The 11th U. S. Circuit Court of Appeals has sided with the Tampa Sports Authority in a case where a fan of the Tampa Bay Buccaneers sued the TSA over its policy of conducting pat-down searches of fans entering Bucs football games at the Raymond James Stadium.
Specifically, the court found that plaintiff Gordon Johnston, a high school civics teacher, consented to the searches. It further found that the federal district court erred in not reconsidering the preliminary injunction issued by a state court judge. The ruling means the case will be reheard by the district court for further proceedings consistent with the circuit court’s opinion.
The litigation ensued after the Authority instituted a policy in February 2005, requiring brief pat-down searches of all persons attending Bucs football games. That fall, the Authority, at the urging of the National Football League, “considered enacting a policy to conduct limited above-the-waist pat-down searches of all persons attending Buccaneers football games,” wrote the 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 pat-down search policy focuses on the detection of improvised explosive devices which might be carried on a person entering a stadium.”
The court added that “Johnston 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’s website and in a direct communication to season ticket holders. Stadium employees distributed notices about the pat-down policy to cars entering the Stadium parking lot before games. Announcements were made over loudspeakers outside of the Stadium before games, advising those who approached the Stadium that pat-downs would be conducted at the entrances. Multiple signs were placed along common walking routes, including those from parking areas to the Stadium, announcing the pat-down policy.
“Johnston called the Buccaneers’s 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 them.
Johnston would later amend 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 panel of judges in the 11th Circuit wrote that “the issue in this case is whether Johnston’s Fourth Amendment rights were violated by the pat-down searches.
“It is axiomatic that a search conducted pursuant to voluntary consent is valid. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Whether consent is voluntary is a fact question determined according to the totality of the circumstances. Id. at 2049-50; United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989). Consent is determined on a case-by-case basis. United States v. Blake, 888 F.2d at 798. See also United States v. Drayton, 536 U.S. 194, 203-04, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002). Factors relevant to determining voluntariness include whether the person is in custody, the existence of coercion, the person’s awareness of his right to refuse consent, the person’s education and intelligence, and whether person believes that incriminating evidence will be found. Blake, 888 F.2d at 798.
“Johnston knew that he would be subjected to a pat-down search by the Authority if he presented himself at an entrance to the Stadium to be admitted to a Buccaneers game. That is, he chose to submit voluntarily to the search, stating only a verbal objection followed by his submission to the pat-down search process and his ultimate entry into the Stadium to watch Buccaneers football games.
“The Blake factors 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 not under any express or implied threat of physical or other retribution if he refused to submit to the search. Johnston was well aware of his right to refuse to submit to the pat-down search and did in fact express his objection to the searches to specific screeners and over the telephone to the Buccaneers. At the search point, Johnston pulled his shirt up (apparently to show that he was not wearing an IED) and asked not to be patted down. When screeners insisted on the pat-down before permitting Johnston to enter, Johnston elected to be patted down. Johnston appears from the record to be a man of heightened intelligence and well-educated. The record shows he did not believe that the search would disclose incriminating evidence, as evidenced by his attempt to show screeners he was not carrying any suspicious devices under his shirt.
“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 consent to the pat-down searches which were conducted.”
At press time, Johnston had appealed the decision, seeking an en banc rehearing of the case.
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, 2007 U.S. App. LEXIS 15190; 6/26/07
Attorneys of Record: (for plaintiff) John Goldsmith. (for defendant) Rick Zabak of Gray Robinson.
