We either have a Constitution or we don't.
It happens that we do.
Men, and women, have fought face down in the mud to preserve it.
Yet we have judges, who are sworn upon their oath to protect and defend it, who seem only too eager to toss it aside as though none of this mattered, out of fear. Fear of bogeymen called "terrorists."
Yes, we have terrorists. They can blow up anything they get near wearing suicide vests strapped with dynamite, and vehicles filled with "bird shit and diesel oil" as a friend who works in the biggest iron mine in the world terms it. This would be the Frog, who drives a 240-ton dump truck in the Rio Tinto owned mine in Tom Price, the Pilbarra, Australia. This mixture of primitive, easily obtainable ingredients is how they loosen the ore.
The operators of some baseball ballparks have taken to searching ("patting down") all the patrons of the national pastime who show up for the game. Some have sued. None successfully, as yet. These patrons, red-blooded Americans, one presumes, do not like to have their privacy intruded upon by ballpark lackeys.
So they've sued. And lost.
The latest, and most local, is below, in which patrons of the San Francisco 49'ers football team have sued and been told by San Francisco judge, and friend of the writer, Tim Reardon, in a 2:1 decision of the California Court of Appeal, First Appellate District, that they have no case, as in entering the ballpark with knowledge of the search policy, they've waived (given up) their Fourth Amendment right to be free of unreasonable search without a warrant.
This Constitutional guaranty requires that before anyone may be searched that an individualized suspicion of wrongdoing fall upon them because of something that they did, not who they were by race, ethnicity, or religion. This means that before a cop can stop and frisk you, s/he must be able to state specifically the reason why you did something suspicious. Going to a ballpark in America is not a suspicious act, at least not yet, but with paranoia (excessive fear, impervious to reason) as rampant as it appears, going to a sports event might soon be deemed a terrorist act.
At this point, the terrorists seem to have won.
The sky is falling, say the appellate courts.
The boogieman will getcha!
I'd thought we had more guts.
Had all the persons in the World Trade Center been screened for weapons on 9-11, they still would have died, because death came from the sky.
All of the people in the Pentagon were screened for illegal weapons before entering that same day, and they died for the same reason.
I've driven by Giants stadium, another ballpark in San Francisco on game days and haven't yet noticed that all the cars are searched for bombs, or were diverted to prevent coming near the park.
Yet all of the patrons are searched, apparently to prevent entrance by one vest wearing terrorist.
Perhaps it would have been better for the Court of Appeal to have ruled that patrons assume the risk of terrorists upon choosing to enter a ballpark, just as we do when we visit Union Square or Golden Gate Park. Does Macy's screen patrons by frisking them first before entering the store? They don't. At least not yet.
It seemed to me that I was free to travel about the country without being molested, threatened, or harassed by overzealous cops. That was the theory, at least. I was once stopped and questioned at Lake Tahoe for wearing a London Fog raincoat, according to the cop. No one at Tahoe had ever worn one of those before, I supposed. As I was en route to a job interview with a casino boss who was known to the officer, I was allowed to pass, this time, at least. I didn't enjoy the experience. I dumped the raincoat.
Key to the reasoning of Justice Reardon is the notion that the ballpark is a private operation and that private operators are different than government regulators, which is a well-established and virtually uncontested distinction in America since the Civil Rights Cases of 1882 (109 US 3, 3 S.Ct. 18, 27 L.Ed. 835). This package of cases held unconstitutional the Civil Rights Act of 1875, which made it a federal crime [for any white person] to deny any person (meaning, at the time, freed slaves, blacks) "the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude."
That certainly sounds good, doesn't it? Why should that be held unconstitutional? Aren't these the rights we guarantee all people today by virtue of the Civil Rights Act of 1964?
Why do you think we needed the Civil Rights Act of 1964? Because of the decision in the so-called Civil Rights cases which denied equal access to public accommodations such as public conveyances (railroads, ferries, taxis, buses, etc.) as well as parks, theaters, and restaurants. The attitude of many whites at the time was that they were tired of doing good things for blacks, what with having fought a war to free the slaves. The blacks, since the presidential election of Hayes over Tilden in 1875, were left to hang in the cold on their own, with significant disadvantages in wealth, education, social status, visible color, and on and on. Blacks could starve, in other words, as far as a lot of whites were concerned. What they couldn't do was to enter a theater or restaurant and eat alongside whites.
The social gulf was immense, and has stayed that way ever since, with few exceptions, even today, despite legal protections in other areas such as in education, voting, and public accommodation. We still see a great deal of private-choice segregation in housing. The result is a self-perpetuating cycle of private decision-making which separates two identifiable groups as a practical matter, on the ground.
In the Civil Rights Cases, prosecutions and federal convictions, based on the Civil Rights Act of 1875, followed the denial of admission to an inn (the hotel-motel-restaurant of the day), a theater, and a railroad car of black people by the white owners of the premises who appealed to the U.S. Supreme Court.
Today we would say that these businesses were a significant part of interstate commerce and we would
say that as a result Congress had the power to legislate in this area. That, in fact, is the theory on which the Civil Rights Act of 1964 was upheld, not on the basis of grand moralistic ideals.
