# Question about police presence at 49ers football games **URL:** \ **Category:** Factual Questions\ **Created:** [September 5, 2016, 10:28pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138 "2016-09-05T22:28:16Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [September 6, 2016, 2:09pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/21 "2016-09-06T14:09:49Z")
> [@Little\_Nemo](#): > > Kaepernik’s right to speak freely at his workplace is an issue between him and his employer. If the 49ers prohibited him from sitting during the national anthem while he’s working for them, they would be within their rights. > > But it’s a different issue when the government gets involved. The First Amendment is a limitation on government action. Police officers are representatives of the government. Absolutely correct. Unless there is something contractual that allows him to make political statements on the field the team could take action. There isn’t. As I have shown (and I know there are many other examples) individual teams and the NFL have fined players for making verbal or social media statements and for doing the same on their uniforms. > [@Little\_Nemo](#): > > So police officers are prohibited from using their authority to put pressure on the 49ers or on Colin Kaepernik to stand during the national anthem. That would be government interference with free speech. > > And the same would be true if some player started wearing a swastika armband during games. If his team was okay with it, then the police couldn’t tell him to remove it. Also true. But individual officers saying they would not sign up for a voluntary off duty job is not the same as police using their official authority to put pressure on anyone. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [September 6, 2016, 2:14pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/22 "2016-09-06T14:14:21Z")
> [@John\_Mace](#): > > It would be an interesting test case-- can employers compel patriotic acts. Could an employer forbid employees to have political bumper stickers on their cars-- that is, not cars with political bumper sticker allowed in the parking lot? > > But employers don’t have unlimited authority in this arena, as there are religious discrimination concerns that could arise (statutory, not constitutional). This probably doesn’t apply to CK, but some folks could claim a religious exemption to standing during the anthem. This [article](http://www.npr.org/templates/story/story.php?storyId=123024596) explores many of those issues. Of course when you are talking about the NFL you also have to take into account the league’s collective bargaining agreement and individual contracts. When it comes to personal conduct history has shown that the NFL has a lot of leeway and has often been pretty draconian. ---
**Author:** ![Backwater\_Under\_Duck](https://avatars.discourse-cdn.com/v4/letter/b/ba8739/32.png) [@Backwater\_Under\_Duck](https://boards.straightdope.com/u/Backwater_Under_Duck)\ **Post date:** [September 7, 2016, 12:08am UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/23 "2016-09-07T00:08:38Z")
> [@John\_Mace](#): > > [Here you go:](https://www.law.cornell.edu/uscode/text/36/301) > Quote: > 36 U.S. Code § 301 - National anthem > > (a)Designation.— > The composition consisting of the words and music known as the Star-Spangled Banner is the national anthem. > (b)Conduct During Playing.—During a rendition of the national anthem— > (1) when the flag is displayed— > (A) individuals in uniform should give the military salute at the first note of the anthem and maintain that position until the last note; > (B) members of the Armed Forces and veterans who are present but not in uniform may render the military salute in the manner provided for individuals in uniform; and > (C) all other persons present should face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart; and > (2) when the flag is not displayed, all present should face toward the music and act in the same manner they would if the flag were displayed. Except for the statement that the national anthem is, in fact, the national anthem,there are an awful lot of _should_s in there without a single _shall_, much less any mention of legal consequences. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 7, 2016, 12:30am UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/24 "2016-09-07T00:30:54Z")
> [@Loach](#): > > Also true. But individual officers saying they would not sign up for a voluntary off duty job is not the same as police using their official authority to put pressure on anyone. I agree that officers should be able to choose to not volunteer for whatever reason. But the OP didn’t make it clear that this was a voluntary assignment. It seemed to be saying that providing security coverage at games was a normal duty assignment. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 7, 2016, 1:08am UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/25 "2016-09-07T01:08:30Z")
> [@Little\_Nemo](#): > > I agree that officers should be able to choose to not volunteer for whatever reason. But the OP didn’t make it clear that this was a voluntary assignment. It seemed to be saying that providing security coverage at games was a normal duty assignment. I don’t see how you got that for the OP. He was quite clear that he thought it was a moonlighting job, but was asking the rest of us to make sure. At any rate, it is voluntary, and not a part of their job duties. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [September 7, 2016, 1:57am UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/26 "2016-09-07T01:57:57Z")
