By Robert J. Romano, Esq.
Since the events of Sept. 11, 2001 in New York City and Washington D.C., sporting events have increasingly been viewed as possible terrorist targets. Stadium managers, sports leagues and event organizers have reacted by implementing tougher security policies and sophisticated security measures. Specifically, spectators and fans have been subjected to wand searches like those implemented during the 2002 Salt Lake City Winter Olympic Games, to video surveillance at the 2002 and 2006 Super Bowls.
Additionally, in 2005, the National Football League (“NFL”) mandated that all 32 of its franchises institute a pat down policy at their home stadiums to protect members of the public attending NFL games. This decision was based on the NFL’s supposition that its stadiums were terrorist targets. As evidence, the NFL used several examples of global terror, including the 2004 and 2005 suicide bombings in London and Madrid, the unsuccessful plan to bomb a soccer venue in Spain, and the NFL’s belief that individuals with ties to terrorist organizations had downloaded information about NFL stadiums in St. Louis and Indianapolis. The NFL concluded that NFL stadiums are attractive terrorist targets based on the publicity that would be generated by an attack at an NFL game.
According to the NFL, the pat down policy focuses on the detection of improvised explosive devices or “IEDs”. The policy requires that fans be asked to “hold their arms out to their side, palms up” as screeners “run their hands along the sides of the torso, and down the spine.” The process involves “touching, patting, or lightly rubbing.” If the screener observes or feels any “suspicious bulges,” the screener may instruct the patron to empty his pockets. A fan that refuses is denied entry into the stadium.
The U.S. Supreme Court has specifically held that a “weapons pat down” is a search within the meaning of the Fourth Amendment. Since the NFL’s primary purpose of the search is for IEDs, the pat down policy clearly raises issues regarding the privacy and constitutional rights of each ticket holder subject to the search.
Additionally, spectators and fans that are against the NFL’s policy have a likelihood of prevailing in a lawsuit unless the NFL can cite specific evidence that suggests United States’ sporting venues are potential terrorist targets. If the NFL can show such, this would satisfy the Federal Court’s requirement that the threat to public safety be not only “substantial,” but also “real.” However, if the NFL presents only the evidence it has offered thus far, the fear of terrorism at NFL stadiums seems to be nothing more than a general fear that terrorism could strike at any time or in any place where the public gathers. Thus, the NFL pat down policy would not likely satisfy the special-needs exception and could therefore be held unconstitutional under the Fourth Amendment.
Therefore, it is essential that professional sports leagues, individual teams, stadium owners, stadium security managers and security guards who conduct these mandated searches be aware of and have the ability to address any and all issues, legal or otherwise, involving the pat down of fans entering the stadium. This knowledge and understanding is necessary since from the date that the NFL implemented its pat down policy, three sets of fans have challenged its constitutionality under the Fourth Amendment of the U.S. Constitution or its state equivalent.
In light of this litigation, policies must be implemented to help mitigate the chances of being sued and if there is litigation, everything they can to help mitigate the likelihood of a fan succeeding with their cause of action. Following is a brief list of recommendations to help with this task:
a. Create Consent:
The NFL’s pat down policy and the mandate that each facility follow such policy puts fans in a precarious situation. They must submit to a pat down search or never attend an NFL football game. Stadium security managers need to be aware that federal courts use the “unconstitutional-conditions doctrine” to prevent stadiums from conditioning the grant of a benefit (in this case access to a facility) on the surrender of constitutionally protected rights. This doctrine has been used to protect individuals from unreasonable search and seizures during concerts and protest rallies.
Therefore, stadium security managers must do everything to create the impression that the fan entering the stadium consented to the search. The Appellant Court held in the matter of Johnston v. Tampa Sports Authority that the fan involved in this matter voluntarily consented to the pat down search and thus has not shown that his constitutional rights have been violated. The court found that the fan was aware of the policy when he bought his season ticket package, knew about the policy once he arrived at the facility, had consented to the search on previous occasions, so therefore, he implicitly consented to the NFL’s mandated search since he was aware that such was to occur.
