Pat Downs at Sports Arenas: Necessary Precaution or Unconstitutional Search?

A high school teacher (with the help of the ACLU) has decided to put his knowledge of constitutional law up against the NFL. The teacher, who has season tickets to the Tampa Bay Buccaneers, is suing the Tampa Sports Authority (which owns Raymond James Stadium), alleging that the policy of patting down all fans who enter the stadium violates the Fourth Amendment. (Varian, "Tampa Bay Buccaneers fan challenges patdowns at stadium in lawsuit," Sun Sentinel, 10/17/2005). You can read the complaint here.

The NFL mandated the "pat down" policy at all of its stadiums beginning this season as an added security measure. All of the teams comply with the rule (the Bengals were the only hold out, owing to a dispute with the city over who would foot the bill), and this is the first legal challenge. Obviously, the league believes the procedure is reasonable, and as Maurice Clarett can attest, will fight a strong legal battle.

Does the plaintiff have a case? As you might imagine, cases on this specific issue have not occurred frequently. My research reveals no Florida case that speaks to the issue. So, if this case is appealed up the chain, the Florida high court will likely look to cases in other jurisdictions.

The federal Eleventh Circuit, of which Florida is a part, has ruled on a related issue. In Bourgeois v. Peters, 387 F.3d 1303 (11th Cir 2004), the court held that a city policy to conduct mass suspicionless, warrantless magnometer searches of protestors at a political rally violated the Fourth Amendment. The court dismissed the city's arguments regarding a need for higher security in this age of terrorism, stating that absent a specified threat, 9/11 or the terror alert level cannot be used as justification for degrading constitutional rights. Moreover, requiring all individuals to pass through a metal detector in order to attend a political rally placed an impermissible "prior restraint" on free speech and association rights under the First Amendment. The court proposed as an alternative that police would be free to search all individuals that looked "suspicious" without a constitutional violation.

This case is excellent for the plaintiff, but as a federal case, is not binding on Florida state courts. Even if it were, the NFL could distinguish it by the nature of the rights involved. Attending a football game does not implicate the same fundamental rights as attending a political rally. One is the brightest star in the constitutional sky; the other is a nice way to spend a Sunday afternoon. Thus, courts may be willing to allow more burdens on entry; after all, a spectator does not have to go to the game. By entering the stadium, an individual has consented to the search without an undue burden being placed on the person's constitutional rights. Teams would simply have to inform fans, prior to purchasing tickets and at the gate, that they are subject to a "pat down" search as a condition for entry.

So far, few courts have adopted this argument. In July, the Supreme Court of North Dakota ruled that a similar "pat down" policy in place at a hockey arena is unconstitutional. State v. Seglen, 700 N.W.2d 702 (2005). The court rejected the argument that modern times call for heightened security and also ruled that the exception commonly applied to airports and courthouses does not apply to arenas.

However, as a concurring opinion in the case notes, the court's opinion is largely based on an odd view of consent and perhaps should not be followed. Despite the presence of large signs warning spectators that they would be searched, the court ruled that the act of handing over a ticket and entering the arena was not "affirmative conduct" necessary to show consent. As the concurrence states, if this is not affirmative conduct, it is hard to imagine what is. The plaintiff certainly was not coerced "by explicit or implicit means or implied threat of covert force." He was free to leave the arena and chose not to do so. As I read the law, the coercion test is not intended to apply to these situations, but rather those where the individual has no meaningful option but to "consent" to the search (i.e., out of fear of being arrested if they do not). This certainly does not apply to a person freely entering an arena to watch a game.

Two other cases are from twenty years ago. In Jacobsen v. City of Seattle, 658 P.2d 653 (Wash. 1983), the Supreme Court of Washington held that a policy of pat downs at rock concerts violates the constitution. And while the Michigan Supreme Court in Jensen v. City of Pontiac, 317 N.W.2d 619 (Mich. 1982), upheld visual inspections of purses as patrons entered a stadium, some language in the opinion suggests that pat downs and physical conduct might not be acceptable.

Thus, the few courts that have weighed in tend to support the plaintiff's argument. But that does not mean it is correct, either legally or from a policy perspective. Society tolerates pat downs in a number of situations where terrorists or criminals could strike devastating blows: most notably, courthouses and airports. Sports arenas, some of which hold up to 100,000 people, fall into this category.

Many of these cases come down to the question: Do the rewards justify the intrusion into privacy? As of today, it seems that they do not. After all, a quick "pat down" is likely to deter a smart and determined criminal. But they might catch some malfeasants, and more importantly, dissuade others from considering the inviting target of sports arenas. It should not take the bombing of the Super Bowl for reasonable safety measures to be tolerated by sports fans and the constitution. Even the plaintiff in this case admits that the searches do not impose that great of a burden. [FN] Shouldn't we as a society be willing to tolerate a slight inconvenience for a safer Sunday afternoon?


[FN] Plaintiff admitted to thinking after the search, "That's not as bad as I thought it would be." (Sun Sentinel, 10/17/2005).

Posted in: