In a less exciting decision than I expected, the California Supreme Court ruled today in Sheehan v. San Francisco 49ers, Ltd. As Kent noted in posts on Friday and today, this decision was meant to address whether, as 2005 and 2006 season ticket holders of the San Francisco 49ers, the Sheehans had impliedly consented to the team's policy of conditioning admission to the stadium on submission to a pat-down search. The Sheehans implied consent allegedly arose from their knowledge of the pat-down policy when they bought 2006 season tickets. However, a majority of the California Supreme Court decided today that the record before them required additional fact-finding before the merits of this issue could be decided.
The California Supreme Court's decision to reverse the Court of Appeal's judgment in favor of the 49ers, and remand the case for additional fact-finding, is due to the procedural posture of the case. The Sheehans had filed a complaint against the 49ers alleging that pat-down searches implemented since 2005 violated their right to privacy under Article I, ยง1 of the California Constitution. The 49ers demurred to the complaint, alleging the Sheehan's complaint did not state a cause of action. The trial court sustained the demurrer, and a California Court of Appeal affirmed. The Court of Appeal concluded that the Sheehans had not demonstrated they had a reasonable expectation of privacy under the circumstances because "rather than submit to the pat-down the Sheehans had the choice of walking away, no questions asked."
While the California Supreme Court decision did not specifically overrule the Court of Appeal's holding, the majority opinion, authored by Justice Chin, reversed the Court of Appeal holding in favor of the 49ers. The decision requires the 49ers to justify their pat-down policy and demonstrate that that the allegations of the complaint fail to state a cause of action under any possible legal theory.
The California Supreme Court's decision to reverse the Court of Appeal's judgment in favor of the 49ers, and remand the case for additional fact-finding, is due to the procedural posture of the case. The Sheehans had filed a complaint against the 49ers alleging that pat-down searches implemented since 2005 violated their right to privacy under Article I, ยง1 of the California Constitution. The 49ers demurred to the complaint, alleging the Sheehan's complaint did not state a cause of action. The trial court sustained the demurrer, and a California Court of Appeal affirmed. The Court of Appeal concluded that the Sheehans had not demonstrated they had a reasonable expectation of privacy under the circumstances because "rather than submit to the pat-down the Sheehans had the choice of walking away, no questions asked."
While the California Supreme Court decision did not specifically overrule the Court of Appeal's holding, the majority opinion, authored by Justice Chin, reversed the Court of Appeal holding in favor of the 49ers. The decision requires the 49ers to justify their pat-down policy and demonstrate that that the allegations of the complaint fail to state a cause of action under any possible legal theory.
In Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 1 (1994), the California Supreme Court established three requirements for alleging a cause of action against a private entity for a violation of California's constitutional right to privacy. The decision held the alleging party must establish: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) a serious invasion of the privacy interest. A party who fails to establish these three elements risks that a trial court will not to hear the case on grounds that it fails to establish a significant intrusion on privacy. Where the failure of one element is apparent from the face of the complaint, a demurrer will be sustained.
The lower courts held the Sheehans' complaint had failed to allege a reasonable expectation of privacy upon entering the stadium. It was particularly relevant to the courts that the Sheehans could have consented to the pat-down policy by purchasing 2006 season tickets, when they had notice of the policy since 2005. In other words, the case was sucesptible to disposition on demurrer because the Sheehans had failed to allege a reasonable expectation of privacy upon entering a privately owned stadium.
On review, the California Supreme Court held that the 49ers could not prevail at the demurrer stage, where the only "facts" are the allegations of the complaint, which are assumed to be true for the purpose of the demurrer. "Reasonable" expectations of privacy must be determined in the context of competing social interests, and those are unknown at a stage where the defendant has not even filed an answer. "Hill does not stand for the proposition that a person who chooses to attend an entertainment event consents to any security measures the promoters may choose to impose no matter how intrusive or unnecessary." Therefore, in order to show that the Sheehan's expectation of privacy was not reasonable the 49ers need to establish their justification for the pat-down policy. Since the record did not establish reasons for implementing the policy, and really couldn't at the demurrer stage, the Court of Appeals decision could not stand. The California Supreme Court concluded, "[p]rivate 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."
