The beauty of the option play is that if your first receiver is covered, you can always toss the ball to your secondary or tertiary receiver. You’ve got options. And so does Plaxico Burress, now that his attempt to pull down the long ball was blocked when the grand jury handed down an indictment for two counts of criminal possession of a weapon in the second degree and misdemeanor reckless endangerment.
It was worth a try, putting Plax in the grand jury and trying to distinguish between a gun in the hands of a pro football player and one in the hands of a person bent on committing a crime. It just didn’t work. That doesn’t mean that it was a mistake, or that bad strategy. He took a shot, and it was a good shot to take. Plax just didn’t get his arms around the ball. That happens.
From the New York Times :
Benjamin Brafman, Mr. Burress’s lawyer, accused Mr. Morgenthau’s office of a “lack of flexibility.” He had tried to negotiate a plea that would have required less prison time than the mandatory minimum sentence of three and a half years. He argued that Mr. Burress deserves leniency because he was not carrying the gun to commit a crime, was the only person injured, had bought the gun legally, and agreed to testify before the grand jury.
“For an isolated act of poor judgment in which nobody else was hurt, this man may be separated from his family for several years and will lose a brilliant career,” Mr. Brafman said in an interview before Monday’s grand jury decision was announced.
But this was the option play, so the real question is where will it go next. This blends into an interesting question, given the concurring opinion by 10th Circuit Judge Tymkovich in US v. McCane , stating:
My first point is that the felon dispossession dictum may lack the “longstanding” historical basis that Heller ascribes to it. Indeed, the scope of what Heller describes as “longstanding prohibitions on the possession of firearms by felons,” is far from clear. To be sure, some sources would support the proposition. But more recent authorities have not found evidence of longstanding dispossession laws. On the contrary, a number have specifically argued such laws did not exist and have questioned the sources relied upon by the earlier authorities. Instead, they assert, the weight of historical evidence suggests felon dispossession laws are creatures of the twentieth — rather than the eighteenth — century. Together these authorities cast doubt on a categorical approach to felon dispossession laws.
* * *
Rather than seriously wrestling with how to apply this new Second Amendment rule, therefore, courts will continue to simply reference the applicable Heller dictum and move on. And in light of the Supreme Court’s clear direction, this is perhaps how it should be. After all, “our job as a federal appellate court is to follow the Supreme Court’s directions, not pick and choose among them as if ordering from a menu.” I nevertheless wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases.
But it won’t be an easy road. It implicates many of the questions left unanswered in Heller’s individual rights interpretation of the Second Amendment, from whether it applies to the states via the 14th Amendment, to whether it applies outside the home, to whether crossing from New Jersey to Manhattan with loaded gun in pants alters the scenario.
Of course, as Doug Berman astutely notes, the next big question is whether it will be left to Brafman alone to fight the battle, or whether this will be the opportunity for so many Second Amendment fans to jump into the fray and block for Burress.
I think anyone seriously and deeply committed to enforceable individual right to possess a gun for self-protection ought to be greatly troubled by both the decision to criminally prosecute Burress and by the considerable prison terms being threatened in this case. Though a few Second Amendment fans have previously express some concern for Plaxico’s plight, I will be interested to see if more start coming to his defense now that he has been formally indicted.Mind you, it would be inconceivable for the District Attorney to have not prosecuted Burress, there being both law that prohibits his conduct and thousands of others who have been and are still being prosecuted for the criminal possession of a weapon. But few present an opportunity like this, to take on the crime head first, with the right defendant and the best of circumstances. The only question now is whether the Second Amendment advocates will let the fact that Burress doesn’t play for Dallas cloud their thinking.
Even if the entire NRA lines up behind Burress, it’s going to be a tough sell to whichever New York County Supreme Court Justice will end up with the case, at present an unknown. There aren’t too many with both the ability and will to be the one to change everything when it comes to New York’s, and the nation’s, gun laws.
