By Ellen Rugeley
Almost two years ago, Jason Ensign was forcibly detained by private security guards during a Chief-Chargers game at Qualcomm Stadium. Guards attempted to remove Ensign after he yelled obscenities and flipped his middle finger at other fans. This incident led to a legal battle that posed an important question: Can the NFL’s fan code of conduct be enforced?
San Diego City Attorney Jan Goldsmith charged Ensign with misdemeanor battery for punching and biting a security guard. However, on May 9, San Diego Superior Court Judge Gale E. Kaneshiro threw out the battery charges against Ensign, ruling that he was, “rightfully defending his First Amendment rights” and was “merely defending himself against overzealous security.” Kaneshiro said security went too far by forcibly pulling him into a stadium tunnel and using “pain techniques” instead of simply asking him to leave.
Goldsmith feels that the NFL has a right to enforce its code of conduct and therefore should be able to eject fans for making obscene gestures and using foul language; the NFL filed an affidavit supporting Goldsmith’s view.
According to Goldsmith, the court’s decision was wrong and applied the First Amendment in a way that it hasn’t been applied before. Goldsmith also noted, “This isn’t about whether one guy gets charged and convicted of battery. This is about whether we’re going to set some kind of precedent.”
Goldsmith feels that if the NFL doesn’t have the right to evict fans who violate its code of conduct, then other fans can simply say, “No I’m not leaving,” and use violence to avoid eviction.
Attorney Mary Frances Prevost, who is representing Ensign, said the code of conduct is a suggestion, not an order. She feels the code is unenforceable because a legal contract has not been established with fans. “In order to have a contract, you have to have an offer and acceptance. At trial, the prosecution argued that the fan code of conduct is enforceable because it was hung over urinals,” said Prevost.
“Could you imagine a man standing over a urinal and we now form a contract because we say, don’t do anything obscene? It’s the dumbest thing I’ve ever heard,” added Prevost.
“Whatever the code of conduct is, it’s between the Chargers and the NFL. It has nothing to do with Qualcomm Stadium. It’s city property,” said Prevost. However, Goldsmith disagreed arguing that private entities also have the right to remove unruly customers. Goldsmith added, customers “don’t have the right to beat up the fellow who ushers them out.”
According to Mike Florio, site editor of Profootballtalk.com, “even if it’s not a contract… a ticket to a sporting event constitutes a license to enter and remain at the stadium. The owner of the premises and/or the operator of the event have the ability to place reasonable restrictions on that license, especially when the behavior of one licensee can impact in a negative way the experience of another licensee.” He also noted that, “Freedom of speech relates to the expression of ideas and opinions, not the unrestrained articulation of profanities.”
At a hearing on June 17, Prevost presented a motion to Judge Kaneshiro requesting that Ensign’s arrest record be expunged. Kaneshiro found Ensign factually innocent of the battery chargers against him and as a result, removed the arrest from his criminal record. Goldsmith was not upset that Ensign was cleared of all criminal charges. “That’s fine,” he said. “This case… is not noteworthy anymore because it’s not based on some Constitutional issue.”
With his innocence established, Ensign is now pursuing a civil rights lawsuit against everyone involved, including the city of San Diego, police officers and security guards. According to Shaun Martin, a law professor at the University of San Diego School of Law, Ensign seems likely to win damages for battery, but he will have a difficult time proving any civil rights violations.
Goldsmith was not the only person to support the enforcement of the NFL’s code of conduct.
The NFL’s chief security officer, Jeffrey Miller, filed an affidavit saying the code of conduct has brought about a reduction in fan incidents at stadiums. This is the only legal challenge to it that Miller is aware of.
A spokesman for the San Diego Chargers, Bill Johnston said, “The NFL’s fan code of conduct has successfully curtailed the number of problems across the nation.” According to Johnston, “the NFL code of conduct has been and will continue to be a strong asset to our efforts. Violating the code… could result in ejection and loss of ticket privileges for future games.”
