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December 1, 2008

NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions

Thanks to the apparent foolishness of a prominent NFL player, the folks at Families Against Mandatory Minimums and at the National Rifle Association might have a new high-profile poster-child for their very different public policy causes.  I am referencing, of course, the case involving New York Giants wide-receiver Plaxico Burress, whose major criminal law problems are well summarized in these snippets of this New York Times article (emphasis added):

Giants receiver Plaxico Burress was arraigned Monday in a Manhattan criminal court, charged with two separate counts of criminal possession of a handgun in the second degree after accidentally shooting himself in the thigh three days ago at a Midtown nightclub.

He faces a mandatory sentence of 3½ years in state prison, with a maximum of 15 years, on each count....

After a long day — during which Burress spent about five hours at the New York City Police Department’s 17th Precinct station house, where he likely posed for mug shots, was fingerprinted and sat for interviews with detectives — details of the shooting became clearer.

The police said that Burress arrived at the Latin Quarter nightclub in Manhattan on Friday at 11:30 p.m. with four others, including teammates linebacker Antonio Pierce and Derrick Ward. The other two members of their party were not football players, according to police. At 12:05 a.m., a single gunshot is heard.

The criminal complaint, released by prosecutors Monday, said that an onlooker saw Burress near the V.I.P. area of the club holding a drink in his left hand and fidgeting his right hand in the area of the waistline of his pants. The witness then heard a single “pop” sound before hearing Burress say, “Take me to the hospital.”

Burress was on the ground, with his legs shaking, when a bloody gun — a .40-caliber Glock pistol — fell out of his pant leg and onto the floor, the onlooker said.  Later, Burress, who does not have a permit to carry a handgun in New York City, was treated and released at a hospital before returning to his home in Totowa, N.J.

On Monday, Mayor Michael R. Bloomberg harshly criticized Burress for carrying an illegal handgun; New York Presbyterian Hospital for failing to call the police of his gun-related injury, as city law requires; and the New York Giants, which also neglected to notify the authorities.

“Our children are getting killed with guns in the streets.  Our police officers are getting killed with guns in the hands of criminals, and because of that, we got the State Legislature to pass a law that if you carry a loaded handgun, you get automatically 3½ years in the slammer,” Bloomberg said, speaking to reporters....  “I don’t think that anybody should be exempt from that, and I think it would be an outrage if we didn’t prosecute to the fullest extent of the law, particularly people who live in the public domain, make their living because of their visibility; they are the role models for our kids.”

Bloomberg said that the police did not find out about the incident until it was reported on TV, and that the Giants should have immediately notified the authorities of the shooting.  He said the team had a responsibility to do so if their players want to be role models to the public....

Bloomberg also criticized the hospital for failing to call the police. “I think also it is just outrage that the hospital didn’t do what they’re legally required to do,” he said. “It’s a misdemeanor, it’s a chargeable offense and I think that the district attorney should certainly go after the management of this hospital.”

Wow!  Though I do not teach my upper-level sentencing course until next semester, this high-profile case, with its many notable participants and many possible legal issues, sounds like a problem I might give on my final exam.  Consider these questions right off the bat:

1.  In light of the apparently undisputed facts, is there any legally justifiable way for NY state prosecutors to avoid seeking to convict Burress of the state crime which carries a mandatory minimum sentence of 3½ years in state prison?

2.  Can and should Burress and his legal team raise a Heller Second Amendment right of self-defense claim in response to his criminal charges?  Assuming the Second Amendment gets applied to the states (which seems very likely) and assuming Burress says he carries his gun for personal self-defense (which seems very plausible), anyone who talks seriously about a fundamental right of self-defense (like those at the NRA) ought to be looking to give Burress some help in this case.

3.  Is Mayor Bloomberg already making it easier for Burress and his legal team (A) to argue he cannot get a fair trial in NYC, and/or (B) to suggest to the jury (directly or indirectly) that it should consider nullification in this case simply to avoid forcing Burress to go to state prison for 3½ years?

