Pat-Down Searches at California Events

Numerous live sporting events draw large crowds and now the music industry has increased its focus on income from the live performance sector, as recording sales have sharply decreased. These factors have brought the controversial issue of pat-down searches of attendees at live events to the forefront, especially in the era of fears of terrorist attacks. The California Supreme Court issued a ruling in March that these pat-down searches might violate the privacy rights of event attendees. The two articles that follow include a report on the court's ruling as well as on the oral arguments when heard by the California Supreme Court.

CA Supreme Court Issues Ruling on Event Pat-Down Searches

If the San Francisco 49ers of the National Football League (NFL) intend to search everyone attending home games, they're going to have to prove it's a reasonable act. In a case being watched closely by professional sports teams nationwide, the California Supreme Court ruled on March 2 for the first time that searches at private entertainment venues, such as stadiums, could violate privacy rights. Sheehan v. The San Francisco 49ers Ltd., S155742. But the court remanded the suit filed by Daniel and Kathleen Sheehan for further proceedings.

The Sheehans own 49ers season tickets and objected to pat-down searches outside Candlestick Park as a violation of their privacy rights. The California high court decided that the case, which had been decided in the 49ers' favor on a demurrer to dismiss in San Francisco Superior Court, had an insufficient record to support a ruling on the merits. “Those who provide private entertainment venues, including the 49ers at NFL football games, have a substantial interest in protecting the safety of their patrons,” Justice Ming Chin wrote for a unanimous court. “But when the security measures substantially threaten a privacy right, courts review the policy for reasonableness under the circumstances.”

“Here,” Chin added, “we cannot do so because the record does not establish the circumstances of, or the reasons for, the pat-down policy. The 49ers have not yet given any justification for its policy.”

The pat-down policy was implemented by the NFL in 2005. San Francisco 49ers spokeswoman Lisa Lang said in a prepared statement that the team was disappointed, but was “gratified” that the Supreme Court “stressed that the lower court must consider the important role that the 49ers have in protecting fan safety.”

Ann Brick, a staff attorney with the American Civil Liberties Union Foundation of Northern California who represented the Sheehans, said the ruling “reaffirms that businesses don't have carte blanche to violate the privacy rights of their customers.”

Arguments in Pat-Down Case at CA Supreme Court

Confronted with whether pat-down searches at professional football games violate individual privacy rights, the California Supreme Court seemed ready, when they heard arguments in January 2008 on the issue, to punt it back to the trial courts. At least three of the justices, maybe four, gave indications that more hearings were needed on the issues of implied consent and less-intrusive security measures.

“The hurdle you have to overcome,” Justice Joyce Kennard told Sonya Winner, a partner in Covington & Burling's San Francisco office who represented the San Francisco 49ers football team, “is that we are facing a ruling made on demurrer.”

“This case should be going back where each of the sides can come up with evidence,” she added. “We simply do not have that at this point in the proceedings.”

More specifically, Kennard, Justice Kathryn Mickle Werdegar and Chief Justice Ronald George appeared to believe the trial court record wasn't sufficient to decide whether the plaintiff ticket-holders had consented to searches or whether the 49ers had considered using devices, such as metal detectors, that were less invasive. In fact, Kennard called the record “extremely meager.”

The 49ers warn patrons about search policies on their individual tickets and their Web site. But the team insists that verbal notice upon entering the stadium is enough for implied consent under California law.

Justice Marvin Baxter, meanwhile, expressed concern about setting up a Catch-22 situation in which the 49ers could face liability from fans who believe searches are too intrusive or from others who believe they aren't careful enough.

“So there is a balancing involved,” Baxter said. “And I don't know how you get around it.”

The case is being watched around the country, and could have an impact not just on the 49ers but on all kinds of entertainment venues. An amicus curiae brief was filed in support of the 49ers by the NFL, the National Basketball Association, the National Hockey League and Major League Baseball.

The plaintiffs, Daniel and Kathleen Sheehan, were backed by civil rights law firms and an international labor organization. The suit began in 2005 when the Sheehans sued the 49ers, claiming that
pat-down searches promulgated by the NFL earlier that year violated the California Constitution's privacy clause. Daniel Sheehan has been a 49ers season ticket-holder since 1967; Kathleen Sheehan since 2002. Both found the searches ' where screeners run their hands lightly down fans' backs and along their bodies and legs ' offensive.

