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Pat Down Searches at NFL Games – Bye Bye Fourth Amendment

In a fan challenge to routine pat-down searches, the Western District of Washington (Seattle) tossed a fan’s suit on the grounds that there was no state action in the case, thus no Fourth Amendment violation. See Stark v. Seattle Seahawks.

This is in contrast to the very enlightened opinion of the Middle District of Florida on the same issue. Oh, sorry, just in time for July 4th, the 11th Circuit overturned that on the grounds that the plaintiff consented to the searches. See The St. Pete Times editorial on that decision.

It is true that to have a Fourth Amendment violation, you need a state actor. However, a private entity can be a state actor in certain circumstances. For example, if the private entity exercises powers “traditionally exclusively reserved to the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974). The context in which courts have recognized traditional state functions include administering elections, Terry v. Adams, 345 U.S. 461 (1953); and running a company-owned town, Marsh v. Alabama, 326 U.S. 501 (1946).

The Western District of Washington held:

Because neither operating a stadium nor providing security is a function traditionally and exclusively reserved to the state, the court concludes that the pat-down searches conducted by private actors at Qwest Field do not constitute state action.

As much as I hate the W.D. Wash.’s opinion and the 11th Circuit Opinion, I have to at least admit that they are honest. However, I am not really sure that I agree. Do you “consent” to a search to go to an NFL game, as the 11th held? I guess, maybe. It just seems that all we need to do to completely get rid of the Fourth Amendment is to simply privatize its repeal, no? As far as the stadium not being a state actor? That’s a bit more troubling. If we paid for it, we own it, it is a government actor. What’s next? Pat downs at the entrance to shopping malls? Strip searches to enter homeowners’ associations?

What really is too bad about these cases is that as “security state” practices proliferate, we become accustomed to them. Pat downs at NFL games, gestapo tactics at private hospitals (oh, I can’t wait to blog on that one, Nurse Ratchet), screaming “eek, terrorists might come in through the keyhole,” and trading our civil liberties bit – by – bit, we slowly but surely dissolve any notion that we live in a free society.

I wonder if I have anything to offer Pitcairn Island so that they might let me live there.

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