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January 25, 2010

Shouldn't Javaris Crittenton be a Second Amendment hero rather than a sentenced zero?

Perhaps because I taught a Second Amendment seminar last semester, I keep noticing cases in which a person gets in big criminal justice trouble for keeping or bearing arms in a manner that would seem to be within the spirit (if not the letter) of the Supreme Court's blockbuster ruling in Heller.  For example, I have previously suggested that celebrity defendants such as Plaxico Burress and rapper Lil Wayne and Delonte West might have viable Second Amendment defenses after facing gun possession charges.

Today, I think I've really found a potential celebrity Hellerposter-child in light of the facts brought forth in the prosecution and sentencing of the NBA's Javaris Crittenton (basics here).  According to this press release from the US Justice Department, Gilbert Arenas threatened to "shoot Crittenton in the face" and Crittenton believed that Arenas intended to harm him."  In reponse, Crittenton placed a "lawfully owned, unloaded handgun into his backpack" in Virginia and brought it into the Wizards' locker-room in DC on the day that "he believed that Arenas would carry out his threat to shoot him."   In addition, Crittenton never loaded this gun nor otherwise brandished the firearm in a threatening manner when he had an encounter with Arenas in the Wizards locker room, and he return this unloaded gun to his backpack upon "deciding that Arenas did not intend to shoot him."

Because I take the the right of armed self-defense discussed in Hellerquite seriously, I want to commend Javaris Crittenton for exercising what would seem to be his Second Amendment rights in a terrifically responsible manner.  But, problematically, the federal criminal justice system has just declared Javaris Crittenton a criminal, rather than a constitutional hero.  I suspect that adamant opponents of the Second Amendment and the Hellerruling have no concerns about how Crittenton is being treated, but I am wondering if others who are not categorically opposed to gun rights share my sense that he has gotten a pretty raw deal.

Some related posts on other celebrity gun possession cases:

January 25, 2010 at 06:58 PM | Permalink

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From a true self-defense perspective, where the goal is the avoidance of trouble and prevention of harm to anyone whenever reasonably possible, he had several alternatives if he truly felt threatened. The spirit of even "stand your ground" is not to actively assert the right to be any particular place but rather to ensure against second guessing of your ability to safely flee once a situation occurs.

Thus the common pro-carry statement in response to the snide anti-carry accusation, "You only carry a gun because you're looking for trouble." "If I expected trouble at a place, I wouldn't go there."

Crittenton could have chosen to not go to practice that day if he felt threatened, he could have made his employer, or arena security, or the police aware of the threat and had them deal with it. By choosing, with the time and ability to do otherwise, to voluntarily enter the situation armed, without asking the authorities for help and in spite of all these options to avoid the situation altogether, he takes himself beyond most professional's view of responsible self-defense behavior.

Note again the distinction between appearing to look for trouble (or at least not looking to avoid it) and the intent behind the "castle" or "stand your ground" laws. Note also, if he truly felt the threat imminent he should have had a loaded weapon. It bespeaks either naivite or ignorance (of both the reality of deadly force situations and self-defense law) to depend on an impotent, yet legally still "lethal", threat of force in your defense.

I can sympathize that he was stung by DC's nonsensical laws and the league's paternalistic policies, but he didn't do himself any favors by not thinking the situation through properly and acting appropriately.

Matthew Carberry Justice Major, long-time self defense law and theory-phile, law student this Fall if all goes well

Posted by: Matthew Carberry | Jan 25, 2010 9:56:53 PM

Excellent reply and argument, Mr. Carberry. Quick question. Can you think of any other constitutional right that requires we defer to the government (calling the police) before we can exercise that right? In other words, are any other rights so limited?

Granted, none of the other rights may be as potentially deadly, but that favors Crittenton because the gun wasn't loaded, and therefore wasn't prima facie deadly. He would have to load it first. While naive in the sense of a gun fight, it was prudent at the same time if only because it worked out well.

