The 24-9 blowout of the Rams by the 49ers captured a number of missed tackles and plays by the Rams. However, one successful tackle occurred on the sideline when a protester wearing a shirt reading “righttorescue.com” and carrying a smoke flare jumped a security fence and ran down the field. Linebacker Bobby Wagner (with the help of fellow linebacker Takkarist McKinley) forced the protester to the ground. Now, the activist with Direct Action Everywhere has filed a police report and is threatening legal action. However, not only is another court likely to find that there was no right to rescue in a case involving the theft of pigs by animal activists, this activist is likely to establish that the players had a right to tackle.
The protester was trying to bring attention to animal activists charged with theft after rescuing piglets from a Smithfield facility. PETA and other groups have called the activists “heroes” for their actions but prosecutors are seeking convictions for felony burglary and theft charges.
The protester was being pursued by security when the two players assisted them in bringing him to the ground:
The protester was burned during the run or tackle, presumably by his own flare.
In my view, Wagner and McKinley had a right to tackle the protester. The protester was engaged, at a minimum, in a criminal misdemeanor while be pursued by security. The common law allowed for citizen arrests as members of the public responded to the “hue and cry” of others.
Indeed, it was expected that citizens would intervene. The Statute of Winchester stated that citizens should “follow them with all the town and the towns near, with hue and cry from town to town until that they be taken and delivered to the sheriff.”
Like most states, California has codified the citizen arrest power. There is some variation in these laws but California has a classic provision. It allows for the use of a citizen’s arrest for any felonies but also a misdemeanor if it is committed in your presence. under Penal Code Section 837:
“A private person may arrest another:
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not in his presence.
3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.”
There is also a common law privilege in any civil lawsuit that allows for defense of others. The protester was carrying a flare and appears to have resulted in burns to his own body. In that short period of time, the appearance of a man running with the flare and being chased by security could be viewed as a reasonable basis to force to protect others.
Just as tackles on the field are judged by the use and level of force in possible “roughing the passer” fouls, the same is true under the common law. In the use of the defense of others in torts, a person must show that he used a reasonable and proportionate amount of force.
The video shows the players taking the protester to the ground and then leaving him to security. That would seem to meet the standard on the level of force. This would not amount to a common law version of “roughing the protester.”
For all of these legal reasons (as well as commonsense), the protester does not have a viable criminal or civil case against the players in my view.