The California Supreme Court has reversed the findings of a lower court, breathing new life into a claim brought by two San Francisco 49ers fans, who alleged that their Constitutional rights were violated when the 49ers instituted a pat-down policy before games with other NFL clubs.
Specifically, the justices found that “private entities that present entertainment events,” like professional sports teams, “retain primary responsibility for determining what security measures are appropriate to ensure the safety of their patrons.” When those security measures “substantially infringe on a privacy interest,” a “judicial review for reasonableness” is appropriate.
The origins of the case extended to December 2005, when plaintiffs Daniel and Kathleen Sheehan filed a complaint for injunctive and declaratory relief against the 49ers’ after the team instituted a pat-down inspection of all ticket holders attending the 49ers’ home games. Their complaint alleged that the plaintiffs were subjected to a pat-down search by Event Staff screeners before they were allowed to enter the stadium. “On each such occasion, after being herded through barricades, plaintiffs were forced to stand rigid, with arms spread wide,” according to the complaint. “The 49ers’ screeners then ran their hands around the plaintiffs’ backs and down the sides of their bodies and their legs. Members of the San Francisco Police Department stood a few feet away from the screeners and observed the pat-down searches taking place. The 49ers’ implemented the pat-down policy pursuant to a policy the NFL promulgated in August 2005, by which stadium screeners are supposed to conduct physical searches by ‘touching, patting, or lightly rubbing’ all ticket holders entering every NFL stadium for each NFL game that year. Plaintiffs ‘object to being forced to undergo these suspicionless searches as a condition of retaining their season tickets.’”
The plaintiffs charged that the pat-down searches violated their “state constitutional right to privacy. (Cal. Const., art. I, § 1.). It sought a declaration that the searches were unconstitutional and an injunction prohibiting any further such searches.
The 49ers’ demurred to the complaint, arguing that it did not state a cause of action. At the hearing, the trial court questioned whether the relief sought was ripe because the 49ers’ 2005 season was over. Plaintiffs stated they had bought the 49ers’ 2006 season tickets and subsequently, in March 2006, amended their complaint to include this fact. The amended complaint also alleged that plaintiffs believed the 49ers’ intended to continue conducting pat-down searches of all persons entering or reentering the stadium during the next season. Both parties stipulated that the demurrer would apply to the amended complaint. Ultimately, the trial court sustained the demurrer without leave to amend and dismissed the action with prejudice.”
The plaintiffs appealed. The appeals court affirmed, concluding that “the Sheehans cannot demonstrate that they had a reasonable expectation of privacy under the circumstances . . . .” It explained that “rather than submit to the pat-down the Sheehans had the choice of walking away, no questions asked.” The plaintiffs petitioned the Supreme Court of California for review, raising the question whether the Court of Appeal properly found they validly consented to the search policy.
The high court made the connection between a “private entity” and the “reasonableness” standard when reviewing whether security measures violate Constitutional law.
The justices opined that when “a private entertainment venue’s security arrangements … 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.” When those security measures “substantially infringe on a privacy interest,” a “judicial review for reasonableness” is appropriate.
“In this case, given the absence of an adequate factual record, we conclude that further inquiry is necessary to determine whether the challenged policy is reasonable in light of the factors we have discussed. Plaintiffs are entitled to proceed with their case.”
Daniel Sheehan et al. v. The San Francisco 49ers, LTD.; Supreme Court of California; Super. Ct. No. CGC05447679; 3/2/09