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11th Circuit rules that season ticket-holder can't object to being searched upon entering stadium
Howard J. Bashman
Special to Law.com
07-09-2007
Related: Bashman Archive
In October 2005, a season ticket holder of the Tampa Bay Buccaneers filed suit in a Florida state court to challenge the lawfulness of the Tampa Sports Authority's policy of conducting pat-down searches of all ticket-holders seeking to attend Buccaneers home games. The state court ruled that the searches were unconstitutional and enjoined them from occurring.Thereafter, the plaintiff amended his complaint to add a claim under the federal civil rights statute against the authority, which is a public entity. That newly added claim allowed the authority to remove the case to federal court, at which point the U.S. District Court for the Middle District of Florida denied the authority's motion to vacate the injunction, agreeing with the state court that the searches were unconstitutional.
The authority next appealed to the 11th U.S. Circuit Court of Appeals, which last month reversed the injunction, holding that the plaintiff had voluntarily consented to the searches by using his season tickets.
According to the 11th Circuit's unanimous per curiam opinion: "Considering the totality of the circumstances, the Court concludes that Johnston voluntarily consented to pat-down searches each time he presented himself at a Stadium entrance to attend a game. The record is replete with evidence of the advance notice Johnston was given of the searches including preseason notice, pregame notice, and notice at the search point itself. It was clear error for the district court to find that Johnston did not consent to the pat-down searches which were conducted."
The 11th Circuit's decision strikes me as mistaken for a variety of reasons.
To begin with, the injunction governs the conduct of the parties in the future, but does not redress searches to which the plaintiff had earlier subjected himself. The mere fact that a plaintiff has voluntarily subjected himself or herself to illegal governmental conduct in the past -- conduct that the plaintiff views as objectionable -- should not preclude the plaintiff from obtaining a court order preventing the government from continuing the illegal conduct in the future.
Even if one addresses the 11th Circuit's ruling on its own facts, it is difficult to see what the plaintiff should have done differently to have asserted a constitutional challenge capable of being adjudicated on the merits. If the plaintiff did not have a ticket to a Buccaneers home game, presumably he would not have standing to challenge the stadium's search policy. And if the plaintiff had a ticket but did not attempt to attend the game, he would be unable to establish that he would be prevented from entering without being searched.
According to the 11th Circuit's ruling, ticket-holders were advised in various ways that by presenting themselves for entry at the stadium gates, they were thereby consenting to be searched. The opinion goes on to explain that the plaintiff expressed his objections to the authorities about the search policy when he approached the stadium for entry but that he was searched, despite his oral objections.
Apparently the 11th Circuit would require the plaintiff to engage in a physical confrontation with stadium security -- by attempting to walk into the stadium while actively rebuffing any security attempts to perform a search -- in order to pursue injunctive relief to preclude future searches from being performed. How such a ruling makes sense as a matter of judicial policy or federal constitutional law is not immediately apparent to me.
It is noteworthy that when the 2nd U.S. Circuit Court of Appeals last year adjudicated a challenge to New York City's policy of performing random searches of the backpacks and packages carried by those seeking to enter the city's subway system, the 2nd Circuit did not view those plaintiffs who continued to ride the subway as having waived their Fourth Amendment challenges to the policy.
CONCLUSION
Whether the pat-down searches performed on ticket-holders seeking to attend Tampa Bay Buccaneers home games violate the Fourth Amendment is a question on which I express no opinion. But I don't think that should have been a question on which the 11th Circuit avoided expressing an opinion. The plaintiff who was seeking to enjoin those searches should not have lost the ability to do so merely by having voluntarily subjected himself to searches in the past. If the searches are illegal, the earlier injunction prohibiting them should be retained. And if they are not illegal, then the 11th Circuit should say so, instead of avoiding the merits based on a technicality that makes no sense whatsoever.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
