The 11th U.S. Circuit Court of Appeals has reaffirmed a previous ruling and again held that an NFL season-ticket holder consented to being searched before entering a stadium. Adding to its earlier opinion, the panel of judges also concluded that plaintiff Gordon Johnson had no constitutional right to enter the stadium: “Under Florida law, his season ticket was a revocable license under which he could be denied entry for any reason.”
The litigation ensued after the Tampa Sports Authority instituted a policy in February 2005, requiring brief pat-down searches of all persons attending Tampa Bay Buccaneer football games. That fall, wrote an earlier court, “The NFL urged the pat-down policy to protect members of the public who attend NFL games. The NFL concluded that NFL stadia are attractive terrorist targets based on the publicity that would be generated by an attack at an NFL game.”
The court added that “Johnston, a high school civics teacher, was aware of the pat-down policy before the first game of the 2005 season. Press releases announcing the initiation of the pat-down policy were published in the media, on the Buccaneers’ website, and in a direct communication to season ticket holders.” Other notification measures included notices to cars entering the Stadium parking lot, loudspeaker announcements outside of the Stadium before games, and multiple signs along common walking routes.
The court continued, “Johnston called the Buccaneers’ office before the first game of the 2005 season to discuss the pat-down search policy. Johnston objected to the policy, and claims that he was told that the Buccaneers would not refund the cost of season tickets based solely on his objections. … Johnston nonetheless presented himself and his ticket at an entrance to the Stadium on three occasions. On each occasion, a screener advised Johnston that a pat-down search would be performed. Johnston verbally objected to the pat-down but allowed it to be conducted so that he could attend the games. After attending the second game Johnston sued the Authority in state court, seeking to enjoin the searches. After suit was filed, Johnston attended a third game, and, after offering his objection, he again submitted to a pat-down search. After the third game the Florida state court enjoined the searches and Johnston attended subsequent games without being subjected to the search.”
Specifically, the state court found the searches unconstitutional under the Florida Constitution, and enjoined the Authority from continuing any of them.
Johnston later amended his complaint to add a claim under 42 U.S.C. § 1982 that the searches violated the Fourth Amendment to the United States Constitution. On November 4, 2005, the Authority successfully removed the case to the United States District Court for the Middle District of Florida and asked the District Court to reconsider and vacate the injunction issued by the state court. The District Court denied the motion, “finding that Johnston did not consent to the pat-down searches, and that the searches violated the Fourth Amendment,” spawning an appeal.
The 11th Circuit ruled for the defendant (see Sport Litigation Alert Vol. 4, Iss. 13). Then Johnston appealed again, asking for an en banc hearing from the appeals court. The 11th Circuit granted that appeal and began with the following analysis:
“The issue in this case is whether Johnston has shown a substantial likelihood of succeeding on the merits of his claim that the pat-down searches violate his rights under the constitutions of Florida and the United States.”
A party seeking a preliminary injunction must demonstrate that: (1) he has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered absent an injunction; (3) the injury to the movant outweighs the injury the proposed injunction would cause to the opposing party; and (4) the proposed injunction would serve the public interest. (Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097, 11th Cir. 2004)
The court found, “Johnston had met his burden in showing a substantial likelihood of success on the merits of his constitutional claims and that the preliminary injunction would serve the public interest. Johnston, 442 F. Supp. 2d at 1272-73.”
In the instant opinion, the panel addressed the plaintiff’s argument that the “pat-down searches at issue are invalid under both the Florida and United States constitutions.” The “United States Supreme Court has consistently held that under the Fourth Amendment ‘a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)); accord United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000). ‘It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.’ Schneckloth, 412 U.S. at 219; accord State v. Iaccarino, 767 So. 2d 470, 476 (Fla. Dist. Ct. App. 2000).
Extrapolating on the above passage, the court wrote that “the question then is whether the District Court abused its discretion in misapplying the consent exception to the facts of this case. We hold that Johnston voluntarily consented to the pat-down searches and thus has not shown a substantial likelihood of success on the merits.
“The factors we enumerated in United States v. Blake demonstrate the voluntariness of Johnston’s consent. Johnston was not in custody at the time of the search, rather, he presented himself willingly at the search point. The screeners did not coerce Johnston, they merely performed the search to which Johnston submitted. Johnston was well aware of his right to refuse to submit to the pat-down search.
“The District Court found that the consent exception did not apply in this case, in part, because of the ‘unconstitutional condition’ doctrine developed by federal and Florida courts. The District Court erred in its application of the unconstitutional condition doctrine because in this case the condition for entry was imposed by the NFL and the Buccaneers, both private entities, and not the government. As we noted, Johnston did not have any right or entitlement to enter the Stadium. His purchase of a ticket granted him at most a revocable license to a seat. As is typical of sporting events, the NFL and the Buccaneers explicitly retained the right to exclude him from the Stadium for any reason. The NFL chose to impose a pat-down as a condition for entry. … this policy was the NFL’s — and not the Authority’s.
“In other cases where we have used the unconstitutional conditions doctrine to invalidate consent, we found that it was the government imposing the condition and performing the search. E.g., Bourgeois, 387 F.3d at 1324 (magnetometer searches instituted by city policy). Several courts have analyzed the “unconstitutional conditions” doctrine with respect to entry to large public gatherings such as rock concerts. In each of these cases, a government search upon entry was unconstitutional because it required the patron to choose between assertion of his constitutional rights and losing paid admission to the concerts. In each of these cases the entity imposing the condition was the government itself. E.g., Nakamoto v. Fasi, 64 Haw. 17, 635 P.2d 946, 949 (Haw. 1981) (inspection policy imposed by the City of Honolulu); Gaioni v. Folmar, 460 F. Supp. 10, 12 (M.D. Ala. 1978) (search policy instituted by the Mayor of the City of Montgomery); Stroeber v. Comm’n Veteran’s Auditorium, 453 F. Supp. 926, 929 (S.D. Iowa 1977) (search policy instituted by officials and the chief of police of the City of Des Moines); Wheaton v. Hagan, 435 F. Supp. 1134, 1139 (M.D.N.C. 1977) (search policy instituted by officials of the City of Greensboro).
“In this case, the government had no role in formulating or mandating the pat-down policy. The policy exists solely because of the NFL’s mandate. Because the condition for entry was imposed by a private party, Johnston was not forced by the government to choose between assertion of his constitutional rights and obtaining a benefit to which he was entitled. … The unconstitutional conditions doctrine does not apply to these searches required by a private entity.
“Considering the totality of the circumstances, the Court concludes that Johnston voluntarily consented to pat-down searches each time he presented himself at a Stadium entrance to attend a game. The record is replete with evidence of the advance notice Johnston was given of the searches including preseason notice, pregame notice, and notice at the search point itself. It was clear error for the District Court to find that Johnston did not voluntarily consent to the pat-down searches.”
Gordon Johnston v. Tampa Sports Authority, Henry G. Saavedra, in his Official Capacity as Executive Director of the Tampa Sports Authority; 11th Cir.; No. 06-14666; 2008 U.S. App. LEXIS 12772; 21 Fla. L. Weekly Fed. C 804; 6/18/08
Attorneys of Record: (for plaintiff) John Goldsmith. (for defendant) Rick Zabak of Gray Robinson.