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BART Board Votes to Oppose Bill That Would Decriminalize Fare Evasion

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Turnstiles in a large underground facility.
Turnstiles at the Embarcadero BART station on June 25, 2019. (Sruti Mamidanna/KQED)

In a decision that centered on a longstanding subject of rider complaints, a divided BART Board of Directors voted Thursday to oppose a bill in the Legislature that would end criminal penalties for those who repeatedly fail to pay transit fares.

The 5–3 vote featured two of the board’s more progressive directors joining its most conservative member in coming out against AB 819, by Assembly Majority Leader Isaac Bryan (D-Los Angeles).

California law currently treats a person’s first two fare-evasion offenses as infractions, with citations carrying a $250 penalty. The third and subsequent offenses are misdemeanors that may be punished with a fine of as much as $400, up to 90 days in jail, or both.

Bryan’s bill would remove the criminal penalties. Those third and subsequent offenses would instead be treated as infractions and be punishable by a fine of up to $400.

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Bryan and the bill’s supporters say the change is needed because fare enforcement disproportionately targets people of color on transit.

The BART board’s consideration of the bill was prompted by Debora Allen of Contra Costa County, who has often called for tougher policing of the system during her six-plus years on the board.

The board’s discussion touched on both the direct financial losses BART has suffered through gate-jumping — estimated at as much as $25 million annually before the pandemic — and the role fare evasion may play in thwarting attempts to win back riders who stopped riding after the onset of COVID in March 2020.

Allen said Thursday that public surveys, including BART’s own most recent customer satisfaction survey (PDF) and a Bay Area Council poll released in May, show that most riders are unhappy with the district’s efforts to curb fare evasion.

“The public is speaking very loud to us right now — and they have been — about the lack of enforcement of rules in our system,” Allen said.

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Pointing to BART Police Department statistics that show as many as 80% of those arrested for crimes on the system have not paid a fare, she said, “I can’t help but say we could help prevent some of the bad behavior in our system by getting tougher on fare evasion.”

She acknowledged that the agency is also moving to replace its fare gates with a model that will be more difficult to jump over, push through or wriggle under. The first of those gates will be installed later this year, with all gates to be replaced by the end of 2025.

“We have to do something in the meantime to say to the riding public that we really care about them and we want to do everything we can to keep them safe, especially at a time like this when we are begging for people to return to BART,” she said.

Allen made the motion for the board to take a formal position opposing AB 819.

Board President Janice Li of San Francisco pushed back, saying BART has already taken strong steps to respond to rider concerns.

She pointed to an initiative launched last March to increase the presence of police officers, fare inspectors and other uniformed staff on trains and in stations. Another sign of the agency’s commitment to passenger safety, she argued, was its approval last month of a 22% increase in police salaries. The raise is designed to retain current officers and attract new ones to help fill about 30 vacant officer positions.

“​​All of those things I 100% support, and I think that is the big picture, and that is what the riders, that is what the general public wants,” Li said. “They want to know that we’re going to be there and that we are doing everything we can to prevent and intervene harm from occurring in our stations.”

Li also pointed to BART police statistics that suggest the proposed change in the fare evasion law would have little impact on the agency.

According to the police data presented to the board in a staff report, officers issued about 2,350 citations for fare evasion in 2021; 48 of those were criminal misdemeanor citations issued to those who had failed to pay a fare three or more times. In 2022, officers wrote 1,800 citations, with 26 being misdemeanors that could carry criminal penalties.

“Due to the infrequency of misdemeanor cases referred for fare evasion in 2021 and 2022, if AB 819 becomes law, the impact on the district would likely be insignificant,” the report concluded.

Like Li, board member Rebecca Saltzman said she’d prefer the board not take a position on AB 819.

Saltzman, whose district covers parts of Berkeley, El Cerrito, Orinda and Lafayette, went on to say she supports the bill’s intent to end criminal prosecution of fare evasion, pointing to the non-criminal treatment of drivers who commit similar offenses.

“There are a lot of infractions in our society around cars — parking tickets, evading tolls. None of those lead to a misdemeanor just because you have a bunch of them,” Saltzman said.

“So why is it that I could get 10, 20 parking tickets, evade tolls 10, 20 times, and I’m still not getting a misdemeanor, but because I dare to ride transit and don’t have the fare to pay, I get a misdemeanor?” she asked. “It’s just totally inconsistent. And I think that’s the goal of this bill, to bring it in line with the rest of the ways we enforce in our society.”

One of those who supported Allen’s motion, however, was San Francisco’s Bevan Dufty, who broke with his progressive allies on the board.

Dufty noted that his district includes some of the “most difficult” stations in the BART system, including Civic Center and the two Mission District stations, at 16th Street and 24th Street.

“I have stations that have public safety issues,” Dufty said. “I have stations that can be great one minute and 20 minutes later it’s going off the rails, to use a bad analogy.”

Like Allen, Dufty said he was voting to oppose AB 819 as a response to rider concerns about safety.

“For us to support this legislation or remain neutral on it, I think it does not reflect … the reality that our riders are looking for indications at every turn that we are taking these things seriously,” he said.

Allen and Dufty were joined by Robert Raburn (Oakland), Mark Foley (Antioch) and John McPartland (Castro Valley) in voting to oppose the bill. Lateefah Simon, whose district stretches from western Contra Costa through Bayview-Hunters Point in San Francisco, voted with Li and Saltzman against the motion.

Supporters of the bill argue fare evasion should be decriminalized because data from Los Angeles, Washington, D.C., and several other cities show huge disparities between the number of Black riders using transit systems and the number of fare evasion citations they receive.

In a 2016 civil rights complaint (PDF) filed with the U.S. Department of Transportation, for instance, the Los Angeles’ Labor Community Strategy Center said its review of several years of LA Metro data found that Black passengers made up about 19% of the system’s ridership but received more than 50% of fare evasion citations. The percentages of citations issued to Latino, white and Asian riders were all lower than those groups’ ridership shares.

A similar analysis (PDF) released in 2018 by the Washington Lawyers’ Committee for Civil Rights and Urban Affairs looked at 25 months of fare enforcement data from D.C. Metro rail and bus systems. The study found that 91% of the citations issued on Metro went to Black passengers, whom district statistics show made up about 40% of passengers.

The bill being debated, AB 819, passed the Assembly in May by a vote of 61–12, with all Bay Area legislators voting yes. The bill was approved by the Senate Public Safety Committee last month and now awaits action in the Senate’s Appropriations Committee when the Legislature returns from its summer recess next month.

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