SI.Com: Sports Law: Answering the key questions in the Plaxico Burress case

[#98QBKiller]

Answers most of my questions. Looks like that chances are greater than not that Plax will be serving some time.

http://sportsillustrated.cnn.com/2008/writers/michael_mccann/12/01/plaxico.burress/index.html?eref=T1

Answering the key questions in the Plaxico Burress case

SI.com legal analyst Michael McCann answers the key questions concerning Plaxico Burress, who hours ago turned himself in to police on gun charges related to the self-inflicted gunshot wound he suffered early Saturday morning at New York City's Latin Quarter nightclub.

1) What charges does Burress face in New York?

Burress is facing charges for criminal possession of a weapon in the second degree, a Class C felony which prohibits the possession of a loaded gun without a proper license outside the home or place of business. If convicted, Burress would face a minimum of three and a half years and a maximum of 15 years in prison. He is expected to plead not guilty and will be represented by noted trial attorney Benjamin Branfman.

2) Why would someone be charged for accidentally shooting himself?

The purpose of the charge is not to punish for Burress for the alleged accident, but rather to punish him for allegedly carrying a loaded gun without a valid license. His intent, purpose and justification for carrying the gun are thus irrelevant. New York has one of the nation's least-forgiving gun laws, and this particular provision was enacted in 2006. Indeed, had the same alleged incident took place prior to 2006, prosecutors would have needed to show that Burress had the intent to use the gun unlawfully against another person. Unfortunately for Burress, the new law eliminates that intent requirement, making mere possession a felony.

3) Since this New York law is unusually strict and reflects a recent change, couldn't Burress argue that he simply didn't know the law?

Failing to know the law is generally not a defense in criminal law. The presumption is that a person in a jurisdiction knows the jurisdiction's criminal laws, even if those laws are relatively unusual or recently changed. Burress will need a better defense.

4) So what other defenses does Burress have?

It appears that Burress has a difficult road ahead of him, but not necessarily an impossible road. As New York criminal defense attorney and former Manhattan prosecutor Jeremy Saland of Crotty Saland, LLP tells SI.com, state prosecutors need to establish Burress' actual possession of the gun, and need to do so beyond a reasonable doubt.

"It is the facts that should dictate charges, not mere speculation," Saland says. "Since the New York Police Department did not recover the gun from Burress in Manhattan and it does not appear as if Burress made a statement, prosecutors must establish through other means that Burress possessed the gun in New York County. While there are multiple ways to do so, witnesses, including his teammates, or a video bearing out the incident and the firearm could satisfy this element." The testimony of teammate Antonio Pierce (who was at the nightclub with Burress)should thus prove crucial in this case.

5) How can Burress plead not guilty, given the apparent evidence?

The only way, as I see it, would be to argue what Saland suggested: Since the NYPD didn't recover the gun from Burress, and since he has not (to my knowledge) admitted that it was his gun that led to his injury, he could argue that he did not have possession of the gun when it was discharged, or at any other point. This would seem to require that someone else shot him, or that the nature of his possession fails to satisfy the requisite legal standard for possession under New York law.

6) How likely is it that Burress will end up serving jail time as a result of this incident?

Assuming that the criminal possession of a weapon in the second degree charge against him is proven --and based on the purported information about what happened at the nightclub, his prospects for a defense seem limited -- a judge will have to sentence Burress to at least three and a half years in prison under mandatory sentencing. If Burress is cooperative and apologetic, prosecutors could elect to seek lighter charges against him. If he fights the charges and can somehow offer reasonable doubt that he wasn't in possession of the gun, then he would be vindicated. Bottom line: If the purported information is correct, Burress is poised to serve time.

7) Could Pierce be exposed to any criminal liability?

There are reports that Pierce may have attempted to hide the gun after its discharge. If those reports are accurate, Pierce could be charged with several crimes and may be exposed to more serious criminal penalties than Burress. Assuming he took possession of the gun after the shooting, Pierce could face the same charge as Burress likely faces: criminal possession of a weapon in the second degree. He could also face criminal facilitation, which involves a person aiding in the commission of a crime, and obstruction of government administration, which refers to efforts to impede the processes of legal justice.

8) What will Roger Goodell do?

The NFL personnel conduct policy, which came into effect in 2007, empowers the commissioner to regulate the behavior of all persons associated with the league. These persons are obligated to avoid any conduct detrimental to the integrity of, and public confidence in, the NFL. Importantly, violation of the policy need not entail a crime or even a civil offense; all that is required is "detrimental" conduct as interpreted by the commissioner, who acts as the policy's judge and jury.

