Court scrutinizes 49ers pat-down playbook

Legal News Line Jan. 8, 2009, 12:17pm

SAN FRANCISCO (Legal Newsline) - In a case that could set legal precedence for pat-down searches at sporting events across the country, the San Francisco 49ers defended its practices before the state Supreme Court this week.

Two fans sued the professional football club after it instituted its search policy of ticket buyers in 2005. The club argued before the high court that it warns customers about search policies on each individual ticket and the team's Web site, according to

"The team insists that verbal notice upon entering the stadium is enough for implied consent under California law," the article reported.

But the court divided over whether it had enough evidence to accurate weigh the case. Three justices - Joyce Kennard, Kathryn Mickle Werdegar and Chief Justice Ronald George - gave a strong impression in court questioning that the trial record was not sufficient to decide whether the plaintiffs had consented to the searches.

The court also expressed concern that the team could be subjected to lawsuits from customers who don't believe its security policies were stringent enough.

"So there is a balancing involved," Justice Marvin Baxter said. "And I don't know how you get around it."

According to, the case is likely to set legal precedence for all kinds of entertainment venues. The 49ers received support via amicus curiae briefs filed by the National Basketball Association, the National Hockey League and Major League Baseball.

The plaintiffs, Daniel and Kathleen Sheehan, said in court documents that the pat-down tactics, where security guards run their hands lightly down the backs and legs of fans, were offensive.

The Sheehan's were represented by American Civil Liberties Union lawyers.

According to published reports, ACLU lawyer Ann Brick argued that before 49ers games, "fans are required to stand with their arms outstretched while a stranger runs their hands over their bodies. That's an intimate act."

The court appeared divided on Tuesday when Justices Ming Chin and Carol Corrigan seemed ready to rule in favor of the 49ers. Chin cited a previous case related to the Tampa Bay Buccaneers, another professional football team, saying the facts of the two cases were similar.

"If you don't want your privacy intruded upon, you don't have to go in," Chin said.

That case, decided in the U.S. Circuit Court of Appeals in 2007, held that fan voluntarily consented to a pat-down search conducted by the team. But, according to, that case "differed from the one before the California Supreme Court because it involved the federal Fourth Amendment right to privacy."

The Sheehan's suit states that the 49ers search violated the California Constitution's privacy clause. Daniel Sheehan has been a season ticket holder since 1967.

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