The Curious (Criminal?) Case of the Boston Marathon Bandits

Updated below.

The story has made the rounds on the internet since Monday’s 118th running of the Boston Marathon, eventually ending up in that corner of the web known as Deadspin. In case it hasn’t shown up in places that you frequent, four local runners obtained copies of an official race number from the internet (whether they purchased them from someone else or downloaded the image uploaded by the number’s original purchaser is unclear) and ran the marathon.  There were others who pulled a similar stunt and even those who ran the race course with no number, but this story seems to be the focus of most of the attention.

Running in an organized race without registering as an official participant is what’s known in the running community as being a “bandit.”  The practice is probably one of the most divisive topics among runners, a bunch who are usually very friendly with one another.  Bring up this topic, however, and people start digging in for war.  Bandits running Boston is probably runners’ version of the Cuban Missile Crisis: tensions are high and a metaphorical mushroom cloud could go up at any point.

On one side are people like Deadspin blogger Jon Gugala (who I’m not sure is even a runner); to this side of the debate, bandits are thieves, cheaters, or worse.  Gugala himself was quite liberal with his use of the word “bastard” in his post.  Likewise the person to whom the race number was officially registered, Kara Bonneau, decried what the bandits did, labeling them cheaters and taking to Twitter and Facebook to enlist help to identify the runners (for what purpose isn’t quite clear; hopefully nothing more serious than a public shaming).  The story was even picked up by Runners World and the Wall Street Journal.

On the other side, are folks like the bloggers at TurtleBoySports, a blog devoted to New England sports stories (I know, I know).  They had nothing very kind to say about Gugala, Bonneau or most anyone who was outraged by these four runners.  See for yourself here, but the title of the post should give you an idea of how they feel about the whole thing: “Idiot Deadspin Blogger Jon Gugala Sends Lynch Mob After 4 Boston College Students for Running Boston Marathon as Bandits.  Despite their unnecessary vitriol, I think they raise (or at least allied to) some interesting points that are worth thinking about.

Before we get to those, however, I think it’s important to note that the Boston Marathon seems to have something of a history of acquiescing to banditry.  The first woman to complete the race, Bobbi Gibb, hid in the bushes and jumped into the middle of the pack at the start of the 1966 Boston Marathon.  She was the fastest female finisher in 1966, 1967, and 1968 despite the fact that women would not be allowed to officially enter the Boston Marathon until 1972.  In 1996, the BAA officially recognized her three wins and awarded her a medal.  Sara Rae Berman who was the first women’s finisher in 1969, 1970, and 1971 has also been recognized by the BAA as the official women’s winner for those years.  In addition, there seems to be a consensus out there that race organizers have turned a blind eye to bandits to some extent in recent years as well, even going to far as to suggest that there is an unofficial “bandits corral” where unregistered runners wait to start the race after the last wave of registered runners.  In other words, bandits have an established history at Boston.

I have one last introductory thing to say before I launch into the legal issues.  Participating in a race without registering can understandably be regarded as selfish and potentially dangerous.  Race organizers put a lot of work into these events, especially one the size of the Boston Marathon.  Even if bandits are a way of life for the BAA, many of the participants had to put in a lot of hard work just in order to run a qualifying time in another race.  Taking a shortcut around that process takes something away from the event.  In addition, the copying of bibs presents a danger to the participants themselves.  Bibs typically have a section on the back for filling out emergency contact information.  If a runner is unconscious and needs medical attention, it’s imperative that medical professionals know exactly who they are dealing with and exactly who they need to contact.

With that out of the way, let’s move on to the legal issues.  This is by no means a comprehensive legal analysis.  I have not dug out all my old casebooks and law school outlines to check up on these topics.  I’m not going to scour Google Scholar for the most similar recent case law.  This is merely my 30,000 foot, best-as-I-can-remember analysis, so I’m sure there will be flaws.