Although he is not obligated under the policy to wait for a criminal conviction of Burress (and/or Pierce), Goodell will probably not take action until there is a conviction or its equivalent, such as a plea of no contest or a plea to a lesser charge.

9) Could the Giants terminate Burress' contract?

Yes. Of all the major pro sports leagues, the NFL offers teams the most flexibility in releasing players, particularly given that most of an NFL player's contract is non-guaranteed income. Teams can cut players for performance reasons, business reasons and also if a player misbehaves: Paragraph 11 of the standard player contract notes that a team may terminate a player's contract if the player has "engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club." Although Burress' contract is not publicly available, it likely contains this clause or very similar language. The Giants would of course have to weigh the salary cap implications of cutting Burress, but their financial commitment to him would end upon his release.

10) Could the Giants be in hot water for not reporting this?

Generally, employers have no legal obligation to report possible criminal activities committed by an employee outside the scope of that employee's employment. If the Giants failed to comply with any prosecutors' requests, however, then team officials could be subject to a charge of obstruction of government administration, which refers to efforts to impede the processes of legal justice. At this point, however, it seems unlikely that the Giants will get in any legal trouble.

On the other hand, if Goodell believes that Giants personnel failed to reveal information relevant to the enforcement of the league's personnel conduct policy, then it's possible that the team could face sanctions (e.g., a hefty fine, forfeiting of draft picks) under that same policy, as it governs all NFL employees and officials. The commissioner would determine the appropriateness of any sanction and what its terms should be. The sanction would not be subject to review, other than by Goodell himself.

Michael McCann is a visiting law professor at Boston College Law School, a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

[scstand]

So, if the gun was unloaded at the time it was alleged to be concealed, then loaded because he hypothetically felt threatened....then accidentally dropped down his sweats and went off does it still count as a class C felony?

[DarrellsMyHero28]

Put him in jail.

I don't even particularly dislike Plax but a lesson needs to be taught here.

If you're going to have a gun, get a license and a holster. You have no excuse to not have those two items.

Second, you're ****ing loaded Plax, hire a security guard. If you're gonna be in the club dancing around you shouldn't have a gun in your waistband, period.

He should consider himself lucky that its only a minor injury.

Guns are not toys. Its not 'cool' to carry a gun. If you think you need to have a gun to protect yourself, fine but be smart about it.

[scyber]

Criminal possession of a weapon in the second degree requires INTENT to use the weapon in an unlawful manner against another. I don't think they will be abel to prove that Plax was intending to use the gun against anyone. Most likely he will face criminal posession of a weapon in the third degree.

Info gathered from:

.pdf'>http://www.nycourts.gov/cji/2-PenalLaw/265/265-03(1)(.pdf

In order for you to find the defendant guilty of this crime, the

People are required to prove, from all the evidence in the case,

beyond a reasonable doubt, each of the following four elements:

1. That on or about (date) , in the county of (county) , the

defendant, (defendant's name) possessed a firearm;

2. That the defendant did so knowingly;

3. That the firearm was loaded and operable; and

4. That the defendant possessed the loaded firearm with

the intent to use it unlawfully against another.

[Inquisitor]

Yep scyber, you nailed it. Looks like the city [read: Bloomberg] made a colossal mistake pushing for the class C felony instead of the D which in fact doesn't bring a mandatory sentence with it. They will never be able to prove Plax had malicious intent to use the gun on someone else, looks like he will get a slap on the risk legally speaking. Although his days with the Giants are still basically over, he will now likely get a second chance with another team.

[scyber]

Yep scyber, you nailed it. Looks like the city [read: Bloomberg] made a colossal mistake pushing for the class C felony instead of the D which in fact doesn't bring a mandatory sentence with it. They will never be able to prove Plax had malicious intent to use the gun on someone else, looks like he will get a slap on the risk legally speaking. Although his days with the Giants are still basically over, he will now likely get a second chance with another team.

Actually, I may have been mistaken. According to other reports, NY law says that the simple possession of a weapon is evidence of intent.

[Pwyl]

Read point #2 again in the OP.

[SittingBull]

At least read the original post before you respond...

[scyber]

At least read my link before you comment. The pdf I sent contains the 2006 revisions to the law.

I did read #2 in the OP, but I was never questioning whether it was a felony or not, I was merely trying to point out which class of felony it was. A class C felony has a minimum sentence, a class D felony does not. According to the statutes, possession w/ intent is a Class C felony, possession only is a Class D felony. But apparently there is another statute that says possession implies intent. Why they would have 2 separate classifications in the first place, I don't know. Probably mostly for prosecutorial (sp?) discretion.

Also I have read that Plax could take the stand and argue against the implied intent. But I would imagine his lawyer would want to shield him from the DA questioning him on the stand.

