Court: Terror Fears Can't Curb 'Liberty'
AP Oct 17 2004
ATLANTA (AP) - Fear of a terrorist attack is not sufficient reason for authorities to search people at a protest, a federal appeals court has ruled, saying Sept.11 ``cannot be the day liberty perished.''
A three-judge panel of the 11th U.S. Circuit Court of Appeals ruled unanimously Friday that protesters may not be required to pass through metal detectors when they gather next month for a rally against a U.S. training academy for Latin American soldiers.
Authorities began using the metal detectors at the annual School of the Americas protest after the 2001 terrorist attacks, but the court found that practice to be unconstitutional.
``We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over,'' Judge Gerald Tjoflat wrote for the panel. ``Sept. 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country.''
City officials in Columbus, Ga., contended the searches are needed because of the elevated risk of terrorism, but the court threw out that argument, saying it would ``eviscerate the Fourth Amendment.''
``In the absence of some reason to believe that international terrorists would target or infiltrate this protest, there is no basis for using Sept. 11 as an excuse for searching the protesters,'' the court said.
About 15,000 demonstrators attend the annual vigil, demanding the closing of a school they allege teaches Latin American soldiers to violate the human rights of poor people in their home countries. The facility at Fort Benning was once known as the School of the Americas, but reopened in January 2001 as the Western Hemisphere Institute for Security Cooperation.
The protests began in 1990. This year's demonstration is scheduled for Nov. 20-21.
Columbus Mayor Bob Poydasheff said the city will abide by the order but called it ``unreasonable.''
I can't go into the 11th Circuit Court of Appeals without being scanned and having my briefcase searched,'' Poydasheff said. ``They have every right to do that, to make sure they're protected. And I have every right to make sure my police are protected, and the citizens and the other protesters are protected.''
The mayor said the city attorney's office is considering appealing the ruling to the full 11th Circuit. The city attorney declined to comment on the case until Monday.
The Rev. Roy Bourgeois, a priest who founded the protest group called SOA Watch, praised the ruling for safeguarding essential rights.
``I felt that they were using 9/11 as an excuse, along with the Patriot Act, to interfere with our First Amendment rights,'' he said. ``They are using this to get around what the Constitution is really rooted in.''
The metal detectors caused long lines and congestion outside the protest area, he said, comparing it to routing 10,000 people through a single security gate at an airport.
``It was not just an inconvenience, it was a nightmare. We couldn't get to the place of assembly in an orderly fashion,'' he said.
Michael Greenberger, law professor and director of the University of Maryland's Center for Health and Homeland Security, said the ruling could have broader implications if it is used to challenge aspects of the Patriot Act.
It was surprising, he said, coming from the conservative-leaning11th Circuit, based in Atlanta, but the opinion was ``very well reasoned'' and reflected ``conventional application of constitutional principles.''
First Amendment lawyer Floyd Abrams said that although there are steps the government can take to protect people from terrorism, ``that doesn't mean we just dispense with the Bill of Rights as a consequence of 9/11.''
``We don't yet live in a society in which everyone must always go through metal detectors everywhere we go,'' Abrams added.