It’s not as if the San Francisco 49ers still have Joe Montana throwing passes, so they needed to do something to bring a little interest to the team.  Apparently, the best they could come up with is the pat down of patrons as they enter the stadium, via Turley.  Two season ticket holders, Daniel and Kathleen Sheehan took issue with the touching and sued.

The obvious legal response to the condition of entrance being a search by a private entity is consent, and that no one entering the stadium has a reasonable expectation of privacy.  Buy a ticket and go to a game, and the sports fan implicitly consents to a pat down on the way in.  Many fans approve of the search, preferring the safety of an unarmed audience to football fans left to their own sensibilities.  Think Cleveland.

At the trial and appellate level, the 49ers demurred, and prevailed.  Fortunately, they didn’t even need to get a first down.  The California Supreme Court, however, held that the whole notion wasn’t so crazy as to sustain the demurrer, and remanded for additional facts.

People certainly have, in general, a right not to have others pat them down.

The factual record of this case — which consists solely of the complaint — does not establish what the competing social interests are. Presumably, the NFL, and ultimately the 49ers’, adopted the policy to enhance spectator safety, but the record does not establish this or explain why the NFL believed the policy was appropriate. As evidenced by the circumstance that the pursuit of safety, like the pursuit of privacy, is a state constitutional right, the competing social interest of enhancing safety is substantial. Those who provide private entertainment venues, including the 49ers’ at NFL football games, have a substantial interest in protecting the safety of their patrons. But when the security measures substantially threaten a privacy right, courts review the policy for reasonableness under the circumstances. Here, we cannot do so because the record does not establish the circumstances of, or the reasons for, the patdown policy. The 49ers’ have not yet given any justification for its policy.

As a practical matter, I remember the first time I entered Giants Stadium following the institution of the search rule.  Nowhere on my ticket did it say that everyone entering the stadium would be searched.  Even if it did, I wouldn’t have known until after I had purchased my ticket, meaning that I was out the cost before I would be aware of the policy and capable of making an informed choice of whether to be searched or to sit in the den and watch on TV.  The idea of not watching the game was simply unacceptable.

It was somewhat shocking to have some fat guy from Jersey in a jacket that said “Security” on the back rub his hands against me.  Not quite threatening, but more gross.  The first time it happened, I was taken aback.  It was over very quickly and I went in to watch the Giants do what they do best.   I wasn’t happy about it, but similarly wasn’t sufficiently incensed to make it a big issue.

Did my entry into the stadium manifest consent?  Not a chance.  Did I find the reasoning for the search sufficiently heart-warming to take comfort in it?  Not a chance.  Was it just another indignity that came of our desire for safety and protection at the expense of being touched by a fat guy from Jersey?  Yeah, that was it. 

The California Supreme Court’s decision begs an explanation of why the constitutional right to privacy compels scrutiny of the pat down policy of the 49ers football team, a private entity.  Since when are private entities subject to constitutional limitations?  The Supreme Court explains:

“[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.”

While still a remarkably vague explanation, when a bright line could easily be crafted and would serve well for the purpose of private entities maintaining exclusive or monopolistic control over public opportunities understanding what they are getting into, it’s an adequate explanation for why the 49ers NFL franchise is imbued with a quasi-public obligation to adhere to constitutional limitations. 

The public/private aspect strikes me as the more important issue of the case.  Like baseball, professional football has taken on a degree of consequence of governmental proportions.  Teams represent cities, as if they are indeed sponsored by them.  Teams ask for fan loyalty ( and currency), and use the willingness of its fans to support the widespread use of tax dollars to build stadiums with luxury boxes.  Teams enjoy the benefits of monopolistic turf, while remaining owned by private individuals and groups who are then subject to the dictates of a league.

Clearly, professional sports teams have taken on many of the attributes of government, and thus have little cause to complain that they are subject to some of the limitations imposed on government.  Whether this means that the intrusion of a pat down for the purpose of providing some small degree of safety to such a large gathering of people is justifiable is another matter.  But that the 49ers, as well as all other professional sports teams, cannot avoid scrutiny for their unilateral decision to invade the privacy of entrants to their stadiums to whatever extent they chose is a perfectly reasonable position.

I have no clue what weapons have been found via these searches, and whether it’s a reasonable reaction to a potential threat.  I know that it’s good for the beer sellers inside the stadium, and have a reasonably strong belief that the purpose of searches is really to make sure that no one can bring their leftover tailgate party beverages into the stadium and thereby avoid paying $7 per beer.  But that’s what remand is for.

And if you’ve never been touched by a fat man from Jersey, don’t judge me.