Legal Analysis: Was Tasering Phillies Fan Excessive Force?

On Monday night, Philadelphia Phillies fans again demonstrated they are the unruliest fan base in America.

Less than three weeks ago, a 21-year-old fan stuck his fingers down his throat and threw up on a young girl during a game. Monday, a 17-year-old named Steve Consalvi ran onto the field at Citizens Bank Park. Wearing a red shirt and khaki pants, he ran around waving a white towel above his head, and a police officer Tasered him. The incident raises some interesting legal issues. Foremost, are police officers using excessive force when they use a Taser on fans who have run on the field of play? The answer, not surprisingly, is ... that depends.

There are three factors that a court will consider in examining whether excessive force was employed during an arrest.

These three factors, announced in Graham v. Connor, 490 U.S. 386 (1989) are: "(1) The severity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of the officers or others; and (3) whether he was actively resisting arrest or attempting to evade arrest by flight."



Share Applying the three-factor test to our present situation, let's take them in order.

First, the severity of the crime at issue.

Consalvi has been charged with criminal trespass. Because he's 17, there is an issue as to whether the juvenile will be charged with an adult crime or remain in the juvenile justice system. If he's charged as an adult, he will likely face third-degree felony charges for criminal trespass as mandated by Pennsylvania statutes.

While this is a felony charge, it's the lowest level of felony in the state of Pennsylvania and it would, in a situation such as this, typically be pleaded down to a less serious misdemeanor charge.

On the severity of the crime scale, this is low.

Second, did the suspect pose an immediate threat to the safety of the officers or others?

The fan was wearing a T-shirt and khaki shorts and waving a white towel over his head. His goal, if any, appeared to be inciting the crowd to cheer louder.The fan did not make a concerted effort to touch a player, umpire or any other person on the field. Indeed, his entire purpose seemed to be, as is often the case when fans enter the field, to evade capture for as long as possible.

Furthermore, the officer who ultimately Tasered the fan made an earlier attempt to grab the fan, but missed. Some may wonder whether the decision to Taser him was partially made to avoid further embarrassment on the officer's part.

Taking all of these actions in context, I don't believe a reasonable person would believe that the fan posed an immediate threat to the safety of the officer or others.

Third, "Was the fan actively resisting arrest or attempting to evade arrest by flight?"

The fan was clearly evading arrest, but he wasn't attempting to flee. This makes running onto the field a unique instance of criminal trespass. Because the act itself -- running onto the field -- is predicated upon actually being captured. It's the finishing act every time. The longer a fan evades capture on the field the more, paradoxically, he gains the support of the fans in the crowd. Put it this way, have you ever seen a fan run onto a field of play and then try and climb back into the crowd to get away?

It almost never happens.

Again, this is a tough call. The fan was resisting arrest, but only for so long as it took a skilled member of the security staff to take him down. And the officer, who works in a ballpark, should have been familiar with previous instances of fans running onto the field and would have recognized the behavior.

Considering these three factors, now we ask the question, was it appropriate for the officer to Taser the fan?

If we all put on our judicial robes -- wear pants underneath, please -- and make a determination, I think what you discover is that this is a tough call, opinion is likely to be split.

Further, if you consider the public nature of the Tasering, how the fans reacted to the incident, it's even more difficult to divine the answer. Did some believe he had been shot by something other than a stun gun, coloring their response?

Perhaps.

On the other hand, might the use of the Taser have prevented Consalvi from more serious injury? In other words, is it safer for an officer to Taser someone who runs on the field than to tackle and subdue that suspect?

Perhaps, again.

Maybe that's why courts are split on the use of the weapons. While the Supreme Court has yet to rule on Tasers as weapons of excessive force, the highest court to make a ruling on this issue is the 11th Circuit, which found that Tasering during a traffic stop was not excessive force. But, again, that required an examination of the circumstances. Meanwhile, district courts across the country have found that use of a Taser can be excessive under the standards set forth above.

It's all in the facts of the particular situation.

Taking it from this attorney, now playing judge, I would say that after completing their review, the Philadelphia Phillies will inform security personnel that use of Tasers is, in fact, excessive force when fans enter the field and don't present an immediate danger to the players, umpires or staff.

In this instance, I believe a reasonable police officer would have been aware that this fan was not a legitimate threat to anyone. The use of the Taser was, therefore, unreasonable and constituted excessive force.