Seems to me he was just being cautious and didn't expect a gun fight at the OK Coral, but brought one in case when he arrived Arenas appeared deadly (he didn't, so end of story).

In other words, he wasn't certain enough to call the police, wasn't certain enough to load it, but was cautious enough to exercise his constitutional right. Seems reasonable and constitutional.

Posted by: George | Jan 26, 2010 2:08:30 AM

He did not flourish. No crime.
We need to be asking potential jurists their perspectives on our constitutional rights. I do not recall any questions to Sotomayer on the Second Amendment. Too many former prosecutors end up as judges and they seldom defend constitutional rights.

I also contend that the right to bear arms is an unenumerated right and protected by the 9th and 14th Amendments as well as by the 2nd. The courts get humg up on the militia connection in the 2nd Amdt analysis.

Posted by: mpb | Jan 26, 2010 5:48:51 AM

Those of you who don't have the (mis?)fortune of living in DC are awfully cavalier with the safety of those that do. Despite what some of you imagine, Heller in NO WAY gives these boneheads the right to carry handguns in public. Heller announced new law alright, but it announced that it only extends to the threshold of one's residence. They broke the law and IF the US Atty, Superior Court Judges, and the city had any balls at all they'd lock both of these nitwits up for the maximum. Every day, day in, day out, someone is robbed, shot, or killed with a handgun in DC. While those offenders and those victims all look a lot like these two buffoons they don't get a second thought nor a second chance. You might want to consider this while contemplating "Constitutional Rights" from the safety of your ivory towers. What about the right to live without the fear of violent death or injury?

Posted by: Ferris Bueller | Jan 26, 2010 9:04:36 AM

Thank you justice Bueller for your authoritative interpretation of Heller. It is of course meaningless until you are appointed to the Supreme court by president Obama and confirmed by the Senate.

The implications of Heller are not at all as clear as you seem to believe, and anyone who has seen the weak and fearful interpretations of Heller by the federal judiciary knows that we will apparently have to await further enlightment as to the full meaning of Heller from those that are actually on the US Supreme Court.

Posted by: KRG def attny | Jan 26, 2010 11:19:37 AM

KRG --

"... we will apparently have to await further enlightment as to the full meaning of Heller from those that are actually on the US Supreme Court."

But we aren't going to get such further enlightenment until someone brings a case before them. Such as, for example, Crittendon's defense counsel. What was his problem? He would not even have had to go to trial. He could have entered a conditional guilty plea, reserving the right to appeal to Second Amendment question.

It's quite something when the defense bar blames everyone else in the system, but takes no responsibility for doing the one, costless thing that could have vindicated the Second Amendment right they claim was dishonored here.

My own sympathies lie with Matthew Carberry and Ferris. The Heller dictum was obviously in there for a reason, and there was no concurrence parting ways with it, meaning that there is at the minimum an uphill climb for a defendant like Crittendon. But the principal point is that if Crittendon or others like him want to secure what they take to be their rights, their defense lawyers need to get off their backsides and go litigate the issue instead of taking a fat fee from a rich NBA player to settle the case without so much as a whimper.

Posted by: Bill Otis | Jan 26, 2010 12:19:45 PM

Actually, KRG, Heller's impact on this case is very clear since it interpreted the very laws that these two boneheads violated.

While Justice Scalia opined long and lovingly about a broad, new, disingenuous, made-up-by-him right to bear arms (but not arm bears), added some creative historical interpretation, and topped it off with a lot of "legislating" from the bench (will the Federalist Society cancel his membership?), when it actually came to the SPECIFICS of the DC ban he made it clear that restrictions against possession outside of the home (and by felons and other restricted classes) are still in full force.

I can understand why you are confused, I guess, since in the concluding paragraphs of the decision Scalia only mentions the phrase "in the home" in every goddamn sentence.

Err... actually, no, I can't quite see why anyone would be confused:

"In sum, we hold that the District’s ban on handgun possession >>in the home<< violates the Second Amendment, as does its prohibition against rendering any lawful firearm >>in the home<< operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it >>in the home<<."

