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SAN FRANCISCO � Football ticket holders in Chicago, San Francisco, Seattle and Tampa, Fla., have tried and failed in four constitutional challenges to block the hands-on, patdown security screening imposed by the National Football League in 2005. The California Supreme Court’s recent decision to examine the constitutionality of patting down football fans entering stadiums � as well as a separate federal challenge now in the 11th U.S. Circuit Court of Appeals � have given search opponents the legal equivalent of overtime. The California Supreme Court agreed to review a dismissed challenge to the searches by San Francisco 49ers ticket holders. And in Florida, the Tampa Bay Buccaneers await an 11th Circuit decision on whether the entire court should reconsider a June opinion that threw out a fan challenge. Only one injunction � blocking enforcement of the NFL rule mandating the patdowns � has been issued, and that remains in effect in Tampa. Johnston v. Tampa Sports Authority, 490 F.3d 820 (2007). Chance to score? It may be the California case, which relies on the state constitution’s broad privacy protections, that has the best chance of succeeding. If so, it could affect the state’s three NFL franchises: the Oakland Raiders, San Diego Chargers and the 49ers. “California has a constitutional amendment with a lower threshold than the Fourth Amendment, but it is unclear how low,” said Michael McCann, a professor who specializes in sports law at Mississippi College School of Law in Jackson. Courts are traditionally deferential to security concerns, but there is a chance this case could succeed, he said. While the U.S. Constitution only protects citizens from searches by government officials, California extends that protection to cover searches by private companies. “There are some choices that businesses can’t force customers to make,” said Ann Brick, staff attorney for the American Civil Liberties Union of Northern California, which represents two season ticket holders in the 49ers lawsuit. Courts have said that, for searches at sporting events or concerts, there must be a balance between the organizers’ security concerns and the privacy rights of individuals, she said. “The 49er position is that it doesn’t matter if it is justified or how invasive, they can make it part of the price of admission,” she said. The 49ers organization and the NFL did not return calls seeking comment on the case. Sheehan v. San Francisco 49ers Ltd., 153 Cal. App. 4th 396 (Calif. 1st Ct. App. 2007). Richard Zabak, who represents the Tampa Bay Buccaneers in the 11th Circuit case, said, “We strongly disagree about how invasive the search is. In a stadium with 60,000 people . . . it is an above-the-waist patdown. It lasts a few seconds and it is a deterrent to someone with a suicide vest. At most it is a minor inconvenience,” said Zabak of GrayRobinson’s Tampa office. In 2006, U.S. District Judge James D. Whittemore ruled that mass, suspicionless patdowns constitute unreasonable searches under both the Florida Constitution and the U.S. Constitution’s Fourth Amendment. Johnston v. Tampa Sports Authority, 442 F. Supp. 2d 1257 (M.D. Fla. 2006). “While this Court recognizes a compelling public interest in preventing terrorism, the [Tampa Sports Authority] has not justified the intrusion on Plaintiff’s fundamental Fourth Amendment rights it seeks to impose,” Whittemore wrote. An 11th Circuit panel overturned Whittemore in June, but it did not rule on the legality of the search. Instead, it held that Gordon Johnston voluntarily submitted to the search when he entered the stadium, and thus his rights were not infringed. The entire 11th Circuit has been asked to reconsider the finding. Losing one’s rights by consenting to the search would be like telling civil rights activist Rosa Parks that she could not challenge segregation because she agreed to sit in the back of the bus for so many years, said Rebecca Harrison Steele, who is the American Civil Liberties Union’s regional director in Florida and represents Johnston. The Chicago and Seattle cases were tossed out on technical grounds in unpublished decisions.

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