In the meantime, I emailed Chief Assistant Mark Dwyer after learning of the indictment yesterday, and asked whether they would keep the two year plea offer on the table. He replied:
We love to talk. We will talk if the defense wants to talk. We have taken nothing “legal” off the table. No one thinks this is a “max” situation.
The DA’s office walked a fine line on this case as well. They don’t want to “hurt” Plaxico Burress, who still has many fans out there who wonder how the Giants would have finished if he was still on the field. On the other hand, there is a very real message at stake in this case about the legitimacy of New York’s revamped, extra-harsh 2006 amendments to the gun laws. You can’t send the message that guns won’t be tolerated, and then cut too sweet a deal with a star wide-out.
On the other hand, Brafman won’t be much of a hero if he can’t pull out a better deal than the run-of-the-mill two years that anyone could have gotten Plax. The good news is that the DA didn’t pull the offer off the table when it was rejected the first time around. The good news is that it will still be there should every trick in Brafman’s bag fail, which is quite possible under the circumstances. The bad news is that Plax really needs a score and he’s got a long way to go to reach the end zone.
At least Plax still has options. No one wants to go for the short yardage outlet pass, but at least it’s still there.
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While I do feel more than a twinge of pain for the plight of Mr. Burress who — in my opinion — committed a combo malum prohibitum and malum dumb stercus, not a malum in se, as a human rights activist specializing in the second amendment, I think it’s wonderful to perhaps have a motivated multimillionaire on the team.
Count me in as a supporter of his in this. As for which commercial enterprise, if any, he endeavors to receive and transport an inflated porcine skin for moderate distances, I’m uninterested.
If Brafman wants to stop by, I’ll be happy to introduce him to a few people. After a range trip, of course.
First things first.
I believe you mean malum stercus stolidus.
I don’t see why it’s inconceivable that the DA wouldn’t prosecute. It’s why we give them discretion. When they use it wisely we should praise them.
But of course there are pressures the other way, aren’t there? They’re not legitimate, but DA’s listen to them.
For a blogger such as yourself, Scott, you can’t lose on this one. It is a great case for a big second amendment stand. It’s a great case for jury nullification at a trial. It’s a great case for the tabloids.
Can’t help feeling sorry for the star wideout, though. This ain’t football.
What is illegitimate about pressure from the public or their elected representatives for stiff penalties for gun-related crimes? I’m not saying that such pressure should carry the day, but why is it not legitimate?
Good question.
The judicial process is supposed to be cool and deliberative, based on the law alone and not political considerations, passions, or collective opinion.
I mean, people can have their opinions and there’s nothing wrong with that, but the DA is first and foremost a lawyer and obliged to the law and the courts, not to public opinion.
He is given discretion because the laws passed by the legislature often paint with too broad a brush and can work an injustice in an individual case. That’s exactly the case here. Prison time under these circumstances is clearly not warranted morally or rationally; but the need not to be “seen” as cutting a special deal for a star athlete is entirely political in nature, and is not a legitimate basis to decide to prosecute, or insist on prison time.
The DA’s role in the process is extremely important. The decision to prosecute is a fateful one that changes lives forever. It shouldn’t be made just to bow to a mob.
John, using the word “clearly” doesn’t make it so. I share the same general sensibilities as you, and even I think you’re off the deep end and disagree with you on this one. I do not find prison for Plax outrageous at all. Indeed, if the DA took a pass on Plax, I would find that unacceptable and outrageous.
You’re entitled to your view, but I doubt many rational people will invite you to join their club based on this one.
I stand corrected.
Looping back . . . I’ve got some sympathy with a multimillionaire celebrity who might think that he would want to carry a tool useful, under some limited circumstances, for self-defense. But he’s got an option of throwing money at the problem; folks who might think that their own lives are just as valuable to themselves and their families but can’t afford to hire bodyguards with guns don’t have that option.
