The death of any young person is tragic by definition.  The death of a young person in the course of football training, a game, is horribly tragic.  But whether that makes the coach who is alleged to have denied his players water criminally liable is an entirely different question, and one that will be addressed in the prosecution of Pleasure Ridge Park, Kentucky, football coach Jason Stinson.

From the WSJ Law Blog :

Not many facts have emerged. But it seems that the coach, David Jason Stinson, was directing practice on August 20, during 94 degree heat, when Gilpin collapsed and was brought to the hospital with a body temperature of 107 degrees. No autopsy was performed, reports the AP, but it appeared Gilpin died from complications from heat stroke, according to the coroner’s office. According to a report on MSNBC, coaches had refused to let players take water breaks.

It’s critical to recognize from the start that the coach’s decision to not let players take water breaks may well be seen as foolish and unreasonable, even though some high school football aficionados might well argue that this is not a game for sissies, and training to play through adversity is part of the deal.  Similarly, it could be argued that no student was forced to practice at gunpoint, and could have walked off the field at any time.  But aside from the unrealistic expectations, that doesn’t absolve an adult, into whose hands people entrust their children, from exercising good judgment.

None of this, however, explains the conversion of this tragedy from negligence to a crime. 

For a brief tutorial on Kentucky’s criminal law and an opinion on the strength of the case against Stinson, we rang U. of Kentucky Law’s Andrea Dennis, a crim law prof. She told us that reckless homicide is the lowest level of criminal culpability in Kentucky. In other states, she says, the same charge might be called negligent homicide or gross negligence. A person acts recklessly, she says, “when he fails to perceive a substantial and unjustifiable risk that the result will occur.” Failure to perceive the risk must be a gross deviation from the standard of care.

Was there a “substantial and unjustifiable risk” involved that the coach failed to perceive?   Andrea Dennis apparently thinks so.

“If it’s true that there was water denied, that strikes me as problematic,” said Dennis, a former defense lawyer. “What we’re talking about is coaches entrusted with the care of children. This kid was 15. And 15 year-olds aren’t always the most cautious people. They want to please their coach and their parents and show off to their teammates. So a reasonable person should know about the limitations of a high school athlete, and should know that a kid might not necessarily ask for water if he’s being told not to.”

While I can’t disagree at all with her assessment of 15 year olds, her discussion has no bearing on whether the risk was substantial and unjustifiable. 

According to this AP story, via Turley, the football players were doing “gassers”, sprints up and down the field.

Sophomore Max Gilpin and his Pleasure Ridge Park teammates spent the tail end of a three-hour practice on a sweltering August day in Louisville running the drill that is a coaching staple across the country, hoping to impress enough to earn varsity playing time that fall.

If “gassers” are a staple of high school football training, how then can Coach Stinson’s use of them constitute a substantial and unjustifiable risk?

They sprinted 12 times in what felt like 94-degree heat, sometimes with helmets and pads, as the coaches pushed them to go harder and harder. It was a drill like those on many high school football fields, until Gilpin, a 6-foot-2, 220-pound offensive lineman, collapsed to the turf just 15 minutes after a teammate went down.

This detail, that another player went down 15 minutes earlier, provides the first glimmer that there was a substantial and unjustifiable risk, and that the coach may have chosen to ignore it. 

Some of the initial “expert” reactions, like Dennis and Jeffrey Toobin,

“If he denied him access to water, that’s really, really serious,” said CNN senior legal analyst Jeffrey Toobin. “I can see the case moving forward.”)

fell short of persuasive, The prosecutor’s explanation was a similarly inept analogy.

The best example I can give you is like someone shooting into a building not knowing anyone is in there, then killing somebody,” Commonwealth’s Attorney R. David Stengel told WHAS. “They didn’t know they were in there, but they should have known that shooting into a building where people normally are is something dangerous.”

This is nothing like shooting a gun into a building on any level, which is the classic explanation for criminal recklessness.  And had the coach simply pushed “gassers” as high school coaches everywhere do, and have done, and will do, in the course of training high school football players, no rational basis would exist for this to be converted into a crime.

But that another player had collapsed, and yet the coach continued to push the ‘gassers”, makes all the difference in the world.

Supporters of the coach talk about what a great person and coach he is.  There’s no reason to doubt that, but being a great person doesn’t mean you didn’t commit a crime.  That Coach Stinson is heartbroken over the death similarly doesn’t change anything.  I’ve no reason to doubt the absolute sincerity of his feelings.  And he may well have pushed the envelope too far when the first player went down, from a civil negligence perspective, but his continued pushing in light of that may well meet the threshold for a “substantial and unjustifiable risk” that he failed to perceive.

Coach Stinson isn’t being charged with a crime because this was a tragedy.  He’s being charged because he ignored the warning that a tragedy was about to happen.  Whether this is enough to convict for a crime is left to judge and jury, but that he’s been charged isn’t as far-fetched as it would otherwise seem.