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January 16, 2010

You be the judge: what sentence would you give to Gilbert Arenas following his plea?

The question in the title of this post is prompted by this Washington Post article which is headlined "Arenas awaits sentence on gun charge, fate in NBA."  The piece provides the latest legal update on the state and possible fate of NBA star Gilbert Arenas, as well as details about his criminal behavior:

Washington Wizards star Gilbert Arenas will have to wait until March to learn if he will be sent to prison for a felony gun conviction, while his future with the NBA sits in limbo. The charismatic player known as "Agent Zero" was straight-faced and subdued when he pleaded guilty Friday to the charge connected to a locker-room argument with a teammate last month.

Arenas won't know whether he must serve jail time until his March 26 sentencing and remains free until then. The government indicated it will not seek more than six months, although the judge can give Arenas anywhere from probation to the charge's maximum term of five years. Guidelines call for six to 12 months....

The NBA didn't comment Friday, while the players' union offered support, with executive director Billy Hunter saying: "The Players Association will continue to make all of its resources available to Gilbert."...

Possession of a gun at an NBA arena is a violation of the league's collective bargaining agreement. Last week, commissioner David Stern suspended the 28-year-old Arenas indefinitely, without pay, pending the outcome of the investigation, a move supported by the Wizards. Arenas is in the second season of a six-year, $111 million contract.

Arenas' NBA future could hinge on the league's own ongoing investigation, and it's possible Stern will wait until the sentence is issued before deciding how to punish the three-time All-Star. Arenas' lawyer, Kenneth Wainstein, asked Judge Robert E. Morin for an earlier sentencing date but was denied.

This article provides these details about the events leading up to Arenas's criminal troubles:

Assistant U.S. Attorney Chris Kavanaugh said the charge stemmed from a Dec. 19 dispute between Arenas and another Wizards player over a card game on a team flight back from a game in Phoenix. Kavanaugh did not identify the other player, but authorities searched the home of Wizards guard Javaris Crittenton for a gun on Thursday.  Crittenton has not been charged, and his agent denied wrongdoing.

Kavanaugh said "the other player" offered to settle matters with a fist fight, but Arenas said he was too old for that and would instead burn the other player's car or shoot him in the face.  The teammate replied he would shoot Arenas in the knee. Arenas missed most of the past two seasons after having a series of operations on his left knee.

Two days later, Kavanaugh said, Arenas brought at least one gun — a .500 Magnum revolver — to the Wizards' arena in a black backpack, then put four guns on a chair in front of the teammate's locker with a sign saying, "Pick 1."  Court documents do not specify when Arenas brought the other three guns to the locker room, including a gold-plated Desert Eagle .50-caliber semi-automatic.

According to Kavanaugh, when the other player asked something along the lines of, "What is this?," Arenas responded with words to the effect of: "You said you were going to shoot me, so pick one." The other player said he had his own gun, threw one of Arenas' weapons across the room and then displayed his own firearm, Kavanaugh said.

Arenas had acknowledged keeping guns in his locker — but claimed he wasn't aware of the law and meant no harm in what he viewed as a "misguided effort to play a joke."  Stern suspended him the day after Arenas pretended to "shoot" teammates by pointing his index fingers at them during a pregame huddle.

As folks consider what they might do as Arenas's sentencing judge, I would appreciate comments on two topic: (1) should the fact that Arenas is suffering a multi-million dollar "punishment" from the NBA influence his sentencing outcome, and (2) should the fact that the Second Amendment provides a constitutional right to "keep and bear arms" influence his sentencing outcome?

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

January 16, 2010 at 02:10 PM | Permalink


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Unfortunately, stories like this do not help the case for robust RKBA protections, the guy demonstrated amazingly poor judgment. How far would Arenas have been willing to take this if the other player hadn't extricated himself? I would say that at least some term of incarceration is warranted, especially if my understanding that this is not his first run-in over improper use of firearms is correct.

While I am a strong proponent of a right to carry, and believe the NBA arena policy is not necessarily a good one, that does not translate into a right to threaten someone which I see this incident as an example of. On that front I see Delonte West being far more sympathetic, normal (as opposed to secured) possession while transporting should not be criminal. As far as I can tell from the news reports West did not threaten anyone or use the weapons in any other inappropriate manner.

I also wonder to what degree this sort of mindset where normal rules just don't apply is fostered by professional sports leagues.