4.  Can and should Burress and his legal team raise a head-on due process (or cruel and unusual punishment) constitutional challenge to the statutory mandatory minimum sentence in this case?  In light of President-Elect Obama's stated expression of concerns about mandatory minimum sentencing statutes and the Supreme Court's ever-evolving sentencing jurisprudence, the time might be ripe for lawyers at FAMM and other public policy groups to start making a full-scale legal attack on the very constitutionality of mandatory minimum sentencing provisions.  Perhaps this line of constitutional argument just got a prominent celebrity spokesman.

December 1, 2008 at 07:55 PM | Permalink


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Somehow I doubt "Plax" will be spending 3 1/2 years in prison for this.

Posted by: federalist | Dec 1, 2008 8:09:11 PM

The mayor is a leftist wack job.

It should not be illegal to carry in NY.

Posted by: Larry Weatherly | Dec 1, 2008 10:44:30 PM

As I am sure you are aware, there is no real 2nd Amendment issue since we are dealing with a law that does not prohibit guns in general- but only the fact that he had no permit for the gun. And, there are only one or two right wing wack jobs left who have a problem with registering their guns. And, by the way, Lar, Bloomberg is a Republican just like you- you obviously have no idea of what it means to live in a major cosmopolitan city or are too brainwashed to think straight.
NYC Area Law Student

"I willingly speak for those who know, but for those who do not know I forget."- Aeschylus, 5th C. BCE

"Taxes shall be levied according to pay. That is the ONLY American principle."- F.D.R.

Posted by: John Smith | Dec 2, 2008 12:25:08 AM

John Smith,

"By the way" Bloomberg quit the Republican party in '07. http://www.nytimes.com/2007/06/20/us/politics/20mayor.html.

Oh, and I live in a major cosmopolitan city, am far from brainwashed, and don't consider myself Republican or Conservative, but, like Justice Black I think all constitutional rights need to be enforced in a non-niggardly fashion if we're to have our freedoms. This includes the second amendment, which undoubtedly should be incorporated and interpeted broadly enough to let people carry around weapons in ways most suitable to self defense. Oh, and the government charges you money to issue gun permits. I believe that taxing first amendment rights constitutes "abridgemetn", and taxing amendment rights likewise constitutes "infrigement". So permitting shouldn't be considered second-amendment complient.

Posted by: | Dec 2, 2008 12:48:50 AM

"In light of the apparently undisputed facts, is there any legally justifiable way for NY state prosecutors to avoid seeking to convict Burress of the state crime which carries a mandatory minimum sentence of 3½ years in state prison?"

Yeah. Prosecutorial discretion as a check on lawful but unjust government excercise of power (a la Spitzer)

Posted by: Automated Robot | Dec 2, 2008 12:51:11 AM

As silly as it sounds, the most important element in the case won't be Heller or mandatory minimums but rather Eli Manning's passing stats over the next few weeks.
He had 305 yards last Sunday which doesn't bode well for Plaxico.
Also, I wonder if Farve has had an impact on the proportion of Jets fans among would be jurors?
The defense should delay as long as possible and pray the Giants don't win the Super Bowl again.

Posted by: Jake | Dec 2, 2008 1:10:11 AM

1st, Heller doesn't give you a right for self-defense anywhere under any circumstances. It carves out a specific right to have a regulated firearm (specifically mentioning a pistol) in your home. Period.

2nd, I assume that there are gun-related statutes with no mandatory minimimums in the NY code that would allow for a plea agreement in this case that takes the 3 ½ years off the table. That's how it works most places. Prosecutorial discretion, don'cha know. This is the most likely outcome given Plax's resources. Justice is expensive, but usually for sale.

However cynical life has made me, I still can hope the prosecution doesn't get weak-kneed and does seek the MM. This law has been well publicized, especially in NYC, including an actual advertising campaign. It would be difficult for Plax to argue he had no idea what he was doing or the dangers involved (whilst limping to the stand).