To answer the broader questions about First Amendment rights on the job: There is no violation of the First Amendment when there is no state action. So if the NFL is private and they aren’t using the police to enforce discriminatory rules, then there is no _constitutional_ limit on ways that they limit their employees’ speech. Of course, there may be other limits, including as a result of their collective bargaining agreements, or as a matter of statutory law (which protect some speech acts from discipline, such as whistleblower protections). If the employer is a state actor, then the next question is whether the employee’s act of expressive conduct is taken pursuant to professional duties or not. If it’s “on the job” then it is not protected by the First Amendment. If you drive around in your police car while on duty yelling about how Laotians ruined this country, you can be fired. Naturally, lots of stuff falls into gray areas on that one. Is a cop’s visible tattoo on-the-job speech or private speech? What about a YouTube video filmed at home but in uniform? And on and on. Finally, the question for state employees who engage in expressive conduct off-duty is whether it sufficiently impacts their work as a state employee. Different circuits have different tests for this, and there is no settled Supreme Court precedent on where police departments must draw the line. Moonlighting cops are an awkward category for several reasons. One is that the off-duty actions by police officers has been held, at times, to impact their job performance and can therefore be regulated. Additionally, in some moonlighting roles, they are performing traditional state functions, and can be held to be acting as state actors. There’s probably never a constitutional problem with refusing to work any given job–but the law teaches us to never say never. If a cop who moonlights as a security guard refused to work any events in which French people are present, this would start to look like the sort of conduct that could get them in trouble (depending on the Circuit law). I doubt that refusing to work an event because you disagree with the message of some of the participants could ever rise to that level. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [September 7, 2016, 2:17am UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/27 "2016-09-07T02:17:34Z")
I did a little more searching, and found [this](http://www.ninersnation.com/2016/9/4/12791352/police-security-49ers-games-colin-kaepernick-protest) article on a site called ninersnation. The relevant information: > [@](#): > > _There has been some confusion over the role of police in stadium security, and specifically whether they are volunteering independent of their on-the-clock work as police officers. It is fairly common among stadium leases that while officers are usually volunteering for these shifts, they are viewed as part of policing duties. The games are looked at as special city events, and police officers are able to sign up for the extra shifts created by the events. They remain technically on the clock as they would for any other such events. **Additionally, if not enough officers are signed up to cover stadium security, they can be assigned by a superior.** _ It’s probably too much to hope that we will learn any time soon how often assigning officers to cover the games has typically been necessary. Also, while it appears the officers who sign up for the extra duty are paid at their overtime rate, it’s not clear whether officers who need to be assigned are working an overtime shift (although it seems likely that they are, since it would not be very good for the community to be served by a reduced complement of officers while game day activities are taking place). ---
**Author:** ![ManassasReader](https://avatars.discourse-cdn.com/v4/letter/m/c68b51/32.png) [@ManassasReader](https://boards.straightdope.com/u/ManassasReader)\ **Post date:** [September 7, 2016, 11:29am UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/28 "2016-09-07T11:29:13Z")
> [@Little\_Nemo](#): > > My understanding is that stadium security consists of a mixture of police officers and private security people (some of whom are off-duty police officers). > > As for the letter, I have my suspicions. Police officers are expected to do their jobs in a wide variety of circumstances. They’re expected to work at political protests where people might be burning flags and not just refusing to stand up during the national anthem. > > And police officers are government employees. **Saying they’ll refuse to work because somebody is exercising what is a constitutional right could cost them their jobs.** Not if it’s an off-duty status job. As a retired LEO I would suspect this is an off-duty job and if no one signs up to work there is not a thing command staff can do but assign on duty staff to work. If they refuse then it’s another story. ---
**Author:** ![garygnu](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/garygnu/32/2924_2.png) [@garygnu](https://boards.straightdope.com/u/garygnu)\ **Post date:** [September 7, 2016, 1:06pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/29 "2016-09-07T13:06:14Z")
> [@ManassasReader](#): > > Not if it’s an off-duty status job. As a retired LEO I would suspect this is an off-duty job and if no one signs up to work there is not a thing command staff can do but assign on duty staff to work. If they refuse then it’s another story. If police are working in uniform, that would be on-duty, wouldn’t it? ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [September 7, 2016, 1:23pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/30 "2016-09-07T13:23:27Z")
