NFL’s fan patdown policy sustained in California

The First Appellate District of California Tuesday upheld the San Francisco 49ers patdown policy adopted by the NFL. The challenge was under the California Privacy Initiative to avoid the Fourth Amendment. Sheehan v. The San Francisco 49ers, Ltd., 153 Cal. App. 4th 396, 62 Cal. Rptr. 3d 803 (1st Dist. 2007):

In the fall of 2005, in response to an inspection policy promulgated by the NFL, the 49ers instituted a patdown inspection of all ticket holders attending the 49ers’ home games at Monster Park as a condition for entry to the games. The patdowns were conducted by private screeners who, according to the NFL mandate, were instructed to physically inspect by “touching, patting, or lightly rubbing” all ticket holders entering the stadium. 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. The Sheehans are 49ers season ticket holders and were subject to patdowns throughout the 2005 season before each game at Monster Park.

. . .

We concur with the trial court’s decision that the Sheehans have no reasonable expectation of privacy because, by attending the 2005 season games, they had advance notice of the patdown policy and thereafter impliedly consented to the patdowns by voluntarily purchasing the 2006 season tickets. In assessing whether one has a reasonable expectation of privacy, we are mindful that this “is an objective entitlement founded on broadly based and widely accepted community norms.” (Hill, supra, 7 Cal.4th at p. 37.) Thus, customs and physical settings of certain activities may impact an individual’s reasonable expectation of privacy. (Id. at p. 36.) Moreover, a plaintiff’s expectation of privacy may be diminished by advance notice of a potential invasion of a privacy interest and by subsequent voluntary consent to the privacy invasion. Further, “[i]f voluntary consent is present, a defendant’s conduct will rarely be deemed ‘highly offensive to a reasonable person’ so as to justify tort liability.” (Id. at p. 26.)

In this case the Sheehans were subject to the patdowns by private screeners when they attended 49ers’ games in the 2005 season. Because the season had ended by the time the demurrer was heard, a standing issue developed. Without objection, the Sheehans amended their complaint, affirming that they had bought tickets for the upcoming 2006 season. Thus, there is no question that they had full notice of the patdown policy and the requirement of consenting to a patdown prior to entering the stadium for a game. With notice and knowledge of this prospective intrusion, they nevertheless made the decision to purchase the 2006 season tickets. 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, the Sheehans impliedly consented to the patdowns. On these undisputed facts we determine, as a matter of law, that the Sheehans have no reasonable expectation of privacy. Furthermore, the trial court did not abuse its discretion by not allowing leave to amend because there is no reasonable possibility that the Sheehans could amend their complaint to state sufficient facts to establish this element.

It also bears noting that the Johnston II court [the Tampa stadium case from the 11th Cir.], although resolving a Fourth Amendment challenge to the NFL patdown policy, not a Privacy Initiative claim, specifically took issue with the district court’s finding that the plaintiff did not voluntarily consent to the patdown searches: “[T]he Court concludes that Johnston voluntarily consented to pat-down searches each time he presented himself at a Stadium entrance to attend a game. The record is replete with evidence of the advance notice Johnston was given of the searches including preseason notice, pregame notice, and notice at the search point itself. It was clear error for the district court to find that Johnston did not consent to the pat-down searches which were conducted.” Johnston II, supra, ___ F.3d at p. ___ [2007 WL 1814197,*4].)

(Hat tip to reader Jeffrey Lewis, Palos Verdes Peninsula, CA, blog.jefflewislaw.com)