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January 14, 2010

NBA star Arenas charged with felony gun possession and already talking about a plea

As detailed in this new CNN story, "Washington Wizards point guard Gilbert Arenas has been charged with a felony gun violation after admitting he drew guns in the team locker room in a highly publicized December 21 incident." Here's more:

Arenas was charged with one count of carrying a pistol without a license, according to court documents filed Thursday.

There was no immediate comment from his attorney, Kenneth L. Wainstein. It wasn't immediately clear when Arenas, who has been indefinitely suspended from the NBA, would be arraigned on the charge. The document that describes the charge is called an "information," which is filed when a plea agreement has been reached....

Arenas, a three-time NBA All-Star, spent January 15 in a voluntary meeting with federal prosecutors at the U.S. Attorney's Office in Washington and with District of Columbia metropolitan police, according to his attorney.

Arenas said he told authorities he stored four unloaded guns in his locker at the Verizon Center to keep them away from his children. "I brought them without any ammunition into the District of Columbia, mistakenly believing that the recent change in the D.C. gun laws allowed a person to store unloaded guns in the District," he said.

This story from the Washington Examiner says that a plea deal is already in place:

A top law enforcement source familiar with the case told The Examiner that Arenas has agreed to plead guilty to one felony count of carrying a pistol without a license and four misdemeanor counts of unauthorized use of a weapon.

The papers were filed "by information," an indication that a plea agreement has been reached because prosecutors can only file charges by information when a defendant agrees to waive his right to appear before a grand jury.  Through a spokeswoman, Arenas' lawyer declined comment.

It's not clear whether Arenas will face prison time.  Prosecutors will await a pre-sentencing report before making a recommendation, the source said.

As regular readers know, I think that a Second Amendment with some real bite might provide some constitutional protection from the kind of criminal prosecution that Arenas is facing.  But like Plaxico Burress and Lil Wayne before him, it seems like Arenas just wants to cut a deal and try to move on rather than turn this matter into a Second Amendment test case.  I guess I just have to keep my fingers crossed that Delonte West will be the one rich and powerful celebrity willing to seek to assert his modern Second Amendment rights when charged with a gun possession crime.

Some related posts on Gilber Arenas' situation and other celebrity gun possession cases:

January 14, 2010 at 06:02 PM | Permalink

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Comments

"[I]t seems like Arenas just wants to cut a deal and try to move on rather than turn this matter into a Second Amendment test case."

Just so. I can't say I blame him. He's on suspension without pay from the NBA, meaning that millions of bucks hang on getting all this over as quickly as possible. I'd be surpised if his lawyer hasn't already obtained an agreement from both the NBA and the USAO as to what the ultimate disposition will be.

I have a number of conflicting thoughts about the case. I suspect it's overcharged, although of course the AUSAs involved know the specifics far better than I. So far as I'm aware, Arenas is not a violent or dangerous person, nor does he have a record. I know he's a clean player and doesn't have a chip on his shoulder. He contributes to the community in ways he doesn't go out of his way to publicize.

Too many guns in the wrong hands are a problem in this town, no doubt. But Gilbert Arenas is not. If the case is overcharged, I have to wonder if the reason is fear by the USAO that more lenient treatment would be attacked as giving a break to "the rich" that other people wouldn't get. I hope that's not it. You have to understand as a prosecutor that you're going to get criticized in a high profile case no matter what you do. You should just let the individual facts dictate the outcome and tune out everything else. If DOJ had done that in the Blackwater case, it would have dropped it months ago instead of taking the public humiliation it got from Judge Urbina.

The Arenas matter would make a far better Second Amendment test case than DeLonte West, first because Arenas is a normal person (West seems somewhat paranoid), and second because people are less afraid of pistols locked up in a sports locker than of some fellow zipping around the Beltway on his motorcycle with a couple of rifles (at least I think they were rifles), on the theory that unidentified "others" are out to get him (like who? -- the guy ahead of you who wants to change lanes?).

I continue to believe the courts will, and should, follow the Heller dictum. As conservatives have said for years, and Heller confirmed, individual gun ownership is a Constitutional right. And as most conservatives, and most others, have said for even more years, it is, like other Constitutional rights, subject to reasonable limitation. A limitation on gun ownership by children, lunatics and convicted criminals seems reasonalbe to me (albeit imprecise and in isolated cases arguably unjust), and I'm quite sure such a restriction would be upheld. Whether DC's restriction meets that definition, I don't know; I haven't read it. Given DC's snarling opposition to the decision in Heller, I wouldn't bet the ranch on it.

Posted by: Bill Otis | Jan 14, 2010 7:00:10 PM

Does DC have its own criminal law or will this case be governed by the Federal Criminal code? If it is fed, it seems like this could be a 924(c) brandish which has a 7 year mandatory. I believe I read that DC has its own law, but the US Attorney's office is doing the case, so I am unsure.

Posted by: Scott Forster | Jan 14, 2010 9:32:38 PM

Scott Forster --

It's under the DC Code, and Arenas will plead tomorrow in DC Superior Court, not federal court. The charge is carrying a gun without a license.

He certainly has top drawer counsel, not too surprisingly -- Ken Wainstein, who was chief of staff to Mueller at the FBI, US Attorney for DC, and AAG for National Security at DOJ during the Bush administration.

Posted by: Bill Otis | Jan 14, 2010 10:48:23 PM

The US Atty handles both federal and local cases in DC. There is no "local" prosecutor - which is part of the problem. Both the top prosecutor and all the "local" judges are appointed by the president and have absolutely no accountability to the taxpaying citizens of DC. As they say, DC is the last place in the USA where "taxation without representation" is the norm.

