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December 14, 2010

Another star going to NY prison for years for gun possession... and prompting more Second Amendment wondering

As detailed in this news report, "Ja Rule became the latest US rapper to face jail on a gun charge, after pleading guilty Monday in New York to attempted possession of a weapon, prosecutors said." Here are the basics:

Ja Rule, whose real name is Jeffrey Atkins, is expected to be sentenced to two years behind bars and 18 months of supervised release after pleading guilty to attempted criminal possession of a .40 caliber handgun.

Sentencing is on February 9, a spokeswoman for the Manhattan District Attorney's office said. A more severe punishment could have been expected had Ja Rule gone to trial and been convicted.

Manhattan District Attorney Cyrus Vance said that the city, which has some of the strongest anti-gun laws in the nation, is still working to stem gun violence. "Gun crimes are serious offenses and today's guilty plea should send a serious message to anyone thinking of illegally bringing a gun into New York City," he said.

The rapper was caught with the pistol in his sports car after a 2007 concert in Manhattan. He had been performing alongside rapper Lil Wayne who was also charged with gun possession in a separate arrest and spent much of 2010 in prison.

Though I do not know all the details surrounding Ja Rule's gun possession and the plea deal his attorney's worked out here, I do know that I continue to be disappointed and somewhat surprised that high-profile celebrity defendants facing serious prison time for mere gun possession are not trying to actively litigate a Second Amendment defense to their prosecution.  Assuming all that the Ja Rule did wrong was to possess a handgun and that he could reasonably claim that he possessed this handgun for personal self-defense, I do not fully understand why Ja Rule and his lawyers (and his agents) would not want to try to litigate a Second Amendment claim based on Heller and McDonald through the New York state courts.

For low-profile and not-wealthy defendants, I can understand how the notoriety and economic costs of a Second Amendment challenge may make such a defense to gun possession charges not worth pursuing.  But for a rapper like Ja Rule, the notoriety could be a benefit to his career and the economic costs should not be a show-stopper.  (Indeed, I suspect some public interest lawyers might even take on a high-profile constitutional case like this at a discount.)   Moreover, Ja Rule would likely be able to stay out on bail while this kind of claim was litigated, and the prospects for a good plea deal would not seem to get much worse from the decision to litigate a constitutional challenge to the very law with which the defendant is charged.

If Ja Rule has a long criminal history of other offenses or if there are other factors preventing him from being a sympathetic Second Amendment litigator, then I guess I understand why he might accept two-years in prison for simple gun possession.  But lots of defendants get much less prison time for crimes that seem much worse and do not have even the patina of the exercise of a fundamental constitutional right.  Thus, I never quite understand why defendants like Ja Rule and Plaxico Burress and Lil Wayne accept deals that mean long stretches in prison for doing something that a majority of the Supreme Court might well say is constitutionally protected to do. 

December 14, 2010 at 10:02 AM | Permalink

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Comments

Not to detract from the worthy legal discourse at hand, but I have a feeling that Ja Rule was really just trying to regain some street cred. Seeing as how the first I've heard of his arrest is on this blog, I'd say he miscalculated.

Posted by: Mike | Dec 14, 2010 11:29:48 AM

I agree with Prof. Berman that some of the best cases for 2nd amendment challenges have been these celebrity/athlete possession cases. The lack of any such challenge from the defense is mysterious, but it is also mysterious that we have not heard a peep from gun advocates about these cases. These type of defendants being prosecuted does not seem to inspire the ire of the NRA.
I suspect that there must be some plea costs involved in the resolutions of these cases. If a 2nd amendment challenge could be brought without significant risk of more punishment compared to what they are going to get by pleading out, then it seems like it would have happened.

KRG

Posted by: KRG def attny | Dec 14, 2010 12:17:34 PM

I don't see why they can't plea and reserve the issue for appeal. Unless the DA's and AUSA's are demanding appeals waivers as a condition of the plea. Most of the time these are good in practice, but in a situation like this they can really prevent the development of the law.

Posted by: Ala JD | Dec 14, 2010 12:31:34 PM

I think they are forced to accept a plea deal in which they agree to not argue or appeal any issues. Because (a) he faced the possibility of 15 years and (b) the facts are not seriously in dispute, the government has enormous bargaining power. The government effectively says take it or leave it. It is rational to take the plea deal and do your two years. For this reason, this very important legal issue is not litigated in cases like these. Right?

Posted by: Mike | Dec 14, 2010 12:47:51 PM

yep. can you say frame up. the overcharge then used the bogus overcharges to stack the time till your looking at life then agree to drop all the fake charges...if you plead out and agree NOT to fight.

Posted by: rodsmith | Dec 14, 2010 4:08:37 PM

When I was an AUSA in EDVA, we would routinely allow a defendant to preserve any half-way reasonable Fourth Amendment issue for appeal, but would not sign a plea agreement unless there was a waiver of the defendant's right to appeal the sentence. To save taxpayer money (currently all the rage in the early release context) and advance at least some degree of finality, we were not going to have a sentencing hearing in district court only to have another one in the Fourth Circuit. (Not that defendants would do any better there anyway).

P.S. I seriously doubt the gun was possessed for defense -- offense is more likely, or, as has been mentioned, street cred, which is offense's first cousin and the source of a bunch of trouble.

Posted by: Bill Otis | Dec 14, 2010 5:38:17 PM

Maybe he possessed the gun because he just wanted to possess a gun. Because in the United States, we are constantly told that it is our Constitutional right to possess them. If Ja Rule had been a white accountant from the midwest, he might have gotten the same sentence, but would we still be talking about him possessing the gun for "street cred"? And what's up with classifying the offense as a violent felony? It doesn't appear he tried to shoot anyone, or even threaten anyone with the guns. I couldn't find any news article that indicated he did anything more than possess the guns. I suppose New York can make that a crime, somehow, but what inanity to classify it as a violent felony. Oh well, at least he didn't try to take a leak in an alley; then he'd be guilty of a sex offense.

Posted by: anonymous | Dec 14, 2010 10:29:35 PM

Street Cred vs. Defense

As far as I know, the NRA had never been against illegal possession of weapons such as handguns and the like. While I sense they distrust the government vis a vis popular, liberal support of a ban on weapons and a repudiation of the 2nd Amendment in general, they are also aware that individuals who use weapons in a non-life threatening circumstance (defense) have broken several of the NRA's basic tenets. The NRA will understandably never defend nor support the legal defense of such individuals based upon a constitutional challenge.

Of course, my statement may be construed as racist. Certainly, it could be cited for bias. And yes, association with others who have supported a drive-by mentality plays much into my way of thinking. Given that he must have had a competent attorney versed with weapons laws in NYC, I would have to defer to their own strategies and recommendations. I can't believe that such competent attorneys would plead in such a manner unless they knew that arguing the 2nd, even through Heller, was a waste of time. They certainly would have appreciated the billing hours if there was a good possibility it would have worked.

Posted by: Eric Knight | Dec 15, 2010 11:16:10 PM

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