By Carla Varriale of Havkins Rosenfeld Ritzert & Varriale
The ejection of two brothers. along with another spectator who interceded on their behalf, from LEVI’S® STADIUM (the “Stadium”) during a New York Giants-San Francisco 49ers football game is now the subject of a lawsuit against the City of Santa Clara and the individual officers involved in the ejection, among others. A lawsuit arising out of an ejection from a sports facility may not be unusual, but the description of the ejection from the Stadium and its aftermath is extreme. The case provides an opportunity to examine potential constitutional and state law claims (including an interesting twist on the right to “take a knee” in order to protest police brutality). It also provides a few “teachable moments” for venue owners, operators, and managers, for the reasons discussed below.
Plaintiffs’ Complaint
This action is pending in the United States District Court for the Northern District of California. Plaintiffs assert seven causes of action pursuant to the United States Constitution, the Constitution of California and California state law. Plaintiffs’ causes of action include claims for First Amendment retaliation pursuant to 42 U.S.C. Section 1983, false arrest pursuant to 42 U.S.C. Section 1983, excessive force pursuant to 42 Section 1983, violation of California Civil Code Section 52.1[1], battery, false arrest without a warrant, and negligent infliction of emotional distress. Plaintiffs seek damages, including punitive damages and attorneys’ fees.
A responsive pleading or motion or motion to dismiss has not been filed as of the date of this article. However, the court’s docket contains a scheduling order that includes deadlines for the parties to participate in Alternative Dispute Resolution.
Plaintiffs’ Ejection From The Stadium
Plaintiffs’ allegations regarding their respective ejections from the Stadium are stunning. They claim that prior to their ejections, they sat in the rows closest to the playing field, however, during the second half of the football game, the Flynn brothers (two of the three plaintiffs) began cursing at and “flipping off” the players on the field. An officer from the Santa Clara Police Department interceded and asked them to stop and to sit down. The brothers claimed they complied with the request and that they were not apprised that they were subject to ejection or arrest at any time relevant to their Complaint. Later in the game, they engaged in the same behavior and the responding officer decided to eject them from the Stadium. The brothers claim in their Complaint that no spectators sitting around them made complaints about their behavior or language, nor did players or staff. The brothers also allege that it “…is not a crime to stand up, flip off the players on the field (i.e., “flip the bird” or extend one’s middle finger outward), and yell “You fucking suck.” Therefore, the brothers claim that defendants did not have a reasonable suspicion to believe plaintiffs were engaged in or about to be engaged in activity related to a crime and that defendants did not have probable cause to arrest plaintiffs for committing a crime.
However, the brothers’ ejection from the Stadium quickly went awry: one of the brothers was pulled out of his seat by Special Event Officers and allegedly placed in a chokehold and he was taken to a temporary holding facility located underneath the Stadium. He was then placed in a control hold known as a “WRAP” that is utilized to subdue combative prisoners. His face was also “wrapped” when he was apprehended. He was left in this restraint for at least 30-40 minutes. He was ultimately charged with a misdemeanor count of violating Penal Code 148 (a) (1).[2]
After watching his brother get ejected, the other Flynn brother protested the officers’ purported brutality by shouting at them, pointing at them, and then “taking a knee” in the aisle to protest. He also placed his arm over the top of the railing that separates the spectators from the playing field. He claims he was choked and had his hand struck by a baton. At that point, another spectator (co-plaintiff Lauren Alcarez) interceded and grabbed the baton, she was stuck in the chest. She was also restrained and then also transported to the temporary holding facility. While the officers handcuffed Ms. Alcarez, the other plaintiff was pushed onto the field and onto the playing field, 10 feet below. While he was lying on the field a Conducted Electrical Weapon commonly known as a “Taser” was used to subdue him. He was also handcuffed and taken to a temporary holding facility located underneath the Stadium. The Complaint alleges that he was imprisoned until Nov. 13, 2018[3] when he secured his release by posting bail. Much of the altercation was captured by other spectators and uploaded to YouTube and shared on other sites.
