This week's question: I remember your column several months back about patdown searches at professional football games in California. Evidently, a suit was filed against the 49ers to stop that practice but the suit was thrown out of court. But then an appeal was filed. You said that you would try to follow up on that suit. I was wondering if there have been any developments.
/s/Hank H., Almaden Valley
Dear Hank: It looks like you are going to hold me to that promise to follow up on that case. Not a problem, since I have an interest in that issue too. In case some of our Almaden Times readers missed this story, after 9/11 the National Football League instituted a policy of requiring all people attending their football games to undergo a patdown search of their body on the way into the game. All teams are required to do this. Daniel and Kathleen Sheehan from Danville were season ticket holders to 49er games for many years and took offense to these patdown searches. (And personally, I don't blame them, being a Raiders fan and also searched at each home game.)
The Sheehans filed suit in San Francisco County Superior Court to stop the patdown searches by the "private security screeners". However, the trial court threw the suit out of court on a "demurrer", saying that the Sheehans didn't have a case. This order was affirmed in the intermediate Court of Appeal. The case then went to the California Supreme Court where it was fully briefed and argued.
The Court stated that the issues were as follows: (1) Did ticket holders of the San Francisco 49ers football team impliedly consent to the team's policy of conditioning admission to its stadium on submission to a patdown search when they purchased season tickets with knowledge of that policy? (2) If so, did that consent extinguish any reasonable expectation of privacy with respect to the searches as a matter of law, such that the trial court was not required to consider the justifications in support of the policy or balance plaintiffs' privacy interests against the team's countervailing interests?
It is important for our readers to understand the procedure that was involved in the trial court. After the suit was filed, the 49ers filed a "demurrer." This is in essence a motion in the trial court that says in effect that even if we assume everything in your suit is true, it does not state a "cause of action" or grounds for a suit. In other words, the defendant is saying that the suit must be thrown out of court before it goes any further, based on various reasons.
In this case, the trial court agreed with the 49ers and said the Sheehans had no grounds for a suit and the intermediate Court of Appeal agreed. However, after the case was argued and submitted in the California Supreme Court, the Court on March 2, 2009, announced its decision. It ruled that the Sheehans, plaintiffs in the suit, maybe-just maybe-had grounds for a suit but it was too early to tell. The Court ruled that: "...In this case, assuming the alleged facts to be true, we hold the record does not contain enough information to establish as a mater of law that the complaint fails to state a cause of action. Accordingly, this action is not susceptible to disposition on demurrer, ... and we remand the matter for further proceedings consistent with this opinion."
In short, the inadequacy of the record of the trial court because of the demurrer precluded a determination of whether patdown searches of football game attendees were reasonable. So, Hank, what this means is that the case now goes back to the trial court and the parties will typically engage in "discovery." I say "typically" because I am not part of that litigation and I do not have personal knowledge of what is going on, but I do have some idea as to what usually occurs.
"Discovery" usually involves several devices to learn and establish the key facts involved in the controversy. Written interrogatories are often sent from one side to the other, documents are produced that may be relevant, and depositions are taken of key witnesses. This often takes several months for "discovery" to be completed, and its purpose is to reduce the number of surprises and establish important facts later on at trial. After discovery is completed the matter may be set for trial.
Along the way, there is always (well, almost always) the chance that the case may settle. When might we hear further? It's impossible to say, but I for one will not be holding my breath until a decision is announced by the trial court. It could take quite a while, and in the meantime, presumably the patdown searches will continue.
Our Almaden Times readers can read the entire California Supreme Court case for themselves by going online and entering "California Supreme Court" in their favorite search engine. Then enter the case name Sheehan v. The San Francisco 49ers, Ltd. and the number of the case, S155742. By going to the Supreme Court website directly, you will bypass a flood of advertising. Also, a very nice feature of the Supreme Court web site is that you can sign up for automatic email notification of future developments in the case. I did just that and it has come in very handy. Of course, the website is supported by us taxpayers, so there is no fee and we might as well make use of it.
So, that's about it, Hank. And once again, I will try to keep you updated on this case as developments occur.
/s/Donald J. DeVries, Almaden Valley
Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.
