Sheehan v. San Francisco 49ers, Ltd. , 45 Cal. 4th 992 ( 2009 )

Opinion

CHIN, J.

In 2005, the San Francisco 49ers, Ltd. (49ers), began implementing a policy of the National Football League (NFL) requiring all patrons at their football games to submit to a patdown search before entering the stadium. Plaintiffs claim the policy violates their state constitutional right to privacy. (Cal. Const., art. I, § 1.) The case has come to us after the superior court sustained a demurrer and dismissed the action. On appeal after the superior court has sustained a demurrer, we assume as true all facts alleged in the complaint. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6 [40 Cal.Rptr.3d 205, 129 P.3d 394].) In this case, assuming the alleged facts to be true, we hold the record does not contain enough information to establish as a matter of law that the complaint fails to state a cause of action. Accordingly, this action is not susceptible to disposition on demurrer. We reverse the Court of Appeal’s judgment and remand the matter for further proceedings consistent with this opinion.

I. Procedural History

In December 2005, plaintiffs Daniel and Kathleen Sheehan filed a complaint for injunctive and declaratory relief against the 49ers. It alleged the following:

Plaintiffs are longtime 49ers season ticket holders. Beginning in the fall of 2005, the 49ers instituted a patdown inspection of all ticket holders attending the 49ers’ home games. Plaintiffs and all other ticket holders “were subjected to a pat-down search by ‘Event Staff’ screeners before they were allowed to enter the stadium. On each such occasion, after being herded through barricades, [plaintiffs] were forced to stand rigid, with arms spread wide. The 49ers’ screeners then ran their hands around the [plaintiffs’] backs and down the sides of their bodies and their legs. Members of the San Francisco Police Department stood a few feet away from the screeners and observed the pat-down searches taking place.” The 49ers implemented their patdown policy pursuant to a policy the NFL promulgated in August 2005, by which “stadium screeners are supposed to conduct physical searches by ‘touching, patting, or lightly rubbing’ all ticket holders entering every NFL stadium for each NFL game [that] year.” Plaintiffs “object to being forced to undergo these suspicionless searches as a condition of retaining their season tickets.”

The complaint alleged that the patdown searches violated plaintiffs’ state constitutional right to privacy. (Cal. Const., art. I, § 1.) It sought a declaration that the searches were unconstitutional and an injunction prohibiting any further such searches.

The 49ers demurred to the complaint, arguing that it did not state a cause of action. At the hearing, the trial court questioned whether the relief sought was ripe because the 49ers’ 2005 season was over. Plaintiffs stated they had bought 49ers 2006 season tickets and subsequently, in March 2006, amended their complaint to include this fact. The amended complaint also alleged that plaintiffs believed the 49ers intended to continue conducting patdown searches of all persons entering or reentering the stadium during the next season. Both parties stipulated that the demurrer would apply to the amended complaint. Ultimately, the trial court sustained the demurrer without leave to amend and dismissed the action with prejudice. Plaintiffs appealed.

The Court of Appeal affirmed. It “concludefd] that the Sheehans cannot demonstrate that they had a reasonable expectation of privacy under the circumstances . . . .” It explained that “rather than submit to the patdown the Sheehans had the choice of walking away, no questions asked.” Justice Rivera dissented. She “disagree[d] that the purchase of future tickets with knowledge of the search policy—or acquiescence in a patdown search to gain entry to the 49ers’ games—supports a conclusion as a matter of law that the Sheehans have relinquished their reasonable expectation to be free from unjustified, intrusive searches.” She would have reversed the judgment and remanded the matter for further factual development.

We granted plaintiffs’ petition for review, which raised the question whether the Court of Appeal properly found they validly consented to the search policy.

II. Discussion

California Constitution, article I, section 1, provides, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Italics added.) The phrase “and privacy” was added to the Constitution by a voter initiative adopted in 1972. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 15 [26 Cal.Rptr.2d 834, 865 P.2d 633] (Hill) [the “Privacy Initiative”].)

In this case, plaintiffs allege that the 49ers’ patdown policy violates their state constitutional right to privacy. The case comes before us after the superior court dismissed the case on demurrer. This means that the 49ers have not yet even filed an answer, given any explanation or justification for the alleged search policy, or asserted any defenses. The only record we have, and all we have to go by in deciding this case, is the complaint. In this procedural posture, we must assume that all of the facts alleged in the complaint are true. (Evans v. City of Berkeley, supra, 38 Cal.4th at p. 6.) Moreover, we may affirm the sustaining of a demurrer only if the complaint fails to state a cause of action under any possible legal theory. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810 [27 Cal.Rptr.3d 661, 110 P.3d 914].) The Court of Appeal held that plaintiffs validly consented to the search policy. It may ultimately be right, but the meager record before us does not establish valid consent as a matter of law. In particular, the 49ers have not demonstrated that the allegations of the complaint fail to state a cause of action under any possible legal theory. Further factual development is necessary.