Posted by: Ferris Bueller | Jan 14, 2010 10:48:52 PM

I struggle to see what Arenas’s Second-Amendment argument would be, even if he wished to raise the issue. Heller overturned a categorical ban on gun possession; it did not hold that state cannot require guns to be licensed. If the state can require permits for marriages and parades, it surely can require them for guns too.

Needless to say, Bill Otis is absolutely correct that it is not in Arenas’s interest to turn this into a test case. He needs to get this behind him as quickly as possible.

Posted by: Marc Shepherd | Jan 15, 2010 9:22:42 AM

Marc: The suggestion is that Heller somehow would allow for handgun possession outside the home. Since Heller was looking at the very prohibition that gives rise to the charges against Gilbert, and Scalia made it clear that they were only striking down the law as it pertains to handgun possession in the home, I'm with you. I don't see how it applies.

The only situation I can see where Heller might test the current regime in DC is if someone were to challenge the restrictions on home possession (which, I believe, they already have).

Nothing in Heller suggests that jurisdictions can't "reasonably" restrict the possession inside the home, and completely restrict possession outside of the home.

I think a lot of the suggestions people have about Heller is simply an extension of their personal hope that all bans will be lifted, but it's not really based on the actual opinion itself.

Posted by: Ferris Bueller | Jan 15, 2010 10:43:02 AM

Yeah, some of the “hope springs eternal” gun nuts hope that the Second Amendment will someday be interpreted to ban all restrictions or licensign requirements for any type of firearm whatsoever. I do not think that will happen.

Posted by: Marc Shepherd | Jan 15, 2010 11:41:31 AM

Marc Shepherd: "If the state can require permits for marriages and parades, it surely can require them for guns too."

Good point, but what if the failure to get these permits barred one from ever being able to exercise those rights, like once a felon, Arenas will not be able to own a gun? Is that really merely a policy issue left to the legislature? What if a city banned all free speech for someone who failed to get a parade permit? Or forbade someone from ever getting married after failing to get a marriage license? Would these rights really be constitutional rights or would they be mere privileges granted or taken at the whim of government?

Posted by: George | Jan 15, 2010 3:19:13 PM

"Nothing in Heller suggests that jurisdictions can't "reasonably" restrict the possession inside the home, and completely restrict possession outside of the home."

--

I beg to differ. The opinion stated that the natural meaning of “bear arms” in the Second Amendment was accurately described as to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Heller, 128 S. Ct. at 2793.

Sounds to me like the right to carry a gun exists outside the home.

Posted by: Carl | Jan 15, 2010 4:10:39 PM

George, I am not sure what will turn out to be the outer limit of the state’s ability to control gun ownership, without abridging the underlying constitutional right. Even in the Heller decision, the Court was at pains to stress the limited nature of its holding. It was by no means the expansive ruling the gun lobby wanted (“any kind, anyone, anytime, anywhere...”).

Restricting gun ownership after one has already been convicted of a gun-related crime is hardly a “whim.” There are many examples of restrictions that the government routinely imposes on one who has been convicted of a crime, that it could not “at its whim” impose on innocent citizens.

Indeed, the Heller Court expressly said, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”

Posted by: Marc Shepherd | Jan 15, 2010 4:27:30 PM

Marc, your argument is perfectly clear. I'm trying to articulate something that seems contradictory. Say yelling "fire" in a theater is a felony. Would we stand for someone who is convicted of that crime being barred for life from ever exercising his/her First Amendment right? There is a contradiction something like the tail wagging the dog. While the use of a gun in a violent crime may make more sense in the forfeiture of the constitutional right to bear arms, merely failing to register it is too much like failing to get the parade permit. There is a legal metaphor that would work but I can't recall it. Something like the law swallowing the intent. Here, the gun registration seems to swallow the constitutional right because mere failure to register cancels out the right once convicted of the felony of failure to register it.

It is like driving in most states being a privilege provided we get a driver's license. What if we had to get a permit to post here or exercise free speech anywhere? Or a permit to worship? What if we were denied those rights for life if we failed to get the required permits? There is something troubling about that in that they would be more like privileges based on permits rather than constitutional rights.

Posted by: George | Jan 15, 2010 5:14:52 PM

VERY GOOD ARTICLE WELL WRITTEN AN PUT TOGETHER FOR
MORE LIKE THIS Bloggles

Posted by: jd | Jan 15, 2010 8:43:19 PM

i agree carl

""Nothing in Heller suggests that jurisdictions can't "reasonably" restrict the possession inside the home, and completely restrict possession outside of the home."

--

I beg to differ. The opinion stated that the natural meaning of “bear arms” in the Second Amendment was accurately described as to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Heller, 128 S. Ct. at 2793.

Sounds to me like the right to carry a gun exists outside the home."


The ideal it's only legal in the home is both illegal and STUPID on it's face. Unless someone's developed transporter tech when i wasn't looking...only way to get it home after you buy it is to have ti OUTSIDE. Same with training. Unless the state plans to pay for firing ranges and trainers in EVERY HOME...again we come back to IT'S GOING TO BE OUTSIE THE HOUSE.

People just don't get it. Under our constitution GUNS WERE LEGAL BEFORE IT WAS SIGNED. They are STILL LEGAL as long as your a citizen. The only legal exception would be those whos's rights were limited while serving a court ordered sentence. ANYTHING else is TREASON

Posted by: rodsmith3510 | Jan 15, 2010 11:58:32 PM

This potential marriage between Arenas and the Lakers could turn out to be a match made in heaven. The Lakers who are now on the cusp of winning back to back championships still have a need to upgrade their backcourt over the summer.

Posted by: Sports Star Pro | Aug 11, 2010 4:58:26 AM

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