Then-San Francisco Superior Court Judge James Warren tossed out the suit on a demurrer, saying the Sheehans had “voluntarily consented” to searches by renewing their season tickets with full notice of the pat-down policy. San Francisco's 1st District Court of Appeal agreed in a 2007 ruling.

But when hearing arguments, the state high court seemed to want more vetting by the trial court. “It's purely an action on the pleading at this point,” George said.

Winner got nowhere with her insistence that “the issue of consent is not disputed here. There is no need for more evidence on consent.”

The only other major case on point was decided by the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit. In Johnston v. Tampa Sports Authority , 530 F.3d 1320 (11th Cir. 2007), that court held that a fan had voluntarily consented to pat-down searches conducted by the Tampa Bay Buccaneers football team at a publicly owned venue. The Eleventh Circuit contended that a fan's decision to attend a game despite being told verbally he would be searched constituted consent.

However, that case differed from the one before the California Supreme Court because it involved the federal Fourth Amendment right to privacy and the Eleventh Circuit said “the record was replete with evidence” that the fan was given notice of a search.

During the arguments before the California Supreme Court, only Justices Ming Chin and Carol Corrigan seemed ready to rule, and they were coming down on the 49ers' side. In fact, Chin noted that the facts of the case seemed almost identical to the Tampa case.

Chin questioned whether it was appropriate for the court to “get into the business” of telling entertainment venues how to run their security. “Do we really want to get into that and supervise it?” he asked the Sheehan's lawyer, Ann Brick, a staff attorney with the American Civil Liberties Union of Northern California. “If you don't want your privacy intruded on,” Chin added, “you don't have to go in [to the stadium]. Turn around. Go someplace else.”

Corrigan chimed in by telling Brick that Candlestick Park, where the 49ers play, “is a private venue run by a for-profit business that has told you in advance that if you come here, we will search you.”

Chin also questioned whether the thousands of other fans at 49ers games wouldn't have a valid complaint if the team's management “did nothing to protect them from a terrorist threat.”

That issue was raised in an amicus curiae brief filed by the U.S. Attorney General's Office on behalf of the Department of Homeland Security: “It is an unfortunate reality that crowded NFL games are prime targets of terrorist attacks,” Thomas Bondy, a deputy Attorney General based in Washington, DC, wrote.

In a couple of odd questions, Baxter asked Winner what would happen if the 49ers conducted strip searches, while George asked her why pat-down searches couldn't be required by every single business in a town. Winner told Baxter that the 49ers “would be committing economic suicide. They would be playing their games to an empty stadium.” And Chin fielded George's query. “If what the chief suggested happened,” he asked Winner, “wouldn't it turn [a city] into a ghost town?” Winner said yes.

Court Quotes

From the California Supreme Court in Sheehan v. The San Francisco 49ers Ltd., S155742:

“Presumably, the NFL, and ultimately the 49ers', adopted the [ticketholders pat-down] policy to enhance spectator safety, but the record does not establish this or explain why the NFL believed the policy was appropriate. As evidenced by the circumstance that the pursuit of safety, like the pursuit of privacy, is a state constitutional right, the competing social interest of enhancing safety is substantial. '
“We have explained that, in order to establish a reasonable expectation of privacy, the plaintiff 'must have conducted himself or herself in a manner consistent with an actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the invasive actions of defendant. If voluntary consent is present, a defendant's conduct will rarely be deemed 'highly offensive to a reasonable person' so as to justify tort liability.' ' But the validity of the consent theory depends on the totality of the circumstances, which this record does not establish.
“[I]n reviewing a private entertainment venue's security arrangements that implicate the state constitutional right of privacy, the court does not decide whether every measure is necessary, merely whether the policy is reasonable. The state constitutional right of privacy does not grant courts a roving commission to second-guess security decisions at private entertainment events or to micromanage interactions between private parties. ' Private entities that present entertainment events, like the 49ers', necessarily retain primary responsibility for determining what security measures are appropriate to ensure the safety of their patrons, subject, when those security measures substantially infringe on a privacy interest, to judicial review for reasonableness.'