A federal judge from the Western District of Washington has granted summary judgment to the owners of the Seattle Seahawks and other defendants in a case where several Seahawks season ticket-holders claimed that pat-down searches violated the Constitution as an illegal search and seizure.
The court concluded specifically that the searches, which were a condition for entry into the stadium, did not meet the threshold of state action.
Plaintiff Fred Stark and the co-plaintiffs’ chief argument was that that the private entities and the Stadium Authority are so closely entwined in the operation of Qwest Field that the searches conducted by the private entities constitute state action.
The defendants countered that the pat-down searches, which are authorized by private entities and conducted by private security personnel, do not constitute “state action,” as required to state a claim for a Constitutional violation. The facts pertinent to these motions are not in dispute.
In their Complaint, the Starks named the private entities responsible for conducting the pat-down searches: the Seahawks team, its owner, Football Northwest, and First & Goal (a Washington corporation that leases Qwest Field for the benefit of the Seahawks). They also name the public entity that owns Qwest Field, the Stadium Authority, and its Board of Director’s Chair, Lorraine Hine.
In its analysis, the court reviewed the state’s 1997 enactment of the Stadium and Exhibition Centers Financing Act (Stadium Act), which set forth a comprehensive financing plan for a new stadium and exhibition hall. The legislature passed the Stadium Act in response to concerns that the then owner of the Seahawks, Ken Behring, planned to move the Seahawks to California, according to the court. In an attempt to keep the team in the greater Seattle area, Football Northwest negotiated and eventually acquired an option to purchase the Seahawks from Mr. Behring. Football Northwest announced that it would not exercise its option to purchase the team unless there was a public commitment “to enable and partially fund construction of a new football stadium for the Seahawks.”
The Stadium Act created the Stadium Authority entity, granting it authority to “construct, own, remodel and operate” an event center.
The court went on to review the various financial relationships, such as:
• First & Goal pays an annual rent to the Stadium Authority of $ 850,000, plus any reasonable operating expenses that exceed the annual rent.
• Both the Stadium Act and the Master Lease require First & Goal to pay the Stadium Authority 20 percent of the net profits from the Exhibition Hall (a building next to the stadium) into a common schools fund.
• First & Goal also collects and remits to the Stadium Authority a 1.2 percent ticket surcharge that the Stadium Authority uses to pay down its tax obligation — $ 37 million in deferred sales tax on construction costs.
• The Stadium Authority also receives fixed payments from the sale of the naming rights for Qwest Field, which go toward major maintenance and modernization improvements of Qwest Field. And
• If the Seahawks are sold within 25 years of the issuance of the bonds used to finance construction, the state will receive 10 percent of the gross selling price.
Also taking a central role in the litigation was the NFL’s decision in August 2005, to mandate “limited pat-down inspections” of everyone entering NFL stadiums on the day of an NFL event. To comply with this mandate, First & Goal hired a third-party security vendor, which provides about 180 licensed private security guards to visually inspect bags and conduct the pat-downs of ticket-holders on a same-gender basis. The plaintiffs do not offer any evidence to suggest that the Stadium Authority had any role in planning or implementing the pat-down searches, or that it approved, encouraged, or was even consulted about these procedures.
In considering the motion for summary judgment, the court wrote that for the plaintiffs to prevail on their federal and state constitutional claims, they must show that the pat-down searches at Qwest Field are fairly attributable to state action. It further noted that private conduct may be considered government action if the deprivation of a federal right is fairly attributable to the state. Lugar v. Edmondson Oil Co. Inc., 457 U.S. 922, 937, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982).
To that end, the plaintiffs “do not contend that the Stadium Authority conducted or authorized the pat-down searches. Instead, they argue that the Stadium Authority and First & Goal are so closely entwined that First & Goal’s actions can fairly be attributed to the Stadium Authority. In furtherance of their theory, (the plaintiffs) argue that there “is a symbiotic relationship between the Stadium Authority and First & Goal, or alternatively, that First & Goal is performing an act that is ‘governmental in nature.’”
The “symbiotic relationship” ascribed to by the plaintiffs allegedly occurs when the government has “so far insinuated itself into a position of interdependence with [a private entity] that it must be recognized as a joint participant in the challenged activity.” Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961).
“As evidence of the alleged symbiotic relationship between the Stadium Authority and First & Goal, (the plaintiffs) point to the following: (1) First & Goal leases Qwest Field, a publicly-owned facility, from the Stadium Authority; (2) the Stadium Authority shares revenue with First & Goal in the form of a ticket surcharge, naming rights payments, and profits from the Exhibition Hall; and (3) Washington state owns an equity stake in the Seahawks if the team is sold within 25 years from the issuance of the construction bonds.
“ … While the Starks point to several ways in which the Stadium Authority and First & Goal benefit from their relationship, they do not offer sufficient evidence that the Stadium Authority operates Qwest Field, or that it profits from the allegedly unconstitutional pat-down searches.”
The court went on to shoot down the plaintiffs examples that implicate a symbiotic relationship.
“The Starks contend that the Stadium Authority indirectly benefits from the searches because the Seahawks want to make fans feel more secure, and more likely to purchase tickets. These hypothetical increased ticket sales, according to the Starks, correlate to greater profit for the Stadium Authority based on the 1.2 percent ticket surcharge it receives from First & Goal. As explained by the Stadium Authority, and not refuted by the Starks, however, the ticket surcharge paid to the Stadium Authority is not profit, but is used to pay a tax obligation the Stadium Authority owes on the construction of the stadium.
“… The Starks’ remaining arguments regarding the Stadium Authority’s ability to profit from the pat-down searches are unavailing. The Starks point to rental and naming rights payments that the Stadium Authority receives from First & Goal, yet there is no dispute that these are fixed amounts that do not depend on ticket sales.
“The Starks also contend that the Stadium Authority profits from the revenues received from the Exhibition Hall, a separate building next to the stadium. Again, the uncontroverted evidence before the court is that there is no pat-down search prior to entering this building and, on days when the Seahawks are playing at ‘ Qwest Field, the revenue from the Exhibition Hall does not go to the Stadium Authority.
“Finally, the Starks point to the State’s 10 percent interest in the Seahawks if they are sold within 25 years after issuance of the construction bonds. The court fails to see how this interest, which is pure speculation at this time, supports a finding that the Stadium Authority profits from the current pat-down search policy at Qwest Field.
“Athough the court acknowledges the existence of a beneficial relationship between the private entities and the Stadium Authority in this case, and that they may even publicly proclaim themselves a ‘model for public-private partnerships,’ this does not rise to the level of a symbiotic relationship. The Stadium Authority did not participate in the original decision to conduct pat-down searches of ticket-holders, nor did it control, profit, or directly benefit from the pat-down searches conducted by the private entities at Qwest Field. Accordingly, the court concludes that the Starks have failed to come forth with sufficient evidence to meet the symbiotic relationship test for demonstrating state action.”
Fred Stark, et al. v. The Seattle Seahawks, et al.; W.D. Wash.; CASE NO. C06-1719JLR; 2007 U.S. Dist. LEXIS 45510; 6/22/07
Attorneys of Record: (for plaintiffs) Garth D Wojtanowicz, Danielson Harrigan & Tollefson, Seattle, WA. (for defendants) Gregg H Levy and Paul A Ainsworth of Covington & Burling, Washington, DC.; Jeffrey S Miller, Tim J Filer, Foster Pepper, Seattle, WA. and John J Dunbar, Ball Janik, Portland, OR.
