprived haze I vaguely recall there are only three circumstances in which you can refuse a LEO boarding party:
1-Documented vessel inbound for a US port carrying mail from overseas. You are expressly allowed to make landfall, bypassing customs & quarantine, without any delay fro many party, in order to deliver that mail to a USPS facility. Unless they've recently changed the rules again, that's buried somewhere in the USC, probably 46 USC. No one is allowed to delay the mail.
2-Vessel engaged in navigation that is time-critical. There's a reg about that one as well, I have no memory but would guess it might be CFR. If heaving to for a boarding would make you miss a critical tide, depth, etc, you're allowed to tell them "come back later". I really should write down the sources for these things, I know, mea culpa. I don't check every year to see what they've revised away, either.
3-Not under jurisdiction. Well, as a civilian vessel you're not likely to duck out of that, are you? Although I knew a vice-council with DPL plates, who could wave and smile and ignore state troopers for that reason, we never had anyone try to board his boat.

Of course you can also try to mess with their minds, by inviting the officers (only) to join you for tea while discussing their request. Onceuponatime, a soldier actually asked me if I was carrying any weapons. I actually did tell him "No, except for the tactical nuclear device in the heel of my left boot." He said "Go ahead and board."

It was a simpler world back then.

Permission to board? Sure. Now which one of you lucky fellows is going to check inside the holding tank, to make sure I'm not smuggling anything in there? What, no takers?

[jeremiason]

Originally Posted by LakeSuperior

I was detained for a half hour and was asked questions that were not anyone business like "did I have firearms on board?" The answer was yes, two, because the two CC officers each were visibly packing.

That is a standard question by law enforcement... Although you know you are a stand up citizen, they have never met you and have no idea who you are. Law Enforcement run across all kinds, most bad, so asking if you have guns on board shouldn't be too offensive since they are trying to avoid a confrontation, which could involve force if you reach for you vessel papers, which happen to be located next to you gun. As far as your comment that law enforcement officer were "packing", that is just silly and if you didn't have guns on board place yourself in an adversarial position from the git-go

Originally Posted by LakeSuperior

The CC will not do a safety inspection by appointment or if you show up at the station when it is good for all involved.

That is because the USCG Auxiliary does the free Vessel Safety Inspections, unless you are a commercial vessel and subject to COI. The USCG Auxiliary will schedule the inspection to your availability as well. They also do not cite you or take action against you if you fail. Although, not guaranteed, you have a better chance of not being stopped by USCG inspection units if you have this sticker on your vessel, since you vessel is compliant with USCG regulations within the last year.

Originally Posted by LakeSuperior

The whole process was IMO unconstitutional and it felt like it. Additionally, it wasted a half an hour of our trip time and about 4 hours of mental karma time.

Your recourse is consulting an attorney and him advise you if your constitutional rights were violated, and if so, sue the government. Most lawyers or agencies like the ACLU will do it on contingency.

Obviously, the USCG does make arrests or stop crime fairly often during routine boardings and because of that, to a certain extent prevents crime happening as result of boardings/arrests. They are doing there jobs, so ragging on them for that makes no sense to me. The proper course would be to get the politicians to change the law, but in these post 9-11 times, I think that would be difficult.

[hellosailor]

"That is a standard question by law enforcement..."
Was it ever, ever, asked by a traffic stop or a beat cop in the 50's? No. It is a recent and adverserial question now commonly posed by LEOs who are, sometimes correctly, in fear of their employers.
Because us civilians ARE their employers and masters, and we have as much or more right to be armed as they do. They work for us. All the "Blue Wall" crap works two ways, it also alienates the public from the LEOs, to the detriment of both. But the cops keep building the Blue Wall.
Sorry, Tom, but it is on THEM to realize they've got to start respecting the public instead of assuming we're all skells. If 9 out of 10 frisks don't find illegal weapons--that means 90% of the activity is an insult to the public. Same thing for boardings.
Do I have any firearms onboard? Who cares? Maybe all I need is a slam gybe to clip 'em all with the boom.
Ask any prison guard, as you well should know, the prisons all have wall displays of all the clever improvised weapons confiscated in prisons. No firearms necessary.

Oh, and maybe I have one of those six gallon assault pressure cookers in the galley, too? Really, Tom, this modern concept of safety through disarmament just brings us back to what Ben Franklin said all those years ago: The man that would give up a little liberty in the name of security will soon have neither. And as Machiavelli noted centuries before Franklin, a government that does not trust the people is a whole other kind of problem.

[LakeSuperior]

Originally Posted by jeremiason

That is because the USCG Auxiliary does the free Vessel Safety Inspections, unless you are a commercial vessel and subject to COI. The USCG Auxiliary will schedule the inspection to your availability as well. They also do not cite you or take action against you if you fail. Although, not guaranteed, you have a better chance of not being stopped by USCG inspection units if you have this sticker on your vessel, since you vessel is compliant with USCG regulations within the last year.

The key phrase here is "a better chance of not being stopped."

Originally Posted by jeremiason

Obviously, the USCG does make arrests or stop crime fairly often during routine boardings and because of that, to a certain extent prevents crime happening as result of boardings/arrests. They are doing there jobs, so ragging on them for that makes no sense to me.

