AP News, April 17th, 2007
The Tampa Sports Authority urged a federal appeals court Tuesday to reinstate pat-down searches at Tampa Bay Buccaneers football games, arguing that they provide an essential layer of security in an age of constant terrorism threats.
At least two of the three judges on the 11th U.S. Circuit Court of Appeals panel appeared sympathetic to the searches, with Senior Circuit Judge Peter T. Fay asking during oral arguments if a terrorist attack had to occur first before such steps are taken.
"So there's got to be an explosion at some stadium? What would it take?" Fay said.
The panel is considering an appeal by the sports authority, a governmental board that owns and operates Raymond James Stadium where the Buccaneers play.
The pat-down searches, which are NFL policy at stadiums nationwide, were halted for Buccaneers games after high school civics teacher and season-ticket holder Gordon Johnston challenged them as unconstitutional. U.S. District Judge James D. Whittemore last July upheld a state court ruling that the pat-downs violate the Fourth Amendment protection against unreasonable searches and seizures.
"It's like a slippery slope," Johnston said after Tuesday's hearing. "If I lose these rights, going to the games, then I'll lose other rights."
Tampa is the only NFL city where the pat-downs have been successfully challenged in court, although lawsuits have also been brought in Chicago, Seattle and San Francisco, according to attorneys in the Florida case.
Rick Zabak, attorney for the Tampa Sports Authority, said pat-downs are legal because a game ticket is a legal contract between the authority and the fan, one that can be revoked for virtually any reason. He also said adequate notice was given about the pat-downs, which the NFL instituted in 2005, and that Johnston's attendance at several games indicated his consent.
The U.S. Justice Department has sided with the sports authority, arguing that the searches are a necessary part of security measures at high-profile and crowded NFL games and that fans made uncomfortable by the security don't have to attend.
"NFL games are attractive terrorist targets," said Jonathan Cohn, a deputy assistant attorney general in the Justice Department's civil division. "There's no constitutional right to watch a football game live."
Johnston's attorney, John Goldsmith, argued that Johnston never gave his consent for the searches and that an ongoing terrorism threat does not justify broad pat-downs without suspicion of wrongdoing.
"There has to be some concrete and real danger," Goldsmith said.
But Circuit Judge Stanley F. Birch Jr. seemed troubled by that argument, given all the changes in security at public events all over the United States since the Sept. 11 terrorist attacks.
"Do you think there's a reasonable expectation of privacy any more?" Birch asked. "The Constitution is not a suicide pact."
The judges did not indicate when they would rule, but there is time for a decision before the Buccaneers begin their season later this year.