The law is convoluted and that is why I switched from a pre-law major when in college

[skins4eva]

The answer to the question about how Burress can plead not guilty is poor. In this country, the burden is always on the prosecution to prove, beyond a resonable doubt, every element of the crime alleged. Thus, a defendant can always plead not-guilty under any circustance, no matter how strong the evidence is against him.

[addicted]

Section 265.15(4) of the New York Penal Law states:

"“[t]he possession by any person of any dagger, dirk, stiletto, dangerous knife or any other weapon, instrument, appliance or substance designed, made or adapted for use primarily as a weapon, is presumptive evidence of intent to use the same unlawfully against another.”

In other words, merely having the loaded gun in his possession creates a legal presumption that Burress intended to use it to shoot someone else (as opposed to, you know, himself).

http://www.profootballtalk.com/2008/12/01/presumption-statute-hurts-plaxicos-case/

About why they went with the two charges:

The first charge will be difficult to establish, since it will require proof beyond a reasonable doubt that Burress intended to use the gun unlawfully against someone else. Burress would say that he intended to use it only in legal and proper self-defense. The second charge will be much easier for the prosecution to prove.

So why add the initial charge? In our view, it’s possible a clever tactic for compelling Burress to take the witness stand in his own defense, since the only way that he can comfortably prove that he had no intent to use the weapon unlawfully against another person would be to explain to the jury why he had the gun in his pants.

Either charge constitutes a Class C felony, punishable by a minimum jail term of 3.5 years.

http://www.profootballtalk.com/2008/12/01/two-counts-for-burress/

[pointyfootball]

Second, you're ****ing loaded Plax, hire a security guard. If you're gonna be in the club dancing around you shouldn't have a gun in your waistband, period.

Amazing. While I do have "sympathy", in a way, for athletes that they have to put up with more crap then they should have to, the fact that some of them are too dumb to hire a limo driver and/or a personal bodyguard, never ceases to surprise me.

[HapHaszard]

7) Could Pierce be exposed to any criminal liability?

There are reports that Pierce may have attempted to hide the gun after its discharge. If those reports are accurate, Pierce could be charged with several crimes and may be exposed to more serious criminal penalties than Burress. Assuming he took possession of the gun after the shooting, Pierce could face the same charge as Burress likely faces: criminal possession of a weapon in the second degree. He could also face criminal facilitation, which involves a person aiding in the commission of a crime, and obstruction of government administration, which refers to efforts to impede the processes of legal justice.

This part in the original post might be important. I wonder if Pierce is also in hot water?

So far the only thing I have heard was that he was interviewed by NFL Security, has he been interviewed by the Police yet? His testimony about the incident could make it best for him to testify against Burress rather than for him.

[#98QBKiller]

7) Could Pierce be exposed to any criminal liability?

There are reports that Pierce may have attempted to hide the gun after its discharge. If those reports are accurate, Pierce could be charged with several crimes and may be exposed to more serious criminal penalties than Burress. Assuming he took possession of the gun after the shooting, Pierce could face the same charge as Burress likely faces: criminal possession of a weapon in the second degree. He could also face criminal facilitation, which involves a person aiding in the commission of a crime, and obstruction of government administration, which refers to efforts to impede the processes of legal justice.

This part in the original post might be important. I wonder if Pierce is also in hot water?

So far the only thing I have heard was that he was interviewed by NFL Security, has he been interviewed by the Police yet? His testimony about the incident could make it best for him to testify against Burress rather than for him.

They're tracking it on NFL.com regularly. So far it looks like he's ok to play the season out though.

[Peregrine]

Honestly, I don't care about the license. A piece of state issued paper has no bearing on whether someone is competent enough to hold a gun, and in reasonable states, it is not required. What is the problem is he had a gun, he loaded it, left the safety off, AND didn't holster it, instead just sticking it in his pants.

How can you be that irresponsible with a weapon? That's why he should serve time. Someone meaningful could have been hurt due to his recklessness.

[Eli to Burress]

This is from Yahoo.

Around 1:50 a.m., as Burress fumbled with the glass in his hand, the .40-caliber Glock slipped down his leg, and as he grabbed at it, he accidentally pulled the trigger and shot himself in the thigh. Witnesses reported hearing a “pop” as his legs started to quiver and the pistol dropped from his pant leg to the floor.

“Take me to a hospital,” Burress said, according to investigators

Despite the gunfire and blood, no one at the club called police. In fact, investigators say, no one reported the incident at all. Not the players, nor the hospital where he was treated, even though the law states gunshot wounds must be reported.