Me knows you are making stuff up here. To my knowledge no crimes have been prevented here in the UP in 30 years of boardings by the USCG. It is not so obvious that arrests are made or crime is stopped fairly often. Additionally, how does boarding prevent crime?? Once on board can they sniff a crime out before it happens?

I also think it is good for the young coasties to know that not everyone is a sheep and that some of work they are tasked with may not be as cut and dried as their management might make it out. I personally have played hockey with a number of young coasties and they actually get it when the topic has come up in the locker room.

[jeremiason]

Originally Posted by hellosailor

"That is a standard question by law enforcement..."
Was it ever, ever, asked by a traffic stop or a beat cop in the 50's? No. It is a recent and adverserial question now commonly posed by LEOs who are, sometimes correctly, in fear of their employers.
Because us civilians ARE their employers and masters, and we have as much or more right to be armed as they do. They work for us. All the "Blue Wall" crap works two ways, it also alienates the public from the LEOs, to the detriment of both. But the cops keep building the Blue Wall.
Sorry, Tom, but it is on THEM to realize they've got to start respecting the public instead of assuming we're all skells. If 9 out of 10 frisks don't find illegal weapons--that means 90% of the activity is an insult to the public. Same thing for boardings.
Do I have any firearms onboard? Who cares? Maybe all I need is a slam gybe to clip 'em all with the boom.
Ask any prison guard, as you well should know, the prisons all have wall displays of all the clever improvised weapons confiscated in prisons. No firearms necessary.

Oh, and maybe I have one of those six gallon assault pressure cookers in the galley, too? Really, Tom, this modern concept of safety through disarmament just brings us back to what Ben Franklin said all those years ago: The man that would give up a little liberty in the name of security will soon have neither. And as Machiavelli noted centuries before Franklin, a government that does not trust the people is a whole other kind of problem.

During my career I confiscated a number of guns... the youngest criminal I took a gun off of was 10 years old (A street robbery) and the oldest was 68 years old (Shooting at his neighbor's house), both found after a stop and frisk... I also took a Tech 9 machine pistol out of a woman's baby carriage (her baby lying next to it) who was standing on the corner with her crack dealing boyfriend, who had already been convicted of shooting at a cop once before and was out on parole...

I agree cops have to act professional and courteous to the public, but they should also be able to go home at the end of the day.

So I ask you... How would you figure out who who the bad guys are and still keep the public happy?

[Bash]

Originally Posted by LakeSuperior

Why did they ask permission to board? I responded by telling them no not at this time and then they told me no wasn't an option.

Down in Monterey I once told a CG boat that I was willing to be inspected but that I didn't consider the current conditions safe for boarding. They agreed to follow me into the harbor and conduct the "courtesy inspection" after I'd tied up.

[hellosailor]

Lake, from what I've been told if you consent to the boarding, they have broader powers to takee lookee. If you do not consent...you may be charged with interfering with a LEO in the performance of his duty. So when you are asked for permission to board, you may want to respond along the likes of "I do not give you consent to board but I will not stop you from doing so."

Of course if you want to really confuse them, when they first hail you, respond and ask them if they require assistance. <VBG>

Hey, if they wanted easy jobs, they could wear white suits and sell ice cream. Everybody loves ice cream.

[jeremiason]

Originally Posted by LakeSuperior

The key phrase here is "a better chance of not being stopped."




Me knows you are making stuff up here. To my knowledge no crimes have been prevented here in the UP in 30 years of boardings by the USCG. It is not so obvious that arrests are made or crime is stopped fairly often. Additionally, how does boarding prevent crime?? Once on board can they sniff a crime out before it happens?

I also think it is good for the young coasties to know that not everyone is a sheep and that some of work they are tasked with may not be as cut and dried as their management might make it out. I personally have played hockey with a number of young coasties and they actually get it when the topic has come up in the locker room.

If found your statistical data doesn't match what is published on the internet, via news sources and law enforcement statistics... Maybe they are all wrong and only doing boardings to harass people.

Assuming you know more than everyone else and there has been no crime stopped or lives saved as a result of USCG boardings on Lake Michigan in the last 30 years, I think you should contact your local US Congressman and US Senators...

Ask them why the government is wasting so much money on harassment of boaters... Maybe they can stop this obvious waste of tax payers money!

[hellosailor]

"Ask them why the government is wasting so much money on harassment of boaters..."
Is that a naive question?

Diving into questions like why it is easier to raise money by writing summonses on out-of-towners who will pay up without coming back to argue?

Or, how searches are part and parcel of the great War On Drugs? Which literally every panel convened by any president, any congress, any and all of them, has said can only be solved by legalizing drugs so they can be regulated? Ask those same politicians why they have ignored every economist and every all-star panel they have convened on that subject for the past 40 years.

Or maybe you don't remember, wasn't it in the 80's that the USCG was literally tearing apart boats because someone found a roach in the bilge?

There were and are plenty of Coasties who'd rather make fuel runs than random inspections. And small town LEOs who'd rather be home beating their wives.

