Metropolitan News-Enterprise


Tuesday, March 3, 2009


Page 1


S.C. Revives Privacy Challenge to Stadium Security Patdowns




The California Supreme Court yesterday unanimously revived a challenge by two San Francisco 49ers season ticket holders to the team’s patdown security screening policy.

Reversing lower court decisions in favor of the 49ers, the court held that the reasonableness of the policy, and the legitimacy of the team’s claim that the plaintiffs consented to the screenings, could not be determined solely on the basis of the complaint and that the team’s demurrer should thus have been overruled.

The plaintiffs, longtime fans Daniel and Kathleen Sheehan, alleged that the patdown policy used to screen spectators at Monster Park, formerly Candlestick Park, violated their privacy rights under the California Constitution. San Francisco Superior Court Judge James L. Warren, since retired, sustained the team’s demurrer to the action and dismissed it without leave to amend.

The Sheehans filed suit 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.

Private Screeners

Under the 49ers’ policy, as described in the complaint, 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 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. The Court of Appeal agreed in a 2-1 decision by Div. Four.

The dissenting justice, Maria Rivera, argued that it was reasonable to infer that the Sheehans only renewed their tickets in order to protect their right to attend the games, as they had for 40 years. Rivera also took issue with the majority’s view that the policy was reasonable as a matter of law, noting that the 49ers are “the only game in town.”

Justice Ming Chin, writing yesterday for the high court, said there are issues still to be resolved.

“The Court of Appeal held that plaintiffs validly consented to the search policy,” Chin wrote. “It may ultimately be right, but the meager record before us does not establish valid consent as a matter of law.  In particular, the 49ers’ have not demonstrated that the allegations of the complaint fail to state a cause of action under any possible legal theory.”

Proposition 11

Chin explained that under the state Constitution’s privacy clause, enacted in November 1972 as Proposition 11, plaintiffs must establish three elements—that the challenged actions violate their right to informational or “autonomy” privacy, that their expectation of privacy was reasonable under the circumstances, and that the invasion of that interest was “serious.”

The justice also pointed out that unlike the Fourth Amendment to the U.S. Constitution, which has been cited unsuccessfully in challenges to similar policies at other venues, Proposition 11 applies to both public and private entities.

Chin distinguished Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, in which the court rejected a privacy challenge to the NCAA’s policy of drug-testing athletes, based in part on the fact that participation in college sports is voluntary and thus carries with it an implication of consent to NCAA policies.

“...Hill does not stand for the proposition that a person who chooses to attend an entertainment event consents to any security measures the promoters may choose to impose no matter how intrusive or unnecessary,” Chin wrote. And while the fact that the NFL and the 49ers are private entities is relevant, the justice said, it is but one factor to consider, along with the question of whether there were less intrusive alternatives.

Chin was joined by Justices Joyce L. Kennard, Marvin Baxter, and Carol Corrigan.

Justice Kathryn M. Werdegar, joined by Chief Justice Ronald M. George and Justice Carlos Moreno, concurred separately, agreeing that the demurrer should have been overruled. Werdegar suggested however, that the majority had been overly respectful of the 49ers’ position.

“The majority opinion’s discussion suggests a level of extreme deference to the judgment of private interests, implying that any careful scrutiny of privately adopted policies would amount to impermissible micromanagement of private interactions,” Werdegar wrote. “However, the 1972 Privacy Initiative points us in the opposite direction; it reflects a recognition that market forces alone may not be sufficient to ensure for Californians the ability to retain some semblance of privacy in the course of dealings with government, employers, businesses, and the like.”

Werdegar also criticized the majority’s unwillingness to affirmatively hold that the complaint alleged a serious invasion of autonomy privacy.

The justice noted that several federal courts, as well as the Washington state Supreme Court, have concluded that patdown searches of all spectators entering a sports or entertainment venue violate the Fourth Amendment.

“From these cases and from the general frequency with which patdown policies are challenged and litigated to differing results,” the justice wrote, “I think it apparent that the intrusion at issue, far from being trivial or insignificant, involves a substantial invasion of citizens’ interests and expectations of physical autonomy.”

The case was argued in the Supreme Court by Ann Brick of the ACLU Foundation of Northern California for the Sheehans and Sonya D. Winner of Covington & Burling’s San Francisco office for the 49ers.

Amici supporting the plaintiffs included labor organizations and The Rutherford Institute, a religious advocacy group.

Amicus briefs supporting the team were filed by the federal government, the NFL, the National Basketball Association, Major League Baseball, and the National Hockey League. The 49ers were also backed by Anschutz Entertainment Group, Inc., which owns and operates a number of entertainment venues, including Staples Center and the Nokia and Kodak theaters in Los Angeles, and the International Association of Assembly Managers.

The case is Sheehan v. The San Francisco 49ers, Ltd., 09 S.O.S. 1251.


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