Search at Sporting Events – Darren Chaker

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Search, before entering sporting event, Darren Chaker reviews…

When Darren Chaker reviews the Fourth Amendment at sporting events, which allows any search conducted pursuant to valid consent. See, e.g., Florida v. Jimeno, 500 U.S. 248, 250-51 (1991); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Implied consent occurs when a person presents himself at a security checkpoint after having been informed that searches will (or may) occur there, such as an airport, or even dropping of a computer for repair. For example, in United States v. Herzbrun, 723 F.2d 773, 776 (11th Cir. 1984), the Eleventh Circuit held, in the context of a search at an airport security checkpoint, that “those presenting themselves at a security checkpoint thereby consent automatically to a search, and may not revoke that consent if the authorities elect to conduct a search.” A checkpoint sign can constitute sufficient notice. See United States v. Lopez-Pages, 767 F.2d 776, 779 n.2 (11th Cir. 1985).

In this regard, the NFL pat-down policy is analogous to airport searches, where a patron has a choice of either submitting to a known search procedure and entering the secured area of the airport or deciding not to enter. In both cases, the type of required search is publicized in advance, and a person seeking entry thus necessarily implicitly consents to that search. If the person does not want to consent, she simply leaves. See, e.g., Gilmore v. Gonzales, 435 F.3d 1125, 1138-39 (9th Cir. 2006) (airport searches are consensual because a person can always turn around and leave);  Torbet v. United Airlines, Inc., 298 F.3d 1087, 1089 (9th Cir. 2002) (same); Morgan v. United States, 323 F.3d 776, 778 (9th Cir. 2003) (consent that was a condition to entry upon a military base is valid for a civilian FAA employee who worked on the base); United States v. Jenkins, 986 F.2d 76, 79 (4th Cir. 1993) (implied [9]  consent at entry to closed military base); United States v. Ellis, 547 F.2d 863, 866 (5th Cir. 1977) (same). The fact that a person cannot obtain entry to a particular location (the airport secure area or military base) if that person refuses to consent to a search does not render the consent invalid unless the access being denied is a constitutional right or is otherwise sufficiently valuable that its denial can be considered coercive. Accordingly, the choice here is even less constrained than at the secure area of an airport because use of an airport could arguably implicate the right to travel, 2Link to the text of the note while attendance at a football game does not affect any constitutional right.

The Eleventh Circuit in Johnston v. Tampa Sports Authority held that the NFL pat-down policy, as applied at Buccaneers’ home games, was permissible under the Fourth Amendment because persons attending the games implicitly consented to the search. The court of appeals explained that “[i]t is axiomatic that a search conducted pursuant to voluntary consent is valid.” 490 F.3d at 825. It then found several indicia of implied consent (1) “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”; (2) “Johnston was not in custody at the time of the search, rather, he presented himself willingly at the search point”; (3) “The screeners did not coerce Johnston, they merely performed the search to which Johnston submitted”; (4) “Johnston was not under any express or implied threat of physical or other retribution if he refused to submit to the search”; (5) “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”; and (6) “Johnston was given [advance notice] of the searches including preseason notice, pregame notice, and notice at the search point itself.” Id. The federal court of appeals thus reversed the district court’s contrary holding and lifted its preliminary injunction. Id. at 826.

Last, the court further noted that, “[i]f voluntary consent is present, a defendant’s conduct will rarely be deemed ‘highly offensive to a reasonable person’ so as to justify tort liability.” Id. at 808-09 (quoting Hill v. NCAA, 865 P.2d 633, 633 (Cal. 1994)). Thus, as long as the party voluntarily consents to the pat down, then it cannot be said to have been subject violating the Fourth Amendment.

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Greetings - I am Darren Chaker. I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination. In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010) I love the fight and made cutting edge case law in the end. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz www.orrick.com/lawyers/Bio.asp?ID=225990 assembling a small army of the best attorneys to defeat the California Attorney General's efforts to have the U.S. Supreme Court reverse the Ninth Circuit---this case would not have had a backbone to stand on. The case has been cited over 196 times as authority, and written about extensively. * Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009) * Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination--Cross-burning reprised: Commonwealth of Virginia v. Black--Heavy presumption against viewpoint discrimination (2010) * Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard--Bond and Watts decisions--"True threats" (2010) * CHAKER V. CROGAN, 5 Cardozo Pub. L. Pol'y & Ethics J. 425, 444+ (2007) My case is active, living and breathing—forever helping people who once felt oppressed.

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