The first issue is this: can these four runners rightfully be called thieves?  A lot of people seem to think so, but I’m not so sure that it’s quite as simple as they make it out to be.  Theft, after all, is a term with a definition and before labeling someone a theft, I think it’s only fair to consider whether they actually committed a theft.   According to Black’s Law Dictionary theft is “The felonious taking and removing of another’s personal property with the intent of depriving the true owner of it.”  Property, in this context, more or less just means “stuff.”  When we’re talking about theft, we’re generally not talking about trade secrets or “intellectual property” (which are deal with separately by the law).  This is stuff that you can put your hands on.  Finisher’s medals, food, and drink would be property under that definition.  If these runners took those items or were given them because of their fake race bibs, that could be considered a theft from race organizers.  However, many unofficial volunteers set up impromptu aid stations on their streets or in front of their homes; taking aid from one of them would be a different story.  Those folks don’t seem to be known for discriminating against unregistered runners, choosing rather to give away their stuff to any runner who passes by.  In any event, registered runners can’t claim to be a victim of theft by unregistered runners, because even if the unregistered runners took something from an official aid station, that stuff was the property of the BAA, not the registered runners.

Leaving aside the possibility of aid station supplies or finisher’s medals (and I don’t think anyone has suggested theft of any of those items anyway), I don’t think the BAA or any of the registered runners has a firm basis for claiming that a theft was committed merely by the unregistered runners’ showing up and running the course on the day of the marathon.  BAA doesn’t own the streets and, in any event, using the streets is not the same as taking them (although how one would “take” a street in the first place is beyond me).  Unregistered runners might be said to take away some of the prestige of the event by subverting the qualifying process, but prestige is about as intangible as you can get.  The law does protect certain intangible “property,” but those instances are limited (such as the previously mentioned trade secrets) and I can’t see any that would apply here.  So it seems to me that the charge of theft is out.

Could these unregistered runners be considered trespassers?  Trespass is merely an unauthorized entry onto the land of another.  The streets don’t belong to BAA, so neither BAA nor any registered runners could say that they were the victims of a trespass.  Only the local governments that own the streets could make that claim.  Making that claim, however, could be difficult.  It is possible to trespass on government property if it is property that is not open to the public or if it’s closed to the public at that time.  People hanging around at government housing projects make up a not insignificant portion of the misdemeanor criminal docket in any given city court, as just one example of how a charge of trespassing on “public” property often plays out.

The Boston Marathon, however, is a bit of a different situation.  Certainly police stop cars and pedestrians to prevent them from interfering with race participants, but other than in that limited sense, I’m pretty sure that all the roads are not completely closed off to the public.  Folks who want to wait for a clearing to walk across the road to talk to the neighbors, for instance, are not going to be charged with trespassing.  Similarly, I don’t think that unregistered runners who are not interfering with race participants can be said to be trespassing on government property that is open to the public.  In fact, it seems to me that the streets would be more open to foot traffic during the marathon than they are on any other day of the year.

Nevertheless, trespass could be a close call.  I can imagine that if one of the localities wanted to make an issue of this (assuming they can track down the identities of the runners) they could get their day in court.  There’s an argument to be made that the runners’ presence on the streets was unauthorized.  I don’t know whether that would be a winning argument, but I don’t think it would have any trouble passing the laugh test.

Some folks outraged by these unregistered runners have accused them of committing fraud.  Once again, fraud is a term that gets thrown around quite a bit, but it has a legal definition that deserves examination.  Fraud is “a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.”  Well, we can definitely say that these runners concealed the fact that they had not registered to run the race.  Did they, however, induce anyone else to act to his or her detriment?  It seems that they were attempting to induce inaction so that they could complete the race.  I’m not going to dig through the case law, but I’m pretty confident that would be a distinction without a difference as far as the law of fraud is concerned.

Did their inducement act to the detriment of anyone?  That’s the important question, I think.  Let’s assume that BAA officials would have forced these runners off the course if they hadn’t been running with copied bibs.  Does allowing them to stay on the course harm BAA in any way?  If you count aid and medals that they might have taken, then that could be enough to make out a claim of fraud.  Again, however, let’s assume these folks didn’t take any aid from official race volunteers and that they didn’t accept the finisher’s medals.  If that’s the case, where is the detriment to BAA? If there is some detriment that’s legally relevant, it’s hard to see.  The race was going to happen regardless of what these unregistered runners did; BAA wouldn’t have done anything differently.  Finally, I don’t think other runners could claim to be the victims of fraud here.  They might have thought that the unregistered runners were actually registered, but the unregistered runners certainly weren’t interested in concealing the truth from other runners; they only wanted to avoid detection by people who could have them removed from the course.  In addition, if the BAA can’t show that the misrepresentation harmed them, then it seems like it would be even more difficult for a registered runner to claim they were harmed.