Stadium managers can create this impression by educating fans as to what the policy entails. This could be done by:
i. Posting the NFL’s mandatory pat down policy on its website.
ii. Providing notice of the NFL’s mandatory pat down policy with each season ticket package.
iii. Providing ample signage of the NFL’s mandated pat down policy at the entrance to the stadium and throughout the parking area.
iv. Providing ample signage of the NFL’s mandated pat down policy at each entrance Gate.
v. Providing a reasonable refund policy for fans that wish to return their season tickets after they learn of the policy or for fans that learn of the policy once they arrive at the stadium.
b. All Security Personnel Should Be Gloved:
All security personnel should be provided with light blue or fluorescent green rubber/latex gloves. The reason for this is two-fold:
i. The gloves will protect the guard from coming into contact with any foreign substance that may harm the guard or cause he or she to become ill.
ii. Bright gloves, either light blue or fluorescent green, will help defend against a fan claiming that a security guard inappropriately touched them. The gloves will deter a guard from conducting an “overzealous” search since he or she will be aware that their hands are clearly visible to others, while making it easier to refute a fan’s claim that they were touched inappropriately.
c. Special Consideration for Children:
One thing that does occur when a parent and a child(ren) enter the stadium together is that the child is usually waved through while the parent is patted down while his or her bag is being searched. This causes a parent and the child(ren) to become separated. Therefore, some polices should be implemented in order for the child(ren) to stay with the parent until the search is completed. This will help safeguard against any litigation wherein a child gets lost, abducted or injured while out of sight of the parent or adult accompanying him or her.
Secondly, it is arguable that a minor child cannot legally consent to a search. However, a parent or guardian can give consent on the child’s behalf. Stadium security management should initiate training procedures wherein they can have the security staff properly ask the parent or guardian to allow them to pat down the minor child(ren). If the parent or guardian refuses, the prudent step will be to still allow the child(ren) to enter.
d. Other Recommendations:
i. Clearly indicate what size bags, purses or backpacks, are allowed into the stadium and who could bring in such items.
ii. Designate a one bag only line at each Gate since lines get backed-up while a security officer searches though different kinds of bags.
iii. Create longer corral lines since doing such alleviates backlog and line jumping that frustrate some fans.
iv. Continue with wheelchair only Gates. However, indicate to security at these Gates that it is just as important to pat down the person pushing the chair as it is for the person sitting in the wheelchair.
v. Have local or state police posted at each Gate since this acts as a deterrent and is necessary if an incident does occur. Make sure that such officer is alert and pays attention to the fans entering the Stadium instead of talking on their cell phones, texting or simply talking to one another.
vi. Explore the costs and functionality of either hand held or stand alone metal detectors. Metal detectors are expensive to implement but may reduce cost over time due to less security personnel needed than for pat down searches and less liability since they are less intrusive and if used correctly may avoid Fourth Amendment scrutiny.
vii. Plan for when a woman carries a bag/backpack etc through the security checkpoint, but once through, hands the bag/backpack etc. to a male fan that would not ordinarily be allowed to have such within the Stadium.
viii. Post a security guard at the end of the corral lines in order to usher fans to less crowded lines and for additional surveillance.
e. Future of the NFL’s Mandatory Pat Down Policy:
This post 9/11 increased level of security has systematically eroded away an individual’s right to privacy. Sports fans, concert goers and event attendees have moved from being subjected to limited visual inspections of persons and bags for alcohol, contraband and projectiles, to physical searches of persons for possible weapons, to requests for their personal identity that may lead in some instances to immediate criminal status and background checks.
As surveillance and search technologies continue to develop and become more sophisticated, and as terrorism continues to put fear into the American public, stadium owners and managers, sports leagues, teams, event organizers and security personnel have to ask what is appropriate and what is legal when it comes to searching event spectators and guests. In the United States, where privacy is a fundamental freedom that receives constitutional protection, the question thus becomes for the American public – what, if any freedom(s) are fans and spectators willing to trade for a sense of security. And if the American public is willing to trade civil liberties for safety, the United States federal and state courts, as the gate keepers and protectors of the populaces’ constitutional rights, must reach a balance between what privacy advocates worry about; that fear will outweigh the American passion for privacy, with that of the government’s, and on this context, stadium security managers need to reasonably limit some personal civil rights in an effort to ably protect and provide for the health, safety and well being of the citizenry.
