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?
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