At 11:39 p.m. on Thursday, at 100 Alfred Lerner Way, with some 67,000 witnesses surrounding him and millions more watching on TV, a 23-year-old Cleveland man ripped off a visitor’s helmet and used it to bash that visitor’s head. He did not seriously injure the victim. He did ignite a brawl. He left a community somewhere between ashamed, angry and aghast. Because of his violent outburst – and because it occurred on an NFL field – Browns defensive end Myles Garrett has been suspended indefinitely.
But had it occurred on a downtown Cleveland street, or in a back alley, or at a dingy sports bar, Garrett would be facing much worse. “Technically,” says Joseph Patituce, a criminal defense attorney in Ohio, “swinging an object of that form could constitute a felonious assault.”
Which raises an interesting question: Did Garrett’s status as a football player, or his participation in an NFL game, grant him legal immunity?
The answer, according to several Ohio attorneys interviewed for this story, is likely no. At least not absolute immunity. There is, according to the lawyers, a chance Garrett could face charges.
Garrett’s helmet swing was indeed assault
The state of Ohio defines assault as an act that “recklessly [or] knowingly cause[s] or attempt[s] to cause physical harm to another.” Garrett, by any reasonable interpretation, did just that on Thursday. The only question is what level of offense his helmet bash rose to.
“The level of offense, generally, is tied to how much injury is caused,” Ohio attorney Steve Palmer explains. Push a friend to the sidewalk pavement and give him a knee scrape? That’s a misdemeanor. But, Palmer continues, “Let’s say I throw you down and you break your leg, or I hit you and I break your nose. That’s the type of injury that typically would require medical attention. Well, that becomes serious physical harm. I’ve knowingly caused or attempted to cause serious physical harm to you. That makes it a felony.” A second-degree felony, to be specific.
But “serious physical harm” isn’t the only consideration. The other key factor, Palmer says, “is if you use a weapon. And a weapon can be all sorts of things. A weapon can be a gun, it could be a knife, the things you’d think of as a weapon. But it could also be a car, or it could be a shovel, if I hit somebody with a shovel. Anything adopted, or adapted as a weapon, and used in assault, can make it a felony, because a deadly weapon was used.
“The real interesting legal question is: Is the helmet a deadly weapon?”
The attorneys interviewed were torn on that question. If it is deemed one, the potential consequences: “Maximum prison sentence of eight years,” Palmer says. “No mandatory time, but prison is often on the heels of a felonious assault.”
So it’s not out of the question that Garrett could receive it. But there’s also a reason football players, boxers and hockey players don’t regularly go to jail. The other big question is whether that reason applies to Garrett.
What do football players consent to?
“When it comes to playing field stuff like this,” Palmer explains, “generally, there is what we call a ... consent.” Athletes, he says, essentially “consent to a certain degree” of physical harm associated with, and inherent in, their sport. “If I’m a boxer, I’m consenting to getting punched in the face all night,” Palmer says. “If I’m a hockey player, it gets a little bit blurry.”
What, exactly, do football players consent to?
There is very little precedent to guide the search for an answer. But there’s a bit in hockey. Todd Bertuzzi was charged with criminal assault causing bodily harm for his infamous sucker-punch of Steve Moore. The most instructive case, however, might be that of Marty McSorley, who, during an NHL game in 2000, swung his stick at an opponent’s head in the waning seconds. The opponent fell to the ice and suffered a concussion. McSorley was charged with, and eventually found guilty of, assault with a weapon. He ended up with 18 months probation.
Violence is an accepted part of hockey, just like it’s an accepted part of football. Clubbing an unaware opponent with a stick behind the play, however, is not a part of hockey. It crossed a line, beyond what NHLers consent to. The question, in Garrett’s case, is where that line is in football.
Palmer, based on the lack of precedent, says it’s blurry. “It’s not a clean line,” he explains. “It is drawn probably by the discretion of a prosecutor – and if the prosecutor feels that he or she can prove a case that the assault has exceeded the consent of what would be normal in the context of the sport. So, ‘I’ve consented all night long to get my head bashed in by a linebacker. But I have not consented to getting my helmet ripped off and conked in the head by it.’ ”
Who, exactly, would prosecute Garrett?
