Cal.S.Ct.: Suit over 49er’s spectator full patdown policy can proceed

A suit over the patdown policy of spectators attending San Francisco 49er’s NFL football games as violating the state right to be free from unreasonable searches was dismissed on a demurrer by the Superior Court and affirmed on appeal. Sheehan v. San Francisco 49ers, Ltd., 153 Cal. App. 4th 396, 62 Cal. Rptr. 3d 803 (1st Dist. 2007). The California Supreme Court held that there were sufficient allegations for the case to proceed further, and it reversed. Sheehan v. The San Francisco 49ers, Ltd., 45 Cal. 4th 992, 89 Cal. Rptr. 3d 594, 201 P.3d 472 (2009). The court distinguished the 11th Circuit’s Tampa Bay case because it involved a more cursory patdown than this one and a public entity and the Fourth Amendment, and this case involved a full patdown by a private entity and the state constitution:

The Eleventh Circuit Court of Appeals recently upheld on a consent theory an NFL patdown search policy that is similar but slightly different from the one alleged here. (Johnston v. Tampa Sports Authority (11th Cir. 2008) 530 F.3d 1320.) Johnston did not consider California’s constitutional privacy right, but it involved the Tampa Sports Authority, a public entity. (Id. at p. 1322.) The search at issue was performed by state agents, and thus the restrictions of the Fourth Amendment to the United States Constitution applied. (Johnston, supra, at pp. 1325–1326.) Hill held that the California privacy right applies against private entities, but it also stated that “[t]he ‘privacy’ protected by the Privacy Initiative is no broader in the area of search and seizure than the ‘privacy’ protected by the Fourth Amendment … .” (Hill, supra, 7 Cal.4th at p. 30, fn. 9.) However, Johnston reached its conclusion on a full factual record, a record lacking here. The search policy described in Johnston is also different from the one alleged here. In Johnston, the search encompassed only “limited above-the-waist pat-down searches” (Johnston, supra, at p. 1323); here, plaintiffs allege that the screeners “ran their hands around the [plaintiffs’] backs and down the sides of their bodies and their legs.”

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One relevant circumstance for the court to consider in determining the search policy’s reasonableness is that the NFL and the 49ers’ are private entities. Although we held in Hill that the state constitutional right of privacy “creates a right of action against private as well as government entities” (Hill, supra, 7 Cal.4th at p. 20), we also explained that “[j]udicial assessment of the relative strength and importance of privacy norms and countervailing interests may differ in cases of private, as opposed to government, action.” (Id. at p. 38.) Two reasons for the difference might apply here. “First, the pervasive presence of coercive government power in basic areas of human life typically poses greater dangers to the freedoms of the citizenry than actions by private persons.” (Ibid.) “Second, ‘an individual generally has greater choice and alternatives in dealing with private actors than when dealing with the government.’ [Citation.] Initially, individuals usually have a range of choice among landlords, employers, vendors and others with whom they deal. … [V]arying degrees of competition in the marketplace may broaden or narrow the range.” (Id. at pp. 38–39.)

We further explained that “[t]hese generalized differences between public and private action may affect privacy rights differently in different contexts. If, for example, a plaintiff claiming a violation of the state constitutional right to privacy was able to choose freely among competing public or private entities in obtaining access to some opportunity, commodity, or service, his or her privacy interest may weigh less in the balance. In contrast, if a public or private entity controls access to a vitally necessary item, it may have a correspondently greater impact on the privacy rights of those with whom it deals.” (Hill, supra, 7 Cal.4th at p. 39.)

Another factor to consider is the existence of less restrictive alternatives. (Hill, supra, 7 Cal.4th at p. 38.) But to establish the reasonableness of their policy, the 49ers’ do not have to show that they have adopted the least restrictive alternative. In Hill, we explained that “the trial court erred in imposing on the NCAA the burden of establishing that there were no less intrusive means of accomplishing its legitimate objectives. … [T]he argument that such a ‘least restrictive alternative’ burden must invariably be imposed on defendants in privacy cases derives from decisions that: (1) involve clear invasions of central, autonomy-based privacy rights, particularly in the areas of free expression and association, procreation, or government-provided benefits in areas of basic human need; or (2) are directed against the invasive conduct of government agencies rather than private, voluntary organizations.” (Id. at p. 49.) Neither of these situations applies here. “We have been directed to no case imposing on a private organization, acting in a situation involving decreased expectations of privacy, the burden of justifying its conduct as the ‘least offensive alternative’ possible under the circumstances. Nothing in the language [or] history of the Privacy Initiative justifies the imposition of such a burden; we decline to impose it.” (Id. at p. 50; see also id. at pp. 49–50, fn. 16.)