By Michelle C. Pardo
The video of NFL linebacker Bobby Wagner tackling an animal rights activist who had charged the field with a smoke bomb at last week’s Los Angeles Rams – San Francisco 49ers game in Santa Clara was the subject of much (and some amusing) color commentary. But Direct Action Everywhere (DxE), the radical animal rights group behind the dangerous stunt, raises significant issues regarding player, referee, security staff and spectator safety.
The DxE activist was protesting and trying to bring attention to criminal charges against two of his fellow activists who are facing trial for the “open rescues” – the act of illegally entering and stealing animals from farms to “save” them and prevent them from entering the food supply. Wayne Hsiung, the founder of DxE (who stepped down from his leadership position due to his multiple criminal cases (see our blog post, here) is currently on trial in Utah for a 2017 raid of a pork production facility. Hsiung was previously convicted in North Carolina for another “open rescue” but received no jail time, a sentence he actually had wanted according to his social media postings. (Read our blog post about it, here). Hsiung and DxE member Paul Picklesimer are currently on trial in St. George, Utah, on felony burglary and theft charges for “Operation Deathstar” — their infiltration of a Smithfield owned pig farm in Utah. If convicted, they could face more than 10 years in prison. Other DxE protestors accepted pleas deals, but the two remaining defendants sought to go to trial to raise awareness of their cause.
Wagner noticed that security was having trouble intercepting the protestor and stepped in to stop him, with linebacker Takkarist McKinley giving him an assist. According to DxE’s press release, the protestors were cited and released from custody that night. A similar protest occurred at the season-opener Bills-Rams game, which, according to DxE, resulted in a head injury to one of its protestors. DxE also took responsibility for a protest at a Minnesota Timberwolves game back in April.
It has been reported that the protestor subsequently filed an assault complaint (with the Santa Clara police) against the Rams players, describing their conduct as “blatant assault.” But was the conduct justified under a theory of self-defense or defense of others? While an unruly fan charging the field may have done so “merely” for publicity, an unauthorized person, running onto the field and near other players and personnel, while waiving an unidentified smoking device, and resisted attempts to stop him, could reasonably be interpreted as someone who could do harm. As Wagner later told media, you “never know” the intruder’s intentions or whether they are carrying or concealing a weapon. In California, self-defense (or defense of others) is a valid defense to assault where the individual reasonably believes that he or someone else was in imminent danger of suffering bodily injury. In acting in self-defense, however, one may only use the amount of force that is reasonably necessary to defend oneself or others.
While some may view Wagner’s action as excessive force, as the video shows, prior to the tackle, others had tried to stop the protestor and failed.
Apart from self-defense, under a theory of assumption of the risk – if you run onto a football field during a game, it is reasonably foreseeable that you could be tackled and suffer injury (particularly if you choose to storm the field in a t-shirt without pads or a helmet).
For DxE members, the threat of injury or prison goes with the activist territory. In a recent Harper’s Magazine story about DxE’s press coordinator, Matt Johnson said that it made “practical sense” to go to prison for a piglet – presumably more practical than his 2018 idea to set himself on fire in order to gain attention for climate change. But for the NFL – or other sport teams or high profile entertainers that pack venues across the country – these publicity stunts can create real threats to the safety of players, security guides and even participants. This time, it may have been just a smoke bomb, but a copycat seeking to “one up” this stunt could use something far more destructive to bring attention to a cause.
In California, employers may seek a Workplace Violence Restraining Order (WVRO) on behalf of an employee, which prohibits unlawful violence or credible threats of violence against an employee. Cal. Civil Proc. §527.8. An employer must prove that the employee has suffered unlawful violence (like assault or battery) or a credible threat of violence. WVROs can order the restrained person to stay away from the employee’s workplace or not go near the employee.
An exception exists where the accused person is engaging in constitutionally protected activity, which can be a significant barrier to obtaining a WVRO against a protestor. But for those protestors that repeatedly target a business or organization or its employees, and their conduct advances from peaceful protest to threatening or engaging in bodily harm, the constitutional protections will not insulate their actions. The California WVRO procedure has been used to stop individual animal activists whose protests resulted in conduct that threatened a business’s employees.
Unfortunately, the threat of legal action against its members may not concern DxE, which reportedly saw the “biggest spike” to its website following the NFL stunt. Unfortunately, until sidelined with legal action or an actual criminal conviction with prison time, DxE protestors may continue to threaten the safety of players and other employees in pursuit of their goal: to “achieve revolutionary social and political change for animals in one generation.”
