I’ll bet that many Loyal Daily Dawg Readers remember the horrific incident when two high school football players intentionally assaulted the ref near the end of the game. When I read the court’s opinion in this case I was surprised to see that this incident happened seven years ago—in September, 2015. Here’s a recap of what happened.
The game was between Marble Falls and John Jay. According to the allegations in the lawsuit, Jay’s assistant coach, Mack Breed, became “increasingly agitated, angry and enraged over his belief that Referee Robert Watts was not only making a number of bad calls,” he was also allegedly making “racial comments” directed at Jay’s players. Here’s what the lawsuit alleges happened next:
Coach Breed told John Jay players “to hit” Watts because “he needed to pay the price.” In the game’s closing two minutes, two John Jay players followed that order. They ambushed Watts from behind. The assault left Watts with “a turf burn on his forehead, a cut next to his right eye, and a large abrasion on his left arm.” He “received a concussion and experienced “post-concussion syndrome and anxiety disorder.”
Breed pled guilty to assault a few months later and permanently lost his license to teach. Notice that Coach Breed committed this assault not by doing it himself, but by directing players under his supervision to do so.
The injured ref filed a civil suit against Coach Breed and the district that employed him. The federal district court tossed it out, but now the 5th Circuit has reinstated the case against the coach. The suit was based on 42 U.S.C. 1983 which is the most common basis for a lawsuit in federal court against governmental entities and their employees. We can learn a few things about how that statute works from the court’s decision in this case.
Liability of the district. The district’s defense was based on the fact that there was no official policy or custom of the district that caused the coach to order the kids to knock the bejesus out of the ref. As a general rule under 1983, school districts face liability only when the policy or well-established custom of the district caused the injury. That’s not what happened here. The court put it succinctly:
No policy or custom of Northside ISD directed the assault on Watts—quite the contrary, Breed had gone rogue in ordering the assault—so the district is not liable under section 1983.
Liability of the coach. It was a different story with the coach. To pin liability on the coach, the ref had to convince the court that the injury was caused by a “state actor.” Section 1983 only applies to “state actors.” Recall that it was two students who actually did the physical damage to the ref. How can this be blamed on a “state actor”? Here’s how:
Breed’s ordering players to assault the referee….is an example of a public official’s ordering private actors to engage in conduct. The law has long recognized that state action exists when a state actor commands others to commit acts as much as when the state actor commits those acts.
The challenged action is Breed’s order to hurt Watts. It is hard to see how that is anything other than state action. Breed was on the sidelines acting in his role as an assistant football coach at a public school…..Breed cannot escape liability by ordering students to conduct the attack.
It’s Watts v. Northside ISD, decided by the 5th Circuit on June 27, 2022. I’m pleased to let you know that Craig Wood, Katie Payne and Jameson Baker from our firm’s San Antonio office represented Northside on this one. Please note our firm represented the district—not the coach.
DAWG BONE: NOTICE: BOTH CRIMINAL AND POSSIBLE CIVIL LIABILITY FOR ORDERING STUDENTS TO COMMIT AN ASSAULT.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: here we go again: is a charter school a public school?