If strict gun laws are to have any effect there have to be serious consequences. While I personally believe that 3 ½ years for a first offense possession is too steep (I'd reserve the MM for repeat offenses), the people of New York think not. Who are we to judge?

Here in DC we have similar strict rules (if not more strict) about possession, but the criminal consequences for carrying a weapon, even multiple times, are an absolute joke. The average sentence is time served -- until the offender finally uses the weapon to shoot someone (or, if he's a slow draw, becomes a number in the homicide file).

The results of such a policy are clear every night when gunshots can be clearly heard just about anywhere north of Florida Avenue and east of Rock Creek Park or across the Anacostia River.

Mandatory minimums are a blunt instrument, but it's all those rich, white men (with their own personal security guards) on the (worst) Supreme Court (ever) have left us to battle gun crime.

Lock him up. Throw the key away. Shock a few gun-toting fools into reality. People are sick of seeing the dead bodies pile up.

Posted by: dweedle | Dec 2, 2008 9:57:11 AM

This was a negligent discharge of a firearm. Kind of like Cheney only the Vice President shot one of his drinking buddies. I walked into a bar near my job site by the Mississippi River in 1970 just prior to the second shift. I had just finished classes in American history studying the constitutional convention. Went to the bathroom. Two guys from my factory at the end of the bar, bartender and some guy just across the bar from the bartender. I am in the stall and hear two pops. I come out and the guy on the floor with a hole in his neck has a gun in his hand. The two factory guys both shot him when he aiimed his pistol at the bartender and ordered everyone into the cooler. I would be dead if those guys had not been armed and had not shot the armed robber.

Second Amendment scrutiny for the football player with a bad aim should begin with whether or not he is eligible for admission into the NY or NJ militia. If so then the Second Amendment trumps any NY statute put forth by Donald Trump or the Bloombergs of the world. The Second Amendment has no limitations on just having a pistol in the home. Those of you who wish to waive Heller around on that premise are a bit narrow.

When Ben Franklin walked out of the Constitutional Convention at its conclusion a news reporter asked him if we were to have a monarchy. "Its a Republic", he replied, "If we can keep it."

Posted by: MPB | Dec 2, 2008 12:21:52 PM

It is likely it will be plead down from a C felony (with the mandatory 3 1/2) to a D felony, for which there is the possibility of an "alternate definite sentence" of no prison time. But I also agree that the Heller issues are significant here, as are mandatory minimums in general.

Posted by: Kathy | Dec 2, 2008 1:03:12 PM

I know he left the party- he's still a Republican and regarded as such by most, just like Lieberman.

Shout out to D.C. Guy. One Love!

And you are brainwashed, this is clear- you're probably a libertarian too which is funny to me. Go study some philosophy. Saying a Supreme Court Justice supports your views doesn't make them stronger. Just take a look at who we have on the Court. Scalia, Thomas, Alito- ALL MORONS (I mean, just read their opinions for crying out loud). Since they LACK WISDOM AND FORESIGHT. Carrying an gun without a permit is a crime- and should be. And maybe you should read J. Breyer's Active Liberty. That could help you out some. Maybe read about a book on the number of illegal guns and guns in schools- we have serious gun issues in our country and the issue is not that we need to protect our right to keep them, the issue is that we have too many and need to ween ourselves off our addiction to guns. And just in case you wanted to know, it is the Republicans who truly infringe on our freedoms and try to make this country into a military state... That's cool- people like me will always be there to shut them up through the moral force of our reasoning. I will check back on this blog in a week since I have to study for Financial Institutions- another area where the free marketeers and Republicans screwed shit up and now the global economy is in the tank. Don't you all remember when Clinton left office? What was the number of that SURPLUS again?

Dweedle, Nice story and I'm glad you survived- but not relevant at all because we are talking about permits not the basic right to have a gun.

