Pat Down to Attend a Sports Event

The case raises the question of how much
privacy we are willing to offer up because
of the threat of terrorism. It is
logical to assume that attendance
at a major sporting event would make
an ideal target for a terrorist.

Is attending a sporting event on the same level as taking a plane trip where we agree to suspend our 4th Amendment rights?

OR is there even a Fourth Amendment violation? The search is not by the government or its agents. The Bill of Rights was intended to protect us from intrustions by the government.

January 6, 2009
California Supreme Court to Hear Arena Search Case
By JOHN SCHWARTZ

Daniel Sheehan did not want somebody patting him down.

Mr. Sheehan, a retired glazier, has held season tickets for the San Francisco 49ers since 1967. But when he and his family showed up at the stadium on a fall day in 2005, guards at the gate told him that all visitors had to go through a physical search. Though he had never objected to searches of bags, he said, the pat-down “just hit me wrong.”

When his 5-year-old grandson spread his arms for the search, he recalled, “I thought, wait a minute! We’re still living in the United States of America.”

On Tuesday the California Supreme Court will hear the case that Mr. Sheehan brought over the search policy, which was instituted in stadiums across the National Football League.

In court papers, a lawyer for the Sheehans, Mark A. White, said his clients found the searches “intrusive and offensive” and “consider them to be a serious invasion of their right to privacy.”

Greg Aiello, a spokesman for the N.F.L., said the search policy “evolved out of 9/11,” when the league began performing the searches before championship games. He said the London bombings in July 2005 “were the tipping point” for a nationwide policy.

Lisa Lang, a spokeswoman for the 49ers, called the searches “very reasonable and fair, considering our current environment.” Most fans, she added, “have been very cooperative, and understand the need for it.”

In the 49ers’ brief, the team’s lawyer, Sonya D. Winner, and her colleagues wrote that the Sheehans, like all ticket buyers, consented to be searched when they bought their tickets, and that they could avoid the search by taking their business elsewhere. “There is, of course, no constitutional right to attend a football game,” the team said.

The question has been brought to court before: in 2007, the United States Court of Appeals for the 11th Circuit also ruled that ticket buyers to Tampa Bay Buccaneers games had consented to their search.

In California, however, voters passed a constitutional initiative in 1972 that applies to both government and business invasions of privacy.

The Sheehans’ brief states that the protections in the privacy law “would disappear” if the team’s argument that people can take their business elsewhere prevails.

Their suit, filed in December 2005 with the help of the American Civil Liberties Union, was initially thrown out by a state judge because the 2005 season had ended by the date of the hearing.

The Sheehans filed a new complaint based on their purchase of 2006 season tickets, but the judge ruled that the Sheehans certainly knew of the pat-down policy by then, and “do not have a reasonable expectation of privacy.”

The fact that they bought the tickets, he said, showed that “the pat-downs are not sufficiently serious in their nature, scope and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.”

A California appellate court agreed with the lower court, and in a split decision stated that “by voluntarily ‘re-upping’ for the next season” instead of simply staying away, the Sheehans had “impliedly consented” to being searched.

Mr. Sheehan said he just wanted to see the games without being patted down — which he suggested might have more to do with people smuggling in beer than bombs. He said he found the link to domestic security and terrorism offensive.
“Don’t say that it’s for security reasons, 9/11,” he said. “Don’t use it as a crutch.”

Copyright The New York Times

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