So I’ve got less sympathy, on that score, for Mr. Burris than I would have for somebody who had to get by on a five-figure income, instead one two magnitudes larger, and who couldn’t possibly throw six figures, annually, at the problem.
While I think your general approach is reasonable, I disagree with most of your points.
First, if the judicial process is supposed to be based on the law alone, then Burress should be going to jail, as should any ol’ joe with a certain amount of marijuana in his possession. Fortunately, as you point out, we do have DA’s (and judges) who can do something if that doesn’t seem like such a good idea. However, if the DA has discretion or can consider outside considerations going one way, they have to go the other way too. Not that one or the other should be dispositive, but they all need to be part of the consideration.
Second, while I agree that the laws passed by the legislature paint with too broad a brush, I disagree that in this particular case, any amount of prison time is unwarranted morally or rationally. If the DA says this is the law, and he think its a good law because he thinks here in New York City we need as many strong deternts as we can get to prevent people from ever thinking about touching a gun, and therefore decides to prosecute and require jail time I don’t see how that is illegitimate, irrational, or immoral. Added to the moral question is the fact that as a standard practice, New York area DA’s regularly put away guys who don’t have an nfl career or Ben Brafman, for at least a year, for the same offense, and to make an exception for Plaxico would also be a moral hazard in terms of treating people who did the same thing differently. Now, if others are being immorally prosecuted, that doesn’t mean Plaxico should too, but I don’t think its the case that all of those prosecutions are immoral. If the DA wants to say a) we have a gun violence problem, b) we have laws which provide harsh penalties for gun possession and c) I think it is a good exercise of my discretion to enforce those laws, I don’t see a moral outrage.
Just curious, what part of the country are you in? I live in NYC and don’t have much of a problem with the idea that touching a gun is something we should never consider and the idea that you go to jail for having a handgun in a nightclub doesn’t strike me as strange. I recognize that everyone may not have the same attitude in New York or elsewhere.
In case it wasn’t clear, my reply to this was to John R. and not to SHG, who kinda said the same thing much more succinctly.
Yes, sorry about “clearly”. I try to banish that word from my lexicon, but sometimes it still sneaks in there.
I recognize some people legitimately think possessing a gun “illegally” should result in prison time, and it’s the law in some places anyway. I don’t like it, obviously, but that’s just me and maybe a few others.
I haven’t been on the receiving end of a CPW for a long while, but in years past if that was the top charge and a first offense, outside NYC I don’t think you’d have any problem dealing it down to a non-prison disposition.
But I know NYC is different.
I’m in western NY, and to me prison time for a technical violation like simply having or even “touching” a gun, without more, is not only immoral but extremely irrational, but I understand it’s been that way in NYC for quite a while.
Maybe it’s illegal, too, on second amendment grounds, but somebody’s going to have to win that one in court.
I live in NYC and don’t have much of a problem with the idea that touching a gun is something we should never consider and the idea that you go to jail for having a handgun in a nightclub doesn’t strike me as strange. I recognize that everyone may not have the same attitude in New York or elsewhere.
That’s certainly true. There are people in NYC — both residents and visitors — who often carry handguns, and would not go to jail, much less prison, for having a handgun in a nightclub.
Issues of the Second Amendment and civil rights aside, though, I agree with you — if, say, the people of New York agree, in their wisdom, that, oh, having a “short lobster” is a grave offense to good order, and put people in prison for it, it would be perfectly reasonable to put a guy in prison for that offensive act, and not let him off the hook simply because he’s rich and famous, and unlikely to do whatever horrible thing people do with short lobsters.
And if — among the other downsides — his career has to be ruined pour encouragez les autres that’s a small price to pay for an orderly, civil society.
Well said. Some may not like the law. And some may even believe that they have very good personal reasons why they don’t think the law should apply to them. But it is the law, and violating a penal law has consequences. By choosing to break the law, regardless of good intentions, one recognizes that he is risking the consequences. For better or worse, an ordered society requires basic adherence to the law.