"Second amendment scrutiny should begin with whether or not he is eligible to enter into the NY or NJ militia?" What, have you lost your mind? You and your originalists are nuts. And Ben Franklin - I have studied him in depth and have a bachelor's in early American History - would be totally cool with our law in NYC- we made the law with our elected representatives and it does not infringe on the basic right to keep and bear arms. HE WAS A SCIENTIST- so if you were living today you can bet he would support the views of scientists- who are almost always moderate liberals and promote things like astrophysics instead of things like Creationism. If you want to join a militia, maybe you should go meet up with McVeigh.

"He that would live in peace and at ease, must not speak all he knows nor judge all he sees."- Ben Franklin
Obviously, the guy was into peace as are all scientists. But this stuff is just conjecture, ehh?

Posted by: John Smith | Dec 2, 2008 1:39:57 PM

While the Heller, prosecutorial discretion, 8th amendment, due process, and venue issues are all interesting, why not just raise a straight up necessity defense? He'd make a great poster child for the NRA, but his best defense might be an as-applied defense and so might not want to get into bed with gun-rights advocates; with all of the recent assaults on NFL players over the past couple years (and the NFL's apparent inability to protect its own), I think necessity might be the better way to go...

(Student post)

Posted by: Justin | Dec 2, 2008 3:49:33 PM

Response to John. I am not an originalist. An originalist is often one who thinks that the Constitution is dead. I think it is alive and well and that modern day things are to be taken into account. Steinbeck's book, The Moon Is Down would be good reading for those of you who think that an armed populace is bad and an unarmed one is good. Tell it to the citizens of Norway when the Germans walked in. The Second Amendment is not a right wing thing.

Opponents of gun rights have always thrown up the militia phrase (from the Second Amdt) as grounds for saying if it does not involve a militia it is not a gun right. Au contrere. If one is eligible for the militia then one should have the right to bear arms. Or was it arm bears? I would favor that too, especially when folks like Palin want to shoot bears from the safety and comfort of airplanes. Now those are the rightwingers. In the civil war, on both sides, a lot of men were called up to duty in the state militias and did not have guns. They had to wait for someone else to die or drop one in order to protect themselves. Had they been armed when called up to duty they would have had a fighting chance. And a fighting chance is what gun rights are about. I am a little guy and I do not have a gun. But I respect anyone's right to have one as long as they do not flourish. Its kind of like another crime--you can have one but do not waive it in public.

I bet Mayor Bloomber can afford a bodyguard and has several. Nice if your rich. Pay someone else to pay for a license to carry a gun to protect me, myself and I. A license is an infringement--something proscribed by the Second Amendment.

Posted by: mpb | Dec 2, 2008 4:00:03 PM

If NYC had a shall issue permit system, the 2nd amendment claim wouldn't fly. The problem is that NYC has a system that is so restrictive that it is virtually an outright ban on handguns. I doubt he ever tried to get a permit, so that could be a problem, but supposing he had, and was denied, he would have a strong 2nd amendment claim. Just because it is theoritically possible to get a handgun permit if your the mayor's best friend and have never even jaywalked does not mean the permit system is constitutional. It is only a matter of time before the NYC law is found unconsitutional unless it is fundementally altered.

In my view registration of handguns is constitutional, as are shall issue permit laws... maybe even the right discretionary issue law, but the NYC law is not.

Posted by: Monty | Dec 2, 2008 4:02:38 PM

Dweedle - The "people" of NY never decided that they wanted a 3 1/2 year minimum sentence for carrying concealed weapons. That's a bit a stretch, since without a doubt it was the mayor, police chiefs, and some city councilmen who did decide that. Few of whom are truly elected, if any, in a true democratic process. Our politicians decide amongst themselves what the election rules are, and whom we may vote for.

We are slaves of our betters, it is the millionaire politicians who were put into place by being willing to accept the largest bribes from business and special interests that decide what is good for us.

