A fight at a San Diego Chargers football game has turned into a legal battle over free speech and how fans at sporting events should behave.
In 2009, as the San Diego Chargers were blowing out the Kansas City Chiefs at Qualcomm Stadium, San Diegan and Chiefs fan Jason Ensign said nearby Chargers fans began cursing at him.
"He turned around and he gave the screaming, cursing fans the finger and that's when he was grabbed. A security guard grabbed him and said, 'You're out of here,'" said Mary Frances Prevost, Ensign's attorney.
Prevost said after the ensuing tussle with that security guard and others, Ensign was arrested on battery charges.
"He had a First Amendment right to use his finger at the crowd," said Prevost. "A forum like Qualcomm [Stadium] is a public domain."
A judge agreed and dismissed the charges against Ensign. The judge ruled Ensign had a right to engage in obscenities and physically defend himself.
On Friday morning, Ensign's attorney argued his record should be expunged because her client won his case on May 9, 2011. Prevost said her client lost his job as a nurse because of the case, despite the fact he was acquitted of all charges.
"I think the decision is wrong," said San Diego City Attorney Jan Goldsmith. "A private entity has the right to remove patrons who are provoking violence and bothering other patrons."
Goldsmith, who alleges Ensign was also cursing, called the ruling dangerous.
Right now, using the middle finger and cursing can get a fan ejected from a sports event, including an NFL game, where it is spelled out in the code of conduct.
Goldsmith said if sports teams can no longer eject fans for such behavior, it could lead to trouble.
"It will escalate into violence, as it has in the past," he said.
In 2000, a taunting Raiders fan stabbed a Chargers fan. In 2003, after a Padres game at Qualcomm Stadium, 22-year-old Jeremy Lindsay was beaten into a coma in the parking lot and died seven weeks later. In 2004, three Chargers fans beat a Jacksonville Jaguars fan unconscious.
Goldsmith said allowing fans' obscene behavior to go unchecked will set a bad precedent for fan safety.
"It could deter families from going to ballgames," said Goldsmith.
On Friday, Ensign once again went before Judge Gale Kaneshiro to attempt to have the arrest expunged from his record. The NFL has submitted an affidavit against it.
If Ensign wins, Goldsmith has promised to appeal.
Ensign's camp said the Chiefs fan will score the final victory.
"It's the First Amendment. You may not like it, but that's what this country is grounded on," said Prevost.
On Friday, both sides were ordered by Kaneshiro to prepare written briefs by July 8.
In turn, Kaneshiro would then make a ruling on whether to expunge Ensign's record.
Ensign has filed a lawsuit against the city of San Diego and the security guards.
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