In Hill, supra, 7 Cal.4th 1, a case involving a challenge to the student-athlete drug testing policies of the National Collegiate Athletic Association (NCAA), we considered the showing a person must make to state a violation of California’s constitutional right to privacy. That decision made clear that “the right of privacy protects the individual’s reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370 [53 Cal.Rptr.3d 513, 150 P.3d 198], citing Hill, supra, at pp. 36-37.) As we recently summarized Hill’s holding, “The party claiming a violation of the constitutional right of privacy established in article I, section 1 of the California Constitution 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.” (International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 338 [64 Cal.Rptr.3d 693, 165 P.3d 488], citing Hill, supra, at pp. 39-40.) “A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.” (Hill, supra, at p. 40.)

Hill further explained that, “[confronted with a defense based on countervailing interests, the plaintiff may undertake the burden of demonstrating the availability and use of protective measures, safeguards, and alternatives to the defendant’s conduct that would minimize the intrusion on privacy interests.” (Hill, supra, 7 Cal.4th at p. 38.) Moreover, “[t]he particular context, i.e., the specific kind of privacy interest involved and the nature and seriousness of the invasion and any countervailing interests, remains the critical factor in the analysis.” (Id. at p. 34.)

Subsequent opinions have explained that “the three ‘elements’ set forth in Hill properly must be viewed simply as ‘threshold elements’ that may be utilized to screen out claims that do not involve a significant intrusion on a privacy interest protected by the state constitutional privacy provision. These elements do not eliminate the necessity for weighing and balancing the justification for the conduct in question against the intrusion on privacy resulting from the conduct in any case that raises a genuine, nontrivial invasion of a protected privacy interest. ... Hill was the first case in which our court addressed the question whether the state constitutional privacy clause applies to private as well as to governmental entities. Having concluded that the privacy clause applies to private entities and also that the legal concept of ‘privacy’ potentially has a very broad sweep, the court in Hill determined that it was appropriate to articulate several threshold elements that may permit courts to weed out claims that involve so insignificant or de minimis an intrusion on a constitutionally protected privacy interest as not even to require an explanation or justification by the defendant. Hill cannot properly be read, however, to have adopted a sweeping new rule under which a challenge to conduct that significantly affects a privacy interest protected by the state Constitution may be rejected without any consideration of either the legitimacy or strength of the defendant’s justification for the conduct.” (Loder v. City of Glendale (1997) 14 Cal.4th 846, 893-894 [59 Cal.Rptr.2d 696, 927 P.2d 1200] (lead opn. of George, C. J.), fn. omitted, quoted in American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 331 [66 Cal.Rptr.2d 210, 940 P.2d 797] (plur. opn. of George, C. J.).)

Hill provides the “analytical framework” for assessing plaintiffs’ claim. (Pioneer Electronics (USA), Inc. v. Superior Court, supra, 40 Cal.4th at p. 370.) We have applied the Hill analysis in various factual contexts since it was decided, but this is the first time we have done so regarding security measures adopted at a private entertainment venue.

The first element plaintiffs must establish is a legally protected privacy interest. Hill explained that such “interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’).” (Hill, supra, 7 Cal.4th at p. 35.) We described the first of these classes, informational privacy, as the “principal focus” or “core value” of the constitutional privacy right. (Id. at pp. 21, 35.) That interest is not implicated here. Plaintiffs allege the 49ers were conducting patdown searches, not collecting personal information. The second class of privacy interests, autonomy privacy, is implicated. People certainly have, in general, a right not to have others pat them down. At this stage, plaintiffs have sufficiently alleged this element. Similarly, because the issue is not within the scope of review, we may assume for present purposes that plaintiffs have sufficiently alleged the third element, a serious invasion of the privacy interest.

The issue here involves the second element, the one the courts below found lacking. Plaintiffs must establish a reasonable expectation of privacy under the circumstances. “A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” (Hill, supra, 7 Cal.4th at p. 37.) “[C]ustoms, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy.” (Id. at p. 36.) “A plaintiff’s expectation of privacy in a specific context must be objectively reasonable under the circumstances, especially in light of the competing social interests involved.” (Id. at pp. 26-27.)

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. Those who provide private entertainment venues, including the 49ers at NFL football games, have a substantial interest in protecting the safety of their patrons. But when the security measures substantially threaten a privacy right, courts review the policy for reasonableness under the circumstances. Here, we cannot do so because the record does not establish the circumstances of, or the reasons for, the patdown policy. The 49ers have not yet given any justification for its policy.

We have explained that, in order to establish a reasonable expectation of privacy, the plaintiff “must have conducted himself or herself in a manner consistent with an actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the invasive actions of defendant. If voluntary consent is present, a defendant’s conduct will rarely be deemed ‘highly offensive to a reasonable person’ so as to justify tort liability.” (Hill, supra, 7 Cal.4th at p. 26.) But the validity of the consent theory depends on the totality of the circumstances, which this record does not establish. For example, in McMorris v. Alioto (9th Cir. 1978) 567 F.2d 897, where the court upheld the use of courthouse magnetometers on a consent theory, the issue arose on summary judgment after factual development, not on demurrer with no factual development.

