This case has been around for a while. Daniel and Kathleen Sheehan of Danville filed this suit back in 2005 after the 49ers started patting down their patrons.
If you go to a pro football game, you're going to get patted down before you get into the stadium. It is a policy that lawyers for the American Civil Liberties Union say tramples our right to privacy.
"Neither the government nor a private business has the right to subject people to a full body pat-down as the price of going to a football game," said ACLU attorney Ann Brick.
Brick says her clients, long-time 49er fans, filed suit when the pat-downs started in 2005.
"They were offended. Why should they have to have somebody, a stranger, run his hands over their bodies in order for them to go to a football game," said Brick.
The 49ers' attorney says that's just NFL policy.
"We have certain security measures that we have in place to protect our fans. If somebody doesn't like those security measures, they don't have to go to the games. We don't force anybody to attend our games," said 49ers' attorney Sonya Winner.
Winner says it's a policy born from the attacks on 9/11, and a former FBI counter terrorist expert says it's a good policy.
"What we've forgotten is that we don't have Bin Laden yet and we still have a war on terror ongoing," said former FBI agent Terry Turchie.
But immediately after 9/11, all security was doing at the 49er games was looking in bags. The pat-downs didn't start until four years later. The lawyer for the 49ers says the team did inform its ticket holders when the policy went into effect.
"The plaintiffs in this case really wanted to go to the games and they bought tickets knowing that pat-downs were a condition of attending the games," said Winner.
So the team argues the ticket buyers gave their consent to the pat-downs by buying the tickets.
"So if the phone company sent out a notice to all of its customers and said you should be aware that from now on when you use your telephone we're going to be listening in," said Brick.
Brick told the high court businesses don't have a right to violate privacy rights simply by giving notice. And if anti-terrorism were truly the motive here, why is the NFL standing alone among all other professional sports?
"Not the National Basketball Association, not Major League Baseball, not the National Hockey League -- not one of them requires a pat-down of every one of their fans as a condition of attending the games," said Brick.
In Florida, there was a lawsuit on this same issue and the plaintiffs lost. But the ACLU says that case was based on federal privacy rights.
The Sheehans' case is based on the California Constitution, Article 1, Section 1, which guarantees the inalienable rights of defending life and liberty, acquiring, possessing and protecting property and pursuing and obtaining safety, happiness and privacy.
A decision by the state's high court is expected within 90 days.
