Expect Bucs Game Pat-Downs
Published: Jun 27, 2007
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TAMPA - Pat-down searches of fans entering Raymond James Stadium might resume by kickoff of the Buccaneers' preseason opener, Aug. 10, against New England.
A ruling released Tuesday by a three-judge panel of the 11th Circuit U.S. Court of Appeals sided heavily with the National Football League and the Tampa Sports Authority, which have been fighting a lawsuit that claims the mass pat-downs violate constitutional rights against unreasonable searches.
Last year, a U.S. district judge banned the procedure, in which security officials touch the sides and spine of ticketholders before they are admitted to games. Tampa has the only such ban in the NFL.
It is unclear whether Tuesday's ruling automatically lifts the ban. Attorneys on both sides of the issue have differing opinions on the next step in the procedure. Regardless, a return of the searches might not be far behind.
Bucs fans contacted Tuesday said they've come to accept the pat-downs, especially in a post-Sept. 11 world.
"I'm real big on personal freedoms," said Chris Ransom, 29, who goes to a few games a year with a friend who has season tickets. "But when it's for our safety, I'm for it."
Shawn Hall, 42, said a few seconds of intrusion on personal space is a small price to pay.
"I've got no problem with it," Hall said. "The last thing I want to do is go in there and get blown up or shot."
Tuesday's ruling states that the high school civics teacher who filed the lawsuit had consented to the searches when he allowed himself to be patted down at three games. It also says the teacher, Gordon Johnston, has no constitutional right to watch a football game and that the Bucs can revoke game tickets for any reason.
Judges Reverse Course
NFL officials released a written statement lauding the judges' decision. They say pat-down searches are an essential part of security procedures designed to protect the fans.
This is the first major ruling in the case that favors the sports authority and the NFL.
During the past two years, three courts have banned pat-down searches at Bucs games. A state court judge, the 2nd District Court of Appeal and a U.S. district judge have said mass pat-down searches, without grounds for suspicion, violate constitutional protections against unreasonable searches.
The Tampa Sports Authority is a public body that runs the football stadium. In 2005, based on an NFL mandate, the authority began the pat-downs at Bucs games.
Johnston, who teaches government classes at Tampa Bay Technical High School and holds season tickets to Bucs games, filed the suit against the authority and the NFL in October 2005.
Johnston said that when he first heard about the searches, he called the Buccaneers' office to complain. Initially he was told his money for the tickets could not be refunded if he would not consent to searches. Later he said he would not accept a refund even if one were offered.
At three games, Johnston accepted the pat-down searches but told security officials he did not consent. They searched him anyway.
Although Tuesday's opinion did not answer whether pat-down searches are constitutional, it did deliver a blow to opponents of the searches.
The federal appeals judges determined that tickets to the football games are licenses that can be revoked for any reason. Fans' recourse is limited to a refund. Therefore, the judges determined, fans do not have a constitutional right to attend games - even though the stadium is publicly owned and security searches are paid for with money from the NFL and local tax dollars spent by the sports authority.
Fans are made well aware of the searches, the judges ruled. News releases announced the initiation of the pat-downs, stadium employees distributed notices about the procedure, signs and loudspeaker announcements outside the stadium advised fans, and the Bucs Web site included information.
"Johnston appears to be a man of heightened intelligence," the court's written opinion states. "The court concludes that Johnston voluntarily consented to pat-down searches each time he presented himself at a stadium entrance to attend a game."
Attorney Invokes Rosa Parks
Johnston's attorney, John Goldsmith, said he has not decided his next move.
Johnston can ask for a rehearing before the entire 12-judge panel of the 11th Circuit U.S. Court of Appeals or he can appeal to the U.S. Supreme Court. Johnston also can go back to federal district court in Tampa and continue to fight against the searches, but in that case he must acknowledge that he had consented to being searched.
Goldsmith still thinks Johnston has a valid argument. The 11th Circuit judges did not address the constitutional issue because they said Johnston consented. That means others who did not consent still might have had their rights violated, Goldsmith said. He said he was not sure what would happen if Johnston were to refuse to attend future games.
"That's something we need to consider," Goldsmith said. "The fact that Rosa Parks sat in the back of the bus for years, consenting to the constitutional violation, doesn't mean she consented to forever sit in the back of the bus."
Rick Zabak, who represents the sports authority, said he doubts the validity of Goldsmith's argument.
Zabak said Johnston has no right to enter the football stadium and should seek a refund if he does not want to consent to further searches.
"If Mr. Johnston has a claim, and I'm not saying he does, his issue is with the Bucs," Zabak said.
The Supreme Court, Zabak said, is unlikely to hear the appeal of a case filed by one plaintiff. The 11th Circuit is unlikely to change its mind if asked for a rehearing; Tuesday's opinion by a three-judge panel was unanimous.
'Almost A Slam Dunk'
Zabak said he will research federal procedure to see whether the pat-down ban will be lifted automatically. If not, he said, he will ask to lift the ban while an appeal by Johnston progresses.
"I need to determine if anything else needs to be done," Zabak said. "If anything does, I will do it."
Johnston said that after three courts ruled in his favor, he expected the 11th Circuit to follow suit.
"Needless to say, I'm disappointed in their decision," he said. "I really thought strongly that knowing the Constitution, it would be almost a slam dunk."
If the pat-down searches resume at Bucs games, Johnston said, he's not sure he will use his tickets. Right now, he's not planning on it.
"I'm not going to submit to something I believe is unconstitutional," he said. "It's the first step in eroding not only my but everyone's constitutional rights."
Reporter Thomas W. Krause can be reached at (813) 259-7698 or tkrause@tampatrib.com.
