Colorado Judge Rules “Hacky-Sack” Is Not Juggling

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Just last week (or the week before), we got some clarity in the ongoing debate over whether a burrito is a sandwich (it isn't). This week, a ruling on whether playing "hacky-sack" is juggling. As you might expect, this story came in from the Boulder office.

Here's some background. Technically, "Hacky Sack" is a brand name for a particular brand of "footbag," which is the generic term for a small bean-filled bag that is kicked from player to player in a circle of "hackers." It is one of that (to me) mystifying category of foreign games in which you can't use your hands. (What did those things allegedly evolve for, anyway?) At least, it was originally foreign.  According to the Internet, which is never wrong, it allegedly originated in "China, Thailand, Native America, and nearly every country," although that is way too many places for something to originate. But the non-native American version was invented in 1972 by "two athlete dudes" from Oregon, who later sold the rights to Wham-O. The official and generic term for the sport is apparently "footbag," at least according to the International Footbag Association, but the Boulder Daily Camera calls it "Hacky Sacking," which is a verb I'm not going to use anytime soon.

Apparently, Kallen Ford, a senior at Boulder High, was ticketed in October for — oh, okay — Hacky-Sacking on the Pearl Street pedestrian mall in Boulder with a friend. The ticket charged Ford with "releasing projectiles on the mall," a post-9/11 charge if I've ever heard one, and one that carries a $250 fine. The friend apparently was not charged.

Because I know you're curious, I will tell you that the definitional issue arose because of the following Boulder city ordinance:

Section 5-6-9 (Projectiles on Mall):

(a) No person shall cast, throw, or propel any projectile on the mall. This prohibition includes, without limitation, throwing balls, boomerangs, bottles, darts, frisbees and other like devices, model airplanes, rocks, snowballs, and sticks.

(b) This section does not apply to a juggler if the juggler does not cast, throw, or propel a knife, including, without limitation, a knife with a blade three and one-half inches in length or less, or burning projectile or if the juggler is acting within the terms of a special entertainment permit . . . .

Thus, there is a total ban on using projectiles in any manner except to juggle them, unless the objects to be juggled are knives and/or on fire, and even then the city may issue a permit for said juggling. First, I think it is a little odd to have an ordinance that lets you have any number of extremely dangerous projectiles on the mall as long as they aren't (1) knives or (2) on fire, so long as you are juggling them. I have this vision of Osama bin Laden strolling down the Boulder mall juggling hand grenades, with the cops following along just waiting for him to drop one. But setting that aside, no definition of "juggling" is provided. And the dictionary definition does not rule out juggling single items:

To toss and catch several objects continuously, keeping at least one of them in the air while handling the others. Also, to toss an object, etc., from hand to hand with dexterity; (of two or more persons) to toss an object, etc., back and forth between them.

Oxford English Dictionary (1997) (emphasis added). Construing "juggling" to include Hacky-Sacking is also consistent with the purpose of the statute, which is drafted so as to broadly permit the tossing of non-dangerous items within a defined and relatively finite space. Yet Judge Jeff Cain sided with the city, although the fine was reduced to $40 or seven hours of community service. The rationale for the judge's decision was not given.

Kallen, who acted as his own attorney, commented after the hearing on the imponderabilities of our legal system and the outcome of his particular dispute. "It sucks," he opined. He alluded to the possibility of another test case, which he would generate by juggling (by hand) some Hacky Sacks on the mall. It is through the cumulative action of modest patriots like these that our freedom is perpetually renewed.

Link: Boulder Daily Camera
Link: Hacky Sack
Link: Boulder Revised Code (1981)