Posted by: Soronel Haetir | Jan 16, 2010 2:56:16 PM

(Hello...I am a 67 yr old wannabe attorney...I read your blog, Howard Bashman's and Scotusblog instead of engineering books)

Arenas' suffering a million dollar loss has nothing to do with his offense. We are a nation of law, and the law is to be applied without prejudice to rich and poor alike.

2nd Amendment/Hiller claim? He had FOUR guns in his locker, picked a fight with a teammate, threatened to shoot him in the face, and then brandished one of the guns. That is NOT self defense.

Posted by: John Sosville | Jan 16, 2010 5:40:19 PM

"(1) should the fact that Arenas is suffering a multi-million dollar 'punishment' from the NBA influence his sentencing outcome?"

No, for the reasons stated by Mr. Sosville. In addition, even if he's booted for life from the NBA, which I don't think he should be, he already has more dough than 99.99% of the population will ever see.

"(2) should the fact that the Second Amendment provides a constitutional right to 'keep and bear arms' influence his sentencing outcome?"

No. The Second Amendment goes only to whether the government can criminalize Arenas' conduct. If it can't, then obviously there should be no government-imposed punishment at all. If it can, the Second Amendment has no relevance. And in any event, this went well beyond merely keeping and bearing firearms. This was using the firearms to threaten, which is a different matter.

I have been pretty favorably disposed to Arenas, but the facts set out in the Post put things in a distinctly less positive light for him. He was more aggressive and belligerent than I had thought. And more reckless.

I don't know what's in his head, but his behavior needs some quick improvement.

Posted by: Bill Otis | Jan 16, 2010 6:57:29 PM

I'd give him 1500 hours of community service and sufficient jail (with an early reporting date) to make sure he missed every single game for the rest of this season, including until the end of the playoffs. I would obviously also have to place him on a period of supervision until he burns thru the community supervision.

I should note, had he done this at an NJ Nets game in Newark he would be facing a mandatory 1 year without parole if he had a license to carry and up to 5 years without parole if he did not under state law.

Posted by: karl | Jan 16, 2010 9:49:33 PM

The money he'll lose and a felon-for-life tag seem like more than adequate punishments.

Probation might be appropriate, if for no other reason than to provide a little cover for the decision to charge Arenas with a felony.

As a recent HBO special suggested, a number of pro athletes went through a phase in recent years in which carrying a gun was roughly akin to wearing big jewelry. Some who armed themselves apparently actually believed they needed to protect themselves from crazed fans.

The locker room episode struck me as pretty typical banter for egotistical, immature pro athletes. And I suspect it would have come to nothing but for the gang-busters sweep of Arenas' car and locker.

Mindless zero-tolerance gun laws are the product of bogus outrage and political grandstanding. All they seem to be good for is keeping the burgeoning prison-probation industry humming.

This much is certain, Americans who truly want to shoot each other somehow always find a gun, harsh gunlaws notwithstanding.

Nonetheless, it appears the authorities are determined to mint yet another felon who's barely even a criminal.

Posted by: John K | Jan 17, 2010 3:21:07 PM

I would make him continue to play for the Wizards. That is punishment in itself.

Posted by: Scott Forster | Jan 17, 2010 4:15:58 PM

Six months seems like an appropriate punishment to me. I am guessing that Arenas wouldn't balk too much at it and that his cooperation negates the aggravating aspects of the offense.

I think what the NBA is contemplating doing is terrible, but it shouldn't have much bearing on the legal proceedings. Arenas is losing a lot, but he had every advantage.

Mind you, none of this is what I'd likely say in court. As a public defender, I won't have to worry too much about defending Agent Zero.

Posted by: Lee | Jan 17, 2010 6:27:06 PM

Even in middle age, I still want to grow up to be like Willie Mays! It should be a sentencing enhancement to have that much talent at anything and then screw it up!

At the same time, and on a more serious note, the warehousing of people in federal and state prisons has become an epidemic. Under the proper probationary circumstances, I do not believe GA will constitute a danger to society. He should stay out, continue to play and be ordered to do the kind of community service that would benefit "at-risk" communities. He should invest his time and riches in these endeavors.

Posted by: Stanley Feldman | Jan 18, 2010 11:04:23 AM

Goodbye giant...
Manute Bol - Rest in peace.


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