After the gun slipped to the floor, a club security officer grabbed it, unloaded it and held it while Pierce helped his injured, bleeding teammate to the street and back into the Escalade. He helped Burress, shaking from pain, into the back seat. Pierce hopped in the front with an unknown woman in the driver’s seat. As they started to pull away, a club security guard came to the Escalade’s window.

“What do you want me to do with this?” he asked, referring to the pistol, according to police. Pierce threw it in the glove compartment of the Escalade, police said, then called team trainer Ronnie Barnes. The trainer told him to take Burress to New York-Presbyterian Hospital/Weill Cornell Medical Center, about 20 blocks away.

Link

Rob Becker from foxsports was on a sport radio show here in Toronto and he brought up the point that they need Pierce to testify that Burress actually had possesion of the gun. He also brought up the fact that Pierce really didn't act unlawfully but they may be trying to put pressure on him for his testimony.

[tr1]

Rob Becker from foxsports was on a sport radio show here in Toronto and he brought up the point that they need Pierce to testify that Burress actually had possesion of the gun. He also brought up the fact that Pierce really didn't act unlawfully but they may be trying to put pressure on him for his testimony.

I'd say Pierce's testimony isn't important...tons of witnesses. He was just another...

I love how the players supposedly called the trainer FIRST...actually, I'd like to see a log of Pierce's and Buress' cells that night. The order of calls would be interesting.

[Eli to Burress]

I'd say Pierce's testimony isn't important...tons of witnesses. He was just another...

I love how the players supposedly called the trainer FIRST...actually, I'd like to see a log of Pierce's and Buress' cells that night. The order of calls would be interesting.

I think the point Becker was making is for these charges to stick they must prove Burress was in possession of the gun. If the only time the gun was seen was when it was on the floor then Burress (according to Becker) would have a realistic chance of beating these charges. I'm not sure there's any witness who can come forward and say they saw the gun go off in his pants. Even Pierce is claiming he didn't know Burress had the gun.

[tr1]

I think the point Becker was making is for these charges to stick they must prove Burress was in possession of the gun. If the only time the gun was seen was when it was on the floor then Burress (according to Becker) would have a realistic chance of beating these charges. I'm not sure there's any witness who can come forward and say they saw the gun go off in his pants. Even Pierce is claiming he didn't know Burress had the gun.

So, we're to believe the gun mysteriously appeared in Burress' pants? Someone else shot him?

Please, let's let common sense be a part of this conversation.

Bloomberg has it right.

[dockeryfan]

The Giants talk to all the players in training camp about gun laws in New York. They even recommend having the team hold their guns during the off season.

Every player knows the risk, because they are told expressly by the team about the consequences.

Burress, Pierce, and even Burress' wife Tiffany, who is an attorney, are all complete idiots.

[jp03]

The Giants talk to all the players in training camp about gun laws in New York. They even recommend having the team hold their guns during the off season.

Every player knows the risk, because they are told expressly by the team about the consequences.

Burress, Pierce, and even Burress' wife Tiffany, who is an attorney, are all complete idiots.

Pierce is an innocent bystander who got caught up in a bad situation ...not an idiot...cmon.

[Fred Jones]

How can you be that irresponsible with a weapon? That's why he should serve time. Someone meaningful could have been hurt due to his recklessness.

Yes, this is why he should go to jail. If you want to shoot yourself in your own home and not endanger anyone else, go ahead.

If you recklessly endanger everyone else because of your stupidity, then you go to jail.

Carrying around, as others have said, an unholstered loaded handgun is just stupid. Added to the fact that I bet he really didn't have any formal training or range time with the weapon and you have someone that needs to visit the big house for stupid people.

[alleycat]

Ok...A cpl thoughts here.I am curious what ya'll think about them.

#1 Pierce- Lets say he took the gun from the guard and threw it in the glove compartment as noted by OP...

Would the act of it being in his hand for those 3 seconds constitute "Possesion" ?

If a weapon is in your truck is it possesed by you ?

If it was Dumb Dumbs truck and Pierce put it in there...Does Dumb Dumb posess it ?

#2 I am a proponet of carrying weapons.It is the A-holes who take NO time to become familiar with safe weapon handling that pisses me off !! NO KIDDING people want to take my rights...People see this moron as an example of a weapon owner.

#3 I do agree...If you make a billion $$$ in the limelight...Maybe hire a freaking security staff...Of course...Pacman had security...LOL

#4 I see a plea deal soon.I don't know how he could go to court on this.

#5 As far as him proving how he got shot if he didn't POSESS the gun goes...It's not his job to prove that.He isn't required to explain what happened...The state is required to explain all they want a conviction on.

#6 I hate AP...It may be wrong...But I hope he DOES get in trouble.