As the McCarthy-esque tale goes:
"Senator, why were you beating your wife last week?"
"I was not beating my wife!"
"Then whose wife were you beating last week, Senator?"

Politicians have their own agendas. Some of them get arrested pretty much every week for it, too.

[LakeSuperior]

Tom
The other part of the equation for the USCG is the maintenance of navigational aids, search and rescue, promotion of boater safety, etc. All of which I am in favor of and thankful for.

I am only protesting detainment and boarding without probable cause.

Please, the number of crimes prevented divided by the number of detainment and boardings has to approximate zero. Please send reference if I am wrong here.

[Bash]

One of the things that bother me about the boarding program is its inconsistency. We have a couple dozen boats anchored out illegally in Richardson Bay year 'round. Those boats tend to be near-derelicts, and every time there's a winter storm of few of them sink while others drag ashore. Some boats go years without moving, and it's pretty obvious that the people living on them are pumping effluent directly into the bay, which is one of the few salt water no-discharge zones in the country. But what are the chances of one of those boats being boarded? Zero. Meanwhile, you go out for a daysail on a >$300,000 sailboat built within the last few years and the GC wants to inspect the dates on your flares and make sure your Y-Valves are wired shut.

Similarly, in Sausalito a concession rents stand-up paddleboards to first-timers, most of whom decline the opportunity to take a PFD along. But guess which vessels the CG wants to pull over so it can count PFDs. Bingo. And while they're counting life jackets and fire extinguishers on the >$300,000 sailboat, the SUPs paddle out into the bay without PFDs even being strapped to the boards.

[Stu Jackson]

Originally Posted by Andy73

Hello HelloSailor

You are correct that the USSC has never upheld the process, however there are numerous (or at least a strong several) instances when nullification, or the threat of, has been used successfully. Examples include:
Jefferson & Madison use against Alien&Sedition act of 1798
Northern states use against federal embargo in 1807
Connecticut use against threat of conscription in 1812
Wisconsin use against Fugitive Slave Act 1850

It makes sense the USSC does not uphold a concept which limits its own scope, I just wanted to point out there are historical presidents of states upholding their own powers.

Andy

Those historical nullification issues seemed to have been settled somewhat later than the dates you list with something called The Civil War (or the War of Northern Aggression depending on where you live).

[SAENFORCER]

Hellosailor on your post about boardings and consent to board giving right to search, It's a little bit more complex than that. On the surface, no the CG does not get to conduct a full blown warrantless search on just your invitation to board. It can be compared to a LEO coming to your home for a legitimate reason and you allowing him in, because you invite him in does not negate the restrictions placed on him by the fourth amendment. However there are limited circumstances which give LEO's the right to conduct warrantless searches. In your description of what can occur the most prominent one would be the plain view doctrine. Where the CG is somewhere they have the right to be, and they see something, in plain view, that is illegal. Now should someone be brain dead enough to leave, say an illegal drug on their table, then they can seize the illegal substance, and place you under arrest. Now once that has occurred they can then conduct what's called an inventory search, under the pretense of securing your valuable possessions so they won't be stolen while your boat is in impound and you are in jail, and whatever is found in the scope of that search can also be used to charge you. As for your second comment, no you can not be charged with a crime for turning down a request to board, it is a sign of respect that the CG ask permission to board from a boats Capt.., however if they have the legal right to inspect certain aspects of your boat and or safety equipment, then turning them down on their request will not stop them from boarding, and all you will accomplish is extra scrutiny from them. It may not seem like it to you, but the rules do not favor law enforcement, until you have been on that side it's easy to not fully appreciate the complexities of having to be right all the time, in seconds, what attorneys will spend months on deciding if it fit within the confines of the rule of law governing the LEO's actions, and the risk that a murderer or drug dealer walks because the LEO violated one small section of the law can be tiring, but as a retired LEO and member of Oath Keepers, I wouldn't have it any other way.

[hellosailor]

SA-
I didn't want to get into the complexities that can ensue. Perhaps the simplest thing to remember is "never invite a vampire across your threshold".

No one expects LEOs to be 100% right all the time "in seconds". But the burden on them is to make Real Damn Sure they are right, or else walk away. And if that means the bad men win the lottery from time to time, yes, that's the way it is supposed to be. When someone tries to tell me they need to stop, search, bother, whatever, a half million people in order to make one righteous bust on one perp? I say "Not on my watch."

And if the best they can do is bat 300 (3 in 10) then they need to sign up for major league baseball, and quit the job.

If it was an easy job, we could outsource it to India.

[SAENFORCER]

No one expects LEOs to be 100% right all the time "in seconds". But the burden on them is to make Real Damn Sure they are right, or else walk away. And if that means the bad men win the lottery from time to time, yes, that's the way it is supposed to be. When someone tries to tell me they need to stop, search, bother, whatever, a half million people in order to make one righteous bust on one perp? I say "Not on my watch."

And if the best they can do is bat 300 (3 in 10) then they need to sign up for major league baseball, and quit the job.

If it was an easy job, we could outsource it to India.



I concur 100% my friend