August 2, 2007

Ask The Lawyer

Pat-down searches before entering football stadiums may be OK

This week's question:
I have often wondered as my family and I go into a football stadium whether those pat-down searches are legal. It seems to me that they are really an invasion of privacy. It's one thing when we need to go through a metal detector but it's quite another when someone else is touching your body. Isn't this an invasion of privacy? Have there been any legal cases on this? Do we have any alternatives? This makes me sick.

Marie M.
Almaden Valley


Dear Marie,
If it's any consolation, Marie, it makes me sick too. Every time we go see our favorite team that wears silver and black and plays football at the Oakland [Oracle] Coliseum we now need to undergo a pat down search. You would think that there's got to be a better way to enforce security in this high-tech world of ours.

That being said, yes, there has been at least one case involving a local team where the pat-down search issue went to court. The case is entitled Sheehan v. The San Francisco 49ers. It was just decided on July 17.

In the Sheehan/49er case, Daniel and Kathleen Sheehan, season ticket holders for 40 years, filed suit against the 49ers for a violation of privacy, based on the team's pat-down policy. According to the case, the pat-down policy was mandated by the National Football League ("NFL").

In the fall of 2005, the 49ers instituted a pat-down inspection of all ticket holders attending the 49ers' home games at Monster Park as a condition for entry to the games. The pat-down searches were promulgated by the NFL, which concluded that NFL stadiums are attractive terrorist targets based on the publicity that would be generated by an attack at an NFL game.

The pat-downs 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. Daniel and Kathleen Sheehan are 49ers season ticket holders and were subject to pat-downs during the season before each home game at Monster Park.

In December 2005, the Sheehans filed suit against the 49ers, alleging that the 49ers breached their privacy rights, in violation of the Privacy Initiative. As the Court of Appeal stated, the Privacy Initiative is found in Article 1, §1 of the California Constitution. It provides:

"All people are by nature free and independent and have inalienable rights. Among these are . . .pursuing and obtaining . . . privacy."

Unfortunately for the Sheehans, the trial court in common jargon tossed their suit out of court, ruling that they could not state a case under the facts as they alleged. The 49ers had filed a "demurrer." This is basically a motion that says even though we assume everything is true in your suit, you still haven't stated a case.

The Court of Appeal agreed with the trial court and basically said the Sheehans cannot state a case for invasion of privacy due to the pat-down searches. The Court of Appeal held that ". . .the Sheehans cannot demonstrate that they had a reasonable expectation of privacy under the circumstances. . ."

The Court also stated that the Sheehans have no reasonable expectation of privacy because, by attending the games, they had advance notice of the pat-down policy and thereafter impliedly consented to the pat downs by voluntarily purchasing the tickets and attending the games.

The Court concluded by saying that rather than submit to the pat-down the Sheehans had the choice of walking away, no questions asked.

You can read the Sheehan v. 49ers case for yourself by logging on to the following link: http://www.courtinfo.ca.gov/opinions/documents/A114945.PDF. This is an advertising-free Web site that contains legal opinions from the Court of Appeal of the State of California.

A note of caution: The case was decided very recently so I would imagine there is a chance that it could be taken up by the California Supreme Court. If that happens, I will try to be on the lookout for it and keep you posted.

In the meantime, Marie, it looks like the pat-down search at the football stadium is permissible. I don't like it any more than you do, but it looks like we are stuck with it, at least for now.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.