> [@garygnu](#): > > If police are working in uniform, that would be on-duty, wouldn’t it? No, you can’t assume that. There are differing rules in the various states (and I assume department by department) about whether you can wear your uniform while working for a private employer. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 7, 2016, 2:06pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/31 "2016-09-07T14:06:54Z")
> [@garygnu](#): > > If police are working in uniform, that would be on-duty, wouldn’t it? I can’t speak for California, but in Florida, police officers may work special detail (that is, moonlight as private security) in uniform with the permission of the department. In fact, officers are paid for special detail by their departments - the private hiring entity pays the department for X number of special detail officers and the department pays the officers in turn, with appropriate withholding. Technically, under the law of most states a law enforcement officer can be considered to be “on duty” at any given moment, since they are empowered (and often even obligated) to prevent or investigate crimes even when not technically on the clock. So they work as “security” but are in uniform because they might need to perform police duties at any moment - say, if they have to arrest someone after breaking up a fight in the stands. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [September 7, 2016, 3:49pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/32 "2016-09-07T15:49:16Z")
Does anyone who is saying that the officers are moonlighting actually know that that is the case specifically with this team/stadium or are they making assumptions based on what happens elsewhere? Because I’ve known cops who were actually assigned to Citifield and Yankee Stadium - it wasn’t a matter of moonlighting nor was it a matter of them volunteering for overtime shifts. That was their regular assignment on game days- I assume most of them had different assignments on other days. I’m sure that on the days with extra police presence many of them were on overtime shifts - but the fact that it’s overtime doesn’t in itself mean it’s voluntary. It’s entirely possible to mandate employees to work overtime. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 7, 2016, 3:56pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/33 "2016-09-07T15:56:33Z")
They are both. The union is saying that its members will refuse off-duty work at Candlestick, not that they won’t show up for regular work shifts there. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [September 7, 2016, 3:59pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/34 "2016-09-07T15:59:24Z")
I invite all posters from posts 28-31 to read (or re-read) the pull-quote from post 27. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [September 7, 2016, 4:06pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/35 "2016-09-07T16:06:20Z")
> [@Really\_Not\_All\_That\_Bright](#): > > They are both. The union is saying that its members will refuse off-duty work at Candlestick, not that they won’t show up for regular work shifts there. That’s a long ways from where the games are played. Some threat. 😉 ---
**Author:** ![Snnipe\_70E](https://avatars.discourse-cdn.com/v4/letter/s/b5a626/32.png) [@Snnipe\_70E](https://boards.straightdope.com/u/Snnipe_70E)\ **Post date:** [September 7, 2016, 4:32pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/36 "2016-09-07T16:32:05Z")
Part of the deal in building Levi in Santa Clara was that the stadium has to contract with the city of Santa Clara for security for any events. The Santa Clara PD sets the staffing levels at and around the stadium. The city bills Levi at a cost plus rate. The city administration keeps their share and pays the officers at the OT rate. Regular shifts times are not used. It has been all voluntary over time up to now. I do not know if Santa Clara PD can demand officers work OT. In most cities when an officer is working a side job in uniform they being paid directly by the city and the city is billing who they are working for. Most cities require this arrangement. If an officer in uniform dealing with a customer should get sued for his actions, the city could also be listed as an defendant. And if the officer is working off the clock in uniform then the city’s insurance would not cover the officer. But by contracting with the city for the officer then the insurance would cover both the city and the officer. ---
**Author:** ![Nelson\_Pike](https://avatars.discourse-cdn.com/v4/letter/n/c6cbf5/32.png) [@Nelson\_Pike](https://boards.straightdope.com/u/Nelson_Pike)\ **Post date:** [September 7, 2016, 5:13pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/37 "2016-09-07T17:13:38Z")
> [@kaylasdad99](#): > > To answer your second question (the parenthetical one), government employees are constrained to a certain extent by the Hatch Act. OK. > [@kaylasdad99](#): > > The first question is a little fuzzier. Mr. Kaepernik, provided he does not violate the terms of his contract with the 49ers, is free to engage in whatever behavior he wishes. I am not sure this is true. It definitely was not true in 2000 in the NBA, when a player’s off-court behavior was definitely league business. That year All Star Allen Iverson produced a rap album which included homophobic lyrics. NBA Commissioner David Stern compelled Iverson to edit the lyrics, and there was scarcely a peep from anyone, including Iverson and his lawyer, contesting Stern’s power to proscribe legal behavior not even indirectly related to league business. Maybe the 2016 NFL and the NFL Commissioner do not have such powers, or just decided not to open the season by prolonging a front-page political controversy. On the other hand, maybe they don’t have the guts Stern had. > [@kaylasdad99](#): > > That said, his freedom to do so does not rise to the level of constitutionally-enumerated right. I haven’t read his contract, but it would be surprising to find a clause in it that compels his participation in any political ritual. I do not think it would be surprising if professional sport teams, leagues and commissioners had broad contractual discretionary rights to take disciplinary action against players for any behavior considered embarrassing. > [@kaylasdad99](#): > > And if you want to get even fuzzier, there’s a good argument to be made that his political activity was limited to his announcement of his reason for declining to participate in the political ritual. The act itself was political with or without any announcement. Sitting during the Anthem is not as flamboyant as, say, flag-burning, but neither act requires an announcement to dispel any “fuzziness” as to political intent. > [@kaylasdad99](#): > > And THEN, the question arises as to whether he was “on the job” when he made that announcement. If your employer requires your attendance then you are unquestionably on the job. > [@kaylasdad99](#): > > The bit about swastika armbands? While I have my own reservations as to the good-faith spirit of your remark, What a weenie of a thing to say. For your information it is a fully legitimate debating tactic, employed with full legitimacy by me, to pose an extreme hypothetical in order to test a point of view. My use of that tactic has succeeded in exposing ambiguity in your point of view: > [@kaylasdad99](#): > > I’ll go ahead and say that should Mr. Kaepernik decide to wear one while suited up to take the field, the constitution would have nothing to say about any action the 49ers would take in response. Earlier you contended that Mr. K had a constitutional right to one form of political expression. Above you abruptly cancel that right in the case of another form of political expression. You need to explain the discrepancy by proving legal justification as you did by citing Hatch. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [September 7, 2016, 5:14pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/38 "2016-09-07T17:14:29Z")
Are the team going to change their name to the Santa Clara 49ers? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 7, 2016, 5:24pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/39 "2016-09-07T17:24:50Z")
> [@garygnu](#): > > If police are working in uniform, that would be on-duty, wouldn’t it? They might not be in uniform. I read that stadiums like to have police and security working “under cover” in the crowd as well as visibly in uniform. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [September 7, 2016, 5:36pm UTC](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138/40 "2016-09-07T17:36:50Z")
> [@Nelson\_Pike](#): > > Earlier you contended that Mr. K had a constitutional right to one form of political expression. Above you abruptly cancel that right in the case of another form of political expression. You need to explain the discrepancy by proving legal justification as you did by citing Hatch. I’m not convinced that I need to do anything of the sort. Perhaps you could persuade me by parsing where in my post I contended his constitutional right to one form of political expression, yet “abruptly cancel[led] that right in the case of another form of political expression.” For your convenience, I will reproduce the post here: > [@](#): > > To answer your second question (the parenthetical one), government employees are constrained to a certain extent by the Hatch Act. > > The first question is a little fuzzier. Mr. Kaepernik, provided he does not violate the terms of his contract with the 49ers, is free to engage in whatever behavior he wishes. That said, his freedom to do so does not rise to the level of constitutionally-enumerated right. I haven’t read his contract, but it would be surprising to find a clause in it that compels his participation in any political ritual. And if you want to get even fuzzier, there’s a good argument to be made that his political activity was limited to his announcement of his reason for declining to participate in the political ritual. And THEN, the question arises as to whether he was “on the job” when he made that announcement. > > The bit about swastika armbands? While I have my own reservations as to the good-faith spirit of your remark, I’ll go ahead and say that should Mr. Kaepernik decide to wear one while suited up to take the field, the constitution would have nothing to say about any action the 49ers would take in response. > > Uniformed police officers would be another matter. Please note that I DID say that the constitution would have nothing to say about any response the 49ers might take wrt swastika wearing. If I failed to make clear my understanding that the constitution would also not be implicated should they choose to attempt to sanction him under the terms of his contract about the “sitting down” events, please accept my apologies for the lack of skill in my writing. [Previous page](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138.md?page=1) [Next page](https://boards.straightdope.com/t/question-about-police-presence-at-49ers-football-games/765138.md?page=3)