By Matthew Carlson and William Kruse, Esq.
The National Football League’s pat down policy requires inspection of bags and physical pat downs for the purpose of detecting explosive devices; many individual clubs have their own search policy as well. These operations are of course warrantless, so there are inevitably delicate issues with the 4th Amendment’s constitutional right to be free from unreasonable searches and seizures, as well as State constitutional rights to privacy. This problem is not a novel one, even in the specific setting of NFL venues. Clubs have defended such lawsuits on several fronts, including the threshold requirement of state action as well as a recognized exception to the general rule that a warrantless search is per se unreasonable under the 4th Amendment. The following article offers a brief overview of the law and analysis of how clubs can be prepared to successfully move for a judgment as a matter of law and avoid prolonged litigation.
The Supreme Court of California has established that a private actor has the same restrictions on searches as the State. Hill v. National Collegiate Athletic Association, 7 Cal.4th 1 (1994). However, in other jurisdictions that have not extended the scope of privacy so far, it is a contentious issue and one that can effectively end such a lawsuit as a matter of law. In Stark v. Seattle Seahawks, the Court denied the plaintiff’s claim on grounds that the searches did not implicate state action. Despite the fact that the stadium was owned by the State, the Court found neither joint activity between the private and public actors nor that the private actor was providing a public function. The fact that the state had no role in shaping the pat down policy was an integral finding, so any club that employs such searches might consider a policy of shaping the pat down policy itself to create distance between itself and the State as an initial layer of protection against lawsuits.
Legality of the Search: Implied Consent
The California Supreme Court has established three essential elements to determine the legality of a contested search under the state’s Privacy Initiative: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) conduct on the part of the defendant constituting a serious invasion of privacy. Hill, 7 Cal.4th at 16. Moreover, the Hill factors may be assessed as a matter of law. Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4th 360, 370-371 (2007). Because pat downs unquestionably intrude upon an individual’s autonomy, the second and third prongs are where the vast majority of litigation takes place.
In a surprising departure from Hill and its progeny, the California Supreme Court in Sheehan v. San Francisco 49ers appears set to conclude that whether a party has a reasonable expectation of privacy is one that is a factual question. However, this does not necessarily foreclose the possibility of all such suits being decided as a matter of law. During oral argument on January 6, 2009, Several Justices in Sheehan repeatedly stressed their opinions that the record was insufficient to support the 49ers position that Sheehan had a reduced expectation of privacy, in particular because he had impliedly consented to the pat down searches in question. The question logically becomes whether the record can be made sufficient. In Johnston v. Tampa Bay, the 11th Circuit Court of Appeals sustained the Buccaneers’ motion to strike in a 4th Amendment action on a theory of implied consent. Johnston v. Tampa Bay, 530 F.3d 1320. (11th Cir. 2008). In doing so, the Court found that a Buccaneers season ticket holder had a diminished expectation of privacy when subject to a pat down because he was aware of his right to refuse the search. However, at the oral argument, the California Supreme Court specifically noted that Johnston was not dispositive and that the California Constitution offers broader protections than does the Federal Constitution. The Court further noted that the 49ers had not compiled a significant amount of evidence for the record indicating that Sheehan impliedly consented to the searches in answering the complaint. In sharp contrast, the Buccaneers went to great lengths to ensure that patrons had notice of the searches and included this record in their motion, thus providing the Court significant ammunition to find that the plaintiffs had indeed impliedly consented to the pat downs. The procedures used by the Buccaneers included press releases announcing it were on the Bucs website as well as direct communication to season ticket holders. Stadium employees distributed notices about the policy to cars entering the Stadium. Announcements were made over the loudspeakers outside of the Stadium before games, and there were numerous signs announcing the search. Of course, this is not a guarantee that California clubs will be certain to prevail as a matter of law should they implement these measures. However, doing so may give a court room to distinguish such a case from Sheehan and potentially decide the question as a matter of law.
Lastly, in analyzing the nature of the intrusion, Courts have repeatedly stressed the importance of not allowing the actual screeners any amount of discretion in their searches. Jensen v. City of Pontiac, 113 Mich .App. 341, 352 (1981). The Court’s implication was that procedures for searches should be made clear to employees under any and all possible circumstances; these procedures should also be communicated to patrons in some form.
The process of defending against a lawsuit for an illegal search is one that courts have been generally sympathetic to, given vastly important security concerns. The California Supreme Court appears to be ready to depart from that trend. However, it is possible for Clubs around the country, even in California, to take steps to avoid the position the San Francisco 49ers have found themselves in and the protracted legal battle that seems likely to ensue.