Supreme Court Punts Football Search Case

Today the California Supreme Court decided Sheehan v. San Francisco 49ers (here), the football stadium pat-down case. The plaintiffs contended that their state constitutional rights of privacy were violated when they were subjected to full-body pat-down searches before they could enter Monster Park to see the 49ers play. The Superior Court sustained a demurrer on the basis of consent and the Court of Appeal affirmed. The Supreme Court unanimously reversed, holding that whether the searches violated the right of privacy could not be determined on demurrer.

While the Court's decision was unanimous, and a reversal to boot, the decision may be something of a Pyrrhic victory for privacy advocates. That's because the four-Justice majority opinion (Justice Chin, joined by Justices Kennard, Baxter and Corrigan), adopted a policy of deference to non-governmental decision-makers in the area of privacy: "The state constitutional right of privacy does not grant courts a roving commission to second-guess security decisions at private entertainment events or to micromanage interactions between private parties. . . . Private entities that present entertainment events, like the 49ers’, necessarily retain primary responsibility for determining what security measures are appropriate to ensure the safety of their patrons, subject, when those security measures substantially infringe on a privacy interest, to judicial review for reasonableness." The three-Justice concurrence (Justice Werdegar, joined by the Chief Justice and Justice Moreno), chided the majority for reaching out to decide issuez that the case on demurrer did not present, while not deciding whether the pat-down searches constituted a serious invasion of a privacy interest.

One particularly noteworthy aspect of the opinion concerns its treatment of the right of "pursuaing and obtaining safety," which is found in Article I, Section 1's listing of "inalienable rights." The majority opinion mentions it obliquely, in the following passage: "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. " (Emphasis added). The concurrence attacked the majority's reliance on this right, which it described as "particularly unnecessary," in the following footnote: "Insofar as I am aware, we have never given an interpretive gloss to this portion of the state Constitution. I find it unusual that we would invoke this clause in this context, without any discussion of its provenance or of legislative or voter intent. I find it more unusual that we would invoke the right, in effect, on behalf of third parties (other attendees) not even involved in this suit, as the Sheehans are not raising their own right to pursue safety here. I find it most unusual that we would invoke the right as a justification for conduct by an entity that is not the holder of the right, and do so sua sponte, when even the entity itself has not done so; the 49ers nowhere mention the constitutional right to pursue safety in their brief."

The majority's reliance on the right to "pursue and obtain safety" seems obviously to lay down a marker for future use. Where will the right turn up next?