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Wednesday, August 01, 2007
Troubling Implications in CA Court's Acceptance of Stadium Patdowns

The issue of pat-down searches at NFL stadiums has generated several excellent commentaries in this blog over the last two years. The comments by Greg and Michael on the Fourth Amendment challenges to these searches, notably involving a case from the 11th Circuit challenging the policy at the Tampa Bay Buccaneers' Raymond James Stadium, the home of the serve as a good background for those reading about the issue for the first time.

In the last few weeks, two rulings by different courts tested the policies once again. The first, Johnston v. Tampa Sports Authority, involved the 11th Circuit's ruling in Tampa Bay case, which was discussed in Howard's blog. The second, a California Appeals Court ruling on a challenge to the San Francisco 49ers pat-down policies involves different issues and produced a different kind of troubling opinion.

While the conclusions of the 11th Circuit and the California state courts were similar – the parties consented to be searched entering the stadiums -- they took very different approaches to reach their conclusions. While I can understand the need for some limited searches, the broad conclusions troubles me.

Let’s analyze the California case, Sheehan v. San Francisco 49ers, decided by the state's first appellate district on July 17. The patdown policy was instituted in 2005 at the behest of the NFL to prevent terrorist acts from taking place in its teams' stadium, considered "attractive targets" for terrorists. Two season ticket holders sued the 49ers for violation of the privacy rights outlined in Art. I, sec. 1 of the California state constitution, a broad mandate protecting individuals from nongovernmental entities intruding on an individual's privacy. The Sheehans alleged that the mandatory patdown search of all fans as a condition of entry for the team's home games during the 2005 season violated that provision.

Their efforts failed. In a 2-1 ruling, the appeals court affirmed the trial court’s dismissal the claim outright, without leave to amend because they consented to the search, defeating any reasonable expectation of privacy.

According to state law, a plaintiff asserting a privacy claim must establish three essential elements: (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. The plaintiffs failed in the second element because they had notice of the policy and by entering the game, they consented to it. In addition, the fact that they renewed their season tickets for the 2006 season was, according to the majority, an implied consent to accept the policy and defeats any reasonable expectation of privacy and upholds the discretion of the trial court in reject a leave to amend the complaint.

I find several issues problematic. The majority differentiates between actions challenging non-governmental agency searches with governmental searches. It states "the pervasive presence of coercive government power" more gravely imperils the freedom of citizens than action by the private sector.” Think of the implications of such a statement in an age of increasing information technology. Software exists for private companies to track every website, every keystroke and e-mail one makes. Then comes the question, more on point in this case, whether the “private sector” is a de facto monopoly and how that affects the above-mentioned privacy claim?

That was answered in the thoughtful dissent by Judge Rivera. He noted that the Sheehans sought an injunction during the prior season and could have argued (if they were allowed to amend their complaint) that as 40-year ticket holders, they did not want to lose their seniority while the case was litigation. He also crafted a more nuanced approach to the abandonment of reasonable expectation of privacy by consent. He questioned the idea that the mere acceptance of season tickets the following season, without more, is accepting the patdown policy. He rightly concluded that this is a question of fact to determine based on more information.

And, in the piece de resistance, the judge tears away the “consent.” He writes:
The majority’s conclusion “effectively relegates to free market forces the acceptable norms of privacy intrusions. In fact, the 49ers argued . . . that they have the right to impose any conditions of doing business and that consumer tolerance would sufficiently temper the more egregious invasions of privacy. In my view, the courts' role in protecting privacy rights should not be so readily abdicated, particularly where, as here, the private actor has an effective monopoly. If you are the only game in town, requiring your customers to either submit to a patdown search or walk away does not present the kind of genuine choice upon which the majority's reasoning is premised.
Can there really be knowing consent to a patdown search under these circumstances?


This is one of the best posts I've ever read on sports law blog. Thanks, Mark, and it certainly fairly stated the "issues presented."...

Anonymous Anonymous -- 8/01/2007 1:26 PM  

You neglect to mention the interests of other fans. Undoubtedly, many fans want the team to enforce a mandatory patdown policy. But your view would prevent those fans from enjoying such a privilege. Is the privacy of the individual so great that he must expose other to potentially great danger? Or is this minor intrusion -- this is a football game we're talking about here -- justified to protect everyone? One way to answer this is let the market decide. The California court sensibly took that course.

Anonymous Anonymous -- 8/01/2007 10:08 PM  

I can fully understand the sort of reasoning behind this post. The decision and the elements put forward while sustaining it are troubling if they overspill to other areas. But this is a sporting arena... and we are talking about a patdown. I don't know the veridicts but somehow I feel like the judges have come to right decision. A different issue is whether the manner in which they did so is an open door to future, and much less understandable, restrictions...

Anonymous Anonymous -- 8/02/2007 5:33 AM  

The latter two comments expressed some good points. My biggest issue is not about the patdowns per se. But troubled me was that the court did not give the plaintiffs the opportunity to present their case by saying that since they decided to get season tickets the following season, they lost their right to amend the complaint.

The dissenting judge stated that he/she would not have dismissed the case and dismiss it with the broad strokes the majority utilized. I think that the Sheehan's should have their day in court to present evidence of the reach of the invasion of privacy. If the court then concludes that the patdown is justified, it could describe its reasons for forcefully. This way, it basically beat around the bush by avoiding the central issue of the scope and validity of the patdowns.

Blogger Mark Conrad -- 8/02/2007 1:06 PM  

Monster (nee Candlestick) Park is a public facility, owned by the City and County of San Francisco.

Anonymous Anonymous -- 8/02/2007 3:43 PM  

Yes, you are right. I just made the edit.

Blogger Mark Conrad -- 8/03/2007 12:12 PM  

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