The Legal And Management/Operational Issues Presented: “Teachable Moments”
At this early stage of the litigation, it is not clear how all of the causes of action set forth in plaintiffs’ Complaint will be resolved, or whether they will be resolved by a court or a jury. The potential legal issues require discovery, depositions, and most likely, expert testimony on the security and use of force issues. Discovery and depositions will probably focus on who was responsible for security at the Stadium, the communication with plaintiffs, the Stadium’s comprehensive “Code of Conduct” addressing spectator behavior, the adequacy of training of the Stadium staff, the level of supervision at the Stadium, and the purported need for the sort of force used to subdue plaintiffs.
Initially, in order to analyze the legal issues presented by the Complaint, the court will need to analyze if the case involves state action and, therefore, triggers the need for constitutional analysis of plaintiffs’ claims. According to the Complaint, the Stadium is publicly owned by the City of Santa Clara and it is leased through a subsidiary known as the stadium management company. Within the Stadium on any given game day, there are police officers, private security officers, and civilian ushers who are responsible for the actions, omissions, policies, procedures, practices and customs of its various agents and entities, including the Santa Clara Police Department acting in the scope of its authority under the direction, and supervision and permission and consent of the defendants. Plaintiffs further allege that all police officers go through a training that includes education regarding the Stadium’s “Code of Conduct.” This is likely to support a finding of state action and could trigger a potential award of punitive damages and attorneys’ fees. If plaintiffs’ constitutional and civil rights were violated. Likewise the question of whether California’s Bane Act will apply to the fact so this case is noteworthy, particularly because it could allow for the recovery of punitive damages and attorneys’ fees if plaintiffs are successful.
The Court must address plaintiffs’ alleged deprivation of civil rights. In their Complaint, plaintiffs described the alleged actions as conscience-shocking, reckless and malicious. Plaintiffs further allege that excessive force was used (plaintiffs attributed this to a lack of training by the individuals that used force to subdue or to eject them), Plaintiffs allege that defendants’ actions were contrary to generally accepted reasonable police procedures and tactics. Plaintiffs also assert a tort claim for negligent infliction of emotional distress against all defendants and contend that defendants knew, or should have known, that arresting plaintiffs with excessive force would cause plaintiffs severe emotional distress.
The Court must also analyze a novel constitutional issue: the Complaint alleges that plaintiffs’ right to “take a knee” as well as their comments and gestures directed towards the players, were protected by the First Amendment. Plaintiffs further claim that retaliation motivated defendants’ conduct and that this, too, deprived them of their constitutional rights. While there has been a lot of media interest regarding the rights of professional athletes to protest police brutality and the infringement of civil rights by “taking a knee” this case focuses on the rights of spectators at professional sporting events to protest police brutality has been less scrutinized.[4] Moreover, this case may be unique because California’s state constitution has an expansive view of freedom of speech, more so than the federal constitution, and it declares the right of every person to speak freely “his or her sentiments on all subjects.”
This case presents a “teachable moment” for stadium owners, operators, and managers to review the communications about conduct with patrons and use of force and whether reasonable under the circumstances. The need for adequate training (and the ability to document the same) of event staff will likely be a focus of this case. This case also highlights the need for a sufficient spectator “Code of Conduct” and adequate communication with spectators regarding the same. Significantly, defendants will need to defend the claims of unreasonable force or the unreasonable escalation of force (this is especially true with regard to the use of a “WRAP” or the “Taser” to subdue plaintiffs). This will necessarily implicate the training protocols in place at the Stadium and the level of supervision and deployment of security personnel. Defendants will try to establish that the level of force was not excessive under the circumstances and that it may have been necessary to avoid harm to plaintiffs, other patrons or the action on the field.
