Legality of NFL team's security pat-down policy to be decided by lower court

March 4, 2009
California Supreme Court orders trial judge to review policy for constitutional violations

Mar. 2--California's highest court on Monday revived a three-year-old challenge to security pat-downs at San Francisco 49ers games, ordering a trial judge to weigh the team's policy on the searches against a claim brought by a Danville couple that they violate the state's constitutional right to privacy.

Season ticket-holders Daniel and Kathleen Sheehan sued their beloved team over the pre-game pat-downs in late 2005, but a San Francisco Superior Court judge and then a state appeals court tossed the case. The appeals court found that "rather than submit to the pat-down the Sheehans had the choice of walking away, no questions asked."

All seven state Supreme Court judges agreed to reverse that decision, sending the case back to San Francisco Superior Court. In the majority opinion, Justice Ming Chin punted on the merits of the couple's claim, but said the trial court needs to weigh whether the 49ers search policy is reasonable.

Because the pat-downs follow a National Football League policy, the case could also affect searches outside Oakland Raiders and San Diego Chargers games. If the Sheehans win, it could ripple through entertainment arenas across the state that conduct pat-downs before big events.

"Those who provide private entertainment venues, including the 49ers at NFL football games, have a substantial interest in protecting the safety of their patrons. But when the security measures substantially threaten a privacy right, courts review the policy for reasonableness under the circumstances," Chin wrote.

"Here, we cannot do so because the record does not establish the circumstances of, or the reasons for, the pat-down policy. The 49ers have not yet given any justification for its policy."

Team spokesman Lisa Lang did not immediately return a call from MediaNews.

A lawyer for the couple applauded the ruling, saying the court "reaffirmed that businesses can't present privacy invasions on a take-it-or-leave-it basis."

During the pat-downs, fans stand rigid with arms spread wide while screeners run their hands around their backs and down the sides of their bodies and legs.

"In our society we don't normally expect or want a stranger to tell us to stand with our arms outstretched, to have someone rub their arms over their bodies. Being touched by a stranger in that systematic way is very offensive," said Ann Brick of the American Civil Liberties Union Foundation of Northern California.

"Right now, based on what we know, the only thing these pat-downs accomplish is they invade the fans' privacy. But because certain areas aren't touched, they're probably not very effective. So you've really got the worst of both worlds: an offensive and ineffective pat-down."

The 49ers drew support in the case from several pro sports leagues, including the NFL, the National Hockey League, the National Basketball Association and Major League Baseball. Also weighing in for the team were concert producer Live Nation and other entertainment interests, as well as the federal Department of Homeland Security and the U.S. Attorney General.

Neither the Sheehans nor an NFL spokesman could be immediately reached. The Sheehans still hold 49ers season tickets, said Brick.

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