But in 1883 the Commerce Power, and human sensibility among whites, meaning the justices, still needed further development before blacks would be allowed to benefit.
And so the Court held, in 1883, that the acts of private owners, unsupported by prohibited state action, were not matters on which Congress could regulate or prohibit. Congress is not allowed to prohibit you from making private decisions such with whom you will go fishing, or party, or socialize, or marry. Here you are free to make choices based on anything you want, including race, religion, ethnicity, hair-color, and the like. Why? Because the Constitution regulates mainly government activity, and your private choice is not government activity (prohibited state action).
So this becomes a major distinction in American law, to this day.
Thus, it is not the State of California which requires all patrons of the ballpark to be searched, but the operators of the privately built ballpark.
Would it make a difference whether the ballpark were built with municipal funds? Or enjoyed, as they do, special City and County of San Francisco police protection at public expense?
Perhaps.
Suppose the municipality subsidizes the team owners in order to
attract them to locate here, as often happens, allowing them to keep
the lions share of parking and concession sales revenues.
Since a great deal of allegedly private activity is supported by not only the general governmental protection system, corporate, legal, etc., and enjoys licenses to serve alcoholic beverages, we've developed a doctrine which holds that if private activity is too "entwined" (commingled) with public support activity, it can be held public by osmosis, no longer private.
Would it make a difference in the ball park case whether the operators were so entwined (or intertwined) with public authority so as to be deemed to be exercising a power (to search) usually reserved to state officers? (Private persons can exercise a power of search, such as shop owners who detain suspected shoplifters).
It makes no difference if a court holds that the patron has waived his constitutional right to be free from illegal search by virtue of just showing up at the park and trying to pay to enter.
It is common for persons convicted of a crime, particularly a crime of possession of contraband such as drugs, weapons, theft, as well as crimes of violence, to plea bargain away their right to be free of police or probation officer search for the period of probation, most commonly three years. They agree to be subject to the search of their person, place, or residence in the day or night with or without probable cause by any police office. This waiver, however, only occurs after the individual has been represented by counsel and signs a detailed waiver form indicating that he is giving up important constitutional rights.
Walking into a ball park is not that.
The important thing in taking a waiver is that the person knowingly, intelligently, and voluntarily give up certain rights, then it's okay. Boykin, Tahl, and Mills are case that come to mind.
You can argue legal doctrine all you want, but what underlies the arguments is that the outcome depends on how afraid you are that if you don't allow certain preventive action, some dire thing will happen.
After Pearl Harbor, rounding up Japanese-Americans on the West Coast seemed reasonable to whites who didn't know or care about Japanese-Americans. The fear was that a few may turn out to be spies, and the Empire of Japan had just sunk our battleship fleet in Honolulu, leaving the Coast open to invasion. San Franciscans had nightmares about the Japanese fleet showing up and entering the Golden Gate. A Japanese with a lantern in a window, or on a fishing boat, was all that was needed. Therefore, round them up. Paranoia. Fantasy is always based on at least the merest bit of fact. Fossilized dinosaur bones have been found in China for millenia. They look like large bird egg bones. Very large. Now you know where the idea of dragons come from. From a scrap we invent wondrous, magical, scary, fairy tales.
After the Civil War, depriving blacks of civil rights to public accommodations seemed reasonable, to whites. In 1896, building on the 1883 case, the Court held in Plessy v. Ferguson, that when it came to railroad passenger cars, blacks could be kept separate from whites so long as the accommodations provided to blacks were equal. Hence white and black cars, white and black restrooms, white and black water fountains, white restaurants and blacks could be served out the back window, white and black schools, white and black sections of the beach or park, and many more, as the idea was pervasive that blacks were somehow impure and whites didn't want to suffer impurity, as in the Indian caste system where the progressive levels of impurity reach from the Brahmins at the top, on down to the Untouchables at the bottom.
Judge Reardon, a former college champion prize-fighter at Notre Dame, is apparently afraid that if thousands of fans are admitted to the ballpark without being searched, Ali-the-Terrorist, representing Al Qaeda, will blow up the bleachers and all who take the sun there. That would be bad for fans, for baseball, and America. I grant that.
Yet I still maintain that it is wrong to search all of these people, waiver or not. If we are so afraid that Ali will hit today, or any day, call off the game. There is no constitutional right on the part of a ballpark owner to stage a spectacle at which thousands of members of the public will come and be blown up by a terrorist. Ballpark owners are in the same boat with the rest of us. We all take risks every day we walk in public on the street. Yet we don't search all pedestrians.
If we are not fearful of Ali striking today, allow the game and let the people in, but keep a sharp eye peeled for Ali, not Maeve O'Brian, the proverbial 60-year-old Irish woman. Perhaps different at Wembley Stadium in Britain where you might want to search O'Brian. Very few O'Brians support Al Qaeda in America, I suspect.
Yet we say that now is different. Ballpark operators are responsible for the safety of their patrons. Yes, and so are cities which have public places to gather, yet we do not condition their use on a waiver of constitutional rights.
And when we give up those rights without a fight, we are sheep led to the slaughter.
We ought to be made of sterner stuff.