Did you ever think the best way to reduce crime is to be armed? Perhaps the criminal would think twice about victimizing someone with the liklihood of being killed himself?

Posted by: Mike | Dec 3, 2008 1:55:04 PM


I doubt the value of what you say because you are clearly biased by your political views. Everyone can agree that Alito, Scalia, Roberts, and Thomas are not stupid at all. Just because you vigorously disagree with someone does not mean they are stupid.

Posted by: Bryan | Dec 4, 2008 11:50:52 PM

Wow, I do the city of New York a favor by eliminating what amounts to a locker room plague and on the field disruption (Burress) and this is the thanks I get? Being called a leftist wack job (even if I really am)? And to think I was debating using my influence (ala Gov. Blagojevich style) to get LeBron to come to the Big Apple and play for the Knicks. Because let's face it, it really is a "bidding contest" if you will and who'll notice if LeBron has an extra $20 mil in his pocket (above and beyond any salary offers the Knicks can make)?


Mayor Bloomberg

Posted by: Chad R | Dec 14, 2008 4:35:31 PM

I'm a high school teacher, learned in the law a la Rompole of the old Bailey. But I have paid a lot of attention to the 2nd amendment.

I remember my grandmother's reaction to the passage of the sullivan gun law in nyc in 1916. She said. "Mr. Sullivan has his law, and I have my pistol."
My great grandfather said "Shoot 'em in the guts. Don't try for the head." (My great grandmother, also born in the west, was shocked at the use of the word guts, but not at the advice.) But their daughter didn't carry it into a bar loaded and cocked with the safety off.

Fine him. Fine. He would be prosecuted in Phoenix ( gun city), even if he had, a permit to carry concealed, which he could have gotten in Phoenix. But utter ruin and 3 and a half years???? I hope he bargans down and I hope he beats it entirely on grounds raised by some commentors. Like your blog. Thanks.

Posted by: Susanne Jerome | Dec 24, 2008 12:03:02 PM

The idea of attacking mandatory minimums is appealing.

Beyond that, I'm struck by Bloomberg's performance as a profoundly disappointed, near hysterical crime fighter.

Imagine the horror. Confronted by a famous football player bleeding from a hole in his leg, nobody's instinctive impulse -- not the night club manager, nor the hospital staff nor the NFL -- was to call the cops!

Perhaps the lot of them should be charged with misprison or whatever statute New York uses these days to compel snitching.

Might even have the makings for a federal conspiracy rap. Should one of us be notifying the FBI?

2012's not that far off. Wonder what Bloomfield's running for next.

Posted by: John K | Jun 18, 2009 12:03:45 PM


Posted by: John K | Jun 18, 2009 12:04:57 PM

I am a graduate student/writer, and I do not carry a gun, but I also respect the Constitution of the United States, which clearly states the people have the right to bear arms. It is that simple. What if we began issuing permits for speech? What if we began issuing permits for religion? These are not so far-fetched--look at China. We have restricted the Second Amendment so much so today that guns are barely useful for basic self-defense against criminals: when the Second Amendment was originally created, the guns of citizens were a powerful enough force to be used against the government itself--and at the time, "citizens" were individuals whom were not even raised by the state in well-funded public schools! Guns ensured politicians would not issue unreasonable taxes/policies--the American Revolution itself was created by guns. Once more, I do not carry a gun, and I myself do not advocate violent revolutions whatsoever, insofar that I even disagree with the violence of the American Revolution itself, but our government today is a very far cry away from that government which respected the ordinary citizens of our nation's foundation. And to those that consider people such as myself radicals, that may be true, but then again, as Socrates said in the Republic, majority opinion does not guarantee justice. And indeed, if majority opinion is the only thing that matters, than Britney Spears is apparently a much better musician than Vivaldi, Mozart, and Beethoven combined, as she is listened to far more in modern times than the latter artists put together!

Posted by: Ryan Webb | Aug 20, 2009 11:17:11 PM

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