Yesterday, the Eleventh Circuit held that a city police policy requiring everyone attending a November 2002 protest against the “School of the Americas” to pass through a metal detector violated the Fourth and First Amendments.
The court’s opinion is particularly notable for its rebuke of the city’s effort to justify use of the metal detector based on 9/11:
The City’s brief begins with the bold declaration that “[l]ocal governments need an opinion that, without question, allows non-discriminatory, low-level magnetometer searches at large gatherings.” Appellees’ Brief at 13. Citing nothing more than a single case from 1980, the City contends that “[p]ost
September 11, 2001, this Court can determine [that] the preventive measure of a
magnetometer at large gatherings is constitutional as a matter of law.” Id. (citing Donovan v. Dewey, 452 U.S. 594, 606 (1980)).This argument is troubling. While the threat of terrorism is omnipresent, we cannot use it as the basis for restricting the scope of the Fourth Amendment’s protections in any large gathering of people. In the absence of some reason to believe that international terrorists would target or infiltrate this protest, there is no basis for using September 11 as an excuse for searching the protestors.
Even putting aside the City’s ill-advised and groundless reference to September 11, its demand for the unbridled power to perform “magnetometer searches at [all] large gatherings” is untenable. The text of the Fourth Amendment contains no exception for large gatherings of people. . . .
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