The Eleventh Circuit Court of Appeals recently upheld on a consent theory an NFL patdown search policy that is similar to but slightly different from the one alleged here. (Johnston v. Tampa Sports Authority (11th Cir. 2008) 530 F.3d 1320.) Johnston did not consider California’s constitutional privacy right, but it involved the Tampa Sports Authority, a public entity. (Id. at p. 1322.) The search at issue was performed by state agents, and thus the restrictions of the Fourth Amendment to the United States Constitution applied. (Johnston, supra, at pp. 1325-1326.) Hill held that the California privacy right applies against private entities, but it also stated that “[t]he ‘privacy’ protected by the Privacy Initiative is no broader in the area of search and seizure than the ‘privacy’ protected by the Fourth Amendment. . . .” (Hill, supra, 7 Cal.4th at p. 30, fn. 9.) However, Johnston reached its conclusion on a full factual record, a record lacking here. The search policy described in Johnston is also different from the one alleged here. In Johnston, the search encompassed only “limited above-the-waist pat-down searches” (Johnston, supra, at p. 1323); here, plaintiffs allege that the screeners “ran their hands around the [plaintiffs’] backs and down the sides of their bodies and their legs.”

Moreover, although consent is an important factor in determining whether California’s constitutional privacy right is being infringed, 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. Hill concluded that, “[although diminished by the athletic setting and the exercise of informed consent, plaintiffs’ privacy interests are not thereby rendered de minimis.” (Hill, supra, 7 Cal.4th at p. 43.) We held that the “NCAA’s use of a particularly intrusive monitored urination procedure justifies further inquiry, even under conditions of decreased expectations of privacy.” (Ibid.) Thus, a person can be deemed to consent only to intrusions that are reasonable under the circumstances.

One relevant circumstance for the court to consider in determining the search policy’s reasonableness is that the NFL and the 49ers are private entities. Although we held in Hill that the state constitutional right of privacy “creates a right of action against private as well as government entities” (Hill, supra, 7 Cal.4th at p. 20), we also explained that “[judicial assessment of the relative strength and importance of privacy norms and countervailing interests may differ in cases of private, as opposed to government, action” (id. at p. 38). Two reasons for the difference might apply here. “First, the pervasive presence of coercive government power in basic areas of human life typically poses greater dangers to the freedoms of the citizenry than actions by private persons.” (Ibid.) “Second, ‘an individual generally has greater choice and alternatives in dealing with private actors than when dealing with the government.’ [Citation.] Initially, individuals usually have a range of choice among landlords, employers, vendors and others with whom they deal..... [V]arying degrees of competition in the marketplace may broaden or narrow the range.” (Id. at pp. 38-39.)

We further explained that “[t]hese generalized differences between public and private action may affect privacy rights differently in different contexts. If, for example, a plaintiff claiming a violation of the state constitutional right to privacy was able to choose freely among competing public or private entities in obtaining access to some opportunity, commodity, or service, his or her privacy interest may weigh less in the balance. In contrast, if a public or private entity controls access to a vitally necessary item, it may have a correspondingly greater impact on the privacy rights of those with whom it deals.” (Hill, supra, 7 Cal.4th at p. 39.)

Another factor to consider is the existence of less restrictive alternatives. (Hill, supra, 1 Cal.4th at p. 38.) But to establish the reasonableness of their policy, the 49ers do not have to show that they have adopted the least restrictive alternative. In Hill, we explained that “the trial court erred in imposing on the NCAA the burden of establishing that there were no less intrusive means of accomplishing its legitimate objectives. . . . [T]he argument that such a ‘least restrictive alternative’ burden must invariably be imposed on defendants in privacy cases derives from decisions that: (1) involve clear invasions of central, autonomy-based privacy rights, particularly in the areas of free expression and association, procreation, or government-provided benefits in areas of basic human need; or (2) are directed against the invasive conduct of government agencies rather than private, voluntary organizations.” (Id. at p. 49.) Neither of these situations applies here. “We have been directed to no case imposing on a private organization, acting in a situation involving decreased expectations of privacy, the burden of justifying its conduct as the ‘least offensive alternative’ possible under the circumstances. Nothing in the language [or] history of the Privacy Initiative justifies the imposition of such a burden; we decline to impose it.” (Id. at p. 50; see also id. at pp. 49-50, fn. 16.)

Accordingly, in reviewing a private entertainment venue’s security arrangements that implicate the state constitutional right of privacy, the court does not decide whether every measure is necessary, merely whether the policy is reasonable. 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. (Cf. Michigan Dept, of State Police v. Sitz (1990) 496 U.S. 444, 453 [110 L.Ed.2d 412, 110 S.Ct. 2481] [certain language from an earlier case “was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger”].) 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.

In this case, given the absence of an adequate factual record, we conclude that further inquiry is necessary to determine whether the challenged policy is reasonable in light of the factors we have discussed. Plaintiffs are entitled to proceed with their case.

III. Conclusion

We reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with this opinion.

Kennard, J., Baxter, J., and Corrigan, J., concurred.