While people like yourself love to engage in broadsides about what Heller "means" (to you), you are very, very anemic on facts that support the notion that Heller does anything for handguns over the threshold.

While that might fly in front of some jurists, Justice Bueller calls that a weak argument for handgun possession on the streets of DC.

Lock 'em up.

Posted by: Ferris Bueller | Jan 26, 2010 12:38:54 PM

horse hockey! EVERY american who is not under some type of govt control has EVERY LEGAL right to carry a fireare anywhere they want. It's called the 2nd Amendment. Sorry i've not seen anything that LEGALLY allows the govt to restrict it.

Since those rights PREDATE THE CONSTITUTION....it was the only reason they were able to write it!

Posted by: rodsmith3510 | Jan 26, 2010 8:17:08 PM

Rod: That'll get you six months (according to Gilbert Arenas).

Posted by: Ferris Bueller | Jan 27, 2010 10:55:35 AM

LOL only AFTER they pry my gun from my cold dead hand! i have no problem using one on ANYONE comitting a felony no matter WHAT clothing they may have on and unlike most of the idiots we now have in govt and as judges i DO KNOW HOW TO READ without adding words or extra meanings that DON'T EXIST!

Posted by: rodsmith3510 | Jan 27, 2010 1:40:33 PM

George,

Crittenton's taking a gun deliberately into a known (or predicted) yet easily avoided confrontation I think parallels "mutual combat" (a crime) more than "self-defense".

I'd find it easier to view Crittenton in a legal self-defense light if he could demonstrate that he regularly carried a gun to and from the arena for defense against unforeseeable troubles as opposed to only at this one time when he felt a confrontation was imminent. I don't necessarily have a problem with him doing what he did, you have a right to defend yourself, but it was unwise at best to not bring "back-up", in this case involving the authorities, if he wasn't willing to just avoid the situation. There's a fine line between going about your business in a dangerous world and seeking out trouble.

As far as unloaded vs. loaded; as you know self-defense is a justification for use of deadly force and in that context an firearm is always "deadly force" whether loaded or not, as the point of view is from the target, not the wielder. There might be a jury sympathy angle in showing you had no real intention of causing harm because you deliberately kept the gun unloaded but under the plain reading of any deadly force related statute I'm aware of it is factually irrelevent.

In fact, deliberately choosing to use an unloaded gun as a mere threat actively undercuts your own claim of fear as an necessary element of justifying your use of deadly force in self-defense. The prosecution's argument goes: If you were really in fear, really sure that you were in danger of death or grievous bodily harm, why wasn't your gun in usable condition? If the threat was serious enough to require bringing a gun, displaying a gun as a threat, why wasn't it serious enough to load the thing so you could use it if you had to?

That line of argument is why most self-defense and all police instructors (of my acquaintance) will recommend to not fire warning shots or "shoot to wound". If the threat is serious enough to use deadly force at all, it has to be serious enough for you to be willing to more-or-less immediately shoot to stop the threat. If you have the time and safety to use your deadly weapon deliberately in a non-deadly way (including waiting to load until after presenting it) then did the totality of the situation really justify using deadly force at that point?

Anyway, while I sympathize with Crittenton, especially regarding DC's utterly ineffective and incomprehensible (considering 48 states allow carry in some form with no stat. sig. problems and most with much lower crime rates) rules on public carry by the law-abiding, I think the problems with the "self-defense" root of his case hamper using it as a good, general, 2nd Amendment "bear arms" case.

Posted by: Matthew Carberry | Jan 27, 2010 5:16:06 PM

i have to agree with matthew here. If the threat was real...gun should be loaded. I was also taught decades ago you NEVER pull a weapon unless you intend to use it. You also shoot to kill. trick shots into legs are arms are just that tricks the average person will have to aim at the body cavity to guarantee a hit...which is usualy going to be fatal.

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