No, this isn’t about the locker room brawl potential with Terrell Owens, but how Burress, wide receiver for the world champion New York Giants (currently 11-1 and first in the NFC East) has been universally vilified for carrying an unregistered handgun (Glock, I believe?) into the Latin Quarter nightclub in Manhattan, and put a neat hole in his thigh when he mistakenly pulled the trigger.
He was stupid. He was wrong. But folks, this doesn’t make him evil.
The inflammatory rhetoric about Plaxico’s conduct is out of control, with editorials, commentaries and even political cartoons vilifying Plax, as if he had pistol-whipped an 8 year old to steal their lollipop. Time for a reality check about crime.
Possession of a weapon in New York is a crime. New York has very restrictive laws regarding handguns, and it’s nearly impossible to obtain a permit to carry a weapon. Short of being an ex-cop, the New York City Police Department approves carry permits to only a select few who have an absolutely clear and definitive need for a gun, and then only when the Pope writes a letter of recommendation.
Let’s put this in context. What if Plaxico played for Dallas? I’m going to fudge some details here, not only because of my lack of familiarity with Texas law but because I’m using Dallas mostly because they are also in the NFC East and all true New York Giants fans hate the Cowboys.
Had Plax played for Dallas, he would have lived in Texas instead of New Jersey, within a few miles of the center of Manhattan, and wouldn’t have been compelled to travel interstate to find cultural satisfaction. Had Plax played for Dallas, he would have had a carry permit for the asking, Had Plax played for Dallas, no one in Texas would have thought twice about the fact that he had a weapon on him, since guns are ubiquitous. This is even more true in light of the murder of Sean Taylor, the gunpoint robbery of Steve Smith and the many other attacks on NFL football players.
Had Plax played for Dallas, the worst that would have been said of him is that he’s a lousy shot. No one would have suggested that by mere possession of a gun, a malum prohibitum offense (meaning that it’s criminal only because a law says so, not because it reflects an inherent evil), he went from being a very tall receiver with great hands and a bad attitude to the personification of athletic malevolence.
The “fallen hero” political cartoons, repeated in commentaries by those who believe that the quirk of nature that gives one man the ability to catch an odd shaped ball requires him to similarly possess a degree of moral perfection somewhat inconsistent with the difficult upbringing of many professional athletes, is a sham. Athletes compete based upon their skill in playing a game. They are rewarded for their physical skills with a ton of money. The teams know they aren’t necessarily fine human beings, and some aren’t the smartest fellows around (though others are). But they aren’t one dimensional. They are people, and they make mistakes.
In this case, Plaxico Burress made a particularly stupid mistake. But his motives weren’t evil. Is it evil to want to be protected from harm by some psycho who might be inclined to murder a football player for his diamond earing? Would it be better if Plaxico Burress appeared in the headlines as a murder victim that Saturday morning, rather than a evil criminal gun possessor and bad shot? The fans and team might think so, and the sports writers and cartoonists would have been singing his praises as his number was retired and he was hailed as a great humanitarian. But for Plaxico, he would have been dead. Not as good for him as for us.
So let’s cut through the nonsense that’s permeated the sports world, at least in New York, and painted Burress as one step below Jack the Ripper. He’s a dope, but he’s not evil. There is absolutely nothing about what he’s done to suggest any malevolent intent whatsoever. If ever there has been a person possessing a hand gun in New York City for a defensive purpose, Plaxico is the one. It’s time that the mouths shut their yapping about what a bad man he is, and recognize the wrong committed within a rational and reasonable context. He broke the law, He is being prosecuted for it. That’s how it works. But he is not evil.
And if he played for Dallas, my bet is that he’d be suited up in Pittsburgh this weekend and catching footballs, Achilles tendon permitting.