Justice Werdegar, joined by Chief Justice George and Justice Moreno, concurred, finding that the 49ers had neither negated the existence of a reasonable expectation of privacy, nor pled any justification for the alleged invasion, sufficient to sustain a demurrer. However, the concurring opinions also noted that demurrer was inappropriate because the Sheehans had "not yet been afforded the opportunity Hill guarantees them to rebut any asserted or assumed justification [for the privacy invasion] by raising alternatives." The concurring Justices found it necessary to note that the majority's "passing reference" to the plaintiff's opportunity to rebut was "incomplete and misleading." The concurring Justices also believed that the majority should have addressed the merits of the plaintiff's claim that the pat-down was a serious invasion of a privacy interest.
Based on the questions presented, I had expected a meatier decision. I had wanted the Court to address the whether it was reasonable to expect that you would not be subject to a noninvasive pat-down upon entering a privately owned stadium to watch a game. It seems to me that since in-person attendance at a professional game is completely voluntary, there is nothing wrong with allowing a private owner to condition attendance on a noninvasive pat-down - especially if the game has a reputation of drawing rowdy crowds with a propensity to throw things at referees, players, or other fans. It seems like I remember several bar questions involving tort claims based on this very scenario... While Sheehan may not have been the case to address this issue, at least not at this stage, it may arise again in the future. Until then, Sheehan does give a good background on what is required to sustain a demurrer.
The lower courts held the Sheehans' complaint had failed to allege a reasonable expectation of privacy upon entering the stadium. It was particularly relevant to the courts that the Sheehans could have consented to the pat-down policy by purchasing 2006 season tickets, when they had notice of the policy since 2005. In other words, the case was sucesptible to disposition on demurrer because the Sheehans had failed to allege a reasonable expectation of privacy upon entering a privately owned stadium.
On review, the California Supreme Court held that the 49ers could not prevail at the demurrer stage, where the only "facts" are the allegations of the complaint, which are assumed to be true for the purpose of the demurrer. "Reasonable" expectations of privacy must be determined in the context of competing social interests, and those are unknown at a stage where the defendant has not even filed an answer. "Hill does not stand for the proposition that a person who chooses to attend an entertainment event consents to any security measures the promoters may choose to impose no matter how intrusive or unnecessary." Therefore, in order to show that the Sheehan's expectation of privacy was not reasonable the 49ers need to establish their justification for the pat-down policy. Since the record did not establish reasons for implementing the policy, and really couldn't at the demurrer stage, the Court of Appeals decision could not stand. The California Supreme Court concluded, "[p]rivate 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."
Justice Werdegar, joined by Chief Justice George and Justice Moreno, concurred, finding that the 49ers had neither negated the existence of a reasonable expectation of privacy, nor pled any justification for the alleged invasion, sufficient to sustain a demurrer. However, the concurring opinions also noted that demurrer was inappropriate because the Sheehans had "not yet been afforded the opportunity Hill guarantees them to rebut any asserted or assumed justification [for the privacy invasion] by raising alternatives." The concurring Justices found it necessary to note that the majority's "passing reference" to the plaintiff's opportunity to rebut was "incomplete and misleading." The concurring Justices also believed that the majority should have addressed the merits of the plaintiff's claim that the pat-down was a serious invasion of a privacy interest.
Based on the questions presented, I had expected a meatier decision. I had wanted the Court to address the whether it was reasonable to expect that you would not be subject to a noninvasive pat-down upon entering a privately owned stadium to watch a game. It seems to me that since in-person attendance at a professional game is completely voluntary, there is nothing wrong with allowing a private owner to condition attendance on a noninvasive pat-down - especially if the game has a reputation of drawing rowdy crowds with a propensity to throw things at referees, players, or other fans. It seems like I remember several bar questions involving tort claims based on this very scenario... While Sheehan may not have been the case to address this issue, at least not at this stage, it may arise again in the future. Until then, Sheehan does give a good background on what is required to sustain a demurrer.
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