The Legality of Intentional Hit By Pitches

As we move closer to baseball actually returning, there’s a topic that I’d like to visit. I’m sure you guys have seen quite a few players, reporters, betting sites and fans calling for the Astros to be thrown at this year. Some of these were thinly veiled innuendo, others were direct statements. Here are just a few:

Here was some direct quotes from this article by the Washington Post:

“I don’t think it’s going to be a comfortable few at-bats for a lot of those boys, and it shouldn’t be,” Cleveland Indians pitcher Mike Clevinger said last month.

“I would lean towards yes,” Los Angeles Dodgers pitcher Ross Stripling told reporters Friday when asked whether he would hit an Astros batter on purpose if given the chance. “In the right time and the right place . . . yeah, it would be on my mind.”

“I think the commissioner has made it clear in the past few seasons that throwing a baseball at somebody intentionally is not an appropriate form of retaliation in the game. …The problem is knowing if it’s on purpose or not, but I guess when you come and say, ‘I’m going to do it on purpose,’ then you know.” - Verlander

Our sister site, took a look at other ways of punishing the Astros, and the comments are interesting in their own right.

Manfred spoke out in his interview with ESPN saying which NYPost covered:

We have been working on for some time a memorandum about being hit by pitches, intentionally throwing at batters,” Manfred told ESPN “It’s really dangerous, really a dangerous undertaking, and completely independent of the Astros investigation we will be issuing at the beginning of this week a memorandum on hit by pitches which will increase the ramifications of that type of behavior.”

“It is simply not appropriate to express whatever frustration you may have growing out of the Astros situation by putting someone physically at risk by throwing at them,” Manfred said. “It’s just not acceptable.”

And as the first spring training started, it was quick to get under way.

We’ve already heard pleas from Dusty Baker urging MLB teams not to bean the Astros.

I completely understand the frustration of some players and fans, but I’ve never been one to advocate for violence, particularly as retribution for a GAME. And although there’s only been one death of a MLB player hit by a pitch, and rules have changed since then to protect the players - we’re still talking about the possibility of career ending injuries.

There are probably groups out there that believe that to be justified, since quite a few have called for the players to be banned etc. But the element of the impact on the rest of a players’ life, for a game - seems ridiculous to me.

So I asked my friend who works in the court of appeals about it from a legal standpoint. Here was his commentary:

The Astros cheating scandal has raised the issue of violence in baseball, from tweets by fans to statements by players that they intend on throwing at the Astros, far too many people “professionals” and “fans” are advocating for violence in baseball. This article does not address the right or wrong of what the Astros did. Plainly, it was wrong. It raises the question of whether the act of pegging a batter is likely an illegal act for which a player can suffer criminal or civil consequences. This article proposes the answer to this question is most likely yes.

Historically, U.S. jurisdictions have refrained from raising such questions in our court systems. However, State v. Forbes, No. 63,280 (Minn. Dist. Ct., 4th Jud. Dist.) helped establish a framework that supports the bringing of criminal cases against a player who intentional assaults another. In Forbes, Boston Bruins’s Dave Forbes was prosecuted for intentionally striking Henry Boucha with a hockey stick, causing significant injury. In a case of first impression, the state of Minnesota entered a judgment of mistrial based on a hung jury. While hardly redoubtable precedent, the fact the trial court submitted the case to the jury is informative. It likely means the case passed the directed verdict stage, which indicates intentional acts of violence in sport could lead to criminal prosecution. The State declined to retry the case following the hung jury.

While the U.S. has rarely seen prosecutions for sports violence there have been some cases; notably, when the Detroit Pistons and Indiana Pacers brawled. Five Pacers players pled no contest and were sentenced to probation and community service for misdemeanor assault. Importantly however, this case involved a brawl with fans, which distinguishes itself significantly from hit by pitches. Despite the lack of prosecutions in the U.S. it has been a relatively common practice in the Canadian courts with over 100 cases over the last thirty years. Because the Canadian definitions for assault and battery are substantially similar to those in the U.S., these cases are informative in explaining how these cases would likely pan out if prosecutors were willing to bring the cases.

Briefly, battery is defined at common law, as an intentional unpermitted act causing harmful or offensive contact with the “person” of another. Canadian courts have addressed intentional violence between hockey players under the basic rules of battery with some minor additional requirements related to consent.

First, courts have followed the doctrine of implied and express consent. In short this means by voluntarily playing a sport you consent to the violence or injury associated with that game. Thus, violence in sport must be incidental to the playing of the game in order to receive legal protection. This is the most difficult hurdle facing criminal prosecution stemming from intentional sporting violence. There is no doubt that simply being hit by a pitch is an incidental part of the game; no player could expect to avoid being hit by an accidental pitch. However, this is broadly defining the scope of what a player actually consents to. With the exception of players who attempt to get hit by pitch, like Astros legend Craig Biggio, most players actively try to not be hit by pitches as they do not want to risk the potential for serious injury, including death. See Ray Champan who died after being hit by a pitch.

Thus, without player consent to be thrown at intentionally, pitchers are committing assault or battery by intentionally throwing at batters. I admit there are “unwritten rules” in baseball, throwing at player after they have celebrated too much, going yard, or in retaliation for previous “wrongs” done by the opposing team. These unwritten rules are prohibited by the game but continue to be acted on by the players. These traditions, albeit moronic ones, are too often part of the standard play of the game. However, because the MLB outlaws intentional pegging in its rules and punishes players in and potentially out of game, the governing body of baseball is officially stating such acts are not part of the game; thus, players have not consent to such acts.

The next challenge is the burden of proving intent. Obviously, there are accidents in the game, despite the abilities of pitchers in the modern game, sometimes a ball flies wide for any number of reasons. These hit by pitches are undeniably not prosecutable as players have consented to this possibility and there was not intent. Thus, the challenge remains proving such players have done so with the intent to commit a battery. With the Astros multiple players have threatened to throw at the Astros notably Ross Stripling and Mike Clevinger. During the Astros first five games they have been hit seven times a staggering four times the MLB average over the last ten years. (Note: This was originally written during our first time through Spring Training)

Additionally, dealing with the difficulty of proving intent is not new for law enforcement and prosecutors. Prosecutors are more than capable of proving their burden. After all, most of their normal cases in these situations do not have the benefit of dozens of HD cameras, recordings of players threatening to commit battery, and more witnesses than you can shake a stick at.

Admittedly, most of the cases of criminal charges brought for sports violence are from hockey, a sport with greater propensity for violence. However, if a valid case can be brought against a player of sport, which includes violence in every game, then a sport that outlaws violence in the game should have an easier time proving the violence is beyond the implied and express consent of the batter. Lastly, I admit most of this framework is from Canada. How U.S. courts will apply the principles of consent or whether prosecutors are willing to bring a case is a question left for another day. As a final note based on these standards, the Toronto Blue Jays could face a much higher likelihood of prosecution given Canada’s willingness to prosecute.

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So what would it take to stop intentional beaning from occurring? Honestly, not that much. I do believe if Harris County District Attorney (Kim Ogg) stated that she would pursue an intentional HBP as Assualt & Battery (even if she never actually pulled the trigger), I believe it would be a huge deterrent for players - at least when the players are playing in Houston.

To clarify, there are much bigger issues going on in the world today. I completely understand and acknowledge that. I’m extremely excited to have baseball back and am hopeful we can go back to enjoying it without the risks to ANY player.

Let me know your thoughts!