Even if there is a legal case against Garrett, however, that case won’t necessarily be pursued. “It’s an act that is not part of the game being played,” says Scott Kuboff, another Ohio attorney. “I doubt, however, that he will be charged.”
Two entities could do the pursuing. One is Mason Rudolph, the victim, who called Garrett’s act “cowardly” postgame. He could file a civil suit. His agent, Tim Younger, tweeted late Thursday night that “the matter will be reviewed thoroughly.”
There are many risks an NFL QB assumes with every snap taken on the field. Being hit on your uncovered head by a helmet being swung by a 275 lb DE is not one of them. Tonight could have had a catastrophic ending. The matter will be reviewed thoroughly.— Younger & Associates/QB Limited (@YoungerAssoc) November 15, 2019
The second entity is the state. “On the criminal side,” Palmer says, “it requires discretionary prosecution by public officials. This is a state law case. A county prosecutor up in Cleveland is going to have to say, ‘I want to prosecute.’ ”
Which, at least in theory, raises another issue: Would a Cleveland prosecutor, whose community and region are full of Browns fans, really decide to bring criminal charges against a Browns star? Or might that dynamic discourage prosecution?
“I think we’d be remiss if we didn’t at least talk about that,” Palmer says. “But at the end of the day – look ... the prosecutor’s job is to do justice. ... I don’t think that the love of the game, or the love of the Browns, would dissuade that. In fact, it may do the opposite. You want to avoid the appearance of favoritism, and they want to treat everybody equally, and most prosecutors do.”
Will Garrett be charged?
There are other reasons, though, to suspect nothing will come of this. Among them:
“A lot of this will depend on what [Rudolph] wants,” Palmer says. He uses the example of a drunken fight between friends. One punches the other. The next morning, he apologizes, and “it may be that he doesn’t want to prosecute. So the prosecutor or the police come to him, and they interview him, and he says, ‘Yeah, it happened, but I don’t care, just let it go.’ And often they do.” The Garrett-Rudolph incident, obviously, is different. But if the Steelers QB would rather move on, the resolution could be similar.
The Cleveland Police Department said in an email to Yahoo Sports that, as of early Friday morning, it has not launched an investigation of the incident. (Though that does not preclude criminal charges.)
Many other high-profile cases of in-game assault have gone unpunished by the criminal justice system. Kermit Washington nearly killed Rudy Tomjanovich with a punch, and was never charged. Nor was Mike Tyson for biting off Evander Holyfield’s ear. Nor was Albert Haynesworth for stomping on Andre Gurode’s head. Many less egregious incidents have gone unpunished as well.
Rudolph was as healthy as one can be after taking a helmet to the noggin. And that matters. “The other big consideration would be the consequence of the assault,” Palmer says. “If this would’ve resulted in a serious injury, like a fractured eye socket or broken jaw, or if the guy would’ve had his nose bashed in or something, then I think you’re probably more likely to see some criminal action than what this is.”
Both Palmer and Kyle Wright, another Ohio attorney, say the impending NFL suspension will likely influence the prosecutor’s approach. “They’re absolutely going to consider the length of penalty imposed on Myles Garrett,” Wright says. “The argument would be, he’s already been punished enough. He’s lost six games and X amount of his salary. That’s plenty. That’s more than enough. He’s remorseful. He knows he was in the wrong. He doesn’t have any criminal history. They’ll look at all those things.” Palmer paraphrases the prosecutor’s probable line of thinking: “The NFL’s dealing with this. This guy’s suspended. I don’t need to do anything more. Particularly if whoever the victim is is on board with that.”
None of which detracts from the fact that Garrett’s lash-out constituted a crime. It did. As attorney Brad Koffel says, summarizing the consensus: “Ohio criminal code does not end at the playing field. What happened last night absolutely is an assault and potentially a felony assault. That is not part of consensual physical contact players assume when they walk onto the field.”
However ... “Will charges be filed?” Koffel asks. “Unlikely.”
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Yahoo Sports’ Jeff Eisenberg contributed reporting.