Ice Hockey and Criminal Law
Criminal laws are not created with ice hockey or other inherently dangerous and violent sports in mind. They are written for everyday occurrences that happen away from the playing surface. For example, common occurrences like slashing an opposing player with your stick and body-checking are "permissible" within the realm of the game of ice hockey (but might be called as a penalty), but would be considered an assault and/or battery if one were to do so on the street.
This is why many judges refuse to act as "referees" for incidents that occur during the course of a sporting event, including ice hockey. As stated by Judge Lawrence Donohue in the New York case of People v. Schacker, “[i]f cross checking, tripping and punching were criminal acts, the game of hockey could not continue in its present form.”
However, there have been situations where criminal charges were brought and prosecuted against hockey players for violent actions on the ice. In the professional ranks, there have been at least 15 incidents where professional players have been charged with criminal acts stemming from their in-game actions, including former NHL star Dino Ciccarelli, who was sentenced to one day in jail and fined $1,000.00 for assaulting Luke Richardson in a game between the Minnesota North Stars and Toronto Maple Leafs in January 1987.
But, prosecutions, let alone convictions, of hockey player violence are rare because it is unclear whether an action during a hockey game that would clearly be an assault, battery, etc. on the street constitutes that same offense on the ice. The main issue in these cases is that hockey players clearly consent to a certain level of violent contact and the risk of injury when they play, but what types of actions do participants not consent to? What type of event crosses the line? This conundrum has been pondered and written about by legal scholars for many years.
Last year, an incident in Pennsylvania brought this discussion back to the forefront as five Delaware County high school hockey players from Ridley High School are facing misdemeanor charges for a brawl they apparently started in a playoff game last season.
This situation is “unique” since, unlike many infamous incidents, this altercation does not involve a player striking another with their stick (see State v. Forbes) or a big hit.
According to police, the incident took place during a single-elimination Flyers Cup Class 2A quarterfinal game last March with Central Bucks West High School ("CB West") leading Ridley Ice Hockey Club (not officially affiliated with the Ridley School District) 7-1 with seven minutes remaining in the game. Clearly, Ridley's season was just a few minutes away from ending.
Investigators say that a scorekeeper overheard the Ridley players discussing which CB West players they wanted to confront/target before the incident occurred. The theory, according to prosecutor John Gradel, is that the Ridley players, who were all seniors at the time, became frustrated with how their high school hockey careers were ending and knew they couldn’t be suspended since they would be graduating, so they decided to go out with a bang.
Further, one Ridley player, who was in the stands because of an injury, noted that he “could kind of see something starting,” and “[t]here were some cheap hits on both ends that just led up to it.”
The referees decided to end the game after the incident, resulting in a forfeit by Ridley. The police was called to the arena after fights in the stands broke out. Four of the alleged victims are juveniles, two of whom were merely 15-years old.
Two of the CB West players suffered concussions and one was treated for a broken eye socket and lacerations to the face. The father of a CB West player that was taken to the hospital after the incident and treated for a fractured nose and received stitches around his eye, said what took place “wasn’t your standard hockey infraction.” The player’s mother said that she “didn’t even recognize him at first. That’s how battered up he was.”
Below is a video of the incident (WARNING: inappropriate language):
Note: Ridley is in green, CB West is in yellow
It appears that complaints from CB West parents led to an investigation by local police, which accumulated in charges being brought against the five players. The teens were formally arraigned on January 17, 2018 in Montgomery County court.
At the preliminary hearing in November 2017, prosecutors argued that this brawl was a “concerted attack,” while defense lawyers echoed the classic argument that fights and physical altercations like this are just a part of the game. As defense attorney Mike Malloy stated, “[s]urprise, surprise. It’s a hockey game. A fight broke out. If you watch a game today, someone is going to win a fight, someone is going to lose a fight.”
Dean Chuang, a criminal defense attorney in Washington, has echoed similar sentiment as Malloy, noting that “[t]he state should not attempt to prosecute conduct that is expected and part of the sport. “ However, Chuang did add that “[c]onduct outside of the norms of the sport could be prosecuted, such as sucker punches, etc. The bottom line is if the questioned conduct is part of the game, then we as a society will not prosecute the action.”
The latter part of Chuang’s statement is what makes this specific case interesting and one to keep tabs on. Is what happened on the ice during this playoff game really "a part of the game"?
The Criminal Court Process
Over the past year, the players have probably learned a great deal on how the criminal justice process works.
After a person is charged with a crime in Pennsylvania, the first step in the process is the Preliminary Arraignment, where a local district court judge determines the bail amount for each defendant. In this case, each of the Ridley players had their preliminary arraignment in mid-November 2017 before Magisterial District Judge Andrea Hudak Duffy in Montgomery County, who set bail at $10,000.00 unsecured, meaning the defendant would be released and does not have to pay the money unless "he or she requires to appear as required or fails to comply with the conditions of the bail bond" (see PA Crim. Code Rule 524(C)(3)).
Next, a Preliminary Hearing was held on November 27, 2017 where the District Attorney's office presented their case to Judge Duffy demonstrating there was probable cause to believe that (1) a crime was committed, and (2) the Ridley teens committed the crime. This is basically a small pre-trial exercise where evidence is produced and witnesses can testify, except innocence and guilt are not determined and the burden of proof is by a preponderance of the evidence (meaning more likely than not to have occurred, or 51%). Here, Judge Duffy determined that the prosecution established a prima facie case and met its burden, and therefore set the case for trial.
Since the judge found there was enough evidence to head to trial, the players had their Formal Arraignment in mid-January 2018 where the case was officially transferred from the magistrate court (District Court) to the trial court (Court of Common Pleas), and the Ridley players entered their plea of not guilty.