According to a current search of www.levisstadium.com, the security policies include a comprehensive Code of Conduct as follows:
LEVI’S® STADIUM PROMOTES AN ENVIRONMENT WHERE GUESTS CAN ENJOY THEIR GAME DAY EXPERIENCE FREE FROM ANY OF THE FOLLOWING:
Obscene or abusive language and/or behavior
Fighting, taunting, or threatening remarks and/or gestures
Smoking (in non-designated smoking areas)
Gang activity, including, but not limited to, wearing or displaying gang-affiliated clothing or other indicia of affiliation
Offensive clothing
Any distraction to the progress of the game or event
Throwing objects of any kind
Occupying any seat without the appropriate ticket
Mistreatment of visiting team fans or guests, including verbal abuse, harassment, profanity, confrontations, intimidation, or other threatening behavior
Failure to follow the directions of law enforcement, security, ushers, ticket takers or any other Levi’s® Stadium personnel
Violations of any Levi’s® Stadium policies, local City of Santa Clara ordinances, state, or federal laws
Other actions that cause a disruption and/or hinder the enjoyment of the event
Any behavior that impairs the safety and/or enjoyment of the event from other guests.
Committing any of the above listed violations may result in ejection from the stadium, prohibition from attending future events, and/or arrest.
Guests should immediately report violations of the Levi’s® Stadium Code of Conduct using one of the following methods:
Contact stadium ushers, security personnel or law enforcement officer.
Text “SUPPORT” to 69050 with description of issue and location.
Call Guest Services Office at (408) 579-4600.
Use LiveSafe for more efficient responses.
We thank you in advance for your cooperation and assistance in maintaining a safe and enjoyable atmosphere at Levi’s® Stadium.
The following Ejection Process is also discussed under “Security Policies”:
Levi’s® Stadium is dedicated to providing a high quality entertainment experience. Guests who violate the Code of Conduct may be ejected. Levi’s® Stadium has adopted an escalating scale of enforcement for Code of Conduct violations. Ejections are documented and anyone ejected from the stadium may be banned from future Levi’s® Stadium events. The purpose of this policy is to help ensure that all Levi’s® Stadium guests enjoy a positive event day experience.
These are the sorts of policies and procedures which, if they were in place at the time of the incident, communicated to spectators and staff and properly implemented, will be significant to the defense of this case and may neutralize the sensational allegations and the viral depictions of the ejections.
The Court will delve into questions about security procedures and spectator conduct: although those issues are not new ones to the owners, operators, and managers of stadiums, the way they may be addressed in this case may be novel, particularly given some of the causes of actions set forth in the Complaint.
Carla Varriale is a partner at Havkins Rosenfeld Ritzert and Varriale, LLP in New York. Her litigation practice is focused on the defense of facilities in the sports, entertainment, recreation, and fitness industries. She can be reached at carla.varriale@hrrvlaw.com and (646) 747-5115. Shawn Green is an attorney awaiting admission to practice in New York and assisted in the preparation of this article.
[1]Also known as the “Tom Bane Civil Rights Act”, it is a broad law that authorizes a plaintiff to file a civil action against anyone who interferes, or tries to do so, by threats, intimidation, or coercion, with an individual’s exercise or enjoyment of rights secure by federal or state law. The Bane Act has been described as not extending to all ordinary tort actions because its provisions are limited to threats, intimidation, coercion that interferes with a constitutional or a statutory right. See Venegas v. County of Los Angeles, 32 Cal.4th 820, 843 (2004). The Bane Act itself, however, does not specifically define these terms.
[2] In pertinent part, Penal Code 148 (a) (1) states: “Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician… in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
[3] This may be a typographical error in the Complaint.
[4] Plaintiffs’ putative protest is not identical to the now-famous “take a knee” protest of Colin Kaepernick. Mr. Kaepernick has been quoted as describing his protest as follows: “I am not going to stand up to show pride in a flag for a country that opposes black people and people of color.” See, https://www.theguardian.com/commentisfree/2018/sep12/colin-kaepernicks-protest-unpatriotic-justice
