When San Francisco 49ers fans pour into home games at Candlestick Park on Sundays, they have to show more than a ticket. They also must show they aren't carrying weapons, booze and other contraband as they are frisked by security guards.
Now the California Supreme Court will consider whether those brief searches are a mere inconvenience in the name of security or a violation of a football lover's constitutional right to privacy.
The state's high court on Tuesday is considering a legal challenge to a National Football League policy enforced by the 49ers that requires teams to conduct "pat down" searches of fans as they enter stadiums. A Danville couple, backed by civil liberties groups, sued more than three years ago to block the 49ers' searches, arguing that they trample on California's strong privacy protections.
The state Supreme Court agreed to hear the case last year after a divided appeals court upheld the policy. While the case directly impacts only the three NFL teams in California the 49ers, Oakland Raiders and San Diego Chargers it could invite similar challenges in other NFL cities around the nation.
To date, the only other legal challenge on the issue was a case against the Tampa Bay Buccaneers, who prevailed in a federal appeals court last year.
Major League Baseball, the National Hockey League and the National Basketball Association have urged the state Supreme Court to side with the 49ers, despite the fact those sports do not mandate pat-down searches at games. In court briefs, they argue that private sports enterprises should have the authority to conduct perfunctory searches.
The American Civil Liberties Union, which is representing Daniel and Kathleen Sheehan in the case, maintains the searches are overkill and violate the privacy rights added to the California constitution in 1972. Civil rights attorneys say fans do not forfeit their rights when they buy tickets to attend a pro football game, and that there may be less invasive ways to ensure security, such as having ticketholders file through metal detectors.
"When you think about it, not even airports routinely require pat-downs," said Ann Brick, the ACLU attorney handling the appeal.
Sonya Winner, the 49ers' lawyer, declined to comment on the case. But in court briefs, she argues that fans consent to be searched when they purchase tickets, and that a privately owned sports team has the right to set conditions to attend a sporting event. The searches, while seeking to keep beer cans and whiskey bottles out of the stadium, are primarily designed to spot weapons such as guns and knives. They were mandated by the NFL as a response to the Sept. 11 terrorist attacks.
"There is no constitutional right to attend a football game," the 49ers wrote. "And, as popular as 49ers' games may be, attending those games is hardly a necessity of life. (The Sheehans) may not have liked the fact that they had to consent to the pat-downs in order to attend 49ers games, but there is no question that their consent was a voluntary exercise of their free will."
The Sheehans, who could not be reached for comment, have been Niners season ticket holders for years. In fact, court papers show Daniel Sheehan has been a season-ticket holder since 1967, when the team was still playing at old Kezar Stadium in San Francisco.
But when the 49ers started the pat-downs for the 2005 season, and notified season ticket holders, the Sheehans felt they were getting something they didn't want for their $1,480 investment. They considered the pat-downs "degrading," according to their lawsuit.
So they huddled and sued the 49ers. Now they are hoping the Supreme Court will allow their lawsuit to go to trial.
Regulars at 49ers' games appear to have mixed views on the policy. When given a chance on the Mercury News' 49ers blog to weigh in on the issue last week, dozens sent responses, some in favor of the policy, others calling it an intrusion and waste of time.
"The NFL/49ers should sack the pat-downs and concentrate on touchdowns," wrote Trey Dunia of Sebastopol.
Others say it is a small price to pay for extra security.
"I have no problem with pat-downs," wrote Mairi Wallace, a season-ticket holder from Tulare. "We haven't been attacked since 2001, but you just know there are folks out there who would love to cause some kind of terror in a stadium full of fans. The pat-downs only take a moment."
The Supreme Court has 90 days to rule on the case.