What about forgery?  That’s another term that’s been thrown around without much apparent thought for the actual legal definition.  Yes, the bibs were unauthorized copies.  If, however, they had printed out a copy and hung it on their wall there would be no issue here (at least not practically speaking; I’m happy dealing with hypotheticals, but ones that range that far afield are taking it a little too far even for me).  Attempting to pass off a forged document is a crime known as “uttering” in most jurisdictions.  In most jurisdictions, however, the intent to injure or defraud another is a required element of the crime.

As explained above, showing that BAA or any other person was harmed by the participation of unregistered runners is not an open and shut case.  It’s quite possible, even, that they would not be able to show that they had really been injured at all.  If it wasn’t possible for them to be injured, then it follows that it wasn’t possible for the unregistered runners to intend to injure.  I think this is another potentially close question: there’s almost certainly enough there to survive a motion to dismiss, but perhaps it’s not a slam dunk case for the prosecution.  The ultimate outcome probably would depend on facts that we just don’t have (facts that even further investigation might not uncover).

Are they cheaters?  That’s not really a legal topic, but it is a charge that has been thrown around quite a bit.  To cheat is to “act dishonestly or unfairly in order to gain an advantage, especially in a game or examination.”  Did they act dishonestly?  Of course.  Did they do it to “gain an advantage”?  Of course not.  None of these runners was competing for prize money.  None of them even came close.  It seems to me that the charge of cheating doesn’t stick either.  You have to have something to cheat at or someone to cheat out of something.  These unregistered runners had neither.

I think the most we can say about the bandits is that they are freeloaders.  To make an attempt at an analogy, it would be like crashing a large family reunion held at the local public park.  The organizers reserved the park with city officials, but you just decided to pick a matching, brightly colored shirt and show up.  If you took some food from the potluck, that would be a problem.  But if all you did was show up and mingle, hoping to make some new friends and enjoy the park, it’d be hard to say that anyone was harmed.  The matching shirt probably made more than a few people believe that you were supposed to be there, but since the reunion was going to happen regardless of whether you showed up uninvited, you didn’t really induce anyone to act to his or her detriment. It’s rude behavior, to be sure, but not criminal.

Those topics are the ones I’ve seen and now you have my quick analysis of each of them.  If there are other potential legal issues that you see or if my analysis is missing something, please feel free to leave a comment.

UPDATE: Commenter Michael pointed out something that I think is worth mentioning and is relevant to the trespass analysis in particular.  Typically, road races have to obtain a parade permit or road race permit from the town or city.  While I haven’t been able to locate a copy of the BAA’s permit or permit application for the Boston Marathon, the the Parade Permit Permitting Team for Hopkinton (where the Boston Marathon starts) does have some related documents posted online.  For instance, the “Boston Marathon Parade Permit Permitting Team Comments” for the 2013 Boston Marathon can be found here.  Included in that document are comments from the Hopkinton Chief of Police:

As in the past, if possible, I would like the permit to include approving my request to:

“Prohibit parking motor vehicles or trailers on all public ways in the Town of Hopkinton from 5:00 a.m. the day of the Boston Marathon, April 15 2013, until 1:00 p.m. April 15, 2013, unless the vehicles have a permit issued by the Police Department. The prohibition will only be enforced on public ways critical to supporting the start of the race.”

That isn’t a prohibition on unregistered runners, of course, but it does suggest that the parade permits obtained by the BAA could contain restrictions that would make a trespassing case against unregistered runners much more clear.  If the Town put in limitations on where vehicles can park at the time of the marathon, it seems to me that putting in restrictions about use of the streets would be a simple matter too.  If someone does happen to know where detailed versions of the Boston Marathon permits can be found, I’d be very interested to have a look at those.

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2 thoughts on “The Curious (Criminal?) Case of the Boston Marathon Bandits

  1. I nteresting analysis, but I think a better analogy is that races typically get a “Parade Permit” that gives them a right to control who is in their parade. You may be able to track down precedents about that, unwelcome people crashing parades.-Michael, a race director

    • Yes, I think that is a better analogy. Actually, it’s probably not even an analogy, but what the BAA actually did. If I dig up anything on that point, I’ll be sure to post an update.

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