Wednesday, July 18, 2007
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C.A. Rejects Privacy Challenge to 49ers Security Patdown Policy
By TINA BAY, Staff Writer
Two San Francisco 49ers season ticket holders had no basis for challenging the franchise’s patdown security screening policy, the First District Court of Appeal ruled yesterday.
In a 2-1 decision, Div. Four affirmed the dismissal of a suit by longtime 49ers fans Daniel and Kathleen Sheehan, who alleged that the patdown policy used to screen game goers at Monster Park, formerly Candlestick Park, violated their privacy rights. San Francisco Superior Court Judge James L. Warren, since retired, properly sustained the team’s demurrer to the action and dismissed it without leave to amend, the panel said.
The Sheehans filed sued in December 2005, months after the 49ers instituted patdown screenings for all ticket holders seeking entry to home games. The screening procedures were adopted following the NFL’s promulgation of an inspection policy based on post-Sept. 11 concerns.
In urging franchises to implement security patdowns for the public’s protection, the league noted that NFL stadiums were attractive terrorist targets due to their high-profile nature.
Screening Procedure
Under the 49ers’ policy, private screeners are tasked with physically inspecting all ticket holders as a condition of entry to the stadium, by running their hands around game goers’ backs and down the sides of their bodies and legs. San Francisco police officers are stationed nearby during the inspections.
The Sheehans, who held 2005 season tickets, alleged that the frisks they underwent before each game at Monster Park that year violated their privacy rights under the state Constitution. They sought to have the 49ers’ patdown policy declared invalid, and to obtain an injunction barring its further application.
The 49ers demurred to the complaint, contending it failed to state a cause of action under California’s privacy initiative, which applies to both private and governmental conduct.
By the time of the demurrer hearing, the 2005 football season had ended, raising the issue of whether the plaintiffs still had standing to sue. In response, the Sheehans amended their complaint to include the fact that they had purchased 2006 season tickets.
By stipulation, the demurrer was applied to the amended pleading. Warren sustained the demurrer after concluding the Sheehans had no reasonable expectation of privacy—and thus no viable claim—concerning the patdown policy.
Through attending the 2005 season games, they had advance notice of the patdown policy and impliedly consented to the patdowns by voluntarily purchasing the 2006 tickets, he ruled.
Writing for the Div. Four majority, Justice Timothy A. Reardon agreed.
The couple clearly had “full notice” that a patdown was a required prior to entering the stadium, he said, concluding:
“By voluntarily re-upping for the next season under these circumstances, rather than opting to avoid the intrusion by not attending the games at Monster Park, the Sheehans impliedly consented to the patdowns.”
No Unconstitutional Condition
Reardon dismissed the plaintiffs’ contention that the patdown placed an unconstitutional condition on entry to the games.
“The inspections in this case were not conducted pursuant to the police power of the state with authority to arrest; rather, they were conducted by private screeners, on behalf of a private entity,” the justice wrote.
The Sheehans thus “had the choice of walking away, no questions asked,” rather than submit to the patdown, he said.
Presiding Justice Ignazio J. Ruvolo concurred in the opinion.
Justice Maria P. Rivera dissented, concluding Warren’s ruling was a clear abuse of discretion.
The fact that the Sheehans in 2005 purchased the following season’s tickets did not amount to consent to the patdown policy, he said.
The jurist explained:
“At least one reasonable inference from this record is that the Sheehans would decide whether to attend the 2006 season games after they had sought a preliminary injunction before the next season began, in which case no consent can be inferred from the purchase of the tickets. [The] Sheehans might also have alleged, as has been pointed out by the Sheehans, that they decided to purchase the next season’s tickets in order to protect their 40-year seniority pending resolution of this action.”
Rivera also took issue with the majority’s view that the Sheehans had no reasonable expectation of privacy since advance notice of the privacy infringement left them with the choice to submit to the patdown or walk away.
“If you are the only game in town, requiring your customers to either submit to a patdown search or walk away does not present the kind of genuine choice upon which the majority’s reasoning is premised,” he said.
In situations where a private actor has an effective monopoly, the majority rule relegates the acceptable norms of privacy intrusions to free market forces, he said.
Lisa Lang, a spokesperson for the 49ers, told the MetNews the team has had “very few complaints” from fans over the past two seasons, in which tens of thousands of patdown security searches have been conducted.
“We feel that this [ruling] substantiates that the 49ers’ use of limited patdown security screening is entirely reasonable and we are being proactive and trying to protect our fans in the best way,” she said.
Security staff are trained to conduct the patdowns properly, Lang added, noting that patdown policies have been implemented by all NFL teams, are used in the NFL playoff games, and have been a part of Super Bowl security since 2002.
The Sheehans’ appellate counsel, from the ACLU Foundation of Northern California and the San Francisco firm of Chapman, Popik & White, could not be reached for comment.
The case is Sheehan v. The San Francisco 49ers, Ltd., 07 S.O.S. 4583.
Copyright 2007, Metropolitan News Company