The NFL's Two-Hand Touch

Security pat-downs, to be or not to be?

On October 27, a 60-year-old Florida high school civics teacher faced down the National Football League and won a temporary injunction stopping pat-down searches of football fans at Raymond James Stadium, home of the Tampa Bay Buccaneers.

A lawsuit against the Tampa Sports Authority (TSA) brought by Gordon Johnston, who is also a Bucs season-ticket holder, challenges the NFL's policy of having all game attendees patted down by security personnel at all stadium entrances. Granting the injunction, Hillsborough County Circuit Judge Perry White declared, "The right of the public to be free from unreasonable searches is within the public interest."

Johnston was aided in his suit by the Florida chapter of the American Civil Liberties Union (ACLU). Rebecca Steele, Regional Director of the Florida ACLU and one of three attorneys working on the suit, argues that the policy violates Article I, Section 12 of the Florida Constitution, which deals with unreasonable searches and seizures. Police, after all, must have "reasonable suspicion" of wrongdoing before they conduct such searches. Since a government agency runs the stadium and hires the security guards who staff it, the ACLU argues, they should be subject to the same rules.

With the Florida lawsuit and a fight against NFL pat-downs in Cincinnati, both citizens and state government agencies are fighting back against a security policy that, in addition to being useless and intrusive, may be illegal, either under the Fourth Amendment of the U.S. Constitution (which deals with governmental searches and seizures) or under state constitutions.

The Tampa Sports Authority, the target of Johnston's suit, is an 11-person board which oversees the day-to-day running of Raymond James Stadium (which seats close to 65, 600 people). Think of it as the landlord to the tenant "RayJay" (as the stadium is nick-named). So TSA owns and operates the place, and on September 13 of this year, it approved the NFL's pat-down security policy. But not everybody on the TSA board agreed with that move: TSA Chairman Patrick Manteiga has repeatedly told reporters that the searches provide a false sense of security.

Manteiga has a point. NFL pat-down searches on football fans, at least as they are currently being conducted, are mostly useless. Joe Durkin, spokesman for the Tampa Police Department, notes that since RayJay's opening in 1998, not one person has been arrested trying to sneak into the stadium with a gun, knife, or any material that could be made into an explosive.

This indicates that even fired-up Bucs fans aren't idiotic enough to try such a stupid stunt. But then, rowdy fans may not be what the NFL is worried about. Though the NFL didn't return repeated requests for comment, Hamilton County Ohio Prosecutor Joe Deters explains: "They (the NFL) told me that the reason they started the pat-down policy was that they had a number of affidavits from many security experts stating that an NFL game in a stadium full of fans was a prime target for a terrorist attack."

In an early October meeting, Deters told NFL attorneys that their security policy was going to cost Hamilton County taxpayers about $10,000 a game—the NFL has no intention of paying for these searches—and that Hamilton County simply wasn't going to comply. Deters complained that no government county employees should be doing these pseudo-searches. (As they stop above the waistline, they're not even full-body searches; nor does the NFL's adults-only search policy include metal detectors or other scanning technologies that might pinpoint weapons without subjecting each fan in the stadium to a quick grope.)

Deters laughs that "if we would have one of our county departments doing these searches, there would have been about 67,000 civil rights violations." In the case of Cincinnati, the hometown Bengals are responsible for security inside the stadium, and Hamilton County is responsible for security outside the stadium. So, continues Deters, "in the most likely scenario described in some of the affidavits of the security experts that the NFL used—a bomb exploding in or near a stadium, killing dozens, and then hundreds of people dying in the mad rush to exit the stadium—how would you ever fairly divide up, in a legal manner, the responsibility?" In Cincinnnati, the pat-down policy is on hold while a judge decides just what to do about this unclear division of legal responsibility.

No doubt the NFL intends only to protect its fans' safety. It's easy to imagine the horror that would ensue if someone—whether a lone nut or a terrorist team—detonated a bomb at an event like the Super Bowl. But security pat-downs manage to be intrusive without providing much security as compensation.

Mark Weisenmiller is a Florida-based reporter for The Economist and Global Radio News.