Guest
- Dan Eaton, These Days legal analyst.
The following background research represents the views of Dan Eaton alone and does not represent the views of KPBS.
BEFORE THE TOUCHDOWN, THE PAT-DOWN
The National Football League has required that all ticket holders entering the stadium to watch every Super Bowl since the 9/11 terrorist attacks – including the 2003 Super Bowl in San Diego – be subject to a physical pat-down of their bodies by security officers for weapons. In 2005, the League extended this policy to fans entering all games, requiring “touching, patting or lightly rubbing” all ticket holders before they enter the stadium. Concerned about attacks and threats at sporting events abroad, the NFL says that its policy is necessary because an attack at a professional football game would garner an enormous amount of publicity and, for that reason, is an inviting target to terrorists. (Johnston v. Tampa Sports Authority [11th Cir. 2007] 490 F.3d 820, 822, and note 1.)
But are such suspicionless searches constitutional?
Season ticket holders in San Francisco, Seattle and Tampa Bay haven’t thought so and sued to block the searches. All have suffered very recent defeats in the courts. What did these fans argue and why did they lose?
The San Francisco 49ers fans claimed that article 1, section 1 of California’s state constitution gives them a right to privacy that was violated when the 49ers implemented a policy of patting down everyone who wished to enter a game without any suspicion that the person was carrying any weapon. (Sheehan v. San Francisco 49ers, Ltd. [2007] 153 Cal.App.4th 396, 400.) California’s right to privacy, unlike the right to privacy that courts have found to be part of the U.S. Constitution, has been held to apply to private businesses, such as sports teams, as well as government agencies and officials. (Hill v. National Collegiate Athletic Assn. [1994] 7 Cal.4th 1, 16.) The 49ers’ “specific practice consisted of screeners running their hands around ticket holders’ backs and down the sides of their bodies and their legs. Officers of the San Francisco Police Department stood nearby during these inspections.” (Id. at 400.)
The 49ers moved to dismiss the fans’ complaint. In its ruling granting the motion, the trial court agreed that the fans had a “legally protected privacy interest” in avoiding an unwanted pat-down by private security screeners. (Id.at 402.) The trial court, however, went on to find that these particular fans had no reasonable expectation of privacy that they would not be searched. Why? Because after they filed the lawsuit during the 2005 season, they purchased season tickets for the 2006 season, fully aware of that policy. In upholding the decision by a 2-1 majority on July 17, 2007, the California Court of Appeal concluded: “By voluntarily re-upping for the next season under these circumstances, rather than opting to avoid the intrusion by not attending the games at Monster Park (where the 49ers play), the [fans] impliedly consented to the pat-downs.”
So if the fans objected to the pat-downs in 2005, why did they renew their season tickets for 2006? According to the majority in the Court of Appeal, by the time the trial judge was ready to decide the 49ers’ motion to dismiss, the 2005 season was over. That meant that, to be able to continue to challenge the policy, the fans had to show the court they were likely to be subject to the pat-down policy. The law refers to this as “standing” to bring their claim. If the fans had no tickets, they could not be injured by a policy that applied to ticket holders seeking to enter the stadium. The ironic effect of showing that they had the right to challenge the policy by renewing their season tickets, which these particular fans had held for 40 years, was that these fans could not deny that they had notice of the very pat-down policy they were challenging. That, of course, was key to the Court’s central holding that the fans therefore could not claim that they expected not to be subject to a pat-down policy of which they were fully aware.
The appeal justice who sided with the fans was clearly troubled by a number of things about the majority rule. The justice pointed out that, in a one-football team town, there was no “genuine choice” to which a fan could give implied consent where his only option was to accept the conditions the team was placing on him or avoid watching football in a stadium at all. (Id. at 411.) In such circumstances, said the justice, the courts should not leave protection of fan privacy rights to the free market. Moreover, the justice said that, under the majority’s reasoning, there is no real difference in a private entity subjecting a person who wishes entry “between a pat-down search or a strip search or between gaining entry to a football game or a grocery store. So long as there is advance notice and the public can choose between [consent] and declining the benefit, no constitutional privacy rights are implicated.” (Id. at 410.)
The result may have been different if police officers, rather than private screeners, were the ones performing the pat-downs. In addition to a claim based on their right to privacy, brought against the private football team and the private screeners the team employed to do the searches, the fans claimed that the search was an unconstitutional condition on their receiving the benefit of attending the game. In other words, the fans claimed that the 49ers could not make their ability to attend the game depend on their willingness to give up part of their right to privacy. The problem with that argument is that, as even the dissenting judge agreed, that legal theory applies only to government agencies and employees. The Court rejected the fans’ argument that the private screeners were just a thinly veiled substitute for the city-employed police officers who stood only a few feet away while the screening was being done. “The 49ers have contracted with the private screeners and since the sports organization is not controlled by the City and County of San Francisco, the private screeners are not proxies for a government entity.” (Id. at 405, note 6.)
The result probably would not have been different had the fans not been season ticket holders. This pat-down policy, which has been mandated by the NFL for security reasons since 2005, has been widely publicized, sometimes even in the stadiums themselves on game day. The Chargers, for example, issued an Aug. 16, 2005 press release advising the public of the new pat-down policy. Incidentally, the first home game of that season was against – who else? – the Oakland Raiders.
A spokeswoman for the 49ers has been quoted as saying the ruling validated the team’s efforts to protect their fans in a reasonable way. But the 49ers fans still have time, as of this writing, to appeal the ruling to the California Supreme Court. Until then, however, the ruling is binding in all California trial courts, including those in San Diego.
Fans in Tampa Bay also have suffered similar defeats for somewhat different reasons. In the Tampa Bay case, which was decided this June just before the 49ers’ decision came out, the Eleventh Circuit United States Court of Appeals reversed a lower court ruling that held that such pat-downs violated fans’ constitutional rights. Unlike the 49ers’ case, the stadium in the Tampa Bay case was run by a government agency. But like the majority in the 49ers’ case, the Court ruled that the fan had consented to the search by going to the game, even though he verbally objected to the search to which he was subjected at each game he attended. The record was full of evidence, said the unanimous appeals court panel, that the fan was given advance notice of the search “including preseason notice [when he called team offices before the first game to discuss the new policy], pre-game notice and notice at the search point itself.” (Johnston, supra, 490 F.3d at 825.)
The Seahawks case, also decided in June of this year, ruled in favor of the team because the Court ruled that the team was a private entity and therefore was not subject to the constitutional restrictions that would have applied had the stadium been operated by a government agency. The federal trial court ruled that the private stadium authority could not be considered part of the government for two reasons: first, because the public stadium authority, from whom the team leased the stadium during football season, received no profit from, and was not consulted in, the establishment of the challenged pat-down policy; and, second because operating a sports stadium is not an activity that traditionally is “exclusively” performed by the government such that the private team was subject to the same constitutional limits that the government agency would be that delegated the function of operating the stadium to the team. (Stark v. Seahawks [W.D.Wash.] 2007 WL 1821017.)
There may be further activity in the courts. But for now, the courts have all ruled that to see the touchdowns, fans must submit to the pat-downs.