Update: Via Doug Berman, Dave Kopel has an op-ed in the Wall Street Journal addressing the Heller angle on the Burress case. What’s curious about his analysis, though not at all surprising, is that Dave doesn’t take Scalia to task for the fact that even under the full interpretation of 2d Amendment RKBA under Heller, Burress would still not be permitted to carry a gun, since it’s limited to self-protection in the home. When Dave contends that the law prohibiting possession of a weapon “is unjust and perhaps unconstitutional,” he’s jumping the gun (get it?).
And before some wag posts a comment about “it’s a start,” and compares it to Brown v. Board of Education, the Heller spin-off is getting old. Scalia included the infamous exclusions paragraph, and until that changes, take it up with Nino.
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Malevolent intent? If so, it’s been well-hidden. Of all people who metahang around metahere, I’m going to be the last to oppose people carrying handguns for personal safety. Sure, it’s possible that one of the reasons he carried was to appear “cool,” as the youngsters say, in his social set; perhaps being a multimillionaire football hero wasn’t enough. If so, so what, I guess — Occam’s Razor: a guy who carries a gun discreetly and doesn’t use it to do bad things to other people is probably carrying it so he might have a chance to dissuade somebody from, say, hitting him over the head with a tire iron, and I’m in favor of that.
But I don’t want to let him off the hook quite so quick — on moral issues; the legal stuff is another matter.
At a minimum, he was awfully careless. Carrying a gun so that it won’t discharge without intent isn’t rocket science, and while what appears to be recklessness didn’t hurt anybody else, it easily could have. In Texas, or in Minnesota, he could have — and almost certainly would have — lost his permit and faced various penalties. (Here, it would have been negligent discharge within city limits, and while we don’t treat that as harshly at NY treats just having a gun without the permit, it is a felony. From the few cases I’m — indirectly, pinky swear — familiar with, it would have likely been pleaded out, if a good attorney couldn’t make it go away; no prison time. Works for me.)
And recklessness with the things that go bang is something that, for various reasons, ticks me off.
But, no, he’s not Jack the Ripper; he’s an idiot with a Glock. Well, who used to have a Glock.
One of the problems with metacommenters is that they don’t read the sports page of New York tabs, or listen to New York sports radio, which causes them to metassume that if they didn’t hear it, it didn’t happen.
Consider, if a married man is alone in the woods, is he still wrong?
As for stupid and wrong, was I unclear or inadequately emphatic?
1. Yes; any married guy knows that.
2. Not unclear. Inadequately emphatic? I dunno; maybe this particular flavor of stupidity and wrongness pushes some of my buttons more strongly than yours?
Scott,
Texas law would not necessarily permit his conduct either. A concealed licence doesn’t permit carrying on a business where alcohol sale is 51% of its business, or where the licencee is “intoxicated”. The first is a felony carrying a possible penalty of 2 to 10 years. I obviously don’t know the particulars about the club where this occurred or his state of consumption, and obviously the law is not as strict as NY.
Yeah. Lots of states have that restriction. Understandably; when I go up to a strip bar, my first question is always, “Excuse me? Do you get the majority of your income from sales of the booze? Or rakeoff from the dancers?”
But move it to MN, have him play for the Vikings, and the analogy works; we don’t have a “audit the restaurant before you carry there” law.
Thanks for the clarification, Jig. In NY, the law doesn’t need to deal with tweaks as much since it is so onerous with issuing permits and so harsh on illegal possession.
Make him play for the Vikings? That has 8th Amendment implications.
Commentators are fired up (sorry, could’t avoid it) with multi-millionaire, super-star Buress not because he unlawfully carried a gun into a night club but rather because, as so often happens, discharging a gun negligently in a crowded place usually blows an innocent bystander into smithereens, and it was simply miraculous that nobody else got hurt. You just think of what could have happened to any one of the innocent people in that bar, and the terrible tragedy that was miraculously avoided, and it is impossible not to feel outraged. I’m sorry, but this is not some human weakness to which he succumbed (cf. Elliot Spitzer); no, this is criminally negligent behavior, which should be denounced with the strongest possible terms, and be punished appropriately. You label it mala prohibitum but conveniently ignore the “negligently shooting a bullet inside a crowded bar” part which I’d say is leaning much more toward mala per se.
