San Francisco — The California Supreme Court heard arguments today in a lawsuit challenging the San Francisco 49ers' pat-down policy at Candlestick Park. At issue is whether the state's constitution allows the 49ers to force fans at home games to undergo pat-down searches as a condition of attending the games.
The ACLU of Northern California (ACLU-NC) filed the lawsuit on behalf of longtime 49er fans Daniel and Kathy Sheehan, season ticket holders who believe the searches are a serious invasion of privacy, one that is both unnecessary and unconstitutional.
The California Constitution guarantees that Californians have a right to be free from unjustified intrusions on privacy. At the center of this protected realm is a sphere of personal autonomy that includes a person’s own body. A fundamental right to privacy was enshrined in state law when voters passed the Privacy Initiative in 1972. The right to privacy figured centrally in the state Supreme Court’s historic ruling in the same sex marriage case last May.
"The California Constitution says that we don't have to pay for access to goods and services with our privacy," said Ann Brick, staff attorney at ACLU-NC. " This includes having to let a stranger run their hands all over your body as part of the price of attending a 49ers game."
The pat-down policy was implemented in 2005 in response to a directive from the NFL. Among major national sports, the NFL stands alone in requiring pat downs. No other major professional sport requires routine pat downs—not baseball, not basketball, not hockey.
The ACLU-NC holds that it is unacceptable for a business like the 49ers, which is literally the only game in town, to present privacy invasions on a take it or leave it basis.
"This case is an opportunity for the court to again make clear that businesses don’t have a carte blanche right to invade patrons' privacy," added Brick.
The suit, Sheehan v. San Francisco 49ers (Case No. A114945), is brought before the California Supreme Court by the ACLU of Northern California with pro bono support from attorney Mark White with the firm of Chapman, Popik & White.
The California Supreme Court accepted review of the case after the trial court and Court of Appeal dismissed the suit before trial on the theory that the fans had consented to the searches by renewing their season tickets. The plaintiffs argue that the courts must evaluate whether the intrusive nature of the body searches is justified by hearing evidence on whether they are effective at enhancing security.