530 F.3d 1320 (11th Cir. 2008), 06-14666, Johnston v. Tampa Sports Authority

Docket Nº:06-14666.
Citation:530 F.3d 1320
Party Name:Gordon JOHNSTON, Plaintiff-Appellee, v. TAMPA SPORTS AUTHORITY and Henry G. Saavedra, in his Official Capacity as Executive Director of the Tampa Sports Authority, Defendants-Appellants.
Case Date:June 18, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1320

530 F.3d 1320 (11th Cir. 2008)

Gordon JOHNSTON, Plaintiff-Appellee,

v.

TAMPA SPORTS AUTHORITY and Henry G. Saavedra, in his Official Capacity as Executive Director of the Tampa Sports Authority, Defendants-Appellants.

No. 06-14666.

United States Court of Appeals, Eleventh Circuit.

June 18, 2008

Page 1321

Richard M. Zabak , Gray Robinson , John I. Van Voris , Shackleford, Farrior, Stallings & Evans, Tampa, FL, for Defendants-Appellants.

Randall C. Marshall , American Civil Liberties Union of Florida, Inc., Miami, Fl, Amy Lea Drushal , Trenam Kemker Attorneys, Rebecca H. Steele , ACLU Foundation of Florida, Inc., John Daniel Goldsmith

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, Trenam, Simmons, et al, Tampa, FL, for Plaintiff-Appellee.

Arthur J. England, Jr., Greenberg, Traurig, Hoffman, Lipoff, et al., Miami, FL, Jonathan F. Cohn , U.S. Dept. of Justice, Civ. Div., Gregg H. Levy , Covington & Burling LLP, Turner David Madden , Madden & Patto, LLC, Jonathan Levy, U.S. Dept. of Justice, Civ. Appellate, Richard A. Samp , Washington Legal Foundation, Paul A. Ainsworth , Covington & Burling LLP, Douglas N. Letter , U.S. Dept. of Justice, Washington D.C., Edward G. Guedes, Greenberg Traurig, P.A., Miami, FL, for Amicus.

Appeal from the United States District Court for the Middle District of Florida.

ON PETITION FOR REHEARING

Before BIRCH and FAY , Circuit Judges, and DUFFEY,[*] District Judge.

PER CURIAM:

We have carefully reviewed the Appellee's timely petition for rehearing en banc requesting that we reconsider our previous Opinion dated June 26, 2007, published at 490 F.3d 820, reversing the judgment of the District Court and remanding the case. Upon reconsideration of that Opinion, we vacate our prior Opinion and substitute the following revised Opinion in its place.

The issue before the Court is whether the District Court erred when it refused to vacate a Florida state court's order enjoining Appellant Tampa Sports Authority's (the “Authority" ) policy of conducting pat-down searches of all ticket holders seeking to attend Tampa Bay Buccaneers (the “Buccaneers" ) games at the Raymond James Stadium in Tampa, Florida (the “Stadium" ). We conclude that Appellee Gordon Johnston consented to the searches. The District Court thus erred in not reconsidering and vacating the preliminary injunction. Accordingly, we reverse and remand for further proceedings consistent with this Opinion.

I. BACKGROUND

In September 2005, the Authority instituted a policy requiring brief pat-down searches of all persons attending Buccaneers football games. Johnston is a Buccaneers season ticket subscriber who first became a season ticket holder in 2001. The season ticket is, on its face, a revocable license for entry to the Stadium to attend Buccaneers games.

The Stadium is operated by the Authority, a Florida public entity. The Authority grants the Buccaneers, a franchise of the National Football League (the “NFL" ), use of the Stadium pursuant to a Stadium Agreement (the “Agreement" ). The Agreement provides that the Authority remains responsible for stadium security during Buccaneers games, and obligates the Authority to “make proper rules and regulations for use of the Stadium with regard to all Stadium Events, provided, however, that the content of such rules and regulations shall be reasonably consistent with the rules and regulations enacted for other NFL stadia...."

In February 2002, the NFL first implemented a policy requiring pat-down searches for Super Bowl XXVII and other special events. In August 2005, the NFL Commissioner expanded the policy to require pat-down searches of all patrons entering NFL stadiums. The NFL requires the pat-down policy to protect members of the public who attend NFL games. The NFL concluded that NFL stadiums are attractive terrorist targets based on the publicity that would be generated by an

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attack at an NFL game.1 The pat-down search policy focuses on the detection of improvised explosive devices (“IED" ) which might be carried on a person entering a stadium. These pat-down searches currently are conducted at all NFL events except at the Stadium, where they have been enjoined.

On August 24, 2005, the Buccaneers informed the Authority of the NFL-mandated pat-down searches as a condition for admission to NFL events. On September 13, 2005, the Authority, upon the urging of representatives from the NFL and the Buccaneers, approved a policy to conduct limited above-the-waist pat-down searches of all persons attending Buccaneers football games. The Authority does not require pat-down searches for patrons attending its other non-NFL events at the Stadium, including University of South Florida football games.

The pat-down searches are conducted by outside screeners hired by the Authority. The Authority and the Buccaneers share the expense of the screeners and the Authority oversees how the searches are conducted.2

Consistent with the policy urged by the NFL, the pat-down searches at the Stadium focus on the detection of IEDs. At each admission gate, screeners ask people entering the Stadium to hold their arms out to their side, palms up. Screeners inspect the individual for wires, detonators or other telltale signs of an IED. Screeners then run their hands lightly along the sides of the torso and down the spine. If the individual's skin is exposed, screeners do not make contact with it. If the individual has large pockets, the screener may ask him to empty them for review of any items. Female inspectors conduct searches on females, and male inspectors inspect males. Anyone who refuses to be patted down is denied entry to the Stadium.

Johnston was aware of the pat-down policy before the first game of the 2005 season.3 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. 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' 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. He stated later he would not have accepted a refund even

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if offered. Having been advised of the policy, 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. Johnston attended a third game after filing suit, 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.

II. PRIOR PROCEEDINGS

On October 13, 2005, Johnston filed suit against the Authority and Henry G. Saavedra 4 in the Circuit Court for the Thirteenth Judicial Circuit of Florida. Johnston challenged the constitutionality of the pat-down searches under the Florida Constitution. Johnston sought declaratory and injunctive relief prohibiting the searches. On November 2, 2005, the state court found the searches unconstitutional under the Florida Constitution and entered a preliminary injunction halting the searches.

The Authority appealed the ruling, and the preliminary injunction automatically was stayed...

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