Magistrate Judge Eric J. Strawn has acquitted Trace O’Connell of disorderly conduct. Rapid City had charged O’Connell for allegedly throwing beer and racial insults at American Indian children at a Rush hockey game in January.
Judge Strawn concludes that beer was involved in the events of January 24, 2015:
The Phillip [sic] group consisted of about fifteen people…. The Phillip group traveled to Rapid City on the day of the game and made several stops along the way. At each stop the group consumed some alcohol…. The Eagle Sales suite offered beer as part of the suite accommodations…. The Phillip group, and specifically the Defendant, did consume alcohol offered at the suite.
…[T]he girls and many others were sprayed with beer…. [T]he only person who could have delivered the sprayed beer was the Defendant…. Defendant’s own witness testified it was Trace O’Connell…. This Court finds… that the Defendant, at the time when a score by the Rush just prior to the score that tied the game, joined with the crowd in celebration and making a movement like he was roping, sprayed many in his suite including [five children], Ms. Means, and quite possible more students… [Magistrate Judge Eric Strawn, Memorandum of Decision and Findings of Fact and Conclusions of Law, State of South Dakota, County of Pennington, City of Rapid City v. Trace O’Connell, 2015.08.31].
To find O’Connell not guilty of throwing beer, Judge Strawn relies on the well-worn legal principle that says making a vigorous roping gesture with a can of beer in one’s hand is a spontaneous gesture of celebration, not reckless abuse of others, at least when something as important as a hockey game is on the line:
The Court concludes that Defendant’s actions of spraying beer were the result of an excited reaction to a very important score in the Rapid City Rush hockey game. Not only the defendant, but the who arena erupted when the score occurred…. This Court has reasonable doubt that the Defendant’s celebratory roping reaction to the score was consciously done. A majority of the arena, including the children, stood up and demonstrated elation. The action was not the result of an unjustifiable disregard of a substantial risk to the children’s safety. The action was a celebration, a knee-jerk reaction to an exciting event in a close hockey game. The Court notes that even Krya thought the action was celebratory and not on purpose…. The Court concludes that the action was involuntarily made. The action falls more in line with a negligent action rather than a reckless action.
…[T]his Court concludes that the actions of the Defendant were an involuntary reaction to an important score in the hockey game. Defendant did not intentionally do a physical act of spraying beer; but, rather he reacted to a score by making a celebratory roping movement with his arm and unfortunately, he had a beer in his hand [Strawn, 2015.08.31].
The judge heard a lot more than I did, and heard it directly. But I have to question his judgment on this point. Leaping up and throwing one’s hands in the air in elation differs psychologically from deciding to make a display of one’s elation by pretending to hold a lasso in a hand that already holds a real, open can of beer and pretending to twirl that rope in an arc marked by real beer spilling all around.
The judge’s rejection of this portion of beer-throwing charge (like my disagreement with his rejection) is based on practicing psychology without a license. The judge’s rejection of alleged beer pouring and racial insults is based on firmer jurisprudential grounds of scant and inconsistent testimony. One child seated farther from the Philip suite and one adult chaperone, Consuelo Means, said men poured beer from above, but two girls closer to the alleged action said the men above were only teasing and that one man tilted a can over the edge of the suite above the children but did not pour any beer. And that man was not O’Connell.
One witness, Consuelo Means, testified to hearing O’Connell utter racial slurs. The Court finds Means’s testimony “less than convincing”:
Ms. Means claims that in just that brief encounter with the Philip hockey group in a hockey game filled with hundreds of people all cheering, talking and chanting, she recognized one single voice out of the entire crowd…. The testimony throughout the proceedings demonstrated that Britt Miller and/or Brian Kuchenbecker were the ones who spoke the most as they were the ones interacting with the students and pounding on the walls….
The Court finds Ms. Means testimony regarding identifying Defendant through his voice is not credible. When Ms. Means claimed a person was “standing in the corner over Mikayla” and was “pouring the beer on her”, she testified that “I couldn’t hear” because it was pretty loud in there…. Either it was so loud she could not hear what the individuals were saying in the Suite, or she could hear the Defendant and was mistaken about how loud it was in the arena. This inconsistent testimony demonstrates her inability to correctly recall the facts. Moreover, the beer pouring has been demonstrated to be inaccurate and uncorroborated.
…Aside from the unreliable testimony of Ms. Means, not one person testified to having identified the Defendant as having uttered any racially charged words nor provoke aggression toward any adult in the arena [Strawn, 2015.08.31].
According to the facts and conclusions of Judge Strawn, Trace O’Connell did indeed throw beer around at the Rush hockey game. Judge Strawn and I disagree on whether such irresponsible management of an adult beverage crosses a legal threshold (though I’d like to think Budweiser would back me up with a reminder to “Drink Responsibly™.” But I have to agree with Judge Strawn’s conclusion that the prosecution failed to present sufficient, consistent evidence to convict O’Connell of intimidating the children from the American Horse school with racial slurs.