This discussion notwithstanding, in the end it will not matter what adjectives the commentators used (and I don’t think they used “evil”), instead what will be remembered is what the judge throws at him. So according to Simple Justice, what’s the appropriate sentence?
Well, rather than shoot my mouth off (my turn), let’s parse that theory first. As you know, this was not an intentional discharge of a weapon, but an accident. Negligence discharge that causes no harm is not a crime, and Plaxico has not be charged with any offense other than possessing the weapon. Bear in mind, stercus accidit. Accidents can cause terrible harm (such as car accident that results in death), but that doesn’t mean that any crime has occurred.
So, negligence offers no basis to jump from malum prohibitum to malum in se. I think you need to rethink this leap, there being no evil intent, by definition, associated with negligence. You don’t have to like that it happened, but accidents are never intentional.
Sheesh.
I’m not going to defend careless handling, even when it doesn’t lead to a reckless discharge, honest, but no, most negligent discharges don’t “usually [blow] an innocent bystander into smithereens.” We live in a country of 300,000,000 million people and the CDC numbers show that, at most, around 700 people per year get killed, total, in all gun accidents.
That’s around 700 per year ‘way too many, no question, but it’s a rarity. This is good.
That said, Burress, it seems to me, should be punished, if he’s convicted, for what he did (and “endangered” is part of “did”, sure), not for what others . . . didn’t do.
Our host can speak for himself, but I’m going to bravely take a controversially opinion and agree with you: I’m in favor of Burress being punished appropriately, if he’s proven to have done what I think it’s pretty clear that he did. I’m always in favor of people who have done wrong things and have had that properly proven being punished appropriately, rather than being punished inappropriately. (Pace Eugene Volokh’s recent comments favoring sound and reasonable gun control laws, which he favors, as opposed to unsound and/or unreasonable ones.)
Don’t get me wrong; I’m not trying to help the prosecutor…but why doesn’t his conduct come within the purview of one of the following:
1. Reckless endangerment in the first degree (§ 120.25 of New York Penal Law) which provides:
A person is guilty of reckless endangerment in the first degree when,
under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person. Reckless endangerment in the first degree is a class D felony.
2. Or, if we want to tow the line of the host here and be more merciful, b>Reckless Endangerment in the Second Degree (§ 120.20 of New York Penal Law) which provides:
A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. Reckless endangerment in the second degree is a class A misdemeanor.
I know you’re going to say that Burgess did not have the necessary mens rea sufficient to prove “recklessly,” but that is debatable, and a tough-minded prosecutor can make the case that considering all the facts – unlawful possession in the first place, carrying it loaded into a crowded bar, in an unlocked position, and then fiddling with it while drinking – those circumstances in the aggregate amount to “recklessly.”
I’m glad you asked. Initially, reckless is defined at Penal Law § 15.05(3) as:
Culpable recklessness has numerous components, which are intended to create a broad distinction between criminal recklessness and ordinary negligence.
Then, reckless endangerment has some very stringent requirements as well, such as “circumstances evincing a depraved indifference to human life.” Depraved indifference is a very high threshold, as the language suggests. It’s meant to be. Next is the “grave risk of death” element. Note that it isn’t “risk of death,” but a “grave risk.” That too is meant to substantially elevate the conduct to the point where the likelihood of death is so strong as to be a foregone conclusion.
The classic example of reckless endangerment is a person intentionalling firing a gun into a crowd, without the intention of killing any particular person. If someone is in fact killed, it’s charged as a Murder 2 “depraved indifference murder” under Penal Law § 125.25(2), and if no one is killed, then Reckless Endangerment 1.
By no stretch of the imagination would this be a reckless endangerment, nor should it be.
I got a simple solution: since Burress obviously violated the bar’s Terms of Service . . .
You are indeed a very funny human being.