The Charges and Possible Defense
The teens have been assessed an array of misdemeanors: Simple Assault, Conspiracy to Commit Simple Assault, and Harassment. Misdemeanors are usually punishable by less than a year in jail or a fine.
Generally, to attain a conviction in American criminal law, the prosecution must prove that the defendant (1) committed a voluntary and conscious criminal act, known in the legal world as “actus reus,” and (2) had a guilty mind at the time of the committed crime, known as “mens rea.” Thus, the prosecution has the burden of proving that the defendant committed the guilty act and possessed a guilty mind at the time the act was committed, and must do so beyond a reasonable doubt (98%+).
In the Commonwealth of Pennsylvania, someone is guilty of Simple Assault, as defined in Section 2701, if the person:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly weapon; or
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.
Further, Simple Assault is a second-degree misdemeanor unless it is committed “in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree.”
Per Section 2709(a)(1), one commits Harassment “when, with intent to harass, annoy or alarm another, the person . . . strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same.”
Criminal Conspiracy is defined in Section 903, which states that “[a] person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime."
In this situation, prosecutors will be most concerned with the “mens rea” of the Ridley players in this incident, and will try to prove that they planned and intended to inflict physical injury on the opposing players. The testimony of the scorekeeper, who allegedly overheard the Ridley players organizing the fight, will be crucial here since any evidence demonstrating that the players knew what they were doing right before the incident would show a “guilty mind.”
In opposition, defense counsel will assert legal defenses, including the idea that ice hockey participants consent to excessive violence. Essentially, it will be argued that the injured CB West players consented to this incidental contact, which was within the rules of ice hockey and in furtherance of the athletic competition.
Consent is codified in Section 311 of Pennsylvania’s Crimes and Offenses:
(a) General rule.--The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
(b) Consent to bodily injury.--When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if:
(1) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport; or
(2) the consent establishes a justification for the conduct under Chapter 5 of this title (relating to general principles of justification).
Thus, a big question in this case is whether the conduct in question was “reasonably foreseeable” in the course of a high school hockey game (Section 311 (b)(1)). Of course participants consent to hard body checking, trips, slashes, and other “normal hockey contact.” Fighting has also been considered at many levels to be a part of the game that players consent to, particularly in the professional ranks. But, what about a situation like this where there was allegedly an orchestrated attack in a high school game? Do participants consent to such altercations? It does not appear that anyone was swing sticks or stepping on each other with their blades, and there were some confrontations between the teams earlier in the game, but the concerted action and the injuries inflicted cannot be ignored. It will be up the jury and/or judge to determine if this incident was a just part of a regular high school hockey game and if there should be any punishment.
What's Next and My Thoughts
At this stage in the process, the next step is for Pre-Trial Conferences to take place, which are scheduled to take place this week. These are status conferences with the judge discussing whether there is a plea deal in the works or the case should move ahead to trial. It appears that defense attorney Mike Malloy expects to go to trial.
On one hand, I agree with Mr. Malloy's strategy because it is rare that on-ice altercations result in criminal convictions. Furthermore, it was only six years ago when a men's league player was acquitted in Montgomery County Court for assault-related charges. Also, while two CB West players suffered concussions and one had a fractured eye socket, I'm not sure if these injuries are "so severe as to be unacceptable in normal competition" (see People v. Schacker) despite these players wearing helmets with full cages, and the fact that fighting isn't "permitted" in high school hockey. If the parents of the CB West players want retribution, they can seek monetary damages in civil court.
However, this is a relatively unique situation that is probably unlike most sports violence cases seen in any court (or at least as far as I can tell). Unlike some of the other "famous" cases, this scenario involves some special factors that need to be taken into account: (1) this was a high school game where fighting is less tolerated than in pro hockey; (2) possible concerted action by a group of players right off of a faceoff rather than one player going rogue during the flow of the game; and (3) it was the final high school game for each player, so they players could not be punished by the league (some people believe that courts should defer to the disciplinary bodies of the various sport leagues and should limit their involvement to the most egregious cases).
Also, there is a case from Ontario in 2013 where in a Midget "A" game between 16 and 17-year olds one player cross-checked an opposing player and punched him 11 times for supposedly "snowing the goalie," breaking his nose and causing a concussion (click here for video). The teen was charged with assault and the case went to trial, which was probably "the first of its kind in the province." In convicting the player, the judge stated "[t]his is not a trial about hockey or fighting in hockey" and "[the player] must have known his conduct was inherently dangerous." However, the guilty player was only sentenced to 60 hours of community service and received a discharge, meaning he will have no criminal record. As the judge concluded at the sentencing hearing, "[t]he trial process itself had a significant impact on [him] and sent [him] an appropriate message of [his] behavior."
This Canadian case has some similarities to the Pennsylvania case: (1) it was an amateur game between teenagers; (2) it was a chippy and emotional game with some earlier instances in the game; (3) the player that committed the assault was on the team that was getting blown out late in the game; and (4) the injuries were similar.
I do believe that the Ridley teens should be held accountable for their actions in some way since their apparently deliberate actions (according to video evidence and witness statements) have no place in the game, especially at the high school level. Unfortunately, these over-the-top actions are sometimes encouraged at the high school level (my own high school hockey team was like this). Also, it sounds like the players thought there was no way they could truly be punished for starting the brawl, so perhaps the judge should prove them otherwise. However, I happen to like the punishment handed down by the Ontario judge. The players will be penalized, but will not have a criminal record which could severely hamper their futures. Plus, I bet the whole ordeal and having their pictures plastered all over the Internet has caused the five teens extreme shame and embarrassment, and might be enough punishment in itself.
So, was this incident a "standard hockey infraction"? Thankfully, this decision is not for me to decide.