Right To Privacy: Professional Sports Stadium Searches

Sheehan v. San Francisco 49ers, Ltd., (Supreme Court of California, March 2, 2009) 45 Cal.4th 992, 201 P.3d 472, 89 Cal.Rptr.3d 594, 09 Cal. Daily Op. Serv. 2525, 2009 Daily Journal D.A.R. 2977

Two long-time San Francisco 49er’s season ticket holders who were subjected to patdown searches before they were allowed to enter the stadium for an NFL game, filed suit against the team. The plaintiffs alleged that the 49ers had implemented the patdown policy pursuant to a policy the NFL promulgated 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. Contending that the searches violated their state constitutional right to privacy, the plaintiffs sought a declaration that the searches were unconstitutional, as well as an injunction prohibiting any further such searches.

The 49ers demurred to the complaint, contending that it did not state a cause of action, and the trial court agreed, sustaining the demurrer without leave to amend. The court of appeal affirmed, concluding that the plaintiffs could not demonstrate that they had a reasonable expectation of privacy under the circumstances, and that rather than submitting to the patdown, the plaintiffs had the choice of walking away. The California Supreme Court reversed, and remanded the case to the trial court, finding that the 49ers had not demonstrated that the allegations of the complaint failed to state a cause of action:

“Plaintiffs must establish a reasonable expectation of privacy under the circumstances. “A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.”
. . .
The factual record of this case-which consists solely of the complaint-does not establish what the competing social interests are. Presumably, the NFL, and ultimately the 49ers’, adopted the policy to enhance spectator safety, but the record does not establish this or explain why the NFL believed the policy was appropriate. As evidenced by the circumstance that the pursuit of safety, like the pursuit of privacy, is a state constitutional right, the competing social interest of enhancing safety is substantial. 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. Here, we cannot do so because the record does not establish the circumstances of, or the reasons for, the patdown policy. The 49ers’ have not yet given any justification for its policy.
. . .
[I]n reviewing a private entertainment venue’s security arrangements that 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, subject, when those security measures substantially infringe on a privacy interest, to judicial review for reasonableness.”