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Calif. High Court Pat-Down Case May Get Punted
The Recorder
January 07, 2009
Confronted with whether pat-down searches at professional football games violate individual privacy rights, the California Supreme Court on Tuesday seemed ready to punt the issue back to the trial courts.
At least three of the justices, maybe four, gave indications that more hearings are 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 feel the trial court record wasn't sufficient to decide whether the plaintiffs had consented to searches or whether the 49ers had considered using devices, such as metal detectors, that are 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 National Football League, 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 the high court on Tuesday 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 11th U.S. Circuit Court of Appeals in 2007. In Johnston v. Tampa Sports Authority (pdf), 490 F.3d 820, that court held that a fan had voluntarily consented to pat-down searches conducted by the Tampa Bay Buccaneers football team. The 11th 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 11th Circuit said, "the record was replete with evidence" that the fan was given notice of a search.
During Tuesday's arguments, only Justices Ming Chin and Carol Corrigan seemed ready to rule, and they definitely 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 Sheehans' 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 United States 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 AG based in Washington, D.C., 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.
A ruling in Sheehan v. The San Francisco 49ers LTD, S155742, is due within 90 days.
