Jason Ensign's attorney, Mary Frances Prevost, said Tuesday that Superior Court Judge Gale Kaneshiro granted her request to order charges against her client to be dismissed.
"No matter how you slice it, Jason was innocent," Prevost said. "He exercised his First Amendment right to free speech."
In her Aug. 5 ruling, Kaneshiro said the gesture was an alleged violation of the NFL code but not a crime and that security guards used unlawful force when they grabbed Ensign and forced him into a tunnel at Qualcomm Stadium after he refused to go there with them to talk about the incident. They then applied pain techniques to keep him from resisting.
City Attorney Jan Goldsmith charged Ensign with misdemeanor battery for punching and biting a security guard.
"Words alone, no matter how offensive or exasperating, do not justify the initial use of unlawful force," Kaneshiro said in her order. "Ensign was not a physical threat to either the private security guards or the fans at the game at the time."
Kaneshiro said security guards did not ask Ensign to leave the stadium before they grabbed him and therefore he was in his right to counter their force.
The judge noted that stadium security guards are entitled to use reasonable force to evict someone if they are asked to leave and they refuse, making them a trespasser. She also said Ensign was subject to the NFL's code of conduct during its games, which the judge said are not public events.
Goldsmith called the decision a victory for the ability of NFL teams to take reasonable steps to avoid violence.
"Judge Kaneshiro's revised decision upholds the right to enforce those rules and remove unruly fans from the stadium as long as it is done right," Goldsmith said. "We are pleased with her decision."
The two sides are due back in court in September for a civil suit filed by Ensign, who said the charges cost him his job as a nurse and prompted an investigation by the state nursing board.
Copyright 2011 by The Associated Press