Assaults During Amateur Sporting Events in Colorado

Introduction – I have had several Colorado Sports Law cases involving assaults during sporting events. The law in this area is – unclear – to put it directly. The reason for this article is to assist in greater understanding in this area.

While many sports enthusiasts believe that the occasional injury from playing high school sports part of the experience – isn’t that the reason for the signed waivers acknowledging that sports can result in physical mishaps?

The question remains what happens when the injury that results is the result of a criminal act committed during a game?

Any legal discussion of crimes in sports begins with the concept of the illegitimate use of physical force or confrontation during the sports contest. Charges arise in all environments and at all levels: youth sports, recreational activities and leagues, amateur competition and in the professional ranks. Crimes can be committed by coaches, fans, parents, agents, referees, and others.

In tort law, a private party plaintiff may sue a defendant for an assault or battery while the same defendant might be charged by the government (i.e., the state) for criminal assault or criminal battery.

For each alleged act of criminal misconduct, the state must prove that an act occurred – known by the Latin phrase actus reus which violated a federal or state statute and that the defendant had the intent – the mind set -to commit such act. This is known by the Latin phrase “ mens rea.”

It is the district attorney’s office, not the private individual – that makes the determination as when to prosecute for criminal misconduct based upon the evidence in the case and, sometimes, the willingness and cooperation of the victim to press charges.

The question remains.. why will prosecutors pursue charges in some sport incidents and not others?

The crimes of assault and battery involve the unwelcome and excessive physical contact between two or more persons. Definitions of assault and battery differ among the states. (See Colorado’s state law below). Colorado’s Assault law tracks the Model Penal Code ( MPC)…which was drafted to assist state legislatures in defining what constitutes criminal misconduct and to standardize and create more uniformity throughout the country with regard to the criminal law.

Essentially, the MPC divides criminal assault into two categories: simple or aggravated….

1. A person commits the crime of assault in the first degree if:
   1. With intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon; or
   2. With intent to disfigure another person seriously and permanently, or to destroy, amputate, or disable permanently a member or organ of his body, he causes such an injury to any person; or
   3. Under circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to another person, and thereby causes serious bodily injury to any person; or
2. 1. If assault in the first degree is committed under circumstances where the act causing the injury is performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, and without an interval between the provocation and the injury sufficient for the voice of reason and humanity to be heard, it is a class 5 felony.

1. A person commits the crime of assault in the second degree if:
   1. With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon; or
   2. With intent to prevent one whom he or she knows, or should know, to be a peace officer or firefighter from performing a lawful duty, he or she intentionally causes bodily injury to any person; or
   3. He recklessly causes serious bodily injury to another person by means of a deadly weapon; or
   1. With intent to cause bodily injury to another person, he causes serious bodily injury to that person or another.
2. 1. If assault in the second degree is committed under circumstances where the act causing the injury is performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, and without an interval between the provocation and the injury sufficient for the voice of reason and humanity to be heard, it is a class 6 felony.

A person commits the crime of assault in the third degree if the person knowingly or recklessly causes bodily injury to another person or with criminal negligence the person causes bodily injury to another person by means of a deadly weapon. Assault in the third degree is a class 1 misdemeanor and is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3).

In sports such as boxing, football, hockey, wrestling, and others, aggressive physical contact is an expected part of the contest. Some courts recognize this as the implied consent doctrine: that is, participants voluntarily assume certain risks of injury or violence during a sport activity.

But at what point does aggressive participation cross over into an excessively violent actin which a possible crime occurred?

Is there a bright-line test in which participants, referees, coaches and spectators recognize that the type of violence which occurred is so far beyond the expected rules of the game that the participant could actually be charged with a crime such as assault or battery?

Acts of violence that take place on the playing field are treated in an entirely different manner. Assaults and batteries that would render an athlete subject to criminal prosecution were they to occur away from the playing field are considered “part of the game” when they happen during the course of a violent sport.

Typically, where such assaulting acts exceed certain perceived standards of appropriate play on the field, the worst result an athlete may expect is a league sanction in the form of a fine or brief suspension. Only in unusual, but not entirely rare, cases does the act of violence on the playing field subject the participant to a risk of criminal prosecution.

These cases typically involve a rather egregious act of violent assault that gains public notoriety and that so far transgresses the stated and unstated norms of the game to render the public prosecution relatively unproblematic.

The distinction between permissible and impermissible consent is difficult both to articulate and to discern in practice. So we look to how certain States have answered the question

Facts: Defendant and Victim were playing a non refereed game of basketball when Defendant’s face was cut by Victim. Defendant left the game briefly then returned to play. During the game, Defendant suddenly punched Victim in the face, breaking his jaw in three places and requiring emergency surgery.

Issue: Did the defendant have consent to punch the victim in the jaw, due to the fact that they were engaging in a sport?

Holding: No, Defendant did not have consent from victim, even while engaging in a sport. Defendant’s conduct was not expectable behavior for the game. There is a limit to consent in the magnitude and severity of a blow during game-play. The nature of the game, participants expectations, the location of the game, and the game’s rules must be taken into account to determine this limit. Consent was not a defense in this case because there is nothing in the game of basketball that would permit Defendant’s conduct.

In the Washington state case of State v. Shelley, a pickup basketball game turned into a brawl in which one player punched another in the face, breaking his jaw. In addition to the criminal charges, the court in the civil case utilized the Model Penal Code’s § 2.11 for guidance in determining whether or not such contact was reasonably foreseeable.

The court affirmed the lower court decision and held that a participant in such an activity did not impliedly consent to throwing or receiving punches during a pickup basketball game.

An Iowa case from 1990 considered the state’s assault statute that specifically excepted from its ambit the acts of any person who was a voluntary participant in a sport, social, or other activity, not in itself criminal, where the assaultive act was “a reasonably foreseeable incident of such sport or activity, and [did] not create an unreasonable risk of serious injury or breach of peace.”

The prosecution in that case arose out of a fight occurring in the midst of a basketball game. One of the players delivered a particularly hard foul and subsequent blow to the face of an opposing player. The perpetrator of this hard foul, ultimately the criminal defendant, was not ejected, although his teammate was. Later, another hard foul from a player on the opposing team led to a brawl that involved numerous players from both teams. The court had little trouble in concluding that the defendant’s conduct in participating in the brawl did not fall within the statutory exception, rejecting “defendant’s suggestion that he is protected from prosecution for acts committed by him while he is on a playing surface until the final buzzer, gun, whistle, goal, or out.”

Instead, the court held that the State’s statutory exception was aimed to protect a player who “commits acts during the course of play,” and acts in “furtherance of the object of the sport.”

Even assuming that the defendant and the other fighters were “participants” in a sport when they engaged in fisticuffs, the court held that the defendant’s acts were not a reasonably foreseeable part of the game of basketball. Basketball might include a reasonable amount of pushing, shoving, and the occasional elbow and slap. According to the court, however, it strained credibility to conclude that the brutal assault at issue in the case was reasonably foreseeable.

Further, even were the assault reasonably foreseeable, consent was not a valid defense because the defendant’s conduct created an unreasonable risk of serious injury or breach of the peace. The average, reasonable basketball player is unprotected and unprepared for fist fights. The court reasoned that the halt in play prior to the fistfight lent further weight to the conclusion that the fight was not an incident of basketball.

* Much of this article is derived from The Journal of Criminal Law & Criminology Vol. 99, No. 3 Northwestern University, School of Law – The Manly Sports: the Problematic Use of Criminal Law to